IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6762 of 1995 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- RAVJIBHAI MAVJI JOGANI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR PV HATHI for Petitioners MR PANDYA, Ld. AGP for the Respondents. -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 20/10/2000 ORAL JUDGEMENT 1. Mr.P. V. Hathi appearing on behalf of the petitioner and Mr.Pandya appearing on behalf of the respondent nos.1, 2 and 3. 2. In the present petition, Rule has been issued by this Court on 01/05/1996 and ad-interim relief in terms of para-12(D) has been granteed by this Court. Until further order, no further order passed by this Court on 01/05/1996. In the present petition, the affidavit-in-reply has been filed on behalf of the respondent no.2 - Shri A. M. Solanki, Collector, Amreli on 6th October, 1999. Against the said reply, the petitioner no.4 - Keshubhai Mavjibhai Jogani has filed affidavit-in-rejoinder on 28th October, 1999 which has been taken on record. In the present petition, the petitioners have challenged the order dated 15th November, 1994 passed by the Collector, Amreli at Annexure-F to the petition and the order dated 28th April, 1995 passed by the Secretary, Revenue Department (Appeals), Gujarat State, Ahmedabad at Annexure-G to the petition and further prayer has been made by the petitioner to direct the respondents not to act and implement the orders in any manner and to treat the disputed Survey No.332 (Part) after restoring the said Revenue Entry Nos.3548, 9447 and 9448 on the revenue record. 3. The brief facts of the giving rise to this petition are as under. The petitioners submit that the Survey No.332 admeasuring 23 acre 16 gunthas situated in Amreli was the property of Nagnath Mahadev Mandir Trust, which was a registered public trustand the same was under the management of Mamlatdar, Amreli. Different persons including the father of the petitioners were cultivating the said land as tenants. However, the Mamlatdar, Amreli, after taking necessary permission of the Charity Commissioner, sold on 24th Feburary, 1970 part of the said land admeasuring 11 acres 26 gunthas to the second petitioner Chhaganbhai Nathabhai Jogani and his name was duly entered in the revenue record, by Entry No.4278, without any notice to the petitioners. It was wrongly mentioned that the land was of new tenure land. On coming to know of such insertion restricting the right of the petitioner to dispose of the land, the petitioners made an application to the Mamlatdar, Amreli on 6th November, 1990 to delete the erroneous entry of new tenure made in the revenue record on 11th April, 1991 and the necessary order was passed restoring the original entry of old tenure land in the said revenue record. The said order was certified to be corrected on 19th August, 1991 by revenue Entry No.9447. The petitioners also pointed out that they partitioned their land between themselves by family arrangement in August, 1991 and the necessary entry of partition came to be certified as entry No.9448 on 19th August, 1991. The petitioner nos.1 and 4 made an application to the Collector under sectioin 65 of the Bombay Land Revenue Code for converting the lands, which had gone to their respective shares being 2 acres and 14 gunthas andthe District Development Officer, granted such permission by his order dated 21/03/1992 and 02/05/1994 for constructing the residential houses and to dispose of the remaining plots as can be seen from the copy of the said order. According to the petitioners, the petitioners spent a large amountafter obtaining necessary building permission, for making construction of residential houses and some of the plots are already disposed of by outright sale deeds in favour of third parties including the second respondent. It is also necessary to be noted that the Entry No.9447 was made by the order of the Mamlatdar on 11th April, 1991 and no objection was taken to the several further actions of the petitioners and there was no scope to exercise revisional powers after lapse of a reasonable time namely, after one year as consistently held by the Supreme Court and the High Court of Gujarat. It is also submitted by the petitioners that the disputed land belong to Nagnath Mahadev Trust, a registered public trust, which was sold by the Administrator, Mamlatdar, Amreli on 24th February, 1970 by an outright sale made in favour of the father of the petitioner Mavji Khoda Jogani. The said sale deed specifically mention that the sale was an outright sale and was not subject to the provisions of the Bombay Tenancy Act as clarified by the Collector, Amreli, in his letter dated 11th February, 1970. Not only that there was no entry of restricted tenure on the record from 1950-51 to 1969-70 and no entry could have been made, thereafter, without any prior notice to the petitioners. If there had been any such restricted tenure, the said fact must have been incorporated in the sale deed executed by Revenue Officer in his capacity as the Administrator of the Trust. However, for some inexplicable reasons and withoutany notice to thepetitioners the word "new tenure" came to be written in the revenue record of 1970-71 without any enquiry or notice to the petitioners. Such a change could not have been made being illiterate agriculturists and being unaware of the true legal position they made an application to delete those words and/or to convert the land in old tenure lands which application was in fact not necessary. However, the Mamlatdar, respondent no.3 who was also the Administrator of the Trust - an executant of the sale deed, passed an order to delete those words on 11th April, 1991 and the necessary change was made by the revenue Entry No.9447. No appeal or Revision Application was filed against the said order or the entry so made by the Mamlatdar, Amreli. On relying upon the said order at Annexure-D dated 11th April, 1991, the concerned petitioners made an application under section 65 of the Land Revenue Code, as submitted above and spent large amount in making the construction after due permission and dispose of some plots of land in favour of the third parties, to the knowledge of the concerned respondents. However, the respondent no.2 issued show cause notice on 13th July, 1994 to the petitioners alleging that the said land was probably a new tenure without subject to the restrictions contained in section 43 of the Bombay Tenancy Act and that, therefore, Entry No.9447 made pursuant to the Mamlatdar order dated 11th April, 1991 was liable to beset aside in his suomotu exercise of power conferred by rule 108 and/or section 211 of the Bombay Land Revenue Code. According to the petitioners that even the Collector, as can be seen, was not sure whether the land was of restricted tenure from his show cause notice which has been issued by the Collector to the petitioners. The said show cause notice was issued in respect of the five revenue entries, which the Collector wanted to revise in exercise of power conferred by rule 108(6), the petitioners in reply to the said notice filed a detailed explanation on 9th August, 1994 whether they contended, inter alia, that the said revenue entries were properly made and even otherwise he had no jurisdiction to upset the orders and the entries after lapse of three years. Citing the judgment reported in 1994 (1) GLR 822. It was also pointed out that the said lands were already non-agricultural lands pursuant to the order dated 21st March, 1995 passed by the District Development Officer, Amreli. In view of these facts, the notice issued by the Collector, Amreli was required to be withdrawn and/or rejected. However, the Collector by his order dated 15th November, 1994 set aside the Entry Nos.3548, 9447 and 9448 mostly on the assumption that the said lands were new tenure lands and being subject to the conditions mentioned in section 43 of the Bombay Tenancy Act and the same could not have been partitioned without prior permission of the competent officer. Because, ultimately, the Government suffers huge loss in not receiving the premium amount which was payable on deletion of the entry of new tenure contained in the revenue record. Being aggrieved by the order dated 15th November, 1994 passed by the Collector, Amreli, the petitioiners have filed a Revision Application on 12/02/1994 to the Secretary (Appeals), Revenue Department, Ahmedabad and the same was registered as Revision Application No.SSRD/HKM/AML/6 of 1994, the said Revision Application was heard by the Secretary (Appeals) on 10th April, 1995 where again the petitioners submitted written submissions reiterating the whole history of the suit lands and as to how the entries were made in the revenue records. However, the Secretary (Appeals) by his order dated 28th April, 1995 rejected the Revision Application and confirmed the order of the Collector mainly on the assumption that the orders were nullity and can be set aside at any time and for which there was no rule of limitation. Against that this petition has been filed by the petitioners. On the ground that both the authorities have committed seriously erred in cancelling the Revenue Entry Nos.3548, 9447 and 9448 which are not sustainable in law or which are otherwise arbitrary, illegal and unreasonable manner and not having jurisdiction to pass such orders. It is also contended before this court by the petitioners that the revisional powers cannot be exercised after lapse of three years of the making of the entries to the knowledge of all concerned and relying upon some of the judicial pronouncements of the Appex Court as well as this Court. It is submitted by the petitioners that Entry No.3548 which was certified in the Year-1965 and the name of Chhagan Mavji was entered in place of his father Mavji Khoda and after the period of 29 years, such entry has been taken in appeal or revision by the authories and cancelled the same which cannot be reopened. 4. Mr.P. V. Hathi, learned advocate for the petitioners has submitted that the Secretary (Appeals) has also jumped to a conclusion not on any concrete material but on surmises and conjectures that the said revenue entry made in 1965 was made with a view to defeatd the right of the other heirs and they were not given notice under section 135-D of the Land Revenue Code. Mr.P. V. Hathi, learned advocate for the petitioners has also submitted that the Secretary (Appeals) did not dispassionately examine the correctness of the finding of the Collector with regard to Entry Nos.9447 and 9448, the word "new tenure" was not in existence on the revenue record upto 1970-71 and the transaction of sale on that basis had taken place on 24th February, 1970 and subsequently, the "new tenure" word has been included without any notice to the petitioners or purchaser, pursuant to the sale deed executed on 24th February, 1970. The said contained clear recital passed on the letter of the Collector himself that the sale was an outright and was not subject to the provisions of the Tenancy Act. According to Mr.P. V. Hathi there was no restriction as contained in section 43 of the Tenancy Act and the necessary order was passed by the Mamlatdar which came to be certified in the Year-1991 and subsequent Entry No.9448 was a consequential entry made pursuant to the family partition made between the petitioner brothers themselvers. Mr.P. V. Hathi, learned advocate for the petitioners has submitted that the Mamlatdar had acted beyond the order of the Deputy Collector with regard to the deletion of the words "new tenure" made by the Mamlatdar by his order dated 11th April, 1991 and raised important aspects about that the Mamlatdar has not acted illegally as assume and the petitioners who had not only acted upon the said order but disposed of the land after converting the same into non-agricultural land and consequently the enuities in third parties were alrady created by the registered transactions on which the revenue officers had acted and such transaction has been pointed out by the petitioners at page nos.90 and 91 in respect to Survey No.332 of the property which is in the names of Shri Ravjibhai Mavjibhai Jogani and Shri Keshubhai Mavjibhai Jogani. Mr.P. V. Hathi, learned advocate for the petitioners has pointed out that from 1992 to 1994, there are various transaction of the sale deed has been executed between the third party and the petitioners and, therefore, on that basis the petitioners has disposed of some plots of land in question. Mr.P. V. Hathi, learned advocate for the petitioner has given details in this petition just to highlight the facts that how the unreasonable orders passed after the period of unreasonable delay by the respondents- authorities. The details are as under :- 14/07/1965 Entry No.3548 made and certified on this date. 24/02/1970 Part of the said Survey No.332 was sold by Mamlatdar as Administrator by registered deed of sale in favour of Chhagan Mavji. 06/11/1990 Application made for deletion of the subsequently inserted words "new tenure". 11/04/1991 Order passed by the Mamlatdar deleting those words from village form No.7/12. 19/06/1991 Entry No.9447 certified deleing the words "new tenure" and pursuant to the order of Mamlatdar dated 11/04/1991. 19/08/1992 Entry No.9448 certified recognising the partition effected between the brothers, petitioners. 21/03/1992} The District Development Officer granted 02/05/1994} N.A. permission to the petitioners in respect of the said land. 13/07/1994 A common show cause notice of the Collector, Amreli in respect of five revenue entries, Annexure-E of this petition. In the submissions of Mr.P. V. Hathi, learned advocate for the petitioners that looking to these facts and powers which have been exercised by the respondents authorities after unreasonable delay which adversely affected the rights of the petitioners as well as rights of a third party upon him the equities have been created by way of various transactions executed by the petitioners and a third party. Mr.P. V. Hathi, learned advocate for the petitioners has raised the following contentions are as under :- (1) The respondents have no jurisdiction and authority to exercise power under section 211 in respect of the revenue entries which were made as back as in 1965 and 1991, which in turn has the effect of cancelling Entry Nos.4277 and 4278 of 1970 made in favour of third parties who are not parties to orders passed by the Collector ignoring the binding decision of the Hon'ble Supreme Court and this Hon'ble Court. (2) That the Collector and the Secretary had no authority and jurisdiction to exercise revisional powers under section 211 of the Code after lapse of unreasonaly long period, particularly when the rights of third parties were already created and were jeoparadised by belated exercise of such power against them who were not parties before the said orders were passed. (3) The respondents have no authority and jurisdiction to cancel Entry No.3548 which was certified in 1965 by which the name of Chhagan Mavji was entered in place of his father's name since no objection in the form of appeal was raised by any one, and that there was no justification to assume that the said revenue entry made in 1965 effected the rights of others who have never come forward in 29 years complaining about the said entry. (4) The respondents have acted illegally in assuming that the lands were new tenure lands though the said words were not in existence in the revenue record upto 1970-71 and the subsequent insertion of the word "new tenure" could not have been made without any notice to the occupant or the purchaser and, therefore, the cancellation of Entry Nos.9447 and 9448 could not have been made on any supposed irregularities of the revenue officers. (5) The Collector had no ljurisdiction to cancel any orders issued by the D.D.O. under section 65 of the Code in respect of the lands in question and that he had no jurisdiction to reopen the same and or by issuing any direction to him, particularly when the orders passed by the District Panchayats were acted upon between 1992 to 1994 and the rights of the third parties were created after due permission obtained from the revenue officers. (6) That the Secreatary (Appeals) and the Collector, Amreli have acted inconsistently in similar cases and in similar set of facts as was shown in ground no.8 as shown extensively in para 8, page 17 of the petition, particularly in the matter of entry of new tenure made in the revenue record. (7) The order is other wise passed in breach of the principles of natural justice. The petitioner relies upon the following decisions in support of their cases. 10 GLR 992 1991 (1) GLR 113 1994 (1) GLR 822 1997 (4) GCD 234 1996 (3) GCD 635 5. Mr.Pandya, learned AGP has relied upon the affidavit-in-reply filed by the respondent - Collector, Amreli. In reply, the contentions which has been raised by the deponent that Survey No.332 of Moje Amreli were standing in the name of Amreli Taluka Mamlatdar as administrator of Shri Nagnath Mahadev Trust which has been entered by Entry No.7. With respect to acres 23-12 gunthas of the aforesaid land the name of Shri Mavji Khoda was entered by mutation Entry No.1703 as a protected tenant. Thereafter, by a mutation Entry No.3548, by way of succession the aforesaid land has been partitioned and acres 11-26 gunthas of the aforesaid land has been entered in the name of Shri Chhagan Mavji and acres 11-26 gunthas in the name of Shri Lalji Rana. As per Entry No.4277 and Entry No.4278 the same have been purchased by the tenants by a sale deed dated 24th February, 1970 on the basis of the order of the Collector dated 21st October, 1969. Nagnath Mahadev Trust was holding lands of Survey No.1, 332 and 526 of Amreli City. The Gujarat Devasthan Inams Abolition Act, 1969 came into force on 15th November 1969. Under the provisions of section 31 of the aforesaid Act the enactments specified in column 1 of the schedule shall be amended to the extent specified in column 2 thereof. As per the schedule interalia after section 88D of the Bombay tenancy and Agricultural Lands Act, 1948. After consideration the said provision of section 88(E) of the Bombay Tenancy and Agricultural Lands Act, 1948 Shri Chhagan Mavji and Shri Lalji Rana became deemed purchasers on the date of the commencement of the Gujarat Devasthan Inams Abolition Act, 1969. The lands in question were sold to the aforesaid persons on 24th February, 1970 after the commencement of the Inams Abolition Act. Therefore, according to the deponent the sale transaction was governed by the provisions of section 88E of the Tenancy Act and, therefore, the said lands were shown to be new tenure lands in the Revenue Record. In respect to the Entry No.4278 the name of Chhagan Mavji Jogani was entered into the revenue record and certified on 20th October, 1970 and the land was shown to be new tenure land. Therefore, this lands has been governed by the provisions of section 88E of the Tenancy Act. Thereafter, after a lapse of almost 20 years, Shri Chhagan Mavji Jogani made an application dated 6th November, 1990 before the Mamlatdar, Amreli requiesting that the words "new tenure" be deleted from the revenue record. The Mamlatdar, Amreli on the one hand forwarded a proposal dated 11th April, 1991 to the Deputy Collector that the words "new tenure" had been inserted in the village Form No.7/12 by mistake in 1970-71 and to take action for deletion of same and according to the deponent on the very same date passed an order dated 11th April, 1991 wherein, the said lands being old tenure lands can be considered to be without restrictions and that it appears that the words new tenure have been entered in the Village Form No.7/12 and other records by mistake and ordered that the words be deleted from the record. According to the deponent that under the provisions of the Bombay Lands Revenue Code, 1879 and the Gujarat Lands Revenue Rules, 1972 the Mamlatdar has no jurisdiction to correct a certified entry and, therefore, the order dated 11th April, 1991 is without jurisdiction. Therefore, according to the deponent that the proposal dated 11th April, 1991 the Deputy Collector, Amreli by an order dated 18th April, 1991 rejected the application and a copy of the said order was duly served upon the petitioner no.2. According to the deponent that the Deputy Collector, Amreli by his order dated 18th April 1991 rejecting the application of the petitioner no.2, by an Entry No.9447 dated 11th July, 1991 the mutation entry was made in terms of the order of the Mamlatdar dated 11th April, 1991 and the same was certified by the Mamlatdar on 19th August, 1991. According to the deponent that one Mr.N. P. Sarvaiya made an application to the Secretary, Gujarat Vigilance Commission pointing out several irregularities in the mutation of entries by the Mamlatdar, Amreli and ultimately, the Deputy Collector, Amreli called for a detailed report in this regard from the Mamlatdar, Amreli which has been ultimately, submitted a report on 9th June, 1994 to the Deputy Collector, Amreli and the same was sent by the Deputy Collector to the Collector, Amreli and the Collector, Amreli directed the Deputy Collector to look into the report and investigate with regard to all the issues which appear to be illegal and to send a report thereof to the Collector. Therefore, the show cause notice dated 13th July, 1994 asking the petitioners to show cause as to under Rule 108(6) of the Gujarat Land Revenue Rules in respect to Entry No.9447 and other entries mentioned in the notice should not be cancelled. The deponent has also relied upon the decision of Appex Court in the case of State of Orissa Vs. Brundaban Sharma reported in 1995 Supp (3) SCC 249. The deponent has also considered and pointed out that considering the relevant provisions of section 88E of the Tenancy Act and section 43 of the Act, hence, the same cannot be transferred without the prior permission of the Collector, which ultimately, converted into non-agricultural lands the holder is required to pay the necessary premium to the State Government and it amounts to cuasing huge financial loss to the State Government by way of premium. Therefore, according to the deponent that the orders passed by the Collector as well as the Secretary (Appeals), Revenue Department are legal and valid which do not require any interference by this Court. 6. I have heard the learned advocates appearing on behalf of the parteis. I haveperused the relevant record which has been placed before this court in this petition and also I have perused the order passed by the Collector, Amreli at Annexure-F to the petition dated 15th November, 1994. From the records, some of the facts are not disputed that petitioners' father - Mavjibhai Jogani was a protected tenant and for that no any dispute has been raised by the respondents and prior to the outright sale deed on 24th February, 1970 by the Mamlatdar, the Administrator of the Trust. Therefore, one fact clear that Mavjibhai Jogani was a protected tenant prior to the outright sale deed on 24th February, 1970 by the Mamlatdar, the Administrator of the Trust. Shri Lalji Rana was cultivating the land alongwith the said Mavjibhai Khoda before the Devasthan Inams Abolition Act, 1969 came