Gujarat High Court
Bakorbhai Bababhai Patel vs Revenue Secretary (Appeals) on 3 January, 2024
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
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C/SCA/1139/2016 JUDGMENT DATED: 03/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.1139 of 2016
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-
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1. Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2. To be referred to the Reporter or not ? YES
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
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BAKORBHAI BABABHAI PATEL
Versus
REVENUE SECRETARY (APPEALS), & 2 others
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Appearance :
MR DEEP B KOTHARI for the Petitioner.
DELETED for the Respondent No.3.
MR NIKUNJ KANARA, AGP for the Respondent Nos.1,2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 03/01/2024
ORAL JUDGMENT
1. With the consent of learned advocates appearing for
the respective parties, the matter is taken up for final hearing
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today itself. Rule. Learned Assistant Government Pleader waives
service of rule on behalf of respondent Nos.1 and 2.
2. By way of the present petition, the petitioner has
prayed for quashing and setting aside the order dated 29.9.2015
passed by the respondent No.1 - Secretary, Revenue Department
(Appeals) in Revision Application No.MMV/CON/SBR/6/2012 as
well as the order dated 31.12.2011 passed by the Deputy Collector,
Bayad in Case No.CON/9/2011. By order dated 31.12.2011, the
Deputy Collector, Bayad under the proceedings under Section 9(1),
(2) and (3) of the Gujarat Prevention of Fragmentation of Land and
Consolidation of Holdings Act (hereinafter referred to as 'the
Fragmentation Act') for breach of the provisions of the
Fragmentation Act passed an order directing the petitioner to
restore the original position of land bearing Survey No.1041, Block
No.1090 paiki admeasuring 8719 Sq. Mts. of land situated at
village Ambaliyar, Taluka Bayad, District Sabarkantha (Arvalli) for
alleged sale transaction of land in question in contravention of
provisions of the Fragmentation Act which was held to be invalid
under Section 9(2). By the order dated 29.9.2015, the Secretary,
Revenue Department (Appeals) has rejected the revision
application and confirmed the order of the Deputy Collector.
3. The brief facts giving rise to the filing of the present
petition are stated as under :-
3.1 Land bearing Survey No.1041, Block No.1090 paiki
admeasuring 8719 Sq. Mts. of land situated at village Ambaliyar,
Taluka Bayad, District Sabarkantha (Arvalli) was purchased by the
petitioner from Tapodhan Ravishankar Dahyabhai, Tapodhan
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Ambalal Dahyabhai by registered Sale Deed dated 15.4.1994 for
which Entry No.2107 was mutated in the revenue records.
Thereafter, by registered Sale Deed dated 6.9.2003, the petitioner
purchased rest of the land admeasuring 8719 Sq. Mts. of Survey
No.1041, Block No.1090 paiki situated at village Ambaliyar, Taluka
Bayad, District Sabarkantha (Arvalli) from another co-owner for
which Entry No.2860 was mutated.
3.2 The Circle Officer took a view that in view of the fact
that consolidated scheme is in existence, the sale being block land
paiki, refused to certify the entry and forwarded the papers for
necessary inquiry for violation of consolidation scheme vide
communication dated 30.3.2005.
3.3 Pursuant to the same, respondent No.2 registered case
being No.CON/9/2011 and issued show-cause notice dated
23.11.2011 to the petitioner and passed an order invalidating the
sale in favour of the petitioner and directing the petitioner to
restore the original position of land in question and imposed a fine
of Rs.250/-.
3.4 The petitioner challenged the aforesaid order before
the Special Secretary, Revenue Department (Appeals) by way of
Revision Application No.MMV/CON/SBR/6/2012. The said revision
application was rejected vide order dated 29.9.2015.
3.5 Hence the present petition.
4. Mr. Kothari, learned advocate appearing for the
petitioners pointed out that actual land was owned by Tapodhan
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brothers and the petitioner, initially, purchased one portion of the
land in the year 1994 admeasuring 8719 Sq. Mts. and later on
purchased remaining portion of the same land admeasuring 8719
Sq. Mts. which are adjoining to each other and, therefore, in fact,
the petitioner has tried to consolidate the land by purchasing two
different portions of the same Survey Number.
4.1 Mr. Kothari assailed the orders passed by the revenue
authorities mainly on the following grounds :-
4.2 For a sale transaction which has taken place in the year
2003, show-cause notice was issued to the petitioner after delay of
8 years in the year 2011 and, therefore, initiation of the
proceedings against the petitioner was beyond reasonable period
and, therefore, the same was without jurisdiction and secondly that
the act of the petitioner of purchasing the remaining portion of
land in question amounts to consolidation of land as both the lands
are of same survey number and of same measurement and were
purchased by two different co-owners of the land. Therefore, the
act of purchasing two different portions of land which are adjacent
to each other would amount to consolidation of land in question.
4.3 Learned advocate Mr. Kothari relied upon two
unreported decisions of this Court in the case of Rabari
Shankarbhai Shaklabhai v. State of Gujarat in Special Civil
Application No.15056 of 2019 dated 9.2.2022 and decision in
the case of Bhavubhai Gandabhai Koli v. State of Gujarat in
Special Civil Application No.6892 of 2021 dated 16.3.2022
where in similar set of facts, this Court quashed and set aside the
orders passed by the revenue authorities whereby the transaction
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was held to be in breach of the Fragmentation Act and was held
invalid.
4.4 By relying upon the aforesaid two orders, learned
advocate Mr. Kothari prayed for quashing of the impugned orders.
5. Mr. Nikunj Kanara, learned Assistant Government
Pleader appearing for the respondents has vehemently opposed the
petition by stating that the petitioner has one after another by way
of two different Sale Deeds has purchased the two fragments of the
land which is in violation of the provisions of the Fragmentation Act
and, therefore, the impugned orders passed by the revenue
authorities are absolutely in consonance with the provisions of the
Act and, therefore, this Court may not interfere with the impugned
orders and dismiss the petition.
6. I have heard learned advocates appearing for the
respective parties and perused the record. On perusal of the
record, I found that both the portion of land purchased by the
petitioner is the land bearing Survey No.1041, Block No.1090 paiki
situated at village Ambaliyar, Taluka Bayad, District Sabarkantha
(Arvalli). Further, first portion was purchased by the petitioner
admeasuring 8719 Sq. Mts. of land in the year 1994 and thereafter,
remaining portion of land admeasuring 8719 Sq. Mts. of land was
purchased by the petitioner in the year 2003. The aforesaid facts
are undisputed facts which would indicate that the petitioner has
purchased two different portions of land belonging to same survey
number. Further, I have also noted the fact that the proceedings
initiated by the Deputy Collector, Bayad is in respect of a
transaction of the year 2003 for which show-cause notice was
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issued to the petitioner only on 23.11.2011 i.e. almost after 8 years
from the date of transaction. In view of the aforesaid aspect, the
decisions relied upon by learned advocate Mr. Kothari is required
to be considered.
7. In similar set of facts, this Court in the case of Rabari
Shankarbhai Shaklabhai v. State of Gujarat (Supra) in
paragraphs 5.5 and 5.6 has made the following observations :-
"5.5. Considering the aforesaid judgments in the
cases of [1] Paliben Wd/o. Kikubhai Kuvariyabhai
Koli Patel (supra), [2] Ramsingbhai Bavlabhai Koli
(supra), [3] Vitthalbhai M. Patel (supra), [4] Rathod
Nayamatkhan Ahmedkhan (supra) and [5]
Ravindrabhai Chhotabhai Patel (supra) coupled with
the fact that the Government itself has come with
Government Resolution dated 10.6.2013 whereby
also if the land is purchased by a person, who is
having contiguous land in that case the petitioner's
case would be covered not only by the above
referred judgments, which are in respect of delay in
initiating the proceedings under the Fragmentation
Act, but also on the ground that the land which has
come to the share of the petitioner by way of the
family arrangement is contiguous land to the land
owned by the petitioner, and therefore, the same are
required to be consolidated. The aforesaid survey
Nos.7/2 and 7/4 are contiguous to the land owned by
the petitioner i.e. survey No.7/3 has not been
controverted by the State by way of affidavit in
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reply, and therefore, even without going into the
disputed question whether the land is irrigated land
or not the issue can be decided only on the ground
delay as well as the land which is sought to be
transferred in the name of the petitioner is
contiguous land.
5.6 In view of the aforesaid clear proposition of law
as well as the Government resolution, considering
the facts of the case that in the instant case also the
proceedings under the Fragmentation Act were
initiated after a delay of 9 years coupled with the
fact that survey Nos.7/2 and 7/4 are contiguous land
to the land owned by the petitioner, the impugned
orders deserve to be quashed and set aside. As far
as the question of delay is concerned, though the
Special Secretary, Revenue Department (Disputes)
rejected the revision application preferred by the
petitioner on the ground of delay as well as merit
and hence when the State itself has initiated the
proceedings after a lapse of 8 years for which no
reason is coming forward on record coupled with
the fact that the petitioner has become the owner of
contiguous land for which the Government itself has
vide Government Resolution dated 10.6.2013 has
made certain clarifications in the form of relaxation,
the Special Secretary, Revenue Department
(Disputes) ought not have rejected the revision
application preferred by the petitioner on the
ground of delay without considering the totality of
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the facts."
By the above decision, this Court has taken a view that
if the actions under the Fragmentation Act are initiated after lapse
of 8 years, the same is bad and, therefore, deserves to be quashed
and set aside.
8. Further, this Court in case of Bhavubhai Gandabhai
Koli v. State of Gujarat and others (Supra) has made following
observations in paragraphs 15 to 17 :-
"15. By now, it is well settled that by exercising the
suo moto powers, the powers must be exercised
within a reasonable time by the authority that
reasonable time, according to the recent order
passed in Letters Patent Appeal No. 2436 of 2017
dated 09.03.2021 by the Division Bench of this
Court wherein it is observed in paragraph no. 6 that
the reasonable time which can be construed as
"reasonable" would be three (3) years." Now,
keeping the view of Division Bench of this Court in
mind and also keeping the ratio laid down by the
Division Bench of this Court, in the case of Valjibhai
Jagjivanbhai (Supra) wherein also the powers were
exercised after long delay and the Division Bench
categorically observed that powers under sections 9
(2) and 9 (3) have to be exercised within reasonable
time especially as authorities have considerable
opportunities to know about the transaction. The
Division Bench has in paragraph no. 16.1 observed
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as under :-
"These provisions enable the revenue authorities to
have complete details of the land which is entered
as fragment in the record of rights or in absence of
it, the record which is maintained in accordance
with Section 6(1) of the Act, in any local area. It is,
therefore, presumed that whenever change in the
ownership is required to be entered into the
revenue records after a sale transaction between
two parties in respect of such land is over, the
revenue authority would be able to find out whether
the sale was legal or it was made in contravention of
any of the provisions of the Act. No need to say that
when the sale transaction is found to have been
made contrary to the provisions of the Act, no
change in the mutation entry would be effected.
Naturally when the fragment is sought to be sold or
is actually sold, it is against the provisions of
Section 7, as transfer by partition or in any other
way of a fragment is in contravention of provisions
of Sections 7, 8, 8AA, etc, This is illustrative and not
exhaustive."
16. The aforesaid observations made by the Division
Bench of this Court would squarely cover and
counter the arguments made by the learned AGP
that the authority came to know about such
mutation entry only in the year 2018 and thereafter,
immediately proceedings were initiated as observed
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by the Division Bench of this Court. When mutation
entry is certified, it can be presumed that the
authority was well aware about the transactions in
question and therefore, even if the date on which
the mutation entry was certified is treated as the
time from which the reasonable period is required to
be counted, then also the powers are exercised by
the authority after a period of four years i.e. beyond
the period of reasonable time as observed by the
Division Bench of this Court to be of three years.
17. Therefore, the exercise of powers by the
authority and confirmed by the revisional authority
is in respect of a proceedings which were initiated
after a delay of four years and therefore, initiation of
proceedings itself is barred by delay and laches and
suffers from the gross delay and therefore, entire
proceedings which are initiated belatedly would not
be sustainable and therefore, deserves to be
quashed and set aside and hence, orders passed in
the proceedings which are initiated belatedly after a
reasonable time also deserves to be quashed and set
aside."
In the above referred case, reference about the order
dated 9.3.2022 passed by the Division Bench of this Court in
Letters Patent Appeal No.2436 of 2017 is made wherein in
paragraph 6 of the order, the Division Bench has observed as under
:-
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"6. Having heard the learned advocates appearing
for the respective parties and on perusal of records,
we notice that initially the proceeding was initiated
against the present applicants under Section 26(2)
of the Gujarat Agricultural Lands Ceiling Act, 1960
way back on 2011. On notice being issued,
petitioners had submitted the reply and after
considering the said reply, the Mamlatdar and ALT
by order dated 21.04.2012 withdrew the notice
issued to the petitioners. In other words, he was
satisfied that lands held by the petitioners was not
in excess of ceiling limit so fixed under the Act. This
order was sought to be reviewed by the Deputy
Collector and in exercise of the suo motu power of
revision vested had called for the records from the
office of the Mamlatdar and ALT and on perusal of
records arrived at a conclusion by order dated
08.05.2012 to the effect that order passed by the
Mamlatdar and ALT was in consonance with the
records and lands held by the petitioners was not in
excess of the ceiling. In other words, order dated
21.04.2012 passed by the Mamlatdar and ALT came
to be affirmed. Undisputedly, the orders dated
21.04.2012 and 08.05.2012 attained finality. If at
all, the State was aggrieved by said orders, it was
fully within its jurisdiction to challenge the same by
filing a revision petition before the Gujarat Revenue
Tribunal as provided under Section 38 of the
Gujarat Agricultural Lands Ceiling Act, 1960. In
fact, the limitation to file such revision has also
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been prescribed as sixty (60) days under Section 39
subject to just exceptions prescribed under Sections
4, 5, 12 and 14 of the Limitation Act, 1963. Be that
as it may. The aforesaid course of action was not
undertaken by the authorities, yet they sought to re-
agitate the matter by issuing afresh notice for
exercising suo motu powers which had already been
exercised and got exhausted. Even otherwise, the
suo motu powers which is the repository of powers
vested with the authorities has to be necessarily
exercised within a reasonable time, as what would
be reasonable time, all depends upon the facts and
circumstances obtained in each case. There cannot
be any straight-jacket formula which can prescribe
as to what would be the reasonable time. However,
the reasonable time which can be construed as
"reasonable" would be three (3) years. Any power
exercised beyond the reasonable period would have
to be justified as otherwise it cannot be held or
construed that the authorities have acted in a fair
and reasonable manner."
9. The view taken by the Division Bench of this Court is
that the period of three years would be construed as reasonable
period and any power exercised beyond the reasonable period
would have to be justified as otherwise and considering the fact
that in the present case, undisputably, the powers are exercised
after a period of 8 years, the impugned orders are bad as the
initiation of proceedings is without jurisdiction as the same is
initiated after delay of 8 years.
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10. Further, in view of the above discussion, as the
respondents have exercised powers under Fragmentation Act
beyond reasonable period, as well as considering the fact that the
petitioner has purchased the land which is contiguous to each
other, which ultimately would amount to consolidation of two
different parcels of land, the impugned orders are required to be
quashed and set aside as both the respondent authorities have not
taken the aforesaid aspect into consideration.
11. Resultantly, the present petition succeeds and is
allowed. The order dated 29.9.2015 passed by the respondent No.1
- Secretary, Revenue Department (Appeals) in Revision Application
No.MMV/CON/SBR/6/2012 as well as the order dated 31.12.2011
passed by the Deputy Collector, Bayad in Case No.CON/9/2011 are
quashed and set aside. Rule is made absolute to the above extent.
No order as to costs.
Sd/-
(NIRZAR S. DESAI,J)
SAVARIYA
