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Judgment
Rule. Mr.Tirthraj Pandya, learned Assistant
Government Pleader, waives service of notice of
Rule on behalf of respondents Nos.1 to 3. The
fourth respondent, despite service of notice in
the petition, has chosen not to appear. In any
case, the said respondent, being one of the
original owners of the land which has been sold
long ago, is no longer the affected or
interested party, therefore, there is no
requirement of issuing notice of Rule to the
said respondent. Learned counsel for the
petitioners has urged that the petition be
decided finally, therefore, with the consent of
learned counsel for the respective parties, the
Court proceeds to decide it.
The challenge in this petition under Articles
226 and 227 of the Constitution of India is to
the order dated 18.06.2012, passed by the
Special Secretary (Appeals), Revenue Department
("SSRD"), the first respondent herein,
confirming the order dated 04.10.2000, passed by
the second respondent, Collector, Ahmedabad,
whereby the order dated 29.12.1998, passed by
the City Deputy Collector, the third respondent,
has been quashed and set aside.
Briefly stated, the facts of the case are that
the land in question, bearing new Block No.596,
admeasuring 22764 square meters, situated at
Mouje Bhadaj, Taluka Daskroi, District
Ahmedabad, forming part of old Survey No.582,
admeasuring 1 Acre 15 Gunthas, was reflected as
old tenure land and old Survey No.585
admeasuring 4 Acres 10 Gunthas was described as
new tenure land. Prior to 1998, the land was
originally owned by twelve persons as a joint
family property. One of the original owners,
Shri Kalidas Maganbhai, present respondent No.4,
filed an application dated 04.04.1998 before the
third respondent, seeking a correction of the
revenue records, as a portion of the land was
erroneously shown as new tenure land. By the
order dated 29.12.1998, the City Deputy
Collector, after conducting an inquiry under
Section 197 of the Gujarat Land Revenue Code,
1879 ("the Code") and considering the Report of
the Mamlatdar, directed that the entry recording
that a portion of the land (admeasuring 4 Acres
and 10 Gunthas) as new tenure, be deleted.
Hence, the entire land of Block No.596 became
old tenure land. Mutation Entry No.3085 was
inserted in the revenue record on 30.12.1998,
recording the effect of the order dated
29.12.1998 passed by the third respondent. On
29.06.1999, this entry came to be certified by
the City Mamlatdar. The entire land now being of
old tenure, the original land owners sold the
land by way of a Registered Sale Deed dated
02.09.1999, to the present petitioners, for a
consideration of Rs.3,90,000/- (Rupees Three
Lakhs Ninety Thousand Only). Clause 6 of the
Sale Deed records the passing of the order dated
29.12.1998 by the third respondent, conversion
of the entire land to old tenure, as well as the
recording of Mutation Entry No.3085 to this
effect. As a result of the Sale Deed, Mutation
Entry No.3116 was recorded on 08.09.1999,
whereby the land in question was mutated in the
names of the petitioners. This entry was
certified by the City Mamlatdar on 01.11.1999.
However, the second respondent, taking the order
dated 29.12.1998 of the third respondent in suo
motu revision, issued a show cause notice dated
11.05.2000, only to one of the original owners
of the land, respondent No.4 herein. Though the
names of the petitioners had already been
entered in the revenue record as purchasers of
the property and the entry to this effect had
been certified, no show cause notices were
issued to them. Before the Collector, respondent
No.4 appeared initially, but did not remain
present during the subsequent dates of hearing.
The second respondent passed the impugned order
dated 04.12.2000, in the absence of respondent
No.4, setting aside the order dated 29.12.1998
passed by the third respondent. On 06.12.2000,
respondent No.4 filed a revision application
before the SSRD, challenging the order dated
04.12.2000 passed by the Collector. Nobody
remained present before the SSRD on various
dates, hence, vide the impugned order dated
18.06.2012, the revision application came to be
dismissed. The petitioners, being the purchasers
of the land and the only parties aggrieved by
the order passed by the SSRD have, therefore,
approached this Court by way of the present
petition.
Mr.I.H.Syed, learned counsel, has appeared for
Mr.Y.H.Motiramani, learned advocate, on behalf
of the petitioners. He has submitted that the
petitioners are bona fide purchasers of the land
in question through a registered Sale Deed and
their names are reflected in the revenue record,
as such. The mutation entry to this effect has
also been certified. The petitioners have
purchased the land after it was converted to old
tenure and the entry to this effect has been
mutated and certified. In spite of the fact that
the names of the petitioners were reflected in
the revenue record as purchasers of the land,
the Collector chose not to issue show cause
notices to them but only issued a notice to
respondent No.4, who was one (out of twelve) of
the original land owners and was no longer
interested in the land that had already been
sold. Admittedly, the petitioners have acquired
right, title and interest in the land in
question and the impugned orders affecting them
adversely, have been passed behind their backs,
without providing them with an opportunity of
hearing. Hence, there has been a violation of
the principles of natural justice and the order
dated 04.12.2000, passed by the Collector, as
well as the order dated 18.06.2012, passed by
the SSRD, are liable to be quashed and set aside
on this ground alone.
In support of this submission, reliance is
placed upon a judgment of the Division Bench of
this Court in Bhanji Devshibhai Luhar v. State
of Gujarat And Ors. - 2011(2) GLR 1676. Another
Division Bench judgment relied upon is that in
the case of Bhakabhai Boghabhai Bharwad And
Ors. v. State of Gujarat And Ors . - 2015
Lawsuit (Guj.) 15.
It is next submitted by learned counsel for the
petitioners that there is an unreasonable delay
of about eighteen months on the part of the
Collector in taking the order of the City Deputy
Collector dated 29.12.1998, in suo motu
revision, on 11.05.2000. There is no explanation
for the delay.
It is further urged that the order dated
29.12.1998, passed by the third respondent, is a
detailed order and while setting it aside the
second respondent has ignored the basic premise
on which the said order is passed, which is
that, as far back as in the year 1915-16, the
land in question was old tenure land and had
been sold as there was no restriction on it.
There is, therefore, no basis or explanation for
the subsequent wrong endorsements of new tenure
in the record. Besides, the Collector and the
SSRD have, while passing the respective impugned
orders, overlooked the fact that the order of
the City Deputy Collector, converting the land
to old tenure, has already been implemented in
the revenue record. The land has been sold and
further rights and equities have been created
thereupon, relying upon the said order and the
resultant mutation entries. The rights acquired
by the petitioners over the land in question in
the year 2000, cannot be negated at a belated
stage behind their backs.
On the strength of the above submissions, it is
submitted that the prayers made in the petition
may be granted.
The petition has been opposed by Mr.Tirthraj
Pandya, learned Assistant Government Pleader,
appearing for respondents Nos.1 to 3. He has
submitted that there are no flaws in the
impugned orders passed by the Collector and
SSRD. The order of the SSRD has been challenged
before this Court by the petitioners, after a
delay of three years. It is further submitted
that the order of the Collector is very clear
and records that the City Deputy Collector has
entertained the application of the original
owners for the correction of the entry of new
tenure after a delay of seventy years, as the
land is being reflected as new tenure land since
the year 1929. Further, there is no mention of
any application for condonation of delay.
Learned Assistant Government Pleader further
submits that no application was made by the
original owner for an inquiry under Section 197
of the Code. Still, however, such inquiry was
conducted by the third respondent. That, in
proceedings under Rule 108(5) of the Gujarat
Land Revenue Rules, 1972 ("the Rules"), the
third respondent could not have undertaken an
inquiry under Section 197 of the Code. At the
most, separate proceedings could have been
initiated. The Collector has, therefore, rightly
held that the order passed by the City Deputy
Collector is without jurisdiction and a nullity,
and the SSRD has rightly confirmed the order of
the Collector.
It is further contended that the Collector has
rightly stated in his order that the owners of
the land knew it was old tenure land. Even on
the date of the execution of the Sale Deed, it
was known that the land was of new tenure.
Referring to the affidavit-in-reply filed on
behalf of respondent No.3, learned Assistant
Government Pleader submitted that the revenue
record shows the entries of new tenure since
1929, therefore it could not have been concluded
by the City Deputy Collector that the land is of
old tenure.
In rejoinder, Mr.I.H.Syed, learned counsel for
the petitioners has submitted that it is not
correct on the part of the learned Assistant
Government Pleader to submit that the original
landowner did not file an application for
conducting an inquiry under Section 197 of the
Code. In fact, by the application dated
04.04.1998, it was specifically requested that
an inquiry under Section 197 of the Code be
conducted for the removal of the wrong
endorsements of new tenure for a part of the
land and insertion of the entry of old tenure.
That the City Deputy Collector has conducted a
thorough inquiry and after doing so, found that
the land in question was originally of old
tenure even in the year 1915. The land was
subject to sale and there was no restriction on
it. There is no basis for the later endorsements
of new tenure, which are mistaken entries.
It is submitted that neither the Collector nor
the SSRD issued notices to the petitioners prior
to the passing of the impugned orders,
therefore, there is no question of delay on
their part in approaching this Court. On the
contrary, there is a delay of over eighteen
months in initiating suo motu proceedings by the
Collector, and that too not against the
petitioners, which is highly unreasonable and
unexplained.
Learned counsel for the petitioners further
contended that the submission of the learned
Assistant Government Pleader to the effect that
the petitioners knew it was new tenure land is
not correct as the land was purchased subsequent
to its conversion to old tenure and the mutation
and certification of revenue entries in the
revenue record. This aspect is noted in the Sale
Deed and may not be sought to be misconstrued.
The impugned orders would have the effect of
nullifying the Sale Deed of the petitioners that
was executed eighteen years ago, prejudicing
their rights, title and interest on the land for
no fault of their own, being bona fide
purchasers.
In the background of the above factual and legal
scenario, this Court has heard learned counsel
for the respective parties at length, perused
the averments made in the petition and the
affidavit-in-reply filed on behalf of respondent
No.3, as well as the contents of the documents
on record.
Certain undisputed facts emerging from the
record may be recapitulated at this stage.
There is no dispute regarding the fact that the
entire land was of the joint ownership of twelve
persons. The original landowners submitted an
application dated 04.04.1998 to the third
respondent through respondent No.4, stating that
they were the owners and in possession of the
land in question, since the time of their
ancestors. However, for a portion of the land, a
wrong endorsement of new tenure is being
reflected in the revenue record without any
basis, which appears to have been mistakenly
inserted. It was requested that in order to
bring out the factual position, an inquiry be
conducted under Section 197 of the Code and the
endorsement of new tenure be removed. To this
extent, learned Assistant Government Pleader is
not correct in stating that the third respondent
has conducted an inquiry under Section 197 of
the Code without there being any request to do
so. The fact that the original landowners had
specifically made a request to conduct such an
inquiry is also recorded in the order of the
third respondent.
It is further an undisputed position that the
third respondent conducted a detailed inquiry
under Section 197 of the Code and also called
for the report of the City Mamlatdar. After
tracing the entire history of the land in
question through the revenue records, each step
of which is detailed meticulously in the order
dated 29.12.1998, the third respondent arrived
at the conclusion that the land in question was
originally of old tenure ever since the year
1915 and there was no foundation or basis for
the subsequent entries of new tenure which are
not supported by any order of any competent
authority. Consequently, by the order dated
29.12.1998, the third respondent directed that
the endorsement of new tenure in respect of the
land in question be deleted from the record,
thereby converting the entire parcel of land to
old tenure.
Admittedly, the above order of the third
respondent was reflected in the revenue record
as Mutation Entry No.3085 was recorded on
30.12.1998, in this regard. This entry was
certified by the City Mamlatdar on 29.06.1999.
After the entire land was converted to old
tenure and after the certification of the
mutation entry to this effect, the original
owners of the land sold it to the present
petitioners, vide a registered Sale Deed dated
02.09.1999. Pursuant to the Sale Deed, Mutation
Entry No.3116 was mutated in the record and the
names of the petitioners were entered as the
purchasers of the land. This mutation entry was
duly certified by the City Mamlatdar on
01.11.1999. Thus, the revenue record clearly
reflected the factum of the sale of the land,
after its conversion to old tenure, as well as
the names of the petitioners as the purchasers.
It is an admitted position that in spite of the
fact that the revenue record clearly reflected
the names of the petitioners as the owners of
the land, the Collector did not issue notices to
them while initiating suo motu proceedings. A
notice was issued only to respondent No.4, one
of the twelve original owners of the land, in
exclusion of all others. The fourth respondent,
being no longer interested in the land as it had
already been sold, appeared initially but later
remained absent throughout the proceedings. The
impugned order of the Collector, therefore, came
to be passed in his absence.
There is no dispute about the fact that the
petitioners are the only interested and affected
parties, having purchased the land. Before this
Court as well, respondent No.4 has not responded
to the notice that was issued and has been
served upon him. It, therefore, follows that
even though the petitioners are the only
interested and affected parties and their names
are reflected in the revenue record, the
Collector did not issue notices to them and has
passed the impugned order behind their backs. It
was not as though the Collector was oblivious of
the factual position as the revenue record
clearly reflects the factum of purchase by the
petitioners. Even at the stage of the
proceedings before the SSRD at the behest of
respondent No.4, the petitioners were not joined
as parties. Respondent No.4 did not remain
present before the SSRD either, and the impugned
order of the said authority again came to be
passed without hearing the petitioners. In view
of this position, when the petitioners were not
consciously joined as parties to the proceedings
and were unaware of the same, they cannot be
faulted on the ground that there is a delay of
three years in approaching this Court.
The above factual position clearly reveals that
a serious violation of the principles of natural
justice has occurred while passing the impugned
orders by the Collector and the SSRD, which has
resulted in great prejudice to the petitioners.
It was only after the land in question was
converted to old tenure and the revenue entry to
this effect was mutated and certified, did the
petitioners purchase the land. No fault can be
found with any conduct of the petitioners, who
are bona fide purchasers for consideration. The
impugned order of the SSRD would have the effect
of nullifying the sale after an unreasonable
period of about eighteen years. Apart from the
above, the petitioners cannot be made to suffer
for no fault of their own.
In Bhanji Devshibhai Luhar v. State of Gujarat
And Ors. (supra), relied upon by learned
counsel for the petitioners, the Division bench
of this Court has held as below:
"21. In light of aforesaid facts of present case, we are of the view that while the conclusion and the decision of the competent and appellate authority holding the transaction in question as void, is in consonance with the provisions of the ordinance and cannot be faulted, in the
interest of justice and equity it also ought not be overlooked that the impugned action in exercise of the power under Section 75 of the Ordinance to summarily evict the petitioner, after having allowed the transaction to remain alive for 17 years not only ignores the wide chasm between the date of transaction and the dates of the notice and the order but it also overlooks the fact that the petitioner has continued to put the land to use for agricultural purpose and has not changed the status and nature of the land and that he has also incurred expenditure to improve the quality of soil and invested further amounts for betterment of the land in question. The figures of such expenditure by the petitioner are not available on record, however the respondents have not disputed the said factual assertion by the petitioner."
The above principle of law has been reiterated
by the Division Bench vide judgment dated
20.03.2014 in the case of Vallabhbhai Rambhai
v. State of Gujarat And Ors . in Letters Patent
Appeal No.422 of 2010, quoted in the case of
Bhakabhai Boghabhai Bharwad And Ors. v. State
of Gujarat And Ors . (supra), as below:
"5.2 As stated above, in the present case, the competent authority had initiated suo-moto powers, after a period of twenty one years. The learned Single Judge has relied upon the decision passed in Special Civil Application No. 11825 of 2009 which has been set aside by the Division Bench as observed hereinabove. Even though the learned Single Judge came to the conclusion that the order passed by the competent and appellate authority holding the transaction in question as void, is in consonance with the provisions of the Ordinance, in the interest of justice and equity, it also ought not be overlooked that the impugned action in exercise of the power under section 75 of the Ordinance to summarily evict the appellants, after having allowed the transaction to remain alive for 21 years not only ignores the wide chasm between the date of transaction and the dates of the notice and the order, but also overlooks the continued possession of the appellants who had put their land to use for agricultural purpose and had not changed the status and nature of the land."
The impugned orders of the Collector and SSRD
ignore and overlook the fact that third party
rights, interest and title have been created
over the land, pursuant to a legal and valid
Sale Deed that has not been challenged by any
person in any Court of law. Such legal rights
acquired by the petitioners cannot be
jeopardised in the manner sought to be done by
the respondents, especially after an
unreasonable period of time.
In The State of Gujarat v. Patel Raghav Natha
And Others - 1969(2) SCC 187, the Supreme Court
held as below:
"12. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under, Section 211.
Under Section 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 Sections 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 October 12, 1961, i.e., more than a year after the order, and it seems to us that this order was passed too late."
As seen from the above-quoted extract of the
judgment, in that case the Collector had passed
the order after more than a year which, in the
view of the Supreme Court, was not a reasonable
period of time considering the fact that the
occupant would be likely to incur expenditure on
the land. In the present case, suo motu powers
were exercised by the Collector after almost a
year and a half, after Mutation Entry No.3085
was recorded in the revenue record on
30.12.1998, pursuant to the order of the Deputy
Collector converting the land to old tenure. As
stated above, these proceedings were never
initiated against the petitioners though their
names were mutated in the revenue record, but
against only one out of the twelve original
landowners, who had, by then, lost interest in
the land in question. Insofar as the petitioners
are concerned, the adverse effect of the
impugned order would be felt after a period of
about eighteen years which cannot be considered
as a reasonable period of time by any standards,
and that too without hearing them. It would,
therefore be unjust and unfair to disturb the
mutation entries at this stage when the
petitioners are in possession of the land for
about eighteen years. This Court, therefore,
finds substance in the submissions advanced on
behalf of the petitioners that the impugned
orders are bad in law on the ground of the
violation of the principles of natural justice
and unreasonable delay, insofar as the
petitioners are concerned.
Learned Assistant Government Pleader has
advanced a submission that the Collector has
rightly observed in his order that the City
Deputy Collector could not have held an inquiry
under Section 197 of the Code in proceedings
under Rule 108(5) of the Rules.
In this context, it would be pertinent to take a
look at the relevant provisions of law. Any
dispute regarding a mutation entry is required
to be entered in the Register of disputed cases
as per Rule 108(1) of the Rules. Sub-rule (2)
provides for an inquiry to be made in the
village where the land is situated or the
interested parties reside. Sub-rule (3) provides
for the recording of the order pursuant to the
enquiry and Sub-rule (4) provides for the
certification of the entry in the Diary of
mutations as being correct. Sub-rule (5) of Rule
108 provides for an appeal against an order
recording a mutation entry. It specifies the
competent authority before whom an appeal would
lie as well as the procedure to be followed
while deciding the appeal. Sub-rule (5) of Rule
108 is more of a procedural provision.
In juxtaposition, we may notice the provisions
of Section 197 of the Code, which read as below:
"197. Ordinary inquiries how to be conducted:- An inquiry which this Act does not require to be either formal or summary, or which any revenue officer may on any occasion deem to be necessary to make, in the execution of his lawful duties, shall be conducted according to such rules applicable thereto, whether general or special, as may have been prescribed by the State Government or an authority superior to the officer conducting such inquiry, and, except in so far as controlled by such rules, according to the discretion of the officer in such way as may seem best calculated for the ascertainment of all essential facts and furtherance of the public good."
As can be seen from the language of Section 197,
this provision lays down the procedure for
conducting inquiries. As stated in the Section,
the inquiry contemplated is not required to be
either formal or summary. It is an inquiry which
any revenue officer may on any occasion deem to
be necessary to make in the execution of his
lawful duties. There is, therefore, no
restriction that the revenue officer is enjoined
to conduct the inquiry in any particular manner
or in any particular proceedings. Such revenue
officer can make the inquiry in the execution
of his lawful duties in any proceedings or any
occasion, as and when he deems it necessary to
do so.
The original owners had moved a specific
application before the Deputy Collector to
remove the disputed entries of new tenure, after
conducting an inquiry under Section 197 of the
Code. As the mutation entries of new tenure
became disputed, the dispute would be brought
under Rule 108(5). As an inquiry under Section
197 was sought for the purpose of deciding the
dispute, such inquiry was made by the City
Deputy Collector, as it would have been
impossible to take a decision regarding the
tenure of the land without conducting a thorough
inquiry which, in the present case, has been
done. Section 197 nowhere provides for any
separate proceedings but empowers any revenue
officer to conduct an inquiry on any occasion,
if he deems it necessary to do so in the
execution of his lawful duties. Section 197 of
the Code vests discretion in the revenue officer
do to what may seem to be best calculated for
the ascertainment of all essential facts and the
furtherance of the public good. Considering the
above provision of law and the manner in which
it is worded, in the view of this Court, the
City Deputy Collector has not committed any
error in conducting an inquiry under Section 197
of the Code in the present proceedings. The
findings of the Collector, as confirmed by the
SSRD, that the order of the City Deputy
Collector is beyond jurisdiction and a nullity,
cannot be accepted or sustained.
A perusal of the order of the City Deputy
Collector reveals that it is a well-reasoned and
detailed order. The author of the said order has
taken great pains to thoroughly trace and
investigate the entire history of the land in
question from each and every entry in the
revenue record since the year 1915. After due
inquiry, it was found that the land is
originally of old tenure since the year 1915 and
has been subject to sale without any
restrictions. It has been noted that the entries
of new tenure that appeared later on are without
any basis or foundation. The land was ancestral
property and there is no order of any authority,
at any stage, in support of the entries of new
tenure. The third respondent has further relied
upon the Government Resolution dated 16.03.1982
while cancelling the entries of new tenure.
The impugned orders of the Collector and SSRD
are based on the premise that the entries of new
tenure were reflected since the year 1929,
without explaining how, and on what basis, the
entry of new tenure came to be mutated in the
first place, when the land is originally old
tenure land since the year 1915. Mere recording
and perpetuation of wrong entries without any
order, basis or foundation, would not change the
original tenure of the land.
Insofar as the aspect of delay is concerned, the
Deputy Collector has entertained the application
of the original owners as valuable rights were
involved. Besides, no limitation is prescribed
for an inquiry under Section 197 of the Code,
which can be conducted at any time. In any case,
the petitioners, being bona fide purchasers,
have approached the Court when coming to know
that their rights have been prejudicially
affected behind their backs, therefore, the
argument of delay cannot be applied to them.
In his order, the Collector has ignored that
part of the order of the third respondent that
states that at the very initial stage of the
record, in the year 1915, the land in question
was of old tenure and and there is absolutely no
basis or foundation for the entries of new
tenure that were subsequently recorded. It has
been noted by the third respondent in his order
that there is no order of any competent
authority to justify the entries of new tenure.
The Collector has not pointed out any such order
justifying the entries of the new tenure,
either. The SSRD has mechanically upheld the
order of the Collector. Merely by mentioning the
land as new tenure, without any basis or order,
would not change the tenure of the land that was
originally of old tenure. It is a settled
position of law that a wrong entry of new tenure
without any order, foundation or basis does not
change the original tenure of land. A mistaken
entry, repeated subsequently cannot change the
factual position.
Considering all the above aspects of the matter
cumulatively, this Court is of the view that the
order of the City Deputy Collector, being a
well-reasoned order, deserves to be, and is,
upheld.
For reasons stated hereinabove, the impugned
orders of the SSRD dated 18.06.2012, and that of
the Collector dated 04.10.2000, are hereby
quashed and set aside.
The petition is allowed. Rule is made absolute.
There shall be no orders as to costs.