IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3683 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE M.S.SHAH ============================================================ 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 : NO 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 -------------------------------------------------------------- LEGAL HEIRS OF DECEASED POPATKHIMA RAMANI Versus COLLECTOR -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 3683 of 2002 MR DD VYAS with MR DL KOTHARI & MR UTPAL PANCHAL of M/S.VYAS ASSOCIATES for Petitioner No. 1-1/3 .......... for Respondent No. 1-3 MR PM THAKKAR with MR NAVIN PAHWA and MR HM PRACHCHHAK for Respondent No. 4 -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.SHAH Date of decision: 18/04/2002 ORAL JUDGEMENT Rule. Mr HM Prachchhak, learned advocate waives service of Rule for respondent No. 4. Respondent Nos. 1 to 3 being quasi-judicial authorities, no notice is required to be issued to them. With the consent of the learned counsel for the parties, the petition has been taken up for final disposal and is being disposed of by this judgment. 2. What is challenged in this petition under Article 226 of the Constitution is the judgment and order dated 28.3.2002 passed by the Principal Secretary, Revenue Department (Appeals) of the State Government dismissing the petitioners' revision application under Section 135 L(2) of the Bombay Land Revenue Code (the Code or the BLR Code for brevity) read with Rule 108(6A) of the Bombay Land Revenue Rules, 1921 (the Rules or the BLR Rules, for brevity). 3. The facts leading to filing of the petition are as under:- 3.1 The dispute between the parties is about land admeasuring Acres 4, 9 Gunthas in Survey No. 128 and land admeasuring Acres 4, 2 Gunthas in Survey No. 124 of the City of Rajkot. Both the parcels of land are hereinafter referred to as "the land" or "the land in question". The revenue record indicated that prior to the controversy, the land was mutated in the name of Ladha Ratna. Ladha Ratna expired on 25.4.1978. On 30.4.1978, an application was given by Popat Ladhabhai to the City Mamlatdar, Rajkot for mutating his name in the revenue record regarding the land in question. The land was mutated by entry No. 3635 in the name of Popat Ladhabhai and was certified by the Circle Officer, Rajkot on 7.6.1978. 3.2 On 22.9.1997, respondent No. 4 herein, Jivtiben Shivabhai Keralia, daughter of late Ladha Ratna filed an appeal under Rule 108(5) of the Bombay Land Revenue Rules before the Assistant Collector, Rajkot challenging the aforesaid entry No. 3635 and praying that the order made at entry No. 91 in the succession register on 7.6.1978, on the basis of which the above entry was made, be set aside and the appellant (i.e. respondent No. 4 herein) be declared as the owner of the land. The Assistant Collector dismissed the appeal by his judgment and order dated 13.10.1999/4.4.2000 (Annexure "D") on the ground that the appeal was time barred and that no sufficient and reasonable cause was shown for condoning the delay of 19 years. In the meantime, during pendency of appeal before the Assistant Collector, Popatbhai expired on 30.6.1999. 3.3 Thereafter on 20-9-2001, respondent No. 4 herein preferred an appeal before the Collector, Rajkot for challenging the aforesaid order of the Assistant Collector. By judgment and order dated 27.11.2001 (Annexure "E"), the Collector, Rajkot allowed the appeal and held that Popat Ladha had claimed ownership over the land in question under a registered Will dated 18.12.1969 and a registered adoption deed dated 4.2.1972, but at the time of his adoption by Ladha Ratna, Popat Khima was aged 41 years. Therefore, the adoption was illegal in view of the provisions of Section 10(iv) of the Hindu Adoptions and Maintenance Act, 1956 which provides that the person to be adopted must not be more than 15 years of age. As regards the Will, the Collector observed that the land in question was obtained by Ladha Ratna at a partition and, therefore, it was an ancestral property. Only self acquired property could be bequeathed by a will. Popatbhai had not produced a probate from a competent Court of law alongwith the Will and, therefore, the Will could not be relied upon. According to the affidavit of respondent No. 4, she was the sole legal heir of Ladha Ratna being his daughter. Although she was alive and she had not given any release or waiver, entry No. 3635 was made without serving respondent No. 4 with a notice under Rule 135-D of the Bombay Land Revenue Rules. Hence, such an illegal entry could be set aside without any bar of limitation. The Collector accordingly directed the subordinate revenue authorities to cancel entry No. 3635 and to enter the name of respondent No. 4 in the record of rights for the land in question. 3.4 Aggrieved by the aforesaid order, the petitioners herein preferred a revision application before the State Government. The Principal Secretary, Revenue Department (Appeals) heard the parties and dismissed the appeal by his impugned judgment and order dated 28.3.2002 (Annexure "G") and confirmed the findings given by the Collector. Hence, the heirs of Popatbhai, the petitioners herein, have filed this petition challenging the orders of the Principal Secretary, Revenue Department (Appeals) and the Collector, Rajkot. 4. At the hearing of this petition, Mr DD Vyas, learned counsel for the petitioners has raised the following contentions :- (i) The second appeal filed by respondent No.4 was not maintainable and, therefore, the Collector could not have set aside the order of the Assistant Collector in appeal. Both the order of the Collector and that of the Secretary must fall to the ground. Strong reliance is placed on the decisions of this Court in 2001 (3) GCD 1946, 37 (2) GLR 600 and 26 (1) GLR 139. (ii) There was delay of 17 years in the appeal filed by respondent No. 4 before the Assistant Collector for challenging the entry certified on 7.6.1978. The Assistant Collector had, therefore, rightly dismissed the appeal as time barred. Moreover, there was also delay of almost 2 years in filing the appeal before the Collector for challenging the Assistant Collector's Order dated 20.10.1999. Hence, the Collector as well as the Principal Secretary erred in not dismissing the appeal before the Collector and in interfering with the entry made as far back as in 1978. (iii) When a civil suit between the same parties in respect of the same dispute about the same land is pending and the interim orders passed in the said suit are in favour of the petitioners and against respondent No.4, the revenue authorities were simply required to follow those interim orders during pendency of the suit and thereafter to follow the final order in the suit on the question of title to the property. The Collector as well as the State Government in revision had no power or authority to decide the disputes about the title to the property. They were only required to consider the question of mutation entry for the limited fiscal purposes as to from whom the land revenue should be collected i.e. who is the person in possession of the land. Still, however, the Collector and the Principal Secretary adjudicated upon the disputes between the parties about the title to the property and, therefore, their orders are required to be set aside. (iv) Assuming that the authorities had jurisdiction to decide such disputes, the orders passed by the authorities suffer from errors of law apparent on the face of the record. Popatbhai, the petitioners' father, was a nephew (brother's son) of Ratna Ladha. Popatbhai and his father Bhikhabhai were looking after Ratna Ladha for a number of decades as Ratna Ladha had no son and respondent No.4 was married and staying at her husband's place. Hence Ratna Ladha had executed the registered will as well as the registered adoption deed in 1969 and 1972 respectively long prior to his death in 1978. The finding that the adoption was illegal was rendered without considering the law laid down by the Madhya Pradesh and the Bombay High Courts and later on by the Hon'ble Supreme Court in AIR 1991 SC 1180 taking the view that even if the person adopted is more than 15 years old, such adoption is permissible in view of the custom prevalent in this part of the country. Similarly, as regards the question of Will, the Will was registered and was required to be acted upon without Popat Ladha or the petitioners obtaining any probate. The provisions of Section 213(2) read with section 57 of the Indian Succession Act, 1925 have not been considered by the authorities. (v) Even though respondent No. 4 had not made any application before the Circle Officer or the Mamlatdar for entering her name in the revenue record, by the impugned order the Collector directed the Mamlatdar to mutate the name of respondent No. 4 in the revenue record relating to the land in question. 5. On the other hand, Mr PM Thakkar, learned counsel for respondent No. 4 has made the following submissions:- (i) Under the provisions of Rule 108 of the Bombay Land Revenue Rules, against the order of the Assistant Collector/Deputy Collector under sub-rule (5), a revision lies before the Collector under sub-rule (6) and against such decision of the Collector, a further revision lies before the State Government under sub-rule (6A). Even if an appeal did not lie to the Collector, atleast a revision did lie and, therefore, the Collector's order dated 27.11.2001 may be treated as an order in revision and, therefore, no interference with the said order or with the order of the State Government in further revision is called for. Reliance is placed on the decisions in AIR 1971 SC 2039, AIR 1970 SC 1173, AIR 1964 SC 264 and AIR 1958 SC 232. (ii) No time limit is prescribed for entertaining the revision before the Collector under sub-rule (6) or before the State Government under sub-rule (6A) of Rule 108. The order dated 7.6.1978 at entry No. 81 in the succession register resulting into entry No. 3635 was not communicated to respondent No. 4. Hence, the question of delay did not arise. In any view of the matter, that entry was made pursuant to the application dated 30.4.1978 given by Popatbhai, son of Khima Ramani. In that application Popatbhai had made a false statement that deceased Ladha Ratna had no other heir except Popatbhai himself. The rojkam made in presence of the Talati-cum-Mantri and produced before the Additional Mamlatdar also contained a false statement that apart from Popatbhai, deceased Ladha Ratna had no other heir, although respondent No. 4 - the daughter and the only legal heir of deceased Ladha Ratna was alive. Before making this entry, respondent No. 4 was not served with any notice under Rule 135-D of the Rules and, therefore, such entry obtained by fraud and misrepresentation of facts can be set aside at any stage and in any proceedings. (iii) The Collector and the Principal Secretary in revision accepted the case of respondent No. 4 that being the daughter of deceased Ladha Ratna, she was entitled to have her name mutated in the revenue record relating to the land in question, but it was the petitioners, as the heirs of Popatbhai who pleaded the defence that Popatbhai had obtained title to the land in question by virtue of the registered Will dated 18.12.1969 ad the registered adoption deed dated 4.12.1972. Hence, the Collector and the Principal Secretary dealt with those two defences on merits. Hence, the Collector and the Principal Secretary were well within their powers in giving the findings because the petitioners invited the said authorities to consider the petitioners' defences which were required to be dealt with. (iv) The findings given by the Collector and confirmed by the Principal Secretary are justified on merits also, but it is not necessary for this Court in the present proceedings to go into the merits of those findings for the simple reason that such disputes are to be decided by the Civil Court and the findings given by the authorities in such RTS proceedings for the limited purpose of making entries in the revenue record do not confer any title to the property. Regular Civil Suit No. 892 of 1998 is already pending in the Court of the learned Civil Judge (Senior Division), Rajkot and, therefore, the mutation entries to be made as per the impugned orders will abide by the outcome of the said Civil Suit. (v) When the Collector and the Principal Secretary found that entry No. 3635 made in favour of Popatbhai Ladha was required to be cancelled, the said authorities were justified in directing that respondent No. 4 being the only issue of deceased Ladha Ratna was entitled to have her name entered in the revenue record relating to the land in question. CONTENTION (i) 6. As regards the first contention regarding non-maintainability of the appeal before the Collector, it is true that once the Assistant Collector dismissed the appeal against entry No. 3635, a second appeal did not lie in view of the provisions of sub-rule (5) of Rule 108 of the Bombay Land Revenue Rules, 1921. However, it appears that the decisions cited by Mr Vyas for the petitioners were rendered in the context of unamended Rule 108. The relevant portions of Section 135-L(2) of the Code read with amended Rule 108 are required to be set out for appreciating the controversy in the correct perspective. "Sec.135-L(2) Appeal.- The correctness of the entries in the record of rights and register of mutations shall be inquired into and the particulars thereof received, by such Revenue Officers and in such manner and to such extent and subject to such appeal as the State Government may from time to time by rules prescribed in this behalf. Rule 108.(1) Disputes entered in the register of disputed cases shall ordinarily be disposed of by the Mamlatdar's First Karkun or by the Mamlatdar,... ... ... ... (2) to (4) ... ... ... ... (5) An appeal against an order under this rule shall, if the order has been made by the ... ... ... ... or a revenue officer of lower rank than that of a Deputy Collector, lie to the Sub-Divisional Officer or to an officer appointed by the Collector in this behalf and if the order has been made by .... .... .... by a revenue officer of a rank not lower than that of a Deputy Collector, to the Collector; such appeal shall be presented within sixty days from the date on which the copy of the order was served on the appellant or was otherwise intimated to him. Provided that the appellate authority may after recording its reasons in writing admit an appeal after the aforesaid period of sixty days if it is satisfied that the appellant had sufficient cause for not presenting the appeal within such period. Subject to the provisions of sub-rules (6) and (6-a) the decision of the appellate authority shall be final. There shall be no appeal against the order of the Collector. No second appeal shall lie in any case. (6) The Collector may call for and examine the record of any enquiry or the proceedings of any subordinate revenue officer held under rules 106, 107 and sub-rules (1) to (5) of this rule for the purpose of satisfying himself as to the regularity of such proceedings and as to the legality or propriety of any decision or order passed in such proceedings. If, in any case, it shall appear to the Collector that any proceeding so called for or any decision or order made in such proceedings should be modified, annulled or reversed, he may pass such order thereon as he deems fit. (6-A) The State Government may call for and examine record of proceedings in respect of any order passed by the Collector under sub-rule (5) or sub-rule (6) for the purpose of satisfying itself as to its regularity of such proceedings and as to the legality or propriety of any decision or order passed in such proceedings. If in any case, it appears to the State Government that any proceedings so called for or any decision or order made in such proceedings should be modified annulled or reversed it may pass such order thereon as it deems fit." 7. In view of the aforesaid provisions, once an appeal was preferred before the Assistant Collector against the order of the Circle Officer certifying the entry and such appeal was dismissed by the Assistant Collector, a second appeal did not lie to the Collector, but sub-rule (6) does provide for a revision and empowers the Collector to call for and examine the record of any enquiry or proceeding of any subordinate revenue officer under sub-rule (5) of Rule 108 for the purpose of satisfying himself as to the regularity or propriety of any decision or order passed in such proceedings. In view of this provision and the wide language of sub-rule (6) conferring the revisional power on the Collector in terms wider than the revisional power under Section 115 of the Code of Civil Procedure, this Court is of the view that the judgment and order passed by the Collector in appeal can certainly be treated as the judgment and order in a revision application under sub-rule (6) of Rule 108. In Muman Habib Nasir Khanji vs. State of Gujarat, 11 GLR 307, a Division Bench of this Court took the same view that the order passed by the State Government in a purported appeal under Rule 108 of the BLR rules should be treated as an order in revision which was held to be maintainable. CONTENTION (ii) 8. As regards the contention that since the appeal was required to be filed within 60 days, the Assistant Collector had rightly rejected the appeal filed after 17 years and that the Collector ought not to have exercised the power for interfering with the entry certified as far back as on 7.6.1978, the contention may prima facie appear to be attractive. However, sub-rule (5) prescribing the limitation period of 60 days from the date of service of the order of the first authority also confers the power of condonationof delay for sufficient cause. Apart from the fact that the order of the Assistant Collector does not mention the date of service, if any, of the order on respondent No. 4, the contents of the application dated 30.4.1978 (signed by Popat Ladha but writtn by some other person) and the Rojkam made before the Taluati-cum-Mantri on the same day indicates that a misrepresentation was made that deceased Ladha Ratna had no daughter and that Popat Ladha was the only son, heir and descendant of the deceased. Even the notice required to be sent under Rule 135-D of the Bombay Land Revenue Rules was not sent to respondent No. 4, the only issue of deceased Ladha Ratna. When the Collector considered this set of circumstances as a sufficient cause for condoning the delay and the State Government in revision confirmed this finding, this Court would be loathe to interfere with this concurrent finding in exercise of its extraordinary discretionary jurisdiction under Article 226 of the Constitution. 9. Mr Vyas for the petitioenrs, however, contended that even where no period of limitation is prescribed, the Courts have evolved the principle that any statutory power must be exercised within reasonable time. The period of 17 years cannot be said to be reasonable period, when the land in question has been divided into plots and most of them have been sold or constructions have been put up thereon. 10. There are two answers to this submission. In the first place, the principle laid down by the Apex Court in State of Orissa vs. Brundaban Sharma, 1995 Supp (3) SCC 249 and explained by this Court in Jiviben Kalaji Bapuji vs. State of Gujarat, 1998(2) GLH 556 is that though the general rule is that a statutory power unfettered by any time limit must be exercised within reasonable time, the defence that exercise of a statutory power beyond reasonable period must be held to be illegal is not available to a person who himself is guilty of fraud or suppression of material facts in respect of a matter which is relevant to the certification of an entry in the revenue record. This principle has also been reiterated by a Division Bench of this Court in Gujarat Khet Kamdar Union vs. State of Gujarat, 1999(3) GLR 2044 (2056). In view of the admitted position that respondent No. 4 is the daughter of deceased Ladha Ratna and that Popatbhai has not relied on the adoption and the will in his favour inthe application dated 30.4.1978 (on the basis of which Etnry No. 3635 was made), Popatbhai was required to state this fact before the authorities while applying for mutating his name in the revenue record as the sole heir of deceased Ladha Ratna. Secondly, even while interfering with Entry No. 3635, it is possible to direct the subordinate revenue authorities not to interfere with the transations in the intervening period, so that the delay on the part of respondent No. 4 causes no prejudice to the other parties. Hence, the orders of the Collector and the Principal Secretary interfering with entry No. 3635 made on the basis of the application dated 30.4.1978 cannot be faulted with on the ground that the power has been exercised beyond reasonable period. 11. Coming to the question of delay in filing the appeal (treated as revision as per the present judgment) before the Collector, the Assistant Collector dismissed the appeal by his order dated 13.10.1999/4.4.2000 and respondent No. 4 preferred the appeal before the Collector on 20.9.2001 i.e. after a delay of more than a year and five months. According to the petitioners, the order of the Assistant Collector was pronounced in the presence of the learned advocate for respondent No. 4 who was the appellant before the Assistant Collector and, therefore, respondent No. 4 must be deemed to have known about the pronouncement of the order of the Assistant Collector on 13.10.1999 and, therefore, there was no sufficient cause shown for the delay in filing the appeal/revision before the Collector. On the other hand, it is the case of respondent No. 4 that the learned advocate who had appeared on her behalf before the Assistant Collector did not inform her about the outcome of the appeal. 12. When sub-rule (6) of Rule 108 does not prescribe any period of limitation for revision before the Collector and when the Collector condoned the delay on the aforesaid ground and entertained the appeal/revision on merits and the Principal Secretary of the State Government also confirmed that order, at this stage this Court woul not upset the orders on the ground of delay in filing the appeal (now treated as revision) before the Collector. The explanation given by respondent No. 4 might not have been accepted by an authority considering such explanation for the first time, but when the same has been accepted by the Collector and the appeal is entertained on merits and that decision has also been confirmed by the State Government in revision, this Court is not inclined to exercise extraordinary writ jurisdiction under Article 226 of the Constitution for upsetting that decision of the Collector to condone the delay in filing the appeal/revision. CONTENTION (iii) 13. The learned counsel for the parties have strenuously argued about the scope of the power of the revenue authorities in deciding the question of title to the property.