VAGHRI JIVANDAS MANJI Vs. STATE OF GUJRAT

JUDGEMENT

(1.) RULE. Mr. J. K. Shah, learned Assistant Government Pleader, waives service of nptice of rule on behalf of the respondents. In the facts and circumstances of the case, and with the consent of the learned counsel for the parties, the petition is being heard and finally disposed of today. 1. 1. By filing this petition, under Articles 226 and 227 of the constitution of India, the petitioners have challenged the order dated 10th January, 2008 [18th January, 2008], rendered by the respondent no. 1, whereby the order dated 11th September, 2006 of the respondent no. 3 i. e. the Mamlatdar, Radhanpur, granting Non-Agricultural use permission in favour of the petitioners, has been set aside.

(2.) THE brief facts of the case, as emerging from a perusal of the averments made in the petition are that, the petitioners are the heirs and legal representatives of late Shri Manji Kachra Vaghri, who was a tenant upon the land bearing Survey No. 378/1 and 378/2, admeasuring about 16 Acres and 15 Gunthas and 3 Acres and 35 Gunthas respectively, situated at Taluka Radhanpur, District Pa tan. 2. 1. It transpires from the averments made in the petition that originally one Shri Shah Ibrahim was the owner of the land bearing survey Nos. 378/1, 378/2 and subsequently the name of Shri Manji kachra Vaghri, predecessor-in-title of the petttioers, came to be entered into village Form No. 6 under Entry No. 514 in the year 1956-57, being the tenant and in actual possession of the said land. Having, been held as a tenant upon the land in question, the sale price was determined and the land was sold to the predecessor-in-title of the petitioners as per the provisions of Sections 32g and 32m of the Bombay Tenancy and agricultural Lands Act, 1948 [the "tenancy Act" for short], read with the provisions of Section 43 of the Tenancy Act, for a sale price of Rs. 700/-, subject to certain restrictions on the transfer of land. The necessary certificate in favour of the predecessor-in-title of the petitioners was issued by the concerned Mamlatdar and Entry No. 833 was made in village Form No. 6 on 26th October, 1964, which was certified on 13th december, 1964. Upon the demise of Shri Manji Kachra Vaghri on 26th january, 1993, the land in question devolved upon the petitioners and their names were entered in the revenue records under Entry No. 3571. It is averred in the petition that since there was an error in the measurement of the land mentioned in the village Form No. 7/12 for survey No. 278/a/2, and instead of the correct measurement of 5 Acres and 20 Gunthas i. e. 22,258 sq. mtrs. the measurement was wrongly mentioned as 2 Acres and 8 Gunthas, the petitioners moved an application to the Mamlatdar, Radhanpur, for rectification of the error in the relevant record. After following the due procedure and conducting a detailed examination, it is averred that the Mamlatdar, Radhanpur passed order dated 30th September, 1993 rectifying the mistake recording the measurement of the land in question as mentioned in the village form No. 7/12. According to the petitioners, the Mamlatdar had considered the report of Circle Officer, the Panchnama, the fact of actual possession of the petitioners and other necessary factors before ordering the revised Entry No. 3629 to be made in the revenue records. This entry was made on 5th October, 1993, whereby the measurement of the land in question has been corrected to be 5 Acres and 20 Gunthas and the relevant documents annexed as Annexure- "c" to the petition. 2. 2. It further transpires from the statements made in the petition that thereafter, an application seeking permission to remove the restrictions of new and impartible tenure under the provisions of Section 43 of the Tenancy Act, in respect of the land admeasuring 16,000 sq. mtrs. of Survey No. 378/a/2 was moved before the respondent no. 2, who granted the said permission and determined the amount of premium payable as Rs. 33,60,000/-, vide order dated 29th April, 2006. This amount was deposited by the petitioners on 10th May, 2006. On payment of the amount of premium, the Collector, Patan passed order dated 17th May, 2006 granting Non-Agricultural use permission ["n. A. permission" for short] for residential purposes in respect of the land admeasuring 16,000 sq. mtrs. It is further stated in the petition that another application was moved by the petitioners for the removal of the restrictions of new and impartible tenure under the provisions of Section 43 of the Tenancy Act, in respect of land admeasuring 6,258 sq. mtrs. This application was also allowed by the respondent no. 2 vide order dated 18th May, 2006 and the amount of premium was determined as Rs. 16,64,000/ -. The petitioners deposited the said amount on 19th May, 2006 and thereafter, vide order dated 20th May, 2006, restrictions under the provisions of Section 43 of the Tenancy Act were removed for using the land for commercial purposes. It is averred that, after the restrictions under Section 43 of the Tenancy Act were removed in respect of the land admeasuring 16,000 sq. mtrs. for residential purposes and those upon land admeasuring 6,258 sq. mtr. for commercial purposes, the petitioners made an application before the Collector for obtaining N. A. permission regarding the land in question on 10th July, 2006, under the provisions of Section 65 of the bombay Land Revenue Code [the "code" for short]. The Collector granted n. A, permission in respect of the land in question vide order dated 11th september, 2006, annexed as Annexure-M to the petition. However, the petitioners received a show cause notice dated 9th October, 2007, calling upon them to explain why the N. A. permission in respect of the land in question should not be cancelled. Pursuant thereto, by exercising power under Section 211 of the Code, the respondent no. 1 passed order dated 10th January, 2008. [18th January, 2008] whereby N. A, permission dated llth September, 2006 in favour of the petitioners has been cancelled, leading to the filing of the present petition. 2. 3. An affidavit-in-reply has been filed on behalf of the respondent no. 3 i. e. the Collector, Radhanpur wherein the impugned order dated 10th January, 2008 [18th January, 2008] is sought to be justified.

(3.) I have heard Mr. D. K. Puj, learned counsel for the petitioners and Mr. J. K. Shah, learned Assistant Government Pleader for the respondents and have perused the averments made in the petition as well as the documents annexed thereto. 3. 1. Mr. D. K. Puj, learned counsel for the petitioners has submitted as under :-3. 2. That the N. A. permission in favour of the petitioners has been granted by the Collector, Radhanpur vide order dated llth september, 2006 and the respondent no. 1 has issued the show-cause notice dated 9th October, 2007 after a delay of more than 13 months and thereafter the said permission has been cancelled by order dated 10th January, 2008 [18th January, 2008], which is after a period of about 15 months from the date of granting the same. According to the learned counsel for the petitioners, the power of revision under the provisions of section 211 of the Code have been exercised by the respondent no. 1 after a period of more than one year, which cannot be said to be a reasonable period of time, as held by the Apex Court in the case of STATE of GUJARAT V. PATEL RAGHAV NATHA and ORS. REPORTED IN 1969 glr PG. 992 AND IN THE CASE OF ZABIR MOHMAD HAFEZI ISMAIL patel and ORS. V. STATE OF GUJARAT and ORS. REPORTED IN 1997 glr PG. 140. It is submitted by the learned counsel for the petitioners that as per the decision of the Apex Court, the reasonable period of time for exercising powers under Section 211 of the Code would be about three months and as such, the show-cause Notice dated 9th October, 2007 could not have been issued after a lapse of about 13 months, after passing the order dated 11th September, 2006 and further the N. A. permission could not have been cancelled by passing order datecl 10th January, 2008 [18th january, 2008] after a period of about 15 months. According to the learned counsel for the petitioners, the impugned order dated 10th january, 2008 [18th January, 20081 deserves to be quashed and set aside, being contrary to the decisions of the Apex Court and this Court and, therefore, the petition may be allowed. 3. 3. That the reasons contained in the impugned order for cancellation of the N. A. permission are untenable and factually incorrect, it is submitted by Mr. D. K. Puj, that the respondent no. 1 has stated in the impugned order that the opinions of the Executive Engineer, R and B, chief Officer, Radhanpur, Executive Engineer, Gujarat Electricity Board, radhanpur, District Health Officer, Radhanpur and Mamlatdar and ALT, radhanpur, had not been received before the grant of N. A. permission, when in fact these authorities, except two, had submitted their opinions in favour of the petitioners before the order granting N. A. permission dated llth September, 2006 was passed. As far as the opinions of the executive Engineer, Narmada Yojana, Kutch Branch and the Executive engineer, R and B [state], Patan are concerned, the same have been received on 7th November, 2006 and 23rd November, 2006, respectively as is evident from the documents annexed at pages 58 and 59 of the paper book. It is emphasized by the learned counsel for the petitioners that these opinions are also favourable to the petitioners and, therefore, the reason stated by the respondent no. 1 for cancellation of the N. A. permission to the effect that the opinions of the said authorities have not been received, is contrary to the record and on this ground as well, the impugned order deserves to be quashed and set aside. 3. 4. The learned counsel for the petitioners has submitted that the second reason for cancellation of N. A. permission as stated in the impugned order that the N. A. permission has been wrongly granted for an area of 5 Acres and 20 Gunthas and not for an area of 2 Acres and 8 gunthas is also not correct, as is evident from the order of the mamlatdar, Radhanpur dated 30th September, 1993. It is submitted that the Mamlatdar has, after following due procedure and after detailed examination of the record, come to the conclusion that the correct measurement of the land in question is 5 Acres and 20 Gunthas and the necessary correction has also been carried out in the relevant revenue records. It is submitted that the order dated 30th September, 1993 of the Mamlatdar, Radhanpur has not been challenged till date and has attained finality and, therefore, the Collector has rightly granted N. A. permission in respect of 5 Acres and 20 Gunthas of land. It is urged by the learned counsel for the petitioners that had the respondent authorities been aggrieved by order dated 30th September, 1993, they could have challenged it by way of filing appropriate proceedings which was not done. In view of the principle of law laid down in the case of PUNE municipal CORPORATION V. STATE OF MAHARASHTRA and ORS. REPORTED IN (2007) 5 SCC PG. 211, no order passed by the competent authority can be ignored unless a finding is recorded that it is illegal, void or not in consonance with law and as the order dated 30th september, 1993 of the Mamlatdar has not been challenged, or set-aside, it cannot be ignored by the respondent authorities. It is further submitted that the power under the provisions of Section 211 of the Code cannot be exercised after an unreasonably long period of time on the ground that the order dated 30th September, 1993 is a void order, as stated by the respondent no. 1 in the impugned order. The said order cannot be assumed to be void or illegal, without it having been set-aside by a competent forum and has to be given effect to by the respondents. 3. 5. On the strength of the above submissions, Mr. D. K. Puj, learned counsel for the petitioners, has prayed that the impugned order be quashed and set aside and the petition be allowed.