SCA/938/1997 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.938 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA Sd/- =================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO =========================================== LUHAR DHANJIBHAI KANJUIBHAI & 3 - Petitioner(s) Versus GOVERNMENT OF GUJARAT & 2 - Respondent(s) =================================================== Appearance : MR ASHOK PATEL for MR JD AJMERA for the Petitioners MR KETAN J DWIVEDI, AGP for Respondent(s) : 1, MR DD VYAS for Respondent(s) : 2, RULE SERVED BY DS for Respondent(s) : 3, =================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 11/12/2008 ORAL JUDGMENT (1) This petition has been preferred seeking following reliefs: SCA/938/1997 2/13 JUDGMENT a) quashing and setting aside the order passed by the respondent No.1 bearing No.SRD/BKHP/SMR/1/89 dated 5.5.1990, order passed by respondent No.2 dated 2.7.1991 and the order passed by respondent No.1 dated 11.12.1995 and the communication issued by respondent No.3 dated 9.1.1997 and forbide the respondents, their, agents, servants, officers and subordinates from taking any steps in pursuance of the impugned orders and declare that the petitioners have not put up any illegal construction; b) pending admission, hearing and final disposal of this petition, be pleased to issue an ad-interim injunction restraining the respondents, their agents, servants and officers from in any manner implementing and enforcing the orders passed by the respondent No.1 dated 5.5.1990, order passed by the respondent No.2 dated 02.07.1991 and the order passed by respondent No.1 dated 11.12.1995 and the communication issued by respondent No.3 dated 9.1.1997; c) an ex-parte ad-interim relief in terms of para (b) above may kindly be granted; d) be pleased to award the costs of this petition; e) be pleased to pass such other and further SCA/938/1997 3/13 JUDGMENT orders as may be deemed just and proper in the interest of justice.” (2) The case of the petitioner is that land bearing Survey No.2/1, admeasuring 0.35 gunthas was permitted to be converted from agricultural land to non-agricultural land for industrial use vide order No.Land/NA/82 dated 22.07.1982 by the Taluka Development Officer. That therefore the original owner of the land one Shri Dalabhai Nathubhai Vankar sold certain parts of the said land to the petitioners by registered sale deeds as follows: Survey No. Name of Purchaser Date Area sq. yd. 2/1 Luhar Dhanjibhai Kanji 15.12.82 1,000 2/1 Ghanchi Vora Yunus 15.12.82 600 2/1 Luhar Rasilaben V. 18.02.83 500 2/1 Chandubhai Manjibhai (Died) 03.12.82 400 (3) It appears that during course of proceedings relating to certain other parcel of land of the same survey number the original land owner had sought permission for conversion into non- SCA/938/1997 4/13 JUDGMENT agricultural land and the proceedings travelled right upto the State Government when the order dated 22.07.1982 made by the Taluka Development Officer was noticed. Hence, suo motu revisional action was initiated under provisions of Section 211 of the Land Revenue Code (the Code) vide show cause notice dated 03.02.1990. Admittedly, the said show cause notice was issued only to the original land owner and the petitioners, bona fide purchasers of the land in question, were not called upon to reply. The original land owner tendered reply on 13.02.1990 and the said reply contained details of the land sold to the petitioners. Ultimately, the State Government framed an order on 31.03.1990 / 05.05.1990 cancelling the order dated 22.07.1982 made by Taluka Development Officer. (4) It appears that the petitioners derived knowledge about these proceedings some time on 25.06.1990 and made an application to the SCA/938/1997 5/13 JUDGMENT State Government for furnishing certified copies of the aforesaid documents and also informing the revisional authority regarding various registered sale deeds made in their favour by the original land owner on different dates. (5) In the meantime, subsequent to the order made by the revisional authority on 05.05.1990, action was initiated by the District Development Officer and vide order dated 02.07.1991 the petitioners were called upon to remove the constructed portion and also pay the land revenue which was outstanding. Suffice it to state that thereafter the petitioners agitated the matter in accordance with law but failed at every stage, the last of the communication being dated 09.01.1997 made by the Taluka Development Officer. It is at this stage that the petitioners have approached the High Court. (6) Learned advocate for the petitioners Shri J.D. SCA/938/1997 6/13 JUDGMENT Ajmera has filed a Leave Note and Shri Ashok Patel, learned advocate, initially requested for adjourning the matter but the said request has not been accepted in light of the fact that the matter was peremptorily fixed today. (7) Heard learned Assistant Government Pleader appearing for respondent No.1 and Mr.Deep D. Vyas, learned advocate appearing for respondent No.2. Both of them have strongly urged that if the petitioners did not challenge the order dated 05.05.1990 at relevant point of time viz. when they derived knowledge i.e. 25.06.1990 the petition should not be entertained in 1997 on the ground of limitation. It was further submitted that the land was permitted to be converted into non- agricultural use for the purposes of industrial use only but the original land owner, instead of using the land for industrial purposes, sold off the land to the petitioners and thus violated the conditions SCA/938/1997 7/13 JUDGMENT on the basis of which the permission to convert the land into non-agricultural use was granted. That the land in question was permitted to be converted for industrial purposes but the original land owner has failed to specify area in which such industry would be set up and the persons to whom the land had been sold had violated various provisions of law relating to putting up construction including Ribbon Development Rules and the construction was in violation of the lay-out plans, etc. It was further urged that once order of the revisional authority dated 05.05.1990 had become final any challenge to consequential orders by the petitioners would be futile and the petition deserves to be rejected. (8) When the Court called upon the learned Assistant Government Pleader to explain as to how the revisional authority could have initiated action under Section 211 of the Code SCA/938/1997 8/13 JUDGMENT after a period of nearly eight years from the date of the order viz. 22.02.1982, learned Assistant Government Pleader was not in a position to justify the said action. It was submitted that the revisional authority had come to know some time in 1986 that there was possible violation in relation to the land in question and it was only after ascertaining the correct facts that the action was initiated in February 1990. It was therefore contended by the learned Assistant Government Pleader that if the petitioners had not challenged the order dated 05.05.1990 of the revisional authority within a reasonable period of limitation, the petition should not be heard and entertained, more so when the petition had been filed after a period of nearly seven years from the date of the order. (9) The facts which are not in dispute are that the revisional authority initiated action in February 1990 in relation to an order made on SCA/938/1997 9/13 JUDGMENT 22.07.1982. The show cause notice was issued only to the original land owner. Even after receiving the reply from the original land owner and having derived knowledge that the petitioners were in possession of the property, the revisional authority did not think it fit to implead the petitioners, who were the persons directly affected by the proposed action. The impugned order dated 05.05.1990 made under Section 211 of the Code by the revisional authority has also been made only against the original land owner. The order itself also records that the petitioners were in possession of the property. Thereafter, when the petitioners approached the revisional authority seeking certified copies of the impugned order and the proceedings, the revisional authority was once again informed about the ownership of the petitioners on the basis of registered sale deeds executed in their favour. Admittedly, the revisional authority did not join the SCA/938/1997 10/13 JUDGMENT petitioners, nor did the revisional authority call upon the petitioners to show cause as to why the petitioners should not be dispossessed from the land. Hence, on this limited count of violation of principles of natural justice and lack of opportunity, the petitioners deserve to succeed. It is not in dispute that the action of the revisional authority has resulted in prejudice to the petitioners and the petitioners are directly affected by such action. (10) Even on the count of the revisional action being barred by limitation, in light of well settled legal position the petitioners are entitled to succeed. The order dated 22.02.1982 could not have been taken up in suo motu revision in February 1990 in exercise of powers under Section 211 of the Code considering the fact that the said action cannot be termed to be within a reasonable period of time as laid down by this Court and SCA/938/1997 11/13 JUDGMENT the Apex Court from time to time. (11) The contention raised on behalf of the respondents that the petitioners have challenged the order made by the revisional authority after a period of seven years also does not stand scrutiny. May be that the said order may not be challenged by the petitioners directly but it is an accepted position that the petitioners were agitating against all the consequential actions taken against them. It is necessary to note that the consequential orders made by the respondent authorities have all been made against the petitioners, whereas the revisional authority, at the cost repetition, despite knowledge of the petitioners being in possession and ownership of the property in question, chose not to hear the petitioners before making order adverse to the petitioners. Therefore, the petitioners were bona fide pursuing the remedy in accordance with law in relation to the orders SCA/938/1997 12/13 JUDGMENT made directly against them which are made as a consequence of the impugned order dated 05.05.1990 made by the revisional authority. (12) In the circumstances, on none of the grounds canvassed by the respondents can it be stated that the petition does not merit acceptance. Accordingly, in light of what is stated hereinbefore and the reasons set out hereinabove, the petition is allowed. The order dated 05.05.1990 made by the revisional authority under Section 211 of the Code is hereby quashed and set aside. As a consequence all the proceedings and orders made pursuant to the said order dated 05.05.1990 are also quashed and set aside. (13) Before parting it is necessary to clarify that if the petitioners have violated any other provisions of law this judgment shall not preclude the authorities from initiating appropriate action in accordance with law in relation to any such violation. SCA/938/1997 13/13 JUDGMENT (14) The petition is allowed in the aforesaid terms. Rule made absolute. There shall be no order as to costs. Sd/- [D. A. MEHTA, J] *** B h a v e s h *