Gujarat High Court
Arvindbhai Ambalal Patel vs The Special Secretary (Appeals) on 1 August, 2024
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15904 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 17254 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
========================================================
1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment No
?
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
========================================================
ARVINDBHAI AMBALAL PATEL & ANR.
Versus
THE SPECIAL SECRETARY (APPEALS) & ORS.
========================================================
Appearance:
MR SAURABH AMIN FOR MR KEWAL J SHAH(9579) for the Petitioner(s) No. 1,2
MR AM PAREKH(562) for the Respondent(s) No. 3
MR PRANAV V SHAH(2516) for the Respondent(s) No. 2
ME NIKUNJ KANARA AGP for the Respondent(s) No. 1
========================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 01/08/2024
ORAL JUDGMENT
1. Heard learned Advocate Mr. Saurabh Amin for learned Mr. Kewal
Shah on behalf of the petitioners, learned Assistant Government Pleader
Mr. Nikunj Kanara on behalf of respondent - State, learned Advocate Mr.
Pranav Shah for respondent no. 2 and learned Advocate Mr. AM Parekh on
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behalf of respondent no.3 in each petition.
2. By way of these petitions, the petitioners have challenged order
passed by the learned Special Secretary Revenue Department cancelling NA
order passed by the Taluka Development Officer more particularly pursuant
to show cause notices issued to the petitioners on various dates.
3. It is the contention on part of learned Advocates for the petitioners
that identical issue had been decided by a learned Co-ordinate Bench of this
Court, in identical set of facts more particularly, the orders passed by the
Taluka Development Officer granting NA permission being almost around
the same time when the orders in the present petitions were passed and
whereas even the date of issuance of show cause notices was also co-
relatable and the order of the learned SSRD was also near about in the
same period. Thus in view of the above contention, all the petitions were
heard together.
4. It is the case of the petitioners that they had purchased the land in
question from the original owners, vide various sale-deeds more particularly
after the land had been converted to non agricultural land by orders passed
by the Taluka Development Officer and whereas much after the NA order
had been passed i.e. in all cases after more than one year of the NA order
having been passed, show cause notices had been issued by the learned
SSRD and whereas vide the orders impugned, the orders of NA have been
set aside.
5. While learned Advocates appearing for the petitioners would point
out to the similarities between facts of the present cases and facts of the
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decision relied upon by the petitioners i.e judgement dated 24.10.2019 in
Special Civil Application No. 9622 of 2018 and allied matters and whereas, it
is submitted by the learned Advocates that the petitioners herein have better
case since the petitioners, i.e. the subsequent purchasers were never issued
the show cause notice and inspite of their names having been mutated in the
revenue record were not issued any notice by the SSRD and the order of the
SSRD was a purely ex-parte order and whereas since the petitioners were
never aware about the existence of such an order, the present petition has
been filed almost four years after the impugned order was passed by the
SSRD.
6. Learned Advocates for the petitioners would submit that in all the
petitions, the application for NA was either in the year 2014 or in the year
2015 as the case may be and the order granting NA permission was
correspondingly in the year 2014 or 2015 by the Taluka Development
Officer. It is submitted that after NA permission was granted, the
petitioners has purchased the property in the year 2015 and whereas show
cause notices were issued by the revisional authority in the month of
October- November 2016 i.e much after the order granting NA in favour of
the land in question. It is submitted that in all the cases, the order of the
revisional authority was of the month of January - February 2018. At this
stage, a chart of the relevant dates as referred to hereinabove, is reproduced
hereinbelow for better appreciation of the facts:
SCA No. PETITIONER LAND NA APPLI NA ORDER Date of Show cause SSRD
S DETAIL purchase by Notice to P1 ORDER No.
PETI No. 2 only & DATE
Arvind (not served)
DATE
15904/2022 1.Arvind Moti Devti Arvind Patel 20.10.2014 07.05.2015 29.10.2016 MVV/BKP/
Patel Block no. 11.07.2014 For SUOMOTO
2. Arvind 98/2 2034 sq. mts /AMD/
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Homes sq, mts
Khata No. 13.02.2018
Adm 6070
square meter
17254/2022 1. L.H. of Moti Devti Rajesh Patel 05.05.2015 30.11.2015 23.10.2016 MVV/BKP/
Rajesh Patel- Block no. 15.01.2015 for SUOMOTO
Jaimin & 53/94 2833 sq. mts of /AMD/
2. Arvind sq, mts
Patel Khata No. 13.02.2018
7. Learned Advocates would point out that in the case before the
learned Co-ordinate Bench, it had noted that the petitioner therein had
applied for conversion of the land for non agriculture purpose in the month
of April 2013 and whereas the show cause notice had been issued to the
petitioner in the year 2016 and whereas the order of the SSRD was passed in
the month of February 2018.
8. Learned Advocates would also point out that all the lands in question
were situated in Sanand Taluka and whereas in all the cases, the NA order
had been passed by the Taluka Development Officer. It is contended by
learned Advocates that as per the extant policy of the State vide
Government Resolutions dated 01.07.2008 and 08.04.2011, the power for
granting NA, was also vested with the Taluka Development Officer. It is
submitted that after the later resolution, the Taluka Development Officer
was empowered to consider an application for grant of non agriculture use
permission for land admeasuring less than 1 Acre where the population of
the village was less than 3000.
9. Learned Advocates would submit that in the cases considered by
learned Co-ordinate Bench, the Taluka Development Officer had granted
the NA permission and likewise in the present case also, since all the parcels
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of land, in each of the petitions was less than 1 Acre, and whereas the
villages in which the land was situated had a population of less than 3000,
the Taluka Development Officer was empowered to grant the NA
permission. Learned Advocates would also draw the attention of this Court
to the fact that while the Taluka Development Officer had granted NA
permission in the cases before learned Co-ordinate Bench, in the year 2013,
notice for taking up NA permission in suo motu revision had been issued in
the month of September 2016 i.e after a period of more than three years.
Learned Advocates would submit that while the revisional authority i.e
SSRD had in exercise of suo motu powers, set aside the order granting NA
permission, the same had been challenged by the land owners before this
Court in the group of petitions which were being considered by the learned
Co-ordinate Bench and whereas learned Advocates would refer to the
decision of learned Co-ordinate Bench whereby while considering earlier
law laid down by this Court, whereby it was inter alia held that for
exercising revisional powers under Section 211 of the Code, a period of one
year from the date of the action for which the revision was being exercised,
was the reasonable time period. Learned Advocates would submit that while
the power exercised in cases which was being considered by learned Co-
ordinate Bench were after more than three and half years, yet, principle of
law as relied upon and as reiterated by learned Co-ordinate Bench would be
applicable on all fours in the present cases also since the notice for suo
motu revision had been issued more than a year after the order of grant of
NA.
9.1 As noted hereinabove, additionally learned Advocates would further
submit that the petitioners would be standing on a better footing than the
petitioner before learned Co-ordinate Bench, since in the instances before
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the learned Co-ordinate Bench, the issue of non grant of appropriate
opportunity was never an issue and whereas in the instant cases, the
petitioners i.e. the purchasers of land had not been served with the show
cause notice nor the petitioners were served with any notice by the SSRD
before passing of the impugned decision and to make matters even worse
the order of the learned SSRD had never been served upon the petitioners
herein. Learned Advocates would submit that all these, without taking into
consideration the fact that after the petitioners had purchased the land in
question, an appropriate entry with regard to the sale had been mutated in
the revenue record and the petitioners' name stood as owners of the land in
the revenue record. Thus learned Advocates would submit that the
petitioners though were proper and necessary party, yet, notices had not
been issued to the petitioners at any point of time prejudicing the present
petitioners.
10. Learned Advocate for the petitioners would also submit that as such,
order of the learned Co-ordinate Bench has attained finality since neither the
State nor the DDO has challenged the order and thus it would be binding
on all concerned. Learned Advocated would submit relying upon the
proposition of law as reiterated by the learned Co-ordinate Bench that this
Court may relying upon the law reiterated allow present petition and quash
and set aside the impugned orders passed by the SSRD.
11. Learned Advocate Mr. Pranav Shah appearing for DDO would try to
justify the action of issuance of show cause notice as well as the impugned
order passed by the learned SSRD, but learned Advocate Mr. Shah could
not, to a pointed query by this Court dispute the fact that order passed by
the learned Co-ordinate Bench was on similar set of facts.
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12. Learned Assistant Government Pleader Mr. Kanara would also
attempt to justify order of learned SSRD and would also contend that while
the petitioners who are raising a grievance as regards the show cause notice
having been initiated belatedly, the fact of the petitions being filed after four
years from the date of the order of the SSRD may also be taken into
consideration by this Court. Again to a pointed query by this Court learned
AGP Mr. Kanara could not point out that the petitioners had been offered
an appropriate opportunity by the learned SSRD at any point of time.
13. Having heard learned Advocates on behalf of the petitioners and
having perused the documents on record, more particularly having
considered the facts of the present case and comparing the same with the
facts of the case before the learned Co-ordinate Bench, it would clearly
appear to this Court that the facts are identical inasmuch as except the fact
of show cause notice having been issued approximately three years after the
order granting NA insofar as the land in question in the cases before the
learned Co-ordinate Bench, whereas in the present cases the show cause
notices were issued after more than a year, to this Court there does not
appear to be any discernible difference whatsoever in the facts of the case
before the learned Co-ordinate Bench as compared to the facts of the
present case.
13.1 Having come to the conclusion above, this Court deems it
appropriate to refer to observations of the learned Co-ordinate Bench at
paragraphs no. 12 to 18, 21 and 24 of the decision of learned CO-ordinate
Bench which in the considered opinion of this Court could be squarely
applicable to the facts of the present case also. The said paragraphs are
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reproduced hereinbelow for benefit:
"12. Thus, from the aforesaid facts and circumstances of the present case,
it is revealed that suomotu proceedings were initiated against the
petitioner after a period of three and half years from the date of passing of
the order by respondent No.3 and, thereafter, the impugned order is passed
after a period of five years from the date of passing of the order by respondent
No.3 and, therefore, the first question which is required to be considered by
this Court is that whether the powers are exercised by respondent No.1
within reasonable period, or not.
13. At this stage, decisions rendered by this Court on this issue are required
to be kept in view. In the case of Bipinchandra G. Dalal Vs. State of Gujarat
(supra), this Court has observed in Paragraphs 8 and 9 as under:
"8. Mr. Bukhari, the learned Assistant Government Pleader, invited my
attention to the decision of this Court in Habib Nasir Khanji V/s.
State , (1970) 11 GLR 307 and Bhagwanji Bawanji V/s. State of
Guj. (1971) 12 GLR 156 and contended that the length of reasonable
time must depend on the fact and circumstances of each case
and in the aforesaid decisions the exercise of revisional power after
the lapse of a year or so was considered to be in order. He submitted that
the basic idea is to see that the sword is not kept hanging on the party
granted permission for an unreasonably long period as that would
make it difficult for the party to make non agricultural use of the
land. It must be realised that both these decisions on which Mr. Bukhari
places reliance are not concerning the grant of permission under
Sec. 65 of the Code. The power under Sec. 211 of the Code can be
exercised by the State Government and certain high ranking officers in
respect of any inquiry or proceedings of any subordinate revenue
officer. Such inquiry or proceedings may or may not relate to the
question of grant of permission under Sec. 65 of the Code. While it is
true that the length of reasonable time would depend on the facts and
circumstances of each case, it must be realised that insofar as
permission under Sec. 65 is concerned that provision itself
indicates the length of reasonable time within which action must
be taken under Sec. 211 of the Code. Where the order sought to
be revised is other than the one made under Sec. 65 of the Code, the
length of reasonable time may be governed by the facts and circumstances
of that case but when an order passed under Sec. 65 of the Code is
sought to be revised, the time factor set out in that provision itself
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gives a clear indication of what could be the reasonable time within
which the jurisdiction should be exercised Therefore, exercise of power
under Sec. 211 of the Code in regard to orders made under Sec. 65 of the
Code stand on a different footing and as observed by the Supreme Court,
the revisional jurisdiction must be exercised within a few months.
In the present case the order of the Secretary (Appeals) does not
indicate why the decision to exercise revisional powers was delayed by
11/2 years. Unlike in the batch of petitions, Special Civil Application No
4530 of 1983 and allied matters disposed of today, no
preliminary inquiry was made, at least that is nobody's case,
before decision to exercise revisional powers was taken. There is
no explanation whatsoever why revisional jurisdiction was not
exercised soon after the orders granting permission under Sec. 65 of
the Code were made on 6th Nov. 1982. In the absence of a
satisfactory explanation, it is difficult to say that the revisional power was
exercised promptly and expeditiously, i.e. within a reasonable time.
"9. The Secretary (Appeals) has relied on two decisions of this
Court, both rendered by S. H. Sheth, J. In the case of Kamalkhan
Ajitkhan (supra), the Mamlatdar granted land to the petitioner on
3rd Jan. 1973 and the Assistant Collector issued notice under
Sec. 211 of the Code on 21st Jan. 1975, that is, after a lapse of two
years. Relying on the decision of the Supreme Court that the power
must be exercised within a reasonable time, it was observed that reasonable
time must depend on the facts and circumstances of each case.
Taking note of the fact that the petitioner had not done anything on the
Wada land and the land had remained as it was during the said period
of two years, this Court held that it was permissible to exercise
revisional power as the same was not likely to cause any prejudice to the
petitioners. In the case of Gulam Yasinmiya (supra), the order made by the
Assistant Collector on 7th Aug. 1967 was sought to be revised after a
lapse of almost three years by notice dated 27th Oct. 1970.
Taking note of the decision of the Supreme Court as well as this Court
in Habib Nasir's Case (supra), the learned Judge observed that
since the period of reasonable time must depend on the facts and
circumstances of each case, it would have been necessarily to seriously
view the proposed action if the evidence had disclosed that after
the land was granted to the petitioner, the petitioner had
invested moneys in the land, developed it or had done something to
develop it. In the absence of such evidence, this Court held that
notwithstanding the lapse of time, since the proposed action was
not likely to cause prejudice to the petitioner, the same must be upheld.
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Both these decisions do not pertain to exercise of revisional powers
relating to permission granted under Sec. 65 of the Code. As pointed out
earlier, cases governed by Section 65 read with Sec. 211 stand on
a different footing and in view of the observations made by the
Supreme Court extracted earlier, the power must be exercised within
a few months from the date of permission. Besides, in the present case the
petitioners have averred that after the grant of permission, they
have sold or entered into an agreement to sell the plot for the
purpose of development and if the permission granted is belatedly
cancelled, it would have a direct impact on the transaction entered
into by the petitioners. Miss Shah was, therefore, right in contending
that so far as the present two petitions are concerned, since the
first respondent has not given any satisfactory explanation for the
delay, this Court must hold that the power was not exercised within
reasonable time. She submitted that in the present case it is not the
contention of the first respondent that any preliminary inquiry was
made to determine whether these were fit cases for exercise of
revisional powers as in the batch of petitions, Special Civil
Application No. 4530 of 1983 and allied matters disposed of today and,
therefore, there is no explanation whatsoever why the power was
not exercised promptly within a few months from 6th Nov. 1982. This is all
the more so because in similar circumstances the Secretary (Appeals)
had while dealing with land in Block No. 18 admeasuring 2723
sq. yards, withdrawn the show cause notice on the ground that
the proposed action was delayed. I am inclined to agree with the
submissions made by Miss Shah in this behalf."
14. In the case of Champaklal Manubhai Sopariwala and Ors. Vs.
State of Gujarat (supra), this Court has observed in Paragraph 7 as under:
"7. Whether or not such action translated into the order at Annexure C to
each petition could be revised under Section 211 of the Code after a lapse of
more than four years from its date. The answer is clear from the binding
ruling of the Supreme Court in the case of Raghav Natha (supra)
and the binding ruling of the division Bench of this Court in the
case of Bhagwanji Patel (supra). In the aforesaid ruling in the case
of Raghav Natha (supra), the Supreme Court has held that powers
under Section 211 of the Code cannot be exercised beyond a
reasonable period of three months with respect to the order under Section
65 thereof. It needs no telling that the aforesaid statutory provision
empowers the concerned authority to grant what is popularly known
as the N.A. permission. In its aforesaid Division Bench ruling in the case of
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Bhagwanji Patel (supra), this Court has held that the revisional
powers under Section 211 of the Code cannot be exercised beyond a period
of one year from the date of concerned action or order. Both the
aforesaid ruling are binding to me."
15. In the case of Cold Cap Tyres Pvt. Ltd Vs. Additional Chief
Secretary (supra), this Court has observed in Paragraph 6 as under:
"6. It is, therefore, obvious that the respondent No.1 has exercised
revisional powers under Section 211 of the Code much beyond
reasonable time and in contravention of the ratio of the decision
of the Supreme Court in Raghav Natha (supra), as also the
other decisions which were pointed out and were referred to in his
order. There is no substance in the contention that the order of the
respondent No.2 granting N.A. permission should be treated as void
ab initio. Only an irregularity was alleged against the order by the
revisional authority on the ground that the guidelines contained in the
circular dated 25-3-1981 were not followed. This is not a case of total
lack of jurisdiction on the part of the respondent No.2 nor can the
order be said to be void ab initio, because, the provisions of Section
65 of the Code, admittedly empowered the respondent No.2 to grant such
permission."
16. In the case of State of Gujarat Vs. Patel Raghav Natha (supra), this Court has
observed as under:
"12. It seems to us that sec. 65 itself indicates the length of
the reasonable time within which the Commissioner must act u/s. 211. u/
s. 65 of the Code if the Collector does not inform the applicant of his
decision on the application within a period of three months the
permission applied for shall be deemed to have been granted. This section
shows that a period of three months is considered ample for the
Collector to make up his mind and beyond that the legislature
thinks that the matter is so urgent that permission shall be deemed to
have been granted. Reading Ss. 211 and 65 together it seems to us that the
Commissioner must exercise his revisional powers within a few months of
the order of the Collector. This is reasonable time because after the
grant of the permission for building purposes the occupant is
likely to spend money on starting building operations at least within
a few months from the date of the permission. In this case the
Commissioner set aside the order of the Collector on 12.10.1961, i.e., more
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than a year after the order, and it seems to us that this order was passed too
late.
17. From the aforesaid decisions rendered by the Honourable
Supreme Court as well as this Court, it can be said that the suomotu powers
are required to be exercised within reasonable time. In the present case, as
observed hereinabove, the suo motu proceedings were initiated by respondent
No.1 after a period of approximately three and half years by issuing show
cause Notice. Thus, the suo motu proceedings were not initiated within
reasonable period.
18. The learned Assistant Government Pleader has contended that
respondent No.3 TDO has no jurisdiction to pass the order in view
of the Government Resolutions referred hereinabove and, therefore, when
the order passed by respondent No.3 is nullity, suo motu powers can be exercised
at any point of time. For considering the aforesaid submission canvassed
by the learned Assistant Government Pleader, relevant facts of the
present case are required to be closely examined at this stage.
Government Resolution dated 01.07.2008 provides for procedure which
is required to be followed at the time of granting permission under
Section 65 of the Code. As per the said Government Resolution, Taluka Panchayat
was empowered to grant such permission if the population of the village is less
than 5000 and the area of the land is admeasuring less than two acres.
Therefore, the TDO was empowered to grant permission under Section 65 of the
Code on certain terms and conditions. Schedule 5 of the said Government
Resolution provides for certain guidelines, which are to be followed
while granting such permission. Thereafter, on 08.04.2011, another Government
Resolution has been issued by the Government of Gujarat and, thereby,
procedure for grant of permission under Section 65 of the Code has been
prescribed. As per the said Resolution, now the Taluka Panchayat is empowered to
grant permission if the population of the village is less than 3000 and if the land is
admeasuring less than one acre. It is further provided that NA permission
will not be granted to one occupant of one survey number in one year, if there is
a fragmentation for more than two occasions in a year.
21. It is well settled that even nonest order is also required to be
challenged within reasonable time. In the present case, the order passed by the
TDO cannot be said to be nonest or the TDO has no jurisdiction to pass such
order. Hence, the impugned order passed by respondent No.1, while
exercising suo motu powers after a period of more than three and half years, is
required to be quashed and set aside on the ground of delay in initiating
the suo motu proceedings.
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24. In view of the aforesaid discussion, this Court is of the view that
when the suo motu proceedings were initiated after a delay of more than three
and a half years, the impugned order passed by the respondent SSRD is
required to be quashed and set aside. The order passed by the TDO cannot be
said to be nonest or of without jurisdiction and, therefore, suo motu powers were
required to be exercised within reasonable time. Even otherwise, the respondent
SSRD has not assigned any reason for quashing and setting aside the order
passed by the TDO. It is only observed in the impugned order
passed by the SSRD that looking to the record produced before him and
looking to the Policy of the State Government, the TDO has committed
irregularity and acted beyond his powers. No further details are mentioned
in the impugned order."
14. While as noted hereinabove, the decision of the learned Co-ordinate
Bench, would apply on all fours to the facts of the present case as could be
noted hereinabove, and whereas the proposition of law as canvassed by
learned Co-ordinate Bench, that the power of exercising suo motu revision
could not be after an unreasonable time and whereas since it has been held
that any exercise of such powers after more than a year would be deemed
to be unreasonable, as far as the said aspect is concerned, nothing further is
required to be looked into by this Court. Notwithstanding the same, it also
requires to be observed that in addition to the said aspect, it also appears
that the impugned order requires interference on an additional count of the
petitioner not offered an appropriate opportunity, yet, since it would appear
that orders of the learned SSRD were inherently bad in law on the aspect of
exercise of suo motu powers after unreasonable period and whereas since
the petitioners may be required to be relegated to the SSRD once again, if
the aspect of non affording of opportunity, is considered as the basis for
interfering with the order of the learned SSRD, therefore, this Court does
not deem it appropriate to go into the said aspect any further.
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15. Having regard to the discussion as hereinabove, since the learned
Co-ordinate Bench has inter alia discussed the law on this issue ie. the suo
motu powers having been exercised after an unreasonable period of more
than one year, therefore, the suo motu exercise of powers was itself bad in
law and consequentially, the impugned orders passed by the learned SSRD,
would also require to be interfered with.
16. Additionally it also requires to be mentioned that from the
observations of the decision of learned Co-ordinate Bench reproduced
hereinabove, it would also appear that the learned Co-ordinate Bench in
addition to discussing the issue with regard to delay, had also come to a
conclusion that Taluka Development Officer was well empowered to have
granted NA permission and whereas in case if any of the requirements as
per the Government Resolutions had not been fulfilled then also the order
would not become a nullity rather the said order would be an irregularity
which could have been cured at a later point of time.
17. For the discussion, observations and conclusions arrived at this
Court is of an unequivocal conclusion that the present group of petitions
deserves consideration.
18. The impugned order dated 31.01.2018 in revision application no. 81
of 2016 and order dated 13.02.2018 in revision application no. 50 of 2016
are hereby quashed and set aside. The present petitions stand disposed of as
allowed.
(NIKHIL S. KARIEL,J)
NIRU
