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Mohanbhai Somabhai Patel v/s Khandubhai Gendabhai Patel & Another

    Special Civil Application No. 12604 of 2005

    Decided On, 05 May 2017

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE K.M. THAKER

    For the Petitioner: Dhaval D. Vyas, Advocate. For the Respondents: R2, Rakesh Patel, AGP.



Judgment Text

1. Heard learned advocate for petitioner and Mr. Rakesh Patel, learned AGP.

2. In this petition, the petitioner has prayed, inter alia, that:

"6(B) Be pleased to call for the records and proceedings of the case and after perusing the legality and propriety of the orders passed at Exh. A & b, be pleased to quash and set aside the and restore the entry no. 1609 dated 11/5/1987 with regard to the lands situate at village Chapra and to restore the entry No.1180 dated 1/5/89 with regard to the land at village Padga and direct the Mamlatdar & ALT, Navsari, not to initiate any proceedings under section 84(C) of the Act as directed by the Collector, Navsari and as confirmed by the Under Secretary, Revenue Deptt., in case No.68/98 and suo moto revision application No.4/87."

3. So far as factual background is concerned, the petitioner has narrated relevant facts in Para2 of the petition, which reads thus:

"2. The petitioner submits that he is owner and in occupation of the lands bearing Revenue Survey No.2111 admeasuring 0 Hector 13 Sq. Mtrs of land situate at Chapra, Tal. Navsari. That the said land was mutated in the join name of Mohanbhai Somabhai and Sukiben Somabhai mother of the petitioner and she was paying land revenue and cultivating the said land since 1973. That under the guise of a Will, it seems that grand mother of the petitioner executed in the name of Khandubhai Gendabhai Patel, an entry was mutated by the said will vide entry No.1193 dated 12/6/1983. That entry No. 1609 dated 11/5/1987 is also mutated jointly with the respondent No.1. That the land in question is agricultural land and the mother of the petitioner was cultivating the said land and thus his name was entered by entry No. 1609 dated 11/5/1987 jointly with the respondent No.1. Thus the petitioner was Khatedar of agricultural lands at village Padga and Chapra. That as there was bifurcation of Valsad Dist. into Valsad and Navsari District on 2/10/1997. That thirdy party Nanabhai Bhikubbhai Desai has filed an applicati

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n to the Collector alleging that the petitioner has become agriculturally illegally and thereby a suo moto review application was initiated after a period of more than 10 years from the date of mutation entry No.1609 dated 11/5/1987. That it is well established that no proceedings can be initiated after a period of 10 years as laid down by the Honourable High Court reported in judgment 26 (2) GLR Page 1187 and judgment reported in 19 GLR Page 992 and even in the judgment 1991 GLH Page115 and the notice issued how the name of the petitioner is entered though he is not an agriculturist, the name of the petitioner was cancelled. That the name of the petitioner is entered without consent of the respondent No.1 though the opponent No.1 has never raised dispute about joint name of the petitioner and himself, third party N.B. Desai has raised objections about the entry mutated in the name of the petitioner vide entry No. 1609 dated 11/5/1987. That the Collector by his order dated 21/8/1998 cancelled the said entry being entry No.1609 dated 11/5/87 as well as entry No.1180 dated 1/5/89 which is mutated by the purchaser of the agriculturalist land was cancelled and further passed an order to initiate the proceedings under section 84C with regard to the lands for which entry No.1180 dated 1/5/89 was mutated. Copy o the judgment and order dated 21/8/1998 passed by the Collector Navsari in Case No.4/97 is annexed hereto and marked as Exh. 'A'."4. From the facts narrated by the petitioner and the respondent it has emerged that the competent authority initiated suo motu proceedings with reference to entry No. 1609 dated 11.5.1987. The authority noticed that though present petitioner was not an agriculturist, he got his name entered into Revenue Record vide said entry No.1609.4.1 According to the respondents, the said land was originally owned by one Mr. Makanbhai Morar.4.2 The said land was sold to one Bhikhiben Wd/o. Vallabh Kada in January, 1952. 4.3 The said transaction was registerd at entry No.36 dated 15.3.52.4.4 Subsequently, another entry was made in September, 1970 i.e. entry No.550 which reflects that the name of Bai Chipkiben daughter of Mr. Vallabh Kada and Bhikhiben was mutated on the basis of judgment and decree passed by learned Civil Court at Navsari.4.5 According to the respondents, said Bai Chipki was tilling and cultivating the land from 1971 to 1982.4.6 Subsequently, in June, 1983 entry No. 1193 was made in revenue record, which reflected that land was transferred / bequethed to one Mr. Khandubhai Gandabhai by way of registered Will dated 6.12.1978.4.7 Thereafter, another entry i.e. entry No. 1609 was mutated in May, 1987 whereby name of present petitioner came to be entered into the revenue record along with Mr. Somabhai Ravjibhai, Jivanbhai Somabhai and Amrutbhai Gandabhai.4.8 According to respondents, on strength of the said entry No.1609 whereby the petitioner's name was entered into with reference to the land bearing Survey No. 21/1 at village Chapra, the petitioner herein claimed that he was an agriculturist and with the aid of said entry No. 1609 dated 11.5.1987, the petitioner purchased another parcel of land i.e. block No. 350 at village Padga, Taluka: Navsari.4.9 The said transaction was entered into the revenue record at entry No. 1180 dated 1.5.1988.4.10 The respondents claim that so far as land bearing Survey No.21/1 is concerned, actually Mr. Khandubhai Gandabhai had become absolute owner of the said land on account of registered Will.4.11 However, at the time when the entry, based on the Will was registered, present petitioner got his name also entered into as joint owner.4.12 According to the respondents, at the time when petitioner got his name registered i.e. in May, 1987, he was not an agriculturist. However, the petitioner claims otherwise and he asserts that at the relevant time he was agriculturist and also co-owner.4.13 However, according to the respondents, after getting his name mutated in revenue record at entry No. 1609, he represented himself as agriculturist on strength of said entry No. 1609 and purchased the land bearing block No. 350 and the said transaction came to be registered in May, 1988 at entry No. 1180 and that the petitioner, not being an agriculturist, could not have purchased the land bearing block No. 350.4.14 According to the respondents, the petitioner misused the entry No. 1609 wherein he got his name entered into only with a view of acquire status of agriculturist.4.15 Therefore, the authorities instituted suo motu proceedings.4.16 The petitioner, however, claimed that after he purchased the land at village: Padga i.e. land bearing block No. 350, one Mr. N.B. Desai had filed application / complaint alleging that he (i.e. petitioner) was not an agriculturist and that therefore, he could not have purchased the land bearing block No. 350. According to the petitioner, the authorities instituted the proceedings against him in view of the said application/ complaint by Mr. N.B. Desai.4.17 The said proceedings culminated into order dated 21.8.1998 whereby the authority reached to the conclusion that the petitioner was not agriculturist and he had wrongly got his name entered into the revenue record at entry No. 1609 in May, 1987 and that on strength of entry No. 1609 he purchased the land bearing block No. 350.4.18 Having reached such conclusion, the authorities directed that entry No. 1609 dated 11.5.1987 and the entry No. 1180 dated 1.5.1989 should be set aside.4.19 Feeling aggrieved by the said order passed by the Collector, the petitioner filed Revision Application before Secretary (Appeals).4.20 The Secretary (Appeals) heard the revisionist/ petitioner and after examining the record and the Collector's order, reached to the conclusion that the revision filed by present petitioner was without merits and the Collector's order did not warrant any interference and the findings recorded by the Collector are correct, just and proper.4.21 Having reached to the said decision, the Secretary (Appeals) rejected the Revision Application vide his order dated 14.7.2004. Feeling aggrieved by the said order, the petitioner has filed the present petition.5. The respondents opposed the petition. The Mamlatdar Navsari (Rural) has filed affidavit and stated, inter alia, that:"6. I say and submit that to answer the contentions raised by the petitioner, the following facts are required to be brought to the notice of this Hon'ble Court.a. The land bearing survey no.21/1 of Mouje: Chapra, Taluka & District: Navsari was originally owned by one Makan Morar. It appears from the village for no.6 being entry no.36 dated 15.03.1952 that the above referred subject matter of land was sold to Bhikhiben widow of Vallabh Kala on 4.01.1952. Hereto annexed and marked as Annexure R1 is the copy of the entry no.36 dated 15.03.1952.b. From the available revenue records, as it appears that entry no.550 dated 20.09.1970 in the village hak patrak 6 with respect to above referred land was mutated and thereby name of Bai Chipki daughter of Vallabh Kala was entered based upon the judgment and decree passed by Ld. Civil Court, Navsari. Hereto annexed and marked as Annexure R2 is the copy of entry no.550 dated 20.09.1970. It further appears from the available records of 7/12 abstract the from the year 19711982 that Bai Chipki daughter of Vallabh Kala was cultivating the subject land. Hereto marked annexed and marked as Annexure R3 is the copy of 7/12 abstract with respect to subject matter of land.c. As it appears from the entry no.1193 dated 15.06.1983 that the subject matter of land was transferred in the name of one Khandubhai Gandabhai through registered Will dated 06.12.1978 executed by Bai Chipkiben. Hereto annexed and marked as Annexure R4 is the copy of entry no.1193 dated 15.06.1983.d. I say and submit that entry no.160 dated 11.05.1987 was mutated in the village hak patrak 6 with respect to subject matter of land whereby name of Mohanbhai Somabhai, petitioner herein and one Somabhai Ravjibhai, Jivanbhai Somabhai and Amrutbhai Gandabhai was entered as joint owner. Here to annexed and marked as Annexure R5 is the copyof entry no.1609 dated 11.05.1987.e. As it appears from the entry no.1180 dated 01.05.1988 that the present petitioner and his wife purchased the land of block no.350 mouje: Padgha, Taluka & District: Navsari and the same came to be certified by the competent authority. Here to annexed and marked as Annexure R6 is the copy of entry no.1180 dated 01.05.1988.7. From the above referred revenue entries, as it appears that the name of Khandubhai Gandabhai become absolute owner of the subject matter of land based upon the will. Thereafter name of Mohanbhai Somabhai present petitioner came to be entered as joint owner. As it appears from the records that present petitioner was not an agriculturist and despite of that fact, the name of present petitioner was entered as a joint owner just with a view to become an agriculturist. In the proceedings held before the competent authorities, petitioner has not produced has not produced any evidence suggesting that he was an agriculturist or before dated 11.5.1987.8. It is respectfully submitted that the petitioner has contended while replying the show cause notice issued by the competent authority contending that his mother named Shukiben Mohanbhai was an agriculturist. However, from the 7/12 abstract from the year 19611988, there is no reference or any evidence suggesting that she was cultivating the land or she was an agriculturist. Hereto annexed and marked as Annexure R7 is the copy of 7/12 abstract with respect to subject matter of land.9. It is also deserves to be submitted that Khandubhai Gandabhai Patel gave his statement before the Circle Inspector dated 01.04.1997 whereby stated there in that he is in possession of the land and though the name of Mohanbhai Somabhai is entered as a joint owner but the same was without his consent. Here to annexed and marked as Annexure R8 is the copy of statement dated 01.04.1997 gave by Khandubhai Gandabhai Patel.10. It is submitted that on 01.04.1997, the panchnama was drawn with respect to subject matter of land before Circle Inspector wherein also it appears that Khandubhai Gandabhai Patel was in possession of the subject land and was doing agricultural activities. It is also stated therein that Mohanbhai Somabhai is not doing any agricultural activities in the subject land. Hereto annexed and marked as Annexure R9 is the copy of panchnama dated 01.04.1997.11. It is submitted that it is true that Chipkiben was the grandmother of the present petitioner. However, once the land is transferred through registered will in the name of Khandubhai Gandabhai Patel, Chipkiben ceased to be owner of the land and therefore, even if the Chipkiben is the grandmother, the present petitioner cannot claim with the subject matter of land as an ancestral property.12. In view of above circumstances, as it clearly appears that the petitioner was not an agriculturist at the time of entry no.1609 and the exercise done by the present petitioner to enter his name as a joint owner is without any valid possession or the consent, and thereby, the petitioner has committed a systematic illegalities just to become an agriculturist.13. It is submitted that one Namubhai Bhikhabhai Desai by his communication dated 14.10.1996 addressed a letter to the Ld. Collector, Valsad, whereby pointed out that names of present petitioner and his brother were wrongly entered considering the land being ancestral property and thereby they become an agriculturist. Hereto annexed and marked as AnnexureR10 is the copy of the communication dated 14.10.96.14. I say and submit that based upon above referred representation dated 14.10.1996 made by Namubhai Bhikhabhai Desai, the Collector, Valsad issued show cause notice dated 31.07.1997 whereby called upon the present petitioner as well as Khandubhai Gandabhai Patel to show cause as to why the entry No.1609 of Mouje: Chapra and entry no.1180 of Mouje: Padgha should not be cancelled. Hereto annexed and marked as Annexure R11 is the copy of show cause notice 31.07.1997.15. In view of the above circumstances therefore it is respectfully submitted that the entry no.1609 is nullify and therefore based upon the subsequent entry no.180 is also nullify. It is also submitted that the above referred illegalities came to be notice by Collector, Valsad only when the above referred Namubhai Bhikhabhai Desai made representation dated 14.10.1996 and immediately thereafter on 31.07.1997 show cause notice was issued and therefore there is no delay on part of initiating suomoto proceedings and hence this Hon'ble Court may not interfere in the present petition."6. While assailing the order passed by the Collector and Secretary (Appeals), the learned advocate for petitioner, claimed that the findings recorded by the authority that before his name came to be entered into the revenue record vide entry No. 1609 dated 11.5.1987, he (i.e. the petitioner) was not an agriculturist, is incorrect inasmuch as even before the said entry No. 1609 came to be mutated, his mother owned land which he and his mother cultivated and the allegation that he was not an agriculturist, is neither correct nor justified. Learned advocate for the petitioner further contended that impugned orders are not justified and not sustainable because the said orders have been passed in the proceedings which were initiated after abnormal delay of almost 10 years. According to the petitioner, proceedings are vitiated by undue delay and, therefore, the orders should not be sustained.7. Learned AGP vehemently opposed the petitioner's claim that before entry No. 1069 came to be mutated in May, 1987, he was agriculturist and was cultivating the land with his mother who owned parcel of land in adjoining village. Learned AGP contended that at any point of time the petitioner did not place any material on record before the Collector to support and justify said allegations. Learned AGP contended that even on record of present petition, there is no material to support the said claim and in absence of any evidence such claim, rather afterthought, should not be entertained. So far as the petitioner's contention on the ground of delay is concerned, learned AGP contended that the Act does not provide for any period of limitation and that, therefore, the proceedings cannot be said to be bad in law on ground of so called delay. He submitted that the petitioner purchased the land bearing block No. 350 at village Padga on strength of entry No. 1609 where he wrongly got his name entered into revenue record and that, therefore, the transaction whereby the petitioner purchased land bearing block No. 350 in May, 1988 is illegal and void and that the contention of ground of delay would not help the petitioner in case where the transaction is illegal and void. With regard to petitioner's contention on ground of delay so far as entry No. 1609 is concerned, Mr. Patel, learned AGP submitted that only Mr. Khandubhai had become sole and absolute owner of the land bearing Survey No. 21/1 and that, therefore, the petitioner could not have got his name entered into the revenue record, however, the petitioner illegally got his name registered in the revenue record and, therefore, the contention on ground of delay cannot help the petitioner.8. I have considered rival submissions by learned advocate for petitioner and learned AGP and I have also considered the material available on record as well as the orders impugned in the present petition.9. In view of the contention raised on ground of delay and in light of the legal position with reference to delay in initiation of suo motu revision proceedings, as explained by the Hon'ble Apex Court, it would not be necessary to enter into other contentions and objections raised by learned AGP and the learned advocate for petitioner and the petition can be decided on the said limited ground.10. In present case, it has emerged from the record that entry No. 1609 was mutated in revenue record in May, 1987. By said entry No. 1609 dated 11.5.1987, the petitioner got his name entered into revenue record. So far as other entry i.e. entry No. 1180 is concerned, the said entry was mutated in May, 1988. The said entry came to be mutated with reference to the land bearing block No. 350 which the petitioner purchased at village: Padga.11. With reference to the said 2 entries i.e. entry No. 1609 dated 11.5.1987 and entry No. 1180 dated 1.5.1988, the authorities initiated proceedings in 1997.12. Above mentioned facts are not in dispute.13. In this view of the matter, when the decision and observations by Hon'ble Apex Court in the decision in case of The State of Gujarat v. Patil Raghav Natha & Ors. [1969 (2) SCC 187], in case of Bhaniben Makanbhai Tandel v. State of Gujarat & Anr. [AIR 1991 Gujarat 184], in case of Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim [(1997) 6 SCC 71], in case of Pune Municipal Corpn. v. State of Maharashtra & Ors. [(2007) 5 SCC 211] and the decision of this Court in case of Patel somabhai Devidas v. Dahyaji Somaji Thakor & Ors. [2010 (5) GLR 4152] and in case of Rameshbhai Ambalal Shah v. State of Gujarat & Anr. [2011 (3) GLR 98] are taken into account, it becomes clear that the proceedings are hit by unreasonable and inordinate delay. From the record it has emerged that the proceedings came to be initiated after almost 9 years.14. In view of the said decision by Hon'ble Apex Court and Division Bench of this Court, the impugned orders deserve to be set aside on limited ground of delay.15. Consequently, following order is passed:15.1 Since the order impugned in present petition is hit by inordinate and unreasonable delay, the said order is hereby set aside and the petition is partly allowed on aforesaid limited grounds.15.2 Rule is made absolute to the aforesaid extent.
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