RAJESHBHAI VITHALBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present petition is directed against the order dated 11.06.2008 passed by the Gujarat Revenue Tribunal (hereinafter referred to as 'the Tribunal') in Review Application No. TEN/CA/No.8/2007 whereby the Tribunal has dismissed the said application and confirmed its order dated 28.02.2007 passed in the Appeal TEN/AA/3/2004, arising out of the order dated 25.11.2003 passed by the Deputy Collector, cancelling the entry No. 7177 made in the revenue record in favour of the petitioner, and directing the land in question to be vested in the Government under Section 79 -A of the Gujarat Land Revenue Code (hereinafter referred to as 'the Revenue Act'),

(2.) The short facts giving rise to the present petition are that one Bhikhabhai Dhulabhai was granted the land in question bearing Survey No. 612 by the Government. The said land was of new tenure. The said Bhikhabhai died on 01.08.1991. The present petitioner claiming to be the legatee under the Will, allegedly executed by the said Bhikhabhai, had filed an application before the competent Civil Court for issuance of the probate. In the said proceedings, the public notice was issued inviting objections. However, nobody having objected, the said Court had issued the probate in favour of the petitioner and his mother Lilaben Vithalbhai on 30.06.1994. On the basis of said probate, the petitioner had filed an application to the Mamlatdar for mutating his name in the revenue record. The Mamlatdar on 20.11.1994 made the entry being No. 7177 mutating the name of the petitioner, which was certified on 30.12.1994. The petitioner, thereafter, applied for conversion of the said land from new tenure to old tenure on 12.10.2001. The Mamlatdar, Vadodara (Rural) in April, 2002, passed an order permitting the said conversion from new tenure to old tenure for agricultural purposes only, on the conditions mentioned therein. One of the said conditions was that, the said permission was subject to review by the competent authority. It appears that thereafter the Deputy Collector issued the notice on 30.12.2002 calling upon the petitioner and the respondents Nos. 6 to 9 to show cause as to why the land should not be vested in the Government, the land having transferred in favour of the petitioner by virtue of the Will dated 14.02.1991, as per the entry No. 7177 made in the revenue record. The Deputy Collector, thereafter, passed the order dated 25.11.2003 (Annexure 'C') setting aside the said entry No.7177 made by Mamlatdar on 20.11.1994, and directing to vest the land in the Government under Section 79 -A of the Revenue Act by holding that there was violation of the condition of grant alloted to the original allottee Bhikhabhai, who had executed the will and transferred the land in question in favour of the petitioner. Being aggrieved by the said order, the petitioner had preferred the revision petition before the Gujarat Revenue Tribunal, who vide the order dated 28.02.2007 dismissed the same. The petitioner filed review application before the said Tribunal, however the same was also rejected vide the order dated 11.06.2008. Hence, the present petition.

(3.) The learned counsel Mr. Buch for the petitioner vehemently submitted that the Deputy Collector had sought to review the entry made in favour of the petitioner after an unreasonable delay of 8 years. He has relied upon the various decisions of this Court in support of his submissions that when no period of limitation is prescribed, the Authority should exercise the power to review the order of its subordinate authority within reasonable time. He further submitted that the respondents had never objected the entry in question made in favour of the petitioner nor had raised any objections against the Will executed in favour of the petitioner by the deceased Bhikhabhai. Distinguishing the judgment of Division Bench in the case of Rajenbhai Baldevbhai Shah versus Baijiben Kabhaibhai Patanvadia and Others reported in 2009 (2) GLR 1784, he submitted that in the said case, the land was sought to be transferred to the non -agriculturalist under the Will, and in any case the Court had left the question open to be considered by the Court, when the equities are created on the land by virtue of lapse of period between transfer and review made by the competent authority. However, the learned AGP for the State authorities relying upon the very judgment, submitted that the assignment by virtue of Will, would lead to transfer and the land having been originally given to Bhikhabhai by way of grant, who was the member of scheduled caste, the same was non -transferable. According to him, such land could not have been transferred in favour of any third person under the Will, when the legal heirs of said Bikhabhai were alive. He has also submitted that the petitioner was granted permission in April, 2002 for converting the land from new tenure to old tenure subject to conditions mentioned in the order itself, and one of the conditions of the said order was that it was subject to review by the competent authority, and therefore, the Deputy Collector had issued the show - cause notice in December, 2002, which could not said to have been issued after an unreasonable delay. The learned counsel appearing for the respondents Nos. 6 to 9 has fairly submitted that the said respondents had not raised any objection in any of the proceedings, however, submitted that such land could not have been transferred in favour of the petitioner under the Will allegedly executed by their father Bhikhabhai.