PATEL BUPATABHAI MULJIBHAI Vs. DEPUTY COLLECTOR

JUDGEMENT

(1.) xxx xxx xxx.

(2.) Ms. Shah, the learned Advocate appearing for the petitioner has submitted that the impugned order made by the Deputy Collector and confirmed by the Collector and the Government is illegal and invalid. She has submitted that the proceeding against the petitioner for breach of term of grant has been initiated in the year 1984, i.e. more than 5 years after the date of the sale and the said proceeding is required to be quashed and set aside on the mere ground of undue delay. She has further submitted that the petitioner has spent as much as Rs. 14,000/- for improvement of the land and to make it cultivable and fertile. She has also submitted that the petitioner did not deny that there was a breach of the term of grant, however, petitioner's request for regularisation of his possession ought to have been accepted by the respondents-authorities. She has submitted that under the Government Resolution dated 11-6-68 and the Addendum issued on 5-8-68 the Government has issued instructions in respect of regularisation of transfer of land made in breach of terms of the grant, irrespective of whether such transfer has been effected before the regrant or thereafter. She has submitted that the authorities below instead of relying upon the above-referred Resolution of 11-6-68 and Addendum dated 5-8-68, which were prevalent at the time of the sale, have relied upon another Government Resolution dated 13-7-83, which came into force long after the sale of the land. She has submitted. that the Resolution dated 13-7-83 would become operative from the date of the issuance, i.e. 13-7-83 and the same could not have been applied in case of transfer, which was made as far back as in the month of August 1979. She has relied upon the said Resolution dated 13-7-83 and has submitted that even under the said Resolution dated 13-7-83, the Government has made a provision for regularisation of the transfer of the land as new tenure land. What is prohibited under the said Resolution is conversion of the new tenure land to that of old tenure land. She has submitted that the petitioner has never made a demand to convert the land into an old tenure land and the petitioner's application for regularisation, therefore, could not have been rejected. In support, of these contentions she has relied upon three unreported judgments,. i.e. in the matters of Suthar Maganbhai Ganeshbhai and Ors. v. State of Gujarat and Anr. being Special Civil Application No. 5143 of 1964 decided on 26-7-96 (Coram: A. N. Divecha, J.), of Patel Jivabhai Mulabhai v. Deputy Collector and Ors being Special Civil Application No. 1074 of 1986 (Coram: R. A. Mehta, J.) and in the matter of Mohmad Kavi Mohamad Amin v. Fatimabai Ibrahim being Civil Appeal No. 5023 of 1985 decided by the Supreme Court of India on 22-8-96.

(3.) In the matter of Suthar Maganbhai Ganeshbhai (supra), a similar issue regarding regularisation of transfer made in breach of grant was for consideration before this Court. The Court observed that transfer in question was effected some time before the year 1980. Thereafter the transferee applied for regularisation of his possession which was rejected under order dated 28-6-80 and the order was confirmed in Appeal by the Collector. However, in revision preferred before the Government under dated 29-8-93 the said Revision was accepted and the matter was remanded to the lower authority with a direction to regularise the transfer of the land in question in accordance with the Government Resolution dated 11-6-68. After such a remand, relying upon the Government Resolution dated 13-7-83, the application for regularisation was rejected. In the petition preferred before this Court, the Court held that for regularisation of the transfer of the land effected before 13-7-83, the lower authorities could not have relied upon the Government Resolution dated 13-7-83 since the said Resolution become effective only from the date of the issuance, i.e. 13-7-83. In my view, the above judgment does not lend support to the present case. In the said matter an application for regularisation was made before the year 1980 and the said application was required to be considered in accordance with the Government instructions prevailing at that time. Even under the order dated 29-8-83 Government had directed the lower authorities to consider the regularisation of the transfer in the light of the Government Resolution dated 11-6-68 and 5-8-68. The lower authorities, therefore, were duty bound to comply with the said direction and could not have relied upon subsequent Government Resolution dated 13-7-83. In the present case, no application for the regularisation of possession of the petitioner was made prior to 13-7-83. In fact, there has been no application for regularisation of the transfer of the land to the petitioner. However, since the notice was issued in the month of August 1984, the petitioner in course of hearing, prayed the transfer of the land in his favour be regularised. Thus on the date when the lower authority was required to consider the regularisation of the transfer made in favour of the petitioner it was 13-7-83 Resolution which was in force and the Resolution dated 11-6-68 and Addendum dated 5-8-68 were cancelled long before that date. In my opinion, the Deputy Collector while considering the petitioner's prayer for regularisation in the month of August 1984 could not have relied upon the Government Resolution, which were not in existence. The question of regularisation is required to be considered in the light of the position prevalent on the date of such application. In the matter of Patel Jivabhai Mulabhai (supra) the prayer for regularisation of transfer was rejected on the ground that the Government had no power to regularise transfer made in breach of the grant. The Court held that under Section 73-B of the Bombay Land Revenue Code, the State Government did have the power to regularise such transfer. In the matter of Mohamad Kavi Mohamad Amin (supra) the Supreme Court has held that where there is no limitation prescribed, the power must be exercised within reasonable time.