RAVJIBHAI MAVJI JOGANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Mr.P. V. Hathi appearing on behalf of the petitioner and Mr.Pandya appearing on behalf of the respondent nos.1, 2 and 3.

(2.) In the present petition, Rule has been issued by this Court on 01/05/1996 and ad-interim relief in terms of para-12(D) has been granteed by this Court. Until further order, no further order passed by this Court on 01/05/1996. In the present petition, the affidavit-in-reply has been filed on behalf of the respondent no.2 - Shri A. M. Solanki, Collector, Amreli on 6th October, 1999. Against the said reply, the petitioner no.4 - Keshubhai Mavjibhai Jogani has filed affidavit-in-rejoinder on 28th October, 1999 which has been taken on record. In the present petition, the petitioners have challenged the order dated 15th November, 1994 passed by the Collector, Amreli at Annexure-F to the petition and the order dated 28th April, 1995 passed by the Secretary, Revenue Department (Appeals), Gujarat State, Ahmedabad at Annexure-G to the petition and further prayer has been made by the petitioner to direct the respondents not to act and implement the orders in any manner and to treat the disputed Survey No.332 (Part) after restoring the said Revenue Entry Nos.3548, 9447 and 9448 on the revenue record.

(3.) The brief facts of the giving rise to this petition are as under. The petitioners submit that the Survey No.332 admeasuring 23 acre 16 gunthas situated in Amreli was the property of Nagnath Mahadev Mandir Trust, which was a registered public trustand the same was under the management of Mamlatdar, Amreli. Different persons including the father of the petitioners were cultivating the said land as tenants. However, the Mamlatdar, Amreli, after taking necessary permission of the Charity Commissioner, sold on 24th Feburary, 1970 part of the said land admeasuring 11 acres 26 gunthas to the second petitioner Chhaganbhai Nathabhai Jogani and his name was duly entered in the revenue record, by Entry No.4278, without any notice to the petitioners. It was wrongly mentioned that the land was of new tenure land. On coming to know of such insertion restricting the right of the petitioner to dispose of the land, the petitioners made an application to the Mamlatdar, Amreli on 6th November, 1990 to delete the erroneous entry of new tenure made in the revenue record on 11th April, 1991 and the necessary order was passed restoring the original entry of old tenure land in the said revenue record. The said order was certified to be corrected on 19th August, 1991 by revenue Entry No.9447. The petitioners also pointed out that they partitioned their land between themselves by family arrangement in August, 1991 and the necessary entry of partition came to be certified as entry No.9448 on 19th August, 1991. The petitioner nos.1 and 4 made an application to the Collector under sectioin 65 of the Bombay Land Revenue Code for converting the lands, which had gone to their respective shares being 2 acres and 14 gunthas andthe District Development Officer, granted such permission by his order dated 21/03/1992 and 02/05/1994 for constructing the residential houses and to dispose of the remaining plots as can be seen from the copy of the said order. According to the petitioners, the petitioners spent a large amountafter obtaining necessary building permission, for making construction of residential houses and some of the plots are already disposed of by outright sale deeds in favour of third parties including the second respondent. It is also necessary to be noted that the Entry No.9447 was made by the order of the Mamlatdar on 11th April, 1991 and no objection was taken to the several further actions of the petitioners and there was no scope to exercise revisional powers after lapse of a reasonable time namely, after one year as consistently held by the Supreme Court and the High Court of Gujarat. It is also submitted by the petitioners that the disputed land belong to Nagnath Mahadev Trust, a registered public trust, which was sold by the Administrator, Mamlatdar, Amreli on 24th February, 1970 by an outright sale made in favour of the father of the petitioner Mavji Khoda Jogani. The said sale deed specifically mention that the sale was an outright sale and was not subject to the provisions of the Bombay Tenancy Act as clarified by the Collector, Amreli, in his letter dated 11th February, 1970. Not only that there was no entry of restricted tenure on the record from 1950-51 to 1969-70 and no entry could have been made, thereafter, without any prior notice to the petitioners. If there had been any such restricted tenure, the said fact must have been incorporated in the sale deed executed by Revenue Officer in his capacity as the Administrator of the Trust. However, for some inexplicable reasons and withoutany notice to thepetitioners the word "new tenure" came to be written in the revenue record of 1970-71 without any enquiry or notice to the petitioners. Such a change could not have been made being illiterate agriculturists and being unaware of the true legal position they made an application to delete those words and/or to convert the land in old tenure lands which application was in fact not necessary. However, the Mamlatdar, respondent no.3 who was also the Administrator of the Trust - an executant of the sale deed, passed an order to delete those words on 11th April, 1991 and the necessary change was made by the revenue Entry No.9447. No appeal or Revision Application was filed against the said order or the entry so made by the Mamlatdar, Amreli. On relying upon the said order at Annexure-D dated 11th April, 1991, the concerned petitioners made an application under section 65 of the Land Revenue Code, as submitted above and spent large amount in making the construction after due permission and dispose of some plots of land in favour of the third parties, to the knowledge of the concerned respondents. However, the respondent no.2 issued show cause notice on 13th July, 1994 to the petitioners alleging that the said land was probably a new tenure without subject to the restrictions contained in section 43 of the Bombay Tenancy Act and that, therefore, Entry No.9447 made pursuant to the Mamlatdar order dated 11th April, 1991 was liable to beset aside in his suomotu exercise of power conferred by rule 108 and/or section 211 of the Bombay Land Revenue Code. According to the petitioners that even the Collector, as can be seen, was not sure whether the land was of restricted tenure from his show cause notice which has been issued by the Collector to the petitioners. The said show cause notice was issued in respect of the five revenue entries, which the Collector wanted to revise in exercise of power conferred by rule 108(6), the petitioners in reply to the said notice filed a detailed explanation on 9th August, 1994 whether they contended, inter alia, that the said revenue entries were properly made and even otherwise he had no jurisdiction to upset the orders and the entries after lapse of three years. Citing the judgment reported in 1994 (1) GLR 822. It was also pointed out that the said lands were already non-agricultural lands pursuant to the order dated 21st March, 1995 passed by the District Development Officer, Amreli. In view of these facts, the notice issued by the Collector, Amreli was required to be withdrawn and/or rejected. However, the Collector by his order dated 15th November, 1994 set aside the Entry Nos.3548, 9447 and 9448 mostly on the assumption that the said lands were new tenure lands and being subject to the conditions mentioned in section 43 of the Bombay Tenancy Act and the same could not have been partitioned without prior permission of the competent officer. Because, ultimately, the Government suffers huge loss in not receiving the premium amount which was payable on deletion of the entry of new tenure contained in the revenue record. Being aggrieved by the order dated 15th November, 1994 passed by the Collector, Amreli, the petitioiners have filed a Revision Application on 12/02/1994 to the Secretary (Appeals), Revenue Department, Ahmedabad and the same was registered as Revision Application No.SSRD/HKM/AML/6 of 1994, the said Revision Application was heard by the Secretary (Appeals) on 10th April, 1995 where again the petitioners submitted written submissions reiterating the whole history of the suit lands and as to how the entries were made in the revenue records. However, the Secretary (Appeals) by his order dated 28th April, 1995 rejected the Revision Application and confirmed the order of the Collector mainly on the assumption that the orders were nullity and can be set aside at any time and for which there was no rule of limitation. Against that this petition has been filed by the petitioners. On the ground that both the authorities have committed seriously erred in cancelling the Revenue Entry Nos.3548, 9447 and 9448 which are not sustainable in law or which are otherwise arbitrary, illegal and unreasonable manner and not having jurisdiction to pass such orders. It is also contended before this court by the petitioners that the revisional powers cannot be exercised after lapse of three years of the making of the entries to the knowledge of all concerned and relying upon some of the judicial pronouncements of the Appex Court as well as this Court. It is submitted by the petitioners that Entry No.3548 which was certified in the Year-1965 and the name of Chhagan Mavji was entered in place of his father Mavji Khoda and after the period of 29 years, such entry has been taken in appeal or revision by the authories and cancelled the same which cannot be reopened.