C.V. JANI

(1.) In this petition, purporting to be under Art. 226 of the Constitution of India, the petitioner-Co-operative Society has challenged the order Annexure C dated 30-1-1988 passed by the Colllector, Surat in Appeal No. 427 of 1987 and the confirming order by the Additional Chief Secretary, Revenue Department, Annexure B, in Appeal No. 12 of 1988 under the provisions of the Bombay Land Revenue Code and Bombay Land Revenue Rules.

(2.) The petitioner-Society was registered on 7/08/1973. According to the petitioner the land in question bearing Survey No. 159/2 belonged to Ranchhodbhai Parshottamdas, Ishwarlal Parshottamdas and Chhaganlal Parshottamdas jointly. The said Ranchhodbhai Parshottamdas had guaranteed repayment of loan taken by one Laxmiben Chhotubhai of Ambetha, Tal. Olpad who had taken loan from Shri Ambetha Vibhag Seva Sahkari Mandli Ltd. As the debt was not paid the Society took steps for recovery of its dues under the provisions of Gujarat Co-operative Societies Act and ultimately a certificate under Sec. 106 of the said Act was issued. The Special Recovery Officer, Surat held public auction of Survey No. 159/2 admeasuring about 4 acres on 28/04/1981. The petitioners bid was the highest in the auction and a sale certificate was issued in favour of the petitioner for a consideration of 2,45,000/-.

(3.) All the 77 members of the petitioner-Society contributed towards the cost of the land. Mutation was effected on the basis of this sale transaction in the record of rights and Entry No. 2226 was certified on 5-7-1983 by the Competent Authority under the provisions of the Bombay Land Revenue Code.

(4.) Thereafter the petitioner-Society got the land levelled and sub-plotted and got plans prepared and submitted for approval of the Surat Municipal Corporation. After approval of the plan by the Corporation in April, 1984, the petitioner-Society started construction on the land according to the plan. The petitioner-Society completed the construction of about 60 tenaments and row houses, carried out drainage work, plumbing and water lining as well as construction of internal and approach roads, street-lighting, internal electric fittings, doors and window fittings and plastering and about 60 houses have been occupied since 1987.

(5.) In the meantime Entry No. 2226 was taken in suo motu revision by the Assistant Collector who was pleased to pass an ex parte order on 2-12-1985 for cancelling the entry without informing or hearing the petitioners. The petitioner, therefore, filed a revision application before Special Secretary, Ahmedabad who by an order dated 13/04/1987 directed the Collector, Surat to decide the application of the petitioner-Society on merits as an appeal under Rule 108(5) of the Bombay Land Revenue Rules (hereinafter referred to as the Rules). The Collector by his order dated 30-1-1988 confirmed the order of the Assistant Collector and the Additional Chief Secretary, Revenue Department dismissed the petitioners Revision Application on 29-11-1989. It is these orders of the Collector and Additional Chief Secretary, Revenue Department that have been challenged in this petition as ultra vires and arisen from misconception of the legal provisions.

(6.) Mr. M. I. Hawa, learned Counsel appearing for the petitioner- Society submits that the Revenue Authorities had no power to cancel an entry certified by a competent authority after unreasonable delay and that the Revenue Authorities acting under the Bombay Land Revenue Rules cannot exercise the powers conferred on competent authorities under the Urban Land (Ceiling and Regulation) Act. Mr. Hawa relies on Sec. 21 of the Urban Land (Ceiling and Regulation) Act as well as Rule 108 of the Bombay Land Revenue Rules and a series of judgments of this Court and the Supreme Court on the question of unreasonable delay in exercise of revisional powers.

(7.) In the case of State of Gujarat v. Patel Raghav Natha, reported in AIR 1969 SC 1297 [LQ/SC/1969/180] : [1969 GLR 992] the Supreme Court held that even though no period of limitation is prescribed under Sec. 211 of the Bombay Land Revenue Code, the revisional power has to be exercised in a reasonable time. In that case the Collector had granted permission to petitioner to use some land for non-agricultural purpose on 2/07/1960. The Commissioner of Rajkot Division set aside this permission by his order dated 12/10/1961. The Supreme Court held that reading the provisions of Sec. 211 and Sec. 65 of the Bombay Land Revenue Code together, it appears that the Commissioner could exercise his revisional power only within a few months of the order of the Collector because after grant of the permission for building purposes the occupant was likely to spend money on starting building operations. The Supreme Court, therefore, held that the Commissioners order passed more than a year after, the grant of permission required to be quashed.

(8.) The ratio laid down in this judgment was specifically followed by a Division Bench of this High Court in Letters Patent Appeal No. 38 of 1968 in the case of Bhagwanji Bawanji v. State of Gujarat, reported in [1971] 12 GLR 156. [LQ/GujHC/1970/18] In that judgment it was held that the State Government cannot keep the sword hanging on any person in respect of his property by choosing to act and revise the ordinary law of limitation a suit for altering or setting aside an order of the State Government has to be brought within one year from the date of the order and so the maximum period that the State Government can claim for cancelling its own order cannot be more than a year.

(9.) In yet another judgment in the case of Ranchhodbhai v. State and Ors., reported in [1984 (2)] 25(2) GLR 1225 a learned single Judge of this Court held that any proceeding initiated against a purchaser of agriculural land allegedly in contravention of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, after a period of 7 years would be without jurisdiction. In that case the Deputy Collector had taken the view that the transaction was violative of Sec. 9 and the petitioner was liable to be summarily evicted. The Court observed (at page 1227 of GLR) : "But the said statutory powers like any other statutory powers have to be exercised within a reasonable time. If that concept is kept out, any statutory powers would be exercised after a number of years or decades. In the meantime, the affected parties would have materially altered their position and irreparable injury would be caused to them and it would be impossible to put clock back, if such powers can be exercised after unduly long delay."

(10) (10.) Similar views have been expressed in the case of Rajul Co-op. Housing Society Ltd. v. State, reported in [1985 (2)] 26(2) GLR 1187. In that case the Government had issued a notice to the Housing Society calling upon to show cause why the price of the land granted to the Society should not be revised to Rs. 275.00 per sq. yd. The Court took into consideration the fact that the petitioner-Society had already constructed flats over the land and it was not in a position to return the land to the Government if it was desirous of paying price at the revised rate and so the time of 51/2 years taken by the Government in initiating proceedings under Sec. 211 of the Bombay Land Revenue Code was unreasonable.

(11.) In the present case the petitioner-Society purchased the land in a public auction held at the instance of Special Recovery Officer, Surat on 25-5-1971. 77 members of the petitioner-Society contributed towards the cost of the land and paid an amount of Rs. 2,45,000.00. An entry was accordingly made in the revenue record and later on certified by the competent authority. Exemption was granted by the competent authority under Sec. 21 of the Gujarat Urban Land Ceiling and Regulation Act and the petitioner-Society got the construction plans approved by Surat Municipal Corporation which is the "local authority" and "appropriate authority" under the provisions of the Gujarat Town Planning and Urban Development Act, 1976. The petitioner-Society constructed about 60 tenaments which are now occupied by its members. It was, therefore, too late in the day for the Revenue Authorities to cancel the entry made in favour of the petitioner so as to create a cloud on the Societys title. Thus, the impugned orders passed by the Collector and the Additional Chief Secretary, Revenue Department are bad having been passed after unreasonable delay.

(12.) There is much substance in the second submission of Mr. Hawa also. Ordinarily when a transfer of property takes place by a registered document, an entry is effected in the revenue record and it is certified by the Mamlatdar after making necessary inquiries. If there is any dispute regarding mutation, the dispute has to be entered in the register of the disputed cases and then such disputes are to be disposed of by the Mamlatdar. Under sub-rule (5) of Rule 108 of the Rules, the aggrieved party can prefer an appeal within 60 days from the date of the service of the order. The State Government has power to call for and examine the record of any enquiry of the proceedings of any subordinate Revenue Officer and to review the same under sub-rule (6) of the Rules. It is to be noted in the present case that no appeal had been presented within 60 days from the date of Mamlatdars order certifying the initial entry. The Assistant Collector, Surat took the said entry in suo motu revision, even though he had no such power under the provisions of Rule 108. It, therefore, appears that the Additional Chief Secretary, Revenue Department remanded the proceeding to the Collector for treating the same as an appeal. This was done after a period of 4 years after the certification of the entry. It was only the State Government which had the power to call for a record of inquiry or proceeding under sub-rule (6) of Rule 108. Even the State Government was empowered to satisfy "as to the regularity of such proceedings and as to the legality or property of any decision or order passed in such proceedings". So the entire inquiry and revisional power has to proceed under the Bombay Land Revenue Rules and not under any enactments like the Bombay Tenancy and Agricultural Lands Act, Urban Land (Ceiling and Regulation) Act or Bombay Prevention of Fragmentation and Consolidation of Holdings Act. It is quite possible that an officer of the Revenue Department may be occupying different capacities under different enactments. That, however, would not empower him to exercise any powers under one enactment while proceeding under another enactment. So far as the proceedings under Rule 108 of the Rules, popularly known as RTS proceedings, are concerned, it is well settled that the entries made in the revenue records have primarily a fiscal value and they do not create any title. Such mutations have to follow either the documents of title or the orders passed by competent authorities under special enactments. Independently the Revenue Authorities, as mentioned in Rule 108 of the Rules, cannot pass orders of cancelling the entries on an assumption that the transaction recorded in the entry are against the provisions of a particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed. Thus on this second ground also the orders of the Collector and the Additional Chief Secretary appear to be beyond their jurisdiction. The Additional Chief Secretary has held that the sale by auction was not consistent with the provisions of Sec. 27 of the Urban Land (Ceiling Land Regulation) Act. Section 27 relates to prohibition of transfer of any Urban land with a building thereon. Apart from legal position that Sec. 27 has been struck down as ultra vires, it is quite obvious that no such question of transferring urban land with a building thereon has ever arisen in the present case. Thus, the order of the revisional authority has proceeded on a misconception of relevant legal provisions also.

(13.) Rule, is, therefore, made absolute and the order of the Collector at Annexure C dated 30/01/1988 and the order of the Additional Chief Secretary, Revenue Department, Annexure E dated 29-11-1989 are hereby quashed and set aside. In the circumstances of the case there will be no order as to costs.