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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R.M.CHHAYA, BIREN VAISHNAV, JJ.
STATE OF GUJARAT – APPELLANT
Versus
CHANDANBEN WD/O JASHVANTBHAI – RESPONDENT
LETTERS PATENT APPEAL NO. 607 of 2021 In SPECIAL CIVIL APPLICATION NO. 13731 of 2016 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
Decided on : 27-09-2021
Tenancy Act, 2021 - Section 43, 2(6) and 63, 74, 84C - Gujarat Land Revenue Code, 1879 - Section 135D - Transfer of Properties Act, 1882 - Section 54 - Registration Act, 1908 - Section 17 - Gujarat Land Revenue Rules, 1972 - Section 108(6), 211 – Andhra pradesh Telangana Land Revenue, 1370 - Section 87 - Urban Land (Ceiling Land Regulation) Act, 1976 - Section 27 - Ultra vires - Rule of law - Powers as a revenue officer - Gujarat Land Revenue rules, 1962 - Rule 108(6) - Prohibition of transfer of any Urban land with a building thereon - Whether it would attract so called breach of Tenancy Act - Whether exercise of suo motu powers could be justified after lapse of 25 years even if transaction is said to be void or if there are some breach of conditions of Tenancy Act - Whether period is reasonable or not has to take into account surrounding circumstances and relevant factors to decide that question - Whether transaction is valid or not has to be examined by competent authority under particular enactment by following procedure prescribed therein and by giving an opportunity of hearing to concerned parties likely to be affected by any order that may be passed.
Findings of the Court- State Government has power to call for and examine record of any enquiry of proceedings of any subordinate Revenue Officer and to review same under sub-rule (6) of Rules - It is to be noted in present case that no appeal had been presented within 60 days from date of Mamlatdars order certifying initial entry - Assistant Collector, Surat took said entry in suo motu revision, even though he had no such power under provisions of Rule 108 - It, therefore, appears that Additional Chief Secretary, Revenue Department remanded proceeding to Collector for treating same as an appeal - This was done after a period of 4 years after certification of entry - It was only State Government which had power to call for a record of inquiry or proceeding under sub-rule (6) of Rule 108 - Even State Government was empowered to satisfy "as to regularity of such proceedings and as to legality or property of any decision or order passed in such proceedings" - So entire inquiry and revisional power has to proceed under Bombay Land Revenue Rules and not under any enactments like Bombay Tenancy and Agricultural Lands Act, Urban Land (Ceiling and Regulation) Act or Bombay Prevention of Fragmentation and Consolidation of Holdings Act - It is quite possible that an officer of Revenue Department may be occupying different capacities under different enactments - That, however, would not empower him to exercise any powers under one enactment while proceeding under another enactment - So far as proceedings under Rule 108 of Rules, popularly known as RTS proceedings, are concerned, it is well settled that entries made in revenue records have primarily a fiscal value and they do not create any title - Independently Revenue Authorities, as mentioned in Rule 108 of Rules, cannot pass orders of cancelling entries on an assumption that transaction recorded in entry are against provisions of a particular enactment - Section 27 relates to prohibition of transfer of any Urban land with a building thereon - Apart from legal position that Sec. 27 has been struck down as ultra vires, it is quite obvious that no such question of transferring urban land with a building thereon has ever arisen in present case - Thus, order of revisional authority has proceeded on a misconception of relevant legal provisions also.
Result: Appeal dismissed of.
JUDGMENT :
R.M.CHHAYA, J
1. Feeling aggrieved and dissatisfied by the judgment and order dated 29.08.2018 passed by the learned Single Judge in Special Civil Application No.13731 of 2016, the State Authorities have preferred this appeal under Clause 15 of the letters patent.
2. The following facts in nutshell will be necessary to refer to based upon the record of this appeal. The respondents-original petitioners are owners and occupiers of land bearing survey nos.326 paiki 1 having block no.316, totally admeasuring 34 gunthas, situated at Mouje-Niyol, Taluka:Palsana, District-Surat. It is a matter of record that now the land in question is included in the area of Draft Town Planning Scheme No.54, (Niyol-Sedhav), Surat and as per draft Town Planning Scheme, the respondents-original petitioners have been allotted final plots and some portion of the land in question is forming part of the town planning scheme road as well.
3. The land in question was originally owned by one Kesarlattadevi widow of Madhusudan Guruvallabhdas and the same was cultivated by one Shri Ratanji Bhavanji as tenant. The record indicates that the tenant had deposited an amount of Rs.72.15 paisa in the name of the land lady and resultantly, the land in question was granted to the tenant Ratanji Bhavanji on new and impartable tenure subject to restrictions under Section 43 of the Tenancy Act. An entry to the said effect being entry no.910 came to be mutated on 20.11.1974 which was duly certified by the competent authority on 10.02.1976. The record further indicates that on death of Ratnaji Bhavanji, name of Ratanben-widow of Ratnaji Bhavanji, came to be mutated in the revenue record as a successor by way of succession being entry no.1202 dated 03.04.1980. The record further shows that by way of a family arrangement, during the lifetime of Ratnaji, name of Ratanben came to be deleted and name of Jashvantbhai Jagubhai who happens to be the nephew of Ratanben, came to be mutated by entry no.1321 dated 19.01.1982. After following due process of law as provided under Section 135D of the Gujarat Land Revenue Code (hereinafter to be referred to as ‘the Code’ for the same of brevity), same entry came to be certified on 02.03.1982. The record indicates that the said entry was rechecked by the learned Collector and ultimately certified. Right from 1982 onwards, the name of Jashvantbhai Jagubhai came to be continuously shown as owner of the land in question. His death certificate on record shows that Jashvantbhai Jagubhai expired on 21.11.2003 and hence, names of heirs and legal representatives of Jashvantbhai Jagubhai came to be mutated vide entry no.2726 on 15.12.2003 along with other agricultural lands and the said entry also came to be certified.
4. Meanwhile, the State Government came out with a policy on 09.10.2006 whereby, after use of land for a particular number of years, it can be converted from new tenure land to old tenure land. As record reveals at this stage, the Deputy Collector, Choryasi, opined that there is some illegality in the mutation about the said partition and more particularly entry no.1321 dated 19.01.1982 and hence, referred the said entry to the District Collector, Surat. The District Collector, Surat, vide show cause notice dated 05.01.2007, exercised his suo-motu powers as provided under Rule 108(6) of Gujarat Land Revenue rules, 1962, and took the entry no.1321 dated 19.01.1982 in suo-motu revision on alleged breach of provisions of the Tenancy Act, Hindu Succession Act, Registration Act, and Transfer of Property Act, and registered a case against the respondents-original petitioners being RTS/Suo-Motu/Rev. Case No.1/07. The respondents-original petitioners filed a detailed reply opposing the said show cause notice and thereafter the District Collector, Surat, vide order dated 03.11.2007, referred and transferred the proceedings to Mamlatdar and ALT, Choryasi, for breach of the provisions of the Tenancy Act. On receipt of the same, after a per
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