Patel Karimshi Raiya Wadiya and Others vs Deputy Secretary (Appeal) and Others

Rajesh H. Shukla, J.—The present petition has been filed by the petitioners under Articles 14 and 226 of the Constitution of India as well as under the provisions of the Bombay Land Revenue Code, 1879 (''the Code'' for short), for the prayers, inter alia, that impugned order passed by the Deputy Secretary (Appeals), Revenue Department dated 11.10.1995 at Annexure-A may be quashed and set aside on the grounds stated in the memo of petition. Heard learned Counsel Shri K. B. Pujara for the petitioners and learned AGP Shri Bharat Vyas for the Respondents.

Learned Counsel Shri K. B. Pujara for the petitioners submitted that the impugned order is passed in purported exercise of powers u/s 211 of the Code cancelling NA permission, which has been granted earlier in the year 1986, after appropriate verification done by the Competent Authority. He submitted that therefore the impugned action of cancellation of NA permission in the year 1995 is beyond reasonable time and without jurisdiction. He also referred to the impugned order and submitted that it is evident that the discussion is about the area of land in question and it was pointed out on behalf of the petitioners that throughout all these years the entry is in the name of the petitioners and Vighoti (revenue charges) have been paid. He has also referred to the observations that there is some inconsistency found in the record but the petitioners cannot be held responsible for that and therefore as observed in the order this inconsistency, cannot be a ground for cancellation, as there is no breach or violation of any conditions. He has, therefore, submitted that the impugned order may be set aside and it may also be clarified that subject to the actual physical measurement by the DILR, NA permission may remain for the land in question.

Learned AGP Shri Bharat Vyas, however referred to the papers and submitted that it appears that earlier permission has been granted without following the government instructions/resolution and therefore as reflected in the order, there is some inconsistency in the record, which has led to the impugned order.

In view of these rival submissions, it is required to be considered whether the present order can be sustained or not.

It is evident that NA permission has been granted earlier in 1986 vide order dated 28.04.1986 by the Competent Authority, which is sought to be cancelled in purported exercise of powers u/s 211 of the Code in the year 1995. Again, there is no justification inasmuch as there is no complaint about breach of any conditions for grant of NA. As it is reflected from the order, it appears that entries were made in the revenue record by two different offices. Though, as stated in detail in the Form No. 4, it is shown as 5 acres, and the entry No. 216 also refers to this aspect. However, it is stated that the Talati at the relevant time has made the entry, which is inconsistent. The area of land in the record of the authority is 5 acres and the revenue charges also said to have been paid by the petitioners. The Village Form No. 7/12 also refers to area as 5 acres, though in another record the area has shown as 3 acres and 20 gunthas. Therefore, it is a matter with regard to reconciliation of the record on the basis of actual measurement. In fact, earlier DILR had also made measurement. However, the grant of NA permission, after such a lapse of time cannot be cancelled, in light of the settled legal position. The Hon''ble Apex Court and the High Court in judicial pronouncements have made observations that exercise of statutory powers has to be within reasonable period.

The Hon''ble Apex Court in the case of The State of Gujarat Vs. Patil Raghav Natha and Others, has made observations, which has been consistently followed in subsequent judgments including the judgment of the Hon''ble Apex Court reported in Shri Santoshkumar Shivgonda Patil and Others Vs. Shri Balasaheb Tukaram Shevale and Others, in the case of Shantoshkumar Shivgonda Patil & Ors. v. Balasaheb Tukaram Shevale & Ors. It is consistently held that when such laws which provide for some kind of regulation or restriction on transfer of land making it obligatory to have permission in compliance with the conditions and the same have been violated, then, what would be the consequences. Moreover, the statutory powers which have been exercised beyond a reasonable period in such cases could be sustained or not. Therefore, what could be said to be a reasonable period again has been considered by the Hon''ble Apex Court in a judgment reported in Shri Santoshkumar Shivgonda Patil and Others Vs. Shri Balasaheb Tukaram Shevale and Others, and also by the Hon''ble Division Bench of this High Court in a judgment reported in Chandulal Gordhandas Ranodriya and Others Vs. State of Gujarat and Others, in the case of Chandulal Gordhandas Ranodriya and Ors. v. State of Gujarat & ors, where the discussion has been made at length that what could be said to be a ''reasonable time''. Therefore, considering the aforesaid settled legal position, the exercise of such powers u/s 211 of the Code for cancellation of NA permission granted earlier (10 years back) cannot be sustained and hence, deserves to be set aside. Therefore, the present petition deserves to be allowed and accordingly stands allowed in terms of Para No. 11(A). The impugned order passed by the Deputy Secretary (Appeals), Revenue Department at Annexure-A cancelling the NA permission as well as orders dated 30.11.1989 and 03.09.1991 at Annexure-E passed by the Respondent Nos. 4 and 5 respectively are hereby quashed and set aside. The NA permission dated 28.04.1986, granted earlier, shall stand restored. However, it is clarified that though, the order of cancelling the NA is set aside, the DILR may make actual physical measurement of the land in question to avoid any further complications. Rule is made absolute to the aforesaid extent. No order as to costs.