2003 Supreme(Guj) 549

Gujarat High Court
Judgename :K.A.Puj
GOPIRAJ DEDRAJ AGRAWAL - Appellant
Versus
STATE - Respondent
S.C.A. 12055 of 2003
Decided On : 09/19/2003

Headnote:(a) Gujarat Land Revenue Rules, 1972 — Rule 108(6) — Suo moto powers — Period of limitation — No period of limitation prescribed for exercise of suo moto powers but it is always subject to reasonable period — In the instant case revision of mutation entry by Collector exercising suo moto powers after a long period of 10 years held not just and proper.

       Court is of the view that both the orders, which are challenged in the present petition are based on certain erroneous factual premises and these orders were passed ignoring the relevant facts and considering the irrelevant materials resulted into miscarriage of justice. The Collector has exercised his suo motu revisional jurisdiction after the expiry of more than 10 years which cannot be said by any stretch of imagination to be a reasonable period and even on that ground also the Collectors action is not held to be just and proper. In this connection, it is worthwhile to refer the decision of this Court in the case of Evergreen Apartment Co-operative Housing Society Ltd. vs. Special Secretary (Appeals) Revenue Department, 1991 (1) GLH 155. In that case, the petitioner society purchased the land in question in 1981 and subsequently also constructed tenements thereon. In 1985, Deputy Collector suo motu cancelled the entry made in the record of rights in favour of the petitioner society. On these facts, this Court has held that it was too late for the authority to create cloud on petitioners title. This Court has, therefore, quashed and set aside the impugned orders passed by the Collector and the Additional Chief Secretary, Revenue Department by holding that the order was passed by the Deputy Collector after unreasonable delay. Here, in the present case, the mutation entry was sought to be reserved after expiry of the period of more than 10 years and hence it cannot be said to be a reasonable period.

       [Para 14]

       (b) Bombay Tenancy and Agricultural Lands Act, 1948 (Bom. Act 99 of 1948) — Secs. 63 & 84-C — Hindu Succession Act, 1956 — Sec. 6 — Mutation — On basis of will — Testamentary succession is permissible and it is not subject to prior permission under Sec. 43 or 63 of Tenancy Act — Consequently suo moto proceeding initiated by Collector for reversing the impugned entry mutated in record of rights is contrary to law.

       Testamentary succession is a permissible mode of succession in case of a death of a tenant who is Hindu. A Will is not an instrument of transfer of property by sale, gift, exchange or mortgage or lease or assignment nor it is an agreement. It needs two living persons to make an agreement. It is the unilateral declaration of a person fixing his own line of succession to his estate on his demise. The Will speaks as on the death of the testator and the succession takes place in accordance with the directions in the Will. It is devolution of interest of deceased by succession in the nominated persons and not transfer of interest of a person in any of the modes of transfer prescribed, which all relate to transfer inter virus. The Will is not a document of transfer by way of sale, gift, exchange, mortgage, lease or assignment neither Sec. 43 nor Sec. 63 envisages prior permission of any authority for executing a Will that would take effect after the death of a person which he has right to vary, cancel or modify any time before his death, as many times as the testator desires.

       [Para 17]

       The position cannot be different in the nature of intestate succession and testamentary succession. In case of intestate succession also an heir may or may not be agriculturist. In case of one or more of heirs being non-agriculturist, he cannot be deprived of his inheritance. So also a legatee can be a non-agriculturist and he too will succeed only to the interest of the deceased whether was held by the deceased as individual or as joint tenant with other contenant. In either event, the vesting of the property in successor cannot be denied.

       [Para 18]

       There is no hesitation on the part of this Court to hold that the order passed by the Collector as well as by the Joint Secretary, Revenue Department (Disputes), are not sustainable in law and hence they deserve to be quashed and set aside.

       [Para 20]