1997 Supreme(Guj) 178

Gujarat High Court
Judgename :R.R.Jain
CHANDULAL H.GHODASARA - Appellant
Versus
STATE - Respondent
S.C.A. 9602 of 1996
Decided On : 04/03/1997

Headnote:(a) Gujarat Town Planning & Urban Development Act, 1976, Secs. 65(3) & 67 - Gujarat Land Revenue Rules, 1972 - Rules 18(2), 26(v), 108(6) - Issuance of notice under Rule 108(6) by Collector - Validity - Collector has issued impugned notice as owner of the land covered under Town Planning Scheme which is not sustainable in view Secs. 65(3) & 67 of the Act - Only remedy left with the Govt. was to go for compensation.

       Collector has issued the impugned notice in the capacity as owner of Government land raising dispute about not allotting land in lieu of Government land inlcduded in the scheme. Thus, the right of Government as an owner is adversely affected for redressal of which separate procedure is provided. In this case the Government as owner did not raise any dispute or objection at any stage between publication of draft scheme to sanction as provided under Rule 18 (2) or 26 (4) of the Rules. Thus shall be deemed to have waived rights of raising any objection as contemplated under the Act and since the scheme has already been sanctioned having force of law under Sec. 65 (3) the Government as owner is estopped from raising any dispute as regards redistribution since by virtue of Sec. 67, all the lands vest in authority free from encumbrances only remedy would be to go for compensation.

       [Para 11]

       (b) Constitution of India, 1950 - Art. 226 - Writ petition - Show cause notice - Maintainability - Impugned show cause notice issued without jurisdiction - Held, petition maintainable.

       It is true that the impugned notice is a show-cause notice only, therefore, it is always open to the aggrieved party to appear before the authority and file appropriate reply. Issuance of show-cause notice simpliciter does not take away or affect any of the vested right. Thus, learned A.G.P. Mrs. Parekh, has argued that the petition is premature and not maintainable. The learned Senior Counsel for the petitioner, Mr. V.B. Patel has argued that the show-cause notice without jurisdiction would be ab initio void and nullity and cannot be acted upon. A show-cause notice without jurisdiction is permitted to be acted upon then all further proceedings would also be without jurisdiction which is not permissible under law. Relying upon the judgment of the Supreme Court in the case of East India Commercial Company vs. Collector of Customs, AIR 1962 SC 1893, Mr. Patel has argued that the Court is competent to issue appropriate writ in case where show-cause notice is without jurisdiction. Even this Court also in the case of Motiben Somaji vs. State of Gujarat, 1996 (2) GLH 22, has taken similar view holding that show-cause notice without jurisdiction is contrary to law and can be interfered with under Arts. 226 and 227 of the Constitution, if it is patently illegal.

       [Para 15]

       (c) Bombay Land Revenue Code, 1879 - Sec. 211 - Gujarat Land Revenue Rules, 1972, Rule 108(6) - Power to issue notice under - No limitation is prescribed for - However power has to be exercised within reasonable time limit of one year - Suo motu exercise of such power after lapse of six years is unjustified & illegal.

       Even assuming that the respondent-Collector has power to issue impugned notice under Rule 108, it shall be subject to some limitations as per the power of revision under Sec. 211 of the Bombay Land Revenue Code (hereinafter referred to as `the Code for short). Sec. 211 of the Code empowers Government and certain revenue officers to call for and examine the record of any inquiry or the proceedings of any subordinate revenue office in exercise of suo motu revisional powers. Since the law does not provide for period of limitation, the same has to be exercised within reasonable period. The question of reasonable cause to be examined by the Supreme Court in the case of State of Gujarat vs. Raghav Natha, X, GLR 992. As per this decision, reasonable period would be of three months for exercise of powers under Sec. 211 of the Code. While laying down this principle, the Supreme Court has laid a word of caution that length of reasonable time must be determined on the facts of individual case and nature of impugned order. Relying upon this ratio, this Court in the case of Janardan D. Patel vs. State of Gujarat, 1997 (1) GLR 50, has held that reasonable period would be of one year for exercise of revisional powers under Sec. 211 of the Code. The question of reasonable period within which suo motu powers invoking revisional jurisdiction of powers are to be exercised was also subject-matter of the decision in the case of Evergreen Apartment Co-op. Housing Society Ltd. vs. Special Secretary (Appeals), Revenue Department, 1991 (1) GLH 155 and the Court held that such powers exercised after unreasonable delay are illegal, arbitrary and bad in the eyes of law.

       [Para 17]

       (d) Gujarat Land Revenue Rules, 1972 - Rule 108(6) - Scope of - Limited to deal with legality of entries entered into record of rights - Under the Rule Collector has no power to decide question of title & order summary eviction while exercising revenue jurisdiction.

       The scope of Rule 108 of the Rules is to deal with entries made in the record of rights and dispute regarding legality of such entries. As held by the Supreme Court in the case of Sankalchand Jaychandbhai Patel vs. Vithalbhai Jaychandbhai Patel, 1996 (6) SCC 433, mutation entries do not create any title to the property since such entries are only to enable the state to collect revenues from the persons in possession and enjoyment of the property. The right, title and interest as to the property should be established independent of the entries. Thus, it is clear that the entries in the revenue records are for the fiscal purpose only and while exercising powers under Sec. 108, the Collector has no power to divest the petitioner of his legal title vested by statute, i.e. Town Planning Scheme. It is settled law that one cannot be divested of his legal title merely by virtue of deciding mutation entries.

       [Para 19]

       (e) Constitution of India, 1950 - Art. 226 - Writ petition - Locus Standi - Show cause notice in the name of original owner affecting rights of petitioner who is now the owner & mutation entries stands in his name - Petitioner entitle to maintain petition.

       The learned AGP has also challenged the locus standi of the petitioner to file the present petition since the notice is issued in the name of original owner, respondent No. 6. It is true that the notice has been issued in the name of respondent No. 6, original owner. In fact and even according to the revenue record also, the petitioner is the owner and mutation entries have already been made in his favour, consequently, it is the petitioner only and none else who would be the affected person in relation to the action proposed by Collector vide the impugned notice. Consequently, the petitioner is not only proper but necessary party to decide the rights qua the ownership of land in question. Hence, in my view, the petitioner has locus standi to approach this Court and ventilate grievance by preferring petition.

       [Para 22]