Allowed

Jaishri T Pandya v. State of Gujarat

Gujarat HC27 Jun 2014SCA/6349/2000

Case brief

AI extract

What is this about?

The High Court allowed the petitioner's plea that the quasirelenquishment of statutory authorities' revisional powers was due to the unreasonable delay of 12 years and lack of jurisdiction to apply special tenancy laws.

What did the court decide?

Impugned orders dated 14.3.2000 and 17.6.1994 quashed and set aside; rule made absolute.

Jaishri T Pandya Vs State of Gujarat — Land Acquisition | Gujarat HC (2014)

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C/SCA/6349/2000 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SPECIAL CIVIL APPLICATION NO. 6349 of 2000

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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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JAISHRI T PANDYA....Petitioner(s)

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Versus

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STATE OF GUJARAT & 2....Respondent(s)

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Appearance:

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MR MA KHARADI, ADVOCATE for the Petitioner(s) No. 1 MR. BHARAT VYAS, AGP for the Respondent(s) No. 1 - 2 RULE SERVED for the Respondent(s) No. 3

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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA

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Date : 27/06/2014

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ORAL JUDGMENT

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Page 1 of 7

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C/SCA/6349/2000 JUDGMENT

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The present Petition is filed by the Petitioner under Articles 14, 19, 21, 226 and 227 of the Constitution of India as well as the under the provisions of the Bombay Land Revenue Code for the prayer inter alia that appropriate writ, order or direction may be issued quashing and setting aside the order passed by the Respondent No.1-Secretary (Appeals), Revenue Department in Revision Application No.82 of 1994 dated 14.3.2000 and also quashing and setting aside the order passed by Respondent No.2 – Collector in Revision Application No. 143 of 1993 dated 17.6.1994 regarding the entry no.1552 on the grounds stated in the petition.

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Heard learned Advocate Shri M.A.Kharadi for the Petitioner and learned AGP Shri Bharat Vyas for the Respondents.

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Learned Advocate Shri Kharadi referred to the papers including the impugned order passed regarding the entry at Annexure-B and Annexure-C respectively and submitted that as could be seen from the record the entry no.1552 is dated 21.4.1988 pursuant to the sale deed which is sought to be reconsidered in exercise of revisional powers after such long lapse of time. He submitted that in fact the petitioner was an agriculturist having the agricultural land in the Surat District itself at village Kaachal. He submitted that the distance between Kaachal and the land in question has been considered and found that since it is beyond 8 kmts. there is violation of the provisions of

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Page 2 of 7

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C/SCA/6349/2000 JUDGMENT

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Section 63 of the Bombay Tenancy and Agricultural Lands Act (“Bombay Tenancy Act”) and therefore the Secretary (Appeals) has confirmed the order passed by the Collector which is challenged in the present petition.

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Learned Advocate Shri Kharadi submitted that the authorities have failed to appreciate that the petitioner was an agriculturist in the Saurashtra region and as per the circular of the State of Gujarat an agriculturist in the State can purchase the land in question which has not been considered. He submitted that only on the basis of the distance with regard to the radius of 8 kmts. the decision has been arrived at which is erroneous. He submitted that in any case the authority under the Bombay Land Revenue Code exercising powers under the Bombay Land Revenue Code cannot have the powers under the different statute like Bombay Tenancy Act. He therefore submitted that such exercise of power under the Bombay Tenancy Act is illegal and without jurisdiction and therefore the petition may be allowed.

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Learned AGP Mr. Bharat Vyas referred to the papers and submitted that admittedly the land has been purchased without any approval as required under the Bombay Agricultural and Tenancay Act. He further submitted that the land in question is beyond 8 kmts. He submitted that the circular or the policy of the government permitted to purchase another land within the area of 8 kmts and therefore the benefit could not be claimed

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Page 3 of 7

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C/SCA/6349/2000 JUDGMENT

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by the petitioner. He therefore submitted that the powers under the statute exercised by the authority for any breach or violation of the provisions like 135(C) of the Bombay Land Revenue Code or the Bombay Tenancy Act cannot be said to be illegal or without jurisdiction. He submitted that the reasons are recorded in the impugned order passed by the Secretary (Appeals).

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In view of this rival submissions it is required to be considered whether the impugned order could be sustained or not.

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As it transpires from the record and particularly the order at Annexure-C passed by the Secretary (Appeals) in Revision Application No.82 of 1994 dated 14.2.2000 the entry which has been made is examined in purported exercise of powers under Section 108(6) of the Bombay Land Revenue Code on the ground that the land in question is not within the vicinity of 8 kmts. and the petitioner was not an agriculturist and therefore the whole transaction is in breach of the provisions of the of the Bombay Tenancy Act. It appears that the authority has proceeded that such a transaction of sale is in violation of the statutory provisions under Section 63 of the Bombay Tenancy Act. However, the proceedings before the Collector were in purported exercise of powers under the Bombay Land Revenue Code. He could not have examined the provisions of the Bombay Tenancy Act as it is a special statute and the procedure laid down therein could have been followed before

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Page 4 of 7

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C/SCA/6349/2000 JUDGMENT

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exercise of power under the Bombay Tenancy Act. Therefore, while exercising the power under the Bombay Land Revenue Code, the Respondent No.2-Collector could not have proceeded to exercise the power under the Bombay Tenancy Act for which there was no procedure followed. In other words the power could not be exercised under the Bombay Land Revenue Code even if there is a breach of the provisions of the Section 63 of the Bombay Tenancy Act without following the procedure. A useful reference can be made to the judgment of the High Court reported in 1991 (1) GLR 113 - . The another facet of the submission is whether such purported exercise of power under Section 108 of the Bombay Land Revenue Code or the Bombay Tenancy Act can be said to be within a reasonable period. As stated above such powers are after about 12 years and whether it could be said to be a reasonable period. The Hon'ble Apex Court as well as High Court has considered in various judicial pronouncements as to what could be said to be a reasonable period. A useful reference can be made to the observations made by the Hon'ble Divison Bench of this Court in case of Chandulal Gordhandas Ranodriya and ors. v. State of Gujarat & ors. reported in 2013 (2) GLR 1788 wherein the aspect of exercise of such powers within the prescribed period or reasonable period has been considered. It has been observed:

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“ It must be fairly said that if the statute does not prescribe

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Page 5 of 7

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C/SCA/6349/2000 JUDGMENT

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time limit for exercise of revisional powers, it does not mean that such powers can be exercised at any point of time even if there is a breach of Section 43 of the Act, which is a provision which relates to a new tenure land, rather it should be exercised within a reasonable period of time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. ............................................ the powers must be exercised within a reasonable period of time even in the case of transaction which would be termed as void transaction.”

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The Hon'ble Apex Court in a judgment in case of Santoshkumar Shivgonda Patil & Ors. Vs. Balasaheb Tukaram Shevale & Ors., reported in (2009) 9 SCC 353 = 2009 AIR SCW 6305 has also considered this aspect and following the judgment in case of Patel Raghav Natha reported in 1969 GLR 992 it has been observed that the exercise of such powers beyond reasonable period would not be justified. In other words what could be the reasonable time which has be considered depending upon the facts and circumstances as well as the provisions in the statute. 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” and has observed that the expression “reasonable time” means so much time as is necessary under the circumstances to do conveniently what the contract or duty requires should be done

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Page 6 of 7

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C/SCA/6349/2000 JUDGMENT

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in a particular case.

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Therefore in the present case exercise of power after a period of 12 years would not be justified also considering the fact that such powers are exercised while considering the entry under the Bombay Land Revenue Code the validity of the transaction under the Bombay Tenancy Act are also considered which is not permissible as stated above. Thus whether the transaction is void or otherwise has to be considered in exercise of powers under the special statute like the Bombay Tenancy Act within a reasonable period. Therefore the present petition deserves to be allowed and the impugned order cannot be sustained and deserves to be quashed and set aside. Accordingly the impugned orders are quashed and set aside. The prayer in terms of paragraph 10(B) is granted quashing and setting aside the impugned order at Annexures B and C. 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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Jaishri T Pandya v. State of Gujarat

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Jaishri T Pandya v. State of Gujarat

Case brief

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