Allowed

Indraprastha Tower Cooperative Housing Sty Ltd. v. State of Gujarat

Gujarat HC3 Jul 2014SCA/2702/1999

Case brief

AI extract

What is this about?

In a writ petition challenging orders regarding land tenure classification, this Court quashed the Collector and Revenue Secretary's orders confirming the land as new tenure. The Court held that the exercise of revisional powers was beyond a reasonable period after Non-Agricultural permission was granted and emphasized that NA permission creates an estoppel against the State.

What did the court decide?

Impugned orders passed by the Collector and Revenue Secretary were quashed; order passed by the Mamlatdar was confirmed.

Indraprastha Tower Cooperative Housing Sty Ltd. Vs State of… — Land Acquisition | Gujarat HC (2014)

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C/SCA/2702/1999 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SPECIAL CIVIL APPLICATION NO. 2702 of 1999

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE RAJESH H.SHUKLA

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

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5 Whether it is to be circulated to the civil judge ?

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INDRAPRASTHA TOWER COOPERATIVE HOUSING STY LTD....Petitioner(s) Versus

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STATE OF GUJARAT & 11....Respondent(s)

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================================================================ Appearance:

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MR. KUNAL VYAS for MR JC VYAS, ADVOCATE for the Petitioner(s) No. 1 DELETED for the Respondent(s) No. 4 , 11 - 12

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MR. UDIT MEHTA, AGP for the Respondent(s) No. 1 - 3

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RULE SERVED for the Respondent(s) No. 5 - 10

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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA

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Date : 03/07/2014

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Page 1 of 9

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C/SCA/2702/1999 JUDGMENT

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ORAL JUDGMENT

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The present petition is filed by the petitioner under Articles 14, 226 and 227 of the Constitution of India as well as under the provisions of the Bombay Land Revenue Code for the prayer inter alia that the impugned order passed by Respondent No.1 dated 29.8.1998 confirming the order passed by Respondent No.2 and setting aside the order passed by Respondent No.3 dated 26.5.1988 is erroneous and therefore it may be confirmed that the order passed by Respondent No.3 dated 26.5.1988 is just and proper. It is further prayed that both the impugned orders may be quashed and set aside for the reasons stated in the petition.

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Heard learned Advocate Shri Kunal Vyas for the petitioner. He has referred to the background of the facts and submitted that as transpires from the record the original entry of mutation being Revenue Entry No. 1074 has been made and the land in question is the ancestral property which has been accepted since decades. However as it was shown as a new tenure land the application was made by the original owner for proper correction and modification that the land is a old tenure land and it has been corrected which has been challenged by way of appeal before the Collector. The Collector having perused the papers has set aside this order of the Mamlatdar mainly on the ground that it has been accepted by the original owners that it

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Page 2 of 9

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C/SCA/2702/1999 JUDGMENT

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is a new tenure land since 1980. Further, it has been observed that from the year 1955 to 1987 they have not challenged and only to get out of the restriction about the agricultural land they had moved the application for showing it as a old tenure land. The said order passed by the Collector is carried further by the petitioner before the Revenue Secretary (Appeals) and the Secretary Appeals by the impugned order on appreciation of the relevant material and after hearing the parties confirmed the order passed by the Collector which is challenged in the present petition. Learned Advocate Shri Kumal Vyas referring to this background has stated that some of the record is not available as claimed. He further submitted that in any case inquiry was made and no notice has been issued by the Collector as required under the law and therefore any such order is in violation of rules of natural justice. He further submitted that the exercise of revisional power beyond the reasonable period is also not justified. In support of his submission he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in 1997 (6) SCC 71 – Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim . He further submitted that in any case the agricultural land laws are sought to be applied to a non-agricultural land inasmuch as the DDO had granted NA permission on 1.4.1989 and the notice for exercise of suo motu revisional powers are issued on 21.6.1991. He therefore submitted that once the NA

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Page 3 of 9

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C/SCA/2702/1999 JUDGMENT

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permission has been granted no such power could have been exercised. In support of his submission he has referred to and relied upon the judgment of the High Court of Gujarat reported in 2006 (2) GLR 1567 – Ravichand Manekchand Sheth & Ors. v. State of Gujarat & Ors. and submitted that the authorities cannot allege breach of any provision relating to agriculture land after its conversion into non-agricultural use. Learned Advocate Shri Kunal Vyas submitted that as observed – a valid NA permission creates an estoppel for the authority to issue notice under any law applicable to agricultural land. He has also submitted that in any case exercise of revisional power beyond a statutory period is also not justified as observed in various pronouncements. In support of his submission he has referred to and relied upon the unreported judgment of the High Court of Gujarat in Special Civil Application No. 5505 of 1990 (dated 16.8.1990) and Special Civil Application No. 3169 of 1996 (dated 17.11.1999) and also referred to the order passed by the Division Bench of this Court (Coram: N.G.Shelat and S.N.Patel,JJ) in Letters Patel Appeal No. 38 of 1968 (dated 24.2.1970).

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Learned AGP Shri Udit Metha has referred to the backgrounds of the facts and submitted that since 1980 it has been accepted that the land is a new tenure land and therefore only to avoid the payment of premium and to take the advantage such contentions are raised. He submitted that as observed the

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Page 4 of 9

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C/SCA/2702/1999 JUDGMENT

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impugned order at Annexure-C passed by the SSRD as discussed has been made and therefore it cannot be said that the order is erroneous.

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In view of the rival submissions it is required to be considered whether the present petition can be entertained or not.

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There are two aspects of the matter. The first aspect referred to the exercise of revisional jurisdiction beyond reasonable period. As it transpires the entry no.1074 dated 1.2.1956 is sought to be clarified or effected and as per the order of the City Mamlatdar when the records regarding the entry no.1074 are not available he has clearly stated that there is no record to suggest that it is a new tenure land and he has also recorded that by inadvertence if it has been treated as new tenure land it is a mistake and therefore he passed an order for correction of entry no.1074. The Collector vide order dated 26.11.1992 set aside the order of the City Deputy Collector referring to the fact that the petitioners have not taken the appropriate steps and only to avoid the payment of premium the claim is made that it is old tenure land. Therefore the Collector did not accept the order of the Deputy Collector. The said order of the Collector dated 16.11.1992 was carried by way of revision before the Secretary (Appeals) and the Secretary (Appeals) has confirmed the order of the Collector which has lead to this petition on the ground inter alia that the NA permission has been granted and the power could not have been exercised beyond a reasonable

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Page 5 of 9

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C/SCA/2702/1999 JUDGMENT

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period. However, the Secretary (Appeals) has passed an order observing that if the order is nullity the period of limitation would not apply and thereby has failed to appreciate that the exercise of revisional power has to be within a reasonable period. It is well accepted that any such power has to be exercised within a reasonable period as the law does not require the settled things to get unsettled. The Hon'ble Apex Court in a judgment reported in (1969) 2 SCC 187 - State of Gujarat v. Patel Raghav Natha has made the observations which have been followed including in a judgment reported in

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2009 AIR SCW 6305 - Santoshkumar Shivgonda Patil & Ors. v. Balasaheb Tukaram Shevale and ors. It has been observed that if the law does not provide for a period of limitation still such power has to be exercised within a reasonable period. It is evident that the statute does not provide for any period of limitation. The exercise of powers by the authority under the land laws like Agriculture Tenancy Act or the Bombay Land Revenue Code has to be exercised within a reasonable period. Therefore the concept of reasonable period has been evolved and as observed in the earlier judgment of the Hon'ble Apex Court reported in 2009 AIR SCW 6305 following the judgment of the Hon'ble Apex Court in State of Gujarat v. Patel Raghav Natha it has been made clear that such power has to be exercised within a reasonable period. Again what could be considered to be a reasonable period has

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Page 6 of 9

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C/SCA/2702/1999 JUDGMENT

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been discussed elaborately in catena of judicial pronouncements including the judgment of the Division Bench of this Court reported in 2013(2) GLR 1788 - Chandulal Gordhandas Ranodriya and ors. v. State of Gujarat & Ors. In this judgment quoting the earlier judgment of the Hon'ble Apex Court reported in (2003) 4 SCC 488 it has been observed:

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6. “As observed in Veerayee Ammal v. Seeni Ammal, 2002(1) SCC 134, it is “looking at all the circumstances of the case, a “reasonable time” under ordinary circumstances; as soon as circumstances will permit; so much time as it is necessary under the circumstances, .........................................................

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Further, “reasonable time” is defined to be so much of the time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case.”

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Again, the Hon’ble Apex Court in a judgment reported in (2005) 7 SCC 667 in the case of Joseph Severance v. Benny Mathew , has considered the word “reasonable time”. Therefore considering the aforesaid observations with regard to the reasonable period during which such power could be exercised the impugned order cannot be sustained. Further it is not in dispute that the petitioners have purchased the land in question by a registered sale deed and after NA permission has been granted on 1.4.1989 the construction has been made. Admittedly the notice has been issued by the Collector in

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Page 7 of 9

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C/SCA/2702/1999 JUDGMENT

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exercise of revisional powers when the notice dated 21.6.1991 has been issued. In other words after the NA permission has been granted and construction has started the notice came to be issued which would squarely attract the judgment of this Court in case of Ravichand Manekchand Sheth & Ors. v. State of Gujarat & Ors. (supra). It has been clearly observed:

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“ By virtue of this N.A. permission by the concerned authority under Sec. 65 of the Bombay Land Revenue Code, 1879, the petitioner No.1 incurred huge expenditure and converted the land of Survey No.1137 into 20 sub-plots. These sub-plots have been transferred to the different purchasers by registered sale deeds. This alteration of possession, after grant of NA use permission and after, the expenditure incurred by the petitioner No.1, creates an estoppel on the part of the respondent authority to issue a notice under any law, applicable to the agricultural land. N.A. permission granted under Sec.65 of the Code, 1879.............”

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Thus as observed, one the NA permission is granted the authority cannot allege breach of any provision relating to agriculture land after its conversion into non-agriculture use. Therefore on that count also the present petition deserves to be allowed and the impugned order cannot be sustained which has not considered this relevant aspect though a reference is made to NA permission and the sale of the land in question by registered sale deed. It is in these circumstances the present petition deserves to be allowed and accordingly stands allowed.

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Page 8 of 9

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C/SCA/2702/1999 JUDGMENT

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The prayer in terms of paragraph 11(A) is granted. The impugned orders at Annexure-B and Annexure-C passed by the Collector and the SSRD respectively are hereby quashed and set aside and the order passed by the Mamlatdar regarding the original entry is hereby confirmed. Rule is made absolute. No order as to costs.

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(RAJESH H.SHUKLA, J.)

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JNW

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Page 9 of 9

Indraprastha Tower Cooperative Housing Sty Ltd. v. State of Gujarat

Case brief

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Indraprastha Tower Cooperative Housing Sty Ltd. v. State of Gujarat

Case brief

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