2003 Supreme(Guj) 408

Gujarat High Court
Judgename :D.A.MEHTA
VALIMOHMAD PIRMOHD SHAIKH - Appellant
Versus
STATE - Respondent
S.C.A. 769 of 1989
Decided On : 07/24/2003

Headnote:(a) Bombay Land Revenue Code, 1879 (Bom. Act 5 of 1879) - Sec. 211 - Gujarat Co-operative Societies Act, 1961 (Guj. Act 10 of 1961) - Sec. 106(1), (2) & (3) - Certificate for recovery - Revisional jurisdiction of Revenue authorities - Certificate granted by Registrar under the Act is akin to judgment and order of Civil Court and execution proceedings taken in consequence thereof cannot be held bad in law - And in no circumstances the superior authority can exercise revisional power under Sec. 211 of the Code to cancell the recovery proceedings - In the case mutation of entry was only natural corollary or a logical consequence which revenue authorities have by impugned order cancelled.

       Sub-section (3) of Sec. 106 of the Societies Act states that a certificate granted by the Registrar under Sub-sec. (1) or Sub-sec. (2) shall be final, and a conclusive proof of the arrears stated to be due therein, which shall be recoverable according to the provisions of the Code and of the Rules thereunder for the time being in force for the recovery of Land Revenue. Thus, on a plain reading of Sec. 106(3) of the Societies Act it is abundantly clear that finality of the certificate and the conclusiveness of the arrears stated in the certificate stand established and recourse to provisions of the Land Revenue Code and Rules thereunder is only for the limited purpose of effecting recovery of the outstanding dues.

       [Para 13]

       The certificate granted by the Registrar under Sec. 106 of the Co-operative Societies Act would be akin to a judgment and order of a Civil Court which would exist and would be effective unless and until set aside or reversed or modified by a competent higher forum. Till this is not done execution proceedings in consequences of such a judgment and decree cannot be stated to be bad in law, as is sought to be made out by the revenue authorities in the present case. Assuming for the sake of argument that during course of effecting recovery under the provisions of the Land Revenue Code and the Rules thereunder, some irregularity is committed, at the highest, the superior authority can direct the subordinate authority and/or the parties to rectify such an irregularity, but in no circumstances can the superior authority exercise revisional powers to cancel the recovery proceedings. If this be the legal position it is not possible to accept the stand of the State Government that revenue authorities were justified in exercising revisional jurisdiction under Sec. 211 of the Land Revenue Code. It was necessary for the revenue authorities to bear in mind that unless and until the certificate issued by the Registrar under Sec. 106 of the Societies Act was set aside by a higher competent forum, it was not open to the revenue authorities to undertake revisional exercise only in relation to the recovery proceedings, as the auction proceedings was only for the purpose of recovery of the outstanding dues duly certified by the Registrar as provided under Sec. 106 of the Societies Act, and the mutation of entry was only a natural corollary or a logical consequence.

       [Para 14]

       (b) Bombay Land Revenue Code, 1879 (Bom. Act 5 of 1879) - Sec. 211 - Revisional jurisdiction - Period of limitation - There is no period of limitation prescribed for exercise of revisional jurisdiction but it is well settled position of law that in absence of any limitation prescribed the revisional authority is required to exercise the power within a reasonable period unless prevented by circumstances like fraud, etc. - In the case no fraud established and mere allegation of suspicious circumstance not sufficient to give unreasonable time of about more than four years to initiate revisional jurisdiction.

       There being no limitation prescribed under Sec. 211 of the Land Revenue Code, the position in law is well settled that in absence of any limitation having been prescribed, the revisional authority is required to exercise the power within a reasonable period.

       [Para 15]

       This is not a case of insufficient evidence or lack of evidence but a case of `no evidence. The evidence on which reliance has been placed by the authority would not reasonably lead to the conclusion that the authority has arrived at. Suspicion, howsoever strong and even if based on circumstances, cannot take place of evidence and for the purpose of establishing fraud there has to be evidence. Fraud cannot be accepted to have been established on the basis of mere suspicion, even if honestly and bona fide entertained on the basis of circumstances.

       [Para 20]

       The revenue authorities having failed to initiate revisional action, assuming such jurisdiction was available, within reasonable period the impugned orders fail also on the ground of limitation. As to what is reasonable period of limitation has been specified to be normally about one year from the date of the order sought to be revised. In the present case, the exercise of jurisdiction after expiry of about four years must be held not to have been exercised within a reasonable period within the ambit of Sec. 211 read with Rule 108(6) of the Land Revenue Code and Rules thereunder.

       [Para 21]

       (c) Bombay Land Revenue Code, 1879 (Bom. Act 5 of 1879) - Secs. 178 & 179 - Sale - Setting aside on ground of material irregularity, mistake or fraud - No application made alleging said ground - Collector authorised to set aside sale on other grounds also but various circumstances alleged by authorities in the case in their respective orders are suspicious circumstances which could not form the basis to set aside sale.

       Section 178 envisages situations in which an application could be made to the Collector to set aside the sale on the ground of some material irregularity, or mistake, or fraud, in publishing or conducting the auction sale. In the present case, the land owners have admittedly not moved any application under Sec. 178 of the Land Revenue Code. Therefore, as the matter stands, it cannot be stated that there is any material irregularity, or mistake, or fraud in either publishing or conducting the auction. Therefore, the basis of the impugned orders disappears. As already stated hereinbefore, the authorities have failed to establish any fraud and as far as material irregularity or mistake is concerned, even that has not been shown to be existing.

       [Para 23]

       The powers under Sec. 179 are wide enough to set aside the sale either on the grounds which may be available as stated in Sec. 178 of the Land Revenue Code or other than those which could be available for making an application under Sec. 178. In the present case, admittedly, there are no other grounds stated by the Collector for seeking to set aside the sale. The authorities have narrated various circumstances which, they themselves state in their respective orders, are suspicious circumstances. However, such suspicious circumstances cannot form the basis for exercising revisional jurisdiction in absence of any supporting cogent evidence. Thus, on this count also the petitioner should succeed.

       [Para 24]