IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 1047 of 1983 For Approval and Signature: Hon'ble MR.JUSTICE S.K.KESHOTE ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question 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? -------------------------------------------------------------- PANCHVATI ESTATE OWNERS ASSOCIATION Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR SB VAKIL for Petitioners MR HJ SHAH, Dy. Secy. Revenue and Shri C.D. Dhanesh, Section Officer of Revenue Deptt. are present in person -------------------------------------------------------------- CORAM : MR.JUSTICE S.K.KESHOTE Date of decision: 15/08/97 C.A.V. JUDGEMENT 1. This matter has arisen under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act, 1976). The petitioners, Panchvati Estate Owners Association and Amichand Park Cooperative Housing Society, filed this Special Civil Application and challenge has been made to the order bearing Sr. No.ULC-3482/10228-V dated 18-12-1982 of the Government of Gujarat, Revenue Department prohibiting the petitioners No.1(i) & (ii) and the respondents No.3, 4 and 5 from making any change in the land of village Kochrab admeasuring 8219 sq. mts. and bearing final plot No.673/2 of the Town Planning Scheme No.3, Ellis Bridge, Ahmedabad till further orders and ordering maintenance of status quo and (ii) show cause notices Serial Nos. ULC-3482-10228-V dated 3-2-1983 issued by the second respondent requiring the petitioner No.1 and the respondents No.3 to 8 to represent its case why the orders Nos. ULC 27(2)(1) 19242 to 19252 all dated 5-5-1982 of the competent authority and the Additional Collector, Ahmedabad granting permission under sec.27(2) of the Urban Land (Ceiling and Regulation) Act, 1976, to the respondents No.3 to 8 for the sale of 8219 sq. mts. of the land bearing final plot No.673/2 of Town Planning Scheme No.3, Kochrab be not treated as ultra vires the powers of the Competent Authority, improper and void. 2. The respondent No.2 herein, in contemplation of initiation of the proceedings under sec.32 of the Act, 1976, passed a prohibitory order, annexure `1' Colly, restraining the parties concerned, that until further orders, no change should be effected in the said land and status-quo should be maintained. Then notice under sec.34 of the Act, 1976, has been given to the petitioner for review of the order of the competent authority. 3. The facts of the case, in brief, are that the petitioner No.2 is a Cooperative Housing Society registered as Sr. No.E/4321 of 1971 under sec. 9(1) of the Gujarat Cooperative Societies Act, 1961. The petitioner No.1 was incorporated as an Association limited by shares on 20th January, 1981 and was registered at No.NTC G 423 under the Bombay Non-Trading Corporations Act, 1959 by the Registrar of Non-Trading Corporations, Gujarat State, Ahmedabad. The respondents No.3 to 8 are the descendants of one Harshadlal Amritlal Shodhan and were at all times material to this petition owners as herein below indicated of land admeasuring 8219 sq. mts. of village Kochrab and bearing Final Plot No.673/2, sub-plots No.1 to 8 of the Ellis Bridge Town Planning Scheme No.3, Ahmedabad. The nature and extent of the right, title, share and interest of each of the respondents No.3 to 8 in the aforesaid land has been given out in Para No.2.2 of the Special Civil Application. The petitioners have submitted that over the area of about 8219 sq. mts. of the said land scattered constructions had been made prior to 28-1-1976 being the date of commencement of the Ceiling Act. 4. On or about 30th March, 1982, the respondents No.3 to 8 amongst themselves severally or jointly made 11 applications being Cases No.19242 to 19252 for the previous permission in writing of the competent authority under sec.27(2) of the Ceiling Act, for permission to sell the said plots of land to the petitioner No.1. The details of these applications have been given by the petitioner in Para No.2.3 of the Special Civil Application. The competent authority granted the permissions to respondents No.3 to 8 vide order dated 5-5-1982 under sec.27(2) of the Act, 1976 for the sale of the lands and construction made thereon to the petitioner No.1. The respondents No.3 to 8 by eleven separate registered deeds dated 3-8-1982 conveyed and sold the lands in dispute to the petitioner No.1. The numbers of those sale deeds have been given by the petitioner in Para no.2.4 of the Special Civil Application. Thereafter the petitioner No.1 has assigned on 30-10-1982 its right, title, share and interest in the lands in dispute, sub-plots No. 1 to 8 and Final Plot No.673/2 of T.P. Scheme No.3, Ahmedabad, in favour of the petitioner No.2. An application for amalgamation of the said sub-plots, an amalgamation plan has been submitted to the Municipal Commissioner, Ahmedabad on 8-12-1982 which has been registered as Case No.199/49. The building plans for making construction on the land have been submitted by the petitioner No.2 to the Municipal Commissioner, Ahmedabad on 19-12-1982 and have been registered as Case No.13/3/830. The petitioner submitted that the order dated 12th December, 1982 has been received by the petitioner No.1 and the respondents No.3 to 8 on 3-2-1983. 5. The learned counsel for the petitioners made three fold contentions in this Special Civil Application. Firstly, it is contended that delay in initiation of proceedings under sec.34 of the Act, 1976, vitiates the same. Secondly, it is contended that the prohibitory order dated 18-12-1982 is without any authority of law as no such order could have been passed before giving any notice to the persons concerned under sec.34 of the Act, 1976. It has next been contended that the notice under sec.34 of the Act, 1976 is also without jurisdiction and null and void as the authority has no jurisdiction to give such a notice after the sale deed of the land has been registered in pursuance to the no objection granted for the same under sec.27 of the Act, 1976 by the competent authority. In support of this contention, the learned counsel for the petitioner placed reliance on the decision of this Court in the case of Vasantlal Chhotalal Khandwala vs. State of Gujarat reported in AIR 1994 Guj. 26 and in the case of Raghav Natha vs. G.F. Mankodi reported in 6 G.L.R. 34. He has further placed reliance on the decision of the Bombay High Court in the case of State of Bombay vs. Chhaganlal Gangaram reported in 56 B.L.R. 1084. 6. I do not find any copy of reply in this Special Civil Application. During the course of arguments, the officers of the Government have given a carbon type copy of reply of the respondents dated 18th October, 1984 and the copy of the decision of this Court dated 3-3-1997 in Special Civil Application No.4235/84. In view of the fact that on the last date, the Assistant Government Pleader did not have the papers of the case nor any instructions in the matter and also there was no reply, the Officer concerned was directed to remain personally present in the Court along with the relevant record to assist the Court to decide the matter. In response to the said notice, Shri H.J. Shah, Dy. Secretary, Revenue Department and Shri C.D. Dhanesh, Section Officer, are present in the Court. Shri H.J. Shah, Dy. Secretary, is unable to given effective assistance to the Court in the matter. However, Section Officer, Shri C.D. Dhanesh submitted that he may be permitted to assist the Court and he has been permitted. That Officer deserves appreciation. He has come fully prepared in the case with the relevant record as well as with a copy of reply which is sought to be filed in this case and copy of the decision of this Court. He is fully prepared both on facts as well as on questions of law and he really provided effective assistance to this Court to decide this matter. 7. I have given my thoughtful consideration to the submissions made by the learned counsel for the petitioners and Shri C.D. Dhanesh, Section Officer, Revenue Department. The Special Civil Application has come up for admission before this Court on 7-3-1983 and the order made by this Court reads as under: Rule. Interim relief in terms of Para No.7(C). The liberty to other side to apply for hearing on the question of interim relief after giving a notice of 48 hours to the other side. Para No.7(C) of the Special Civil Application reads as under: to stay pending the hearing and final disposal of this petition the operation and implementation of the said order dated 18-12-1982 and further proceedings pursuant to the said notices dated 3-2-1983. The C.A. No.4424/83 has been filed by the respondent-herein before this Court on 17th October, 1984 and prayer has been made therein for the vacation of the interim relief dated 28th May, 1983 granted by this Court. This C.A. has been disposed of by this Court under its order dated 7/8 November, 1984,. The said C.A. has been granted and the interim relief granted by this Court has been vacated. The petitioner preferred L.P.A. No.287/85 against the order of this Court dated 7/8-11-1984 passed in C.A. No.4424/84. The L.P.A. was registered as L.P.A. No.287/85. In L.P.A., C.A. No.3060/85 has also been filed. 8. The order passed by the Division Bench in C.A. No.3060/85 on 20th August, 1985 reads as under: Notice returnable on 9th September, 1985. Ad-interim stay of hearing of sec.34 proceedings. Status-quo regarding construction on spot to be maintained. After 9th September, 1985, I do not find anything on record of the C.A. No.3060/85 whereunder the interim relief granted by this Court was ordered to be extended. However, the proceedings under sec.34 of the Act, 1976 have not been completed. 9. There is no dispute that a prohibitory order has been made in the present case before the show-cause notice under sec.34 of the Act, 1976 was given to the petitioners. In the case of Vasantlal Chhotalal Khandwala vs. State of Gujarat reported in AIR 1994 Guj. 26, the Division Bench of this Court held as under: 4. Section 34 of the Act runs as follows: "34. Revision by State Government - The State Government may, on its own motion, call for and examine the records of any order passed or proceeding taken under the provisions of this Act and against which no appeal has been preferred under Sec.12 or Sec.30 or Sec.33 for the purpose of satisfying itself as to the legality or propriety of such order or so as to the regularity of such procedure and pass such order with respect thereto as it may think fit: Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard in the matter." The calling for and examining the records of any order passed or proceeding taken under the Act by the State are only for the purpose of arriving at the subjective satisfaction of the State as to the legality or propriety of the order or as to the regularity of the procedure. On subjective satisfaction being arrived at, the stage for exercise of powers of revision can be arrived at, and then the action for exercise of such powers to pass orders as the State may think fit has to be initiated or commenced. Since the orders to be made, may affect a person, he has to be given a reasonable opportunity of being heard in the matter. The positive action for exercise of powers to pass orders as the State may think fit, could be stated to have commenced only on the issuance of a show cause notice to the person to be likely affected by the orders. The initiation of action could be only towards the end of passing orders. Without initiation of action towards passing orders as the State may think fit, there could not be passing of such orders. Such initiation of action could appropriately happen, only when a show cause notice is issued to the person to be affected. The action for exercise of powers in the real sense commences only on issuance of show cause notice to the person to be affected. Prior to such commencement of action, the matter is with the State in a sphere of consideration and deliberation, which may or may not fructify into initiation of action. The stage prior to issuance of a show cause notice is nebulous, and certainly the stage for making such orders as the State may think fit would arrive only on issuance of the show cause notice. Whatever was thought about, and deliberated upon, before issuance of a show cause notice, may remain in paper without being acted upon. The proviso is portent and decisive on this aspect, when it speaks about a reasonable opportunity of being heard being given to the person to be affected by the orders. Obviously, the proviso contemplates that action towards passing such orders as the State may think fit under section 34 could appropriately commence only by issuance of a show cause notice to the person to be affected by the such orders. 5. In the instant case when we look into the impugned proceedings - annexure `A' we are not able to spell out any feature that would fit in with such initiation of action. There is only a proposal to take action. The decision of the State to take action under section 34 of the Act alone is notified. The proposal and decision could not be stated to have been implemented by the impugned proceedings-annexure`A''. There is a difference between a proposal cum decision to take action and the actual and the factual initiation of action. What we could discern from the impugned proceedings-annexure `A' is only a proposal to take action and not the very initiation initiation of action. The learned single Judge was more guided to express a view that there was, in fact, initiation of action under section 34 of the Act by the sentence in and by which there was an intimation, that the date and time of hearing in the matter will be intimated separately. Until and unless a show cause notice is issued calling upon the petitioner to make his say on the question of revising the earlier order on grounds to be notified, the bare statement in the impugned proceedings-annexure `A' that the date and time of hearing in the matter will be intimated separately is of no consequence at all. Such a statement will have a meaning only after a show cause notice has been issued. Hence we are not able to take any guidance from that statement and hold that there was, in fact, initiation of action. 10. In view of this Division Bench decision of this Court, the order of the respondent, annexure `1' dated 18th December 1982, is not legal. This matter is squarely covered by the aforesaid decision of the Division Bench. Re: Delay in Initiation of Proceedings. 11. Sec.34 of the Act, 1976, reads as under: "34. Revision by State Government- The State Government may, on its own motion, call for and examine the record of any order passed or proceeding taken under the provisions of this Act and against which no appeal has been preferred under Sec.12 or Sec.30 or Sec.33 for the purpose of satisfying itself as to the legality or propriety of such order or so as to the regularity of such procedure and pass such order with respect thereto as it may think fit: Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard in the matter." 12. Sec.34 of the Act empowers the State Government to call for and examine the record of any order passed or proceedings taken under the Act for the purpose of arriving at the subjective satisfaction as to the legality or propriety of the order or as to the regularity of the procedure. In sec.34 of the Act, 1976, no limitation has been provided for exercise of that power in the matter. In the Act, 1976, also I do not find that any limitation elsewhere has been provided within which the powers under sec.34 should be exercised by the State Government. However, it is true that where limitation has not been prescribed for taking of any action in the matter under the Act then such powers should be exercised within a reasonable time. In a given case on facts it has to be examined whether there is a culpable or deliberate delay on the part of the respondents to initiate the proceedings under sec.34 in the matter. Merely on the ground of delay in initiation of action under sec.34 of the Act, 1976, the proceedings shall not be vitiated. Many other things are to be gone into before any action of authority under sec.34 of the Act, 1976 is declared to be invalid x x x x x x x x x x x only on the ground of delay in initiation thereof. The counsel for the petitioners contended that the powers under sec.34 of the Act, 1976 are akin to the powers of the Government under sec.211 of the Bombay Land Revenue Code, and as such, the power of revision or review could have been exercised within a reasonable period. 13. The permission to the petitioners under sec.27(2) of the Act, 1976 has been granted in the month of April, 1982 and admittedly the sale deeds were executed in their favour by the holders of the land on 3rd August, 1982. The show cause notice under sec.34 of the Act, 1976 was issued in the month of February, 1983, so after about approximately six months from the date of the sale deeds and about ten months from the date of grant of permission under sec.27 of the Act, 1976. The order of prohibition has been passed on 18th December, 1982. From this order one can understand that the proceedings against the petitioners for review of the order passed by the competent authority under sec. 27 of the Act, 1976, were in contemplation by the respondent-State much earlier to the issue of show-cause notice under sec.34 of the Act, 1976. In sec.34 of the Act, 1976, no period of limitation has been prescribed, but it is true that where the period of limitation has not been prescribed, it is not open to the authorities to take the action at any time as and when they desire, but it should be taken within a reasonable time and reasonable time depends on the facts and circumstances of each case. The Government could exercise its powers under sec.34 of the Act, 1976 of revision or order passed by competent authority suo motu as and when it has come to its notice. The heavy burden lies on the petitioners who have challenged the action of the State Government of initiation of suo motu powers of revision under sec.34 of the Act, 1976 on the ground of delay, to show as a question of fact by pleading a specific fact in detail that due to lapse of time the position of party has been changed considerably to such an extent that it is now impossible to reverse the process. 14. The petitioners in Para 3.2 of Special Civil Application pleaded on the question of delay in initiation of proceedings that, "The impugned orders have been made and the impugned notices have been issued after a lapse of a period of more than 7 months after the grant of the permissions dated 5-5-1982. The petitioners submit that after such gross delay the State Government has no jurisdiction, power or authority under sec.34 of the Ceiling Act to review the permissions dated 5-5-1982 particularly when in the meanwhile some transfers have been effected acting on the said permission. Pursuant to the said permissions dated 5-5-1982 the respondents No.3 to 8 have as aforesaid executed registered sale deeds in favour of the first petitioner and conveyed the lands to the first petitioner. The petitioners submit that pursuant to the permissions granted under sec.27(2) of the Ceiling Act, sale deeds have executed, the State Government has no jurisdiction, power or authority under sec.34 of the Act to review the orders for the grant of the permissions. The petitioners have only pleaded that on the basis of the permission granted by the competent authority under sec.27(2) of the Act, 1976, the sale deeds have been executed. The execution of the sale deeds in pursuance to the permission granted cannot be said that the position of party has been changed considerably to such an extent that now it was impossible to reverse the process. Only sale deeds have been executed by that time and if ultimately the authority decides, it is only a question of refund of consideration of the sale to the party concerned, but only on this ground, it cannot be said that it is a case of unreasonable delay which justifies the quashing of the proceedings only on this ground. 15. The matter of delay in initiation of suo motu powers by the authority under different Act where the limitation has not been prescribed has come up for consideration before the larger bench of this Court in the case of Shailesh J. Varia vs. Sub-Registrar, Narmada Bhavan reported in 1996(2) GLH 848. The relevant portion of the judgment of the larger bench i.e. Para No.45 and 46 reads as under: 45. Finally, we may refer to a recent decision of the Hon'ble Supreme Court in State of Orissa and Others vs. Vrundaban Sharma and Another, (1995) Supp. (3) SCC 249. In Vrundaban Sharma, tenancy rights were conferred by a Tehsildar without obtaining prior confirmation of Board of Revenue which was a condition precedent. When the Board came to know about the action of by Tehsildar, it quashed the order but by that time a period of twenty-seven years was over. It was contended that though no period of limitation was prescribed, the power could have been exercised within reasonable period and by no means, period of twenty-seven years could be said to be reasonable. Considering the provisions of the Act and referring various decisions including Patel Raghav Natha, their Lordships observed; "It is, therefore settled law that when the revisional power was conferred to effectuate a purpose, it is to be exercised in a reasonable manner which inheres the concept of its exercise within a reasonable time. Absence of limitation is an assurance to exercise the power with caution or circumspection to effectuate the purpose of the Act, or to prevent miscarriage of justice or violation of the provisions of the Act or misuse or abuse of the power by the lower authorities or fraud or suppression. Length of time depends on the factual scenario in a given case. Take a case that patta was obtained fraudulently in collusion with the officers and it comes to the notice of the authorities after a long lapse of time. Does it lie in the mouth of the party to the fraud to plead limitation to get away with the order ? Does lapse of time an excuse to refrain from exercising the revisional power to unravel fraud and to set it right ? The answers would be no. 46. From the aforesaid decisions, there is no doubt in our minds that the power under sub-section (1) of Section 32-A of the Act can be exercised within reasonable period and no outer limit can be fixed for exercise of such power. The decision in Patel Raghav Natha, in our considered opinion, cannot be read as laying down universal rule applicable to all statutes, at all times and under all circumstances without reference to the