Khimjibhai Hirabhai Baraiya vs Dy. Secretary (Appeals) and Others

Rajesh H. Shukla, J.—The present petition has been filed by the petitioner under Articles 14, 19 and 226 of the Constitution of India as well as under the provisions of Bombay Prevention of Fragmentation and Consolidation of Holding Act, 1947 (hereinafter referred to as ''the Fragmentation Act'') for the prayers, inter alia, that the impugned order passed by the Dy. Secretary (Appeals), Revenue Department, dated 2.8.1999 at Annexure-E and the order passed by the Prant Officer dated 30.11.1996 at Annexure-A may be quashed and set aside on the grounds stated in the memo of petition. Heard learned advocate Shri Tattvam Patel for the petitioner, learned AGP Shri Bharat Vyas for respondents Nos. 1-4, learned advocate Shri Tejas Satta for respondents Nos. 6/1 to 6/6 and learned advocate Bipin Mehta for respondent No. 7.2.

Learned advocate Shri Tatvam Patel referred to the background of the case in detail and submitted that the order passed by both the authorities are arbitrary and illegal. He submitted that the petitioner purchased the land in question in the year 1995 by a registered sale deed dated 4.8.1995 and thereafter there are subsequent transactions. He submitted that in purported exercise of power under the Fragmentation Act, the notice came to be issued and the order has been passed without providing an opportunity of hearing as the notice has not been served. He submitted that in fact Shankarbhai Babubhai has expired and therefore no notice could have been served. Similarly, he submitted that as stated in the order and the communication, the report of the Talati was required so as to verify whether the notice under sec. 6 of the Act was served or not. However, while passing the order, there is no reference to any such report and therefore the impugned order is passed without considering any such aspect of service of notice. Learned advocate Shri Patel has referred to the papers and submitted that, thus, the impugned order is passed without providing an opportunity of hearing and also without even service of notice. He pointedly referred to the affidavit-in-reply filed by the respondents and submitted that though it is stated that the notice can be said to have been served by notifying at the office of the Gram Panchayat, in fact, it has not been so published.

Learned advocate Shri Patel referred to and relied upon the judgment reported in Bablabhai Vestabhai Gamit Vs. Deputy Collector and Another, and submitted that as observed, the issuance of notice under sec. 6(2) is necessary. Similarly, he referred to and relied upon another judgment reported in 1994 (1) GCD 794 (Guj.) and submitted that sec. 7 would not be attracted as there is no fragmentation. He submitted that once the entries are made, the presumption would arise on the basis of the mutation of entries and therefore also the order passed by a the authorities cannot be sustained.

Lastly, learned advocate Shri Patel submitted that the proceedings which are sought to be initiated are bad on the ground of delay. In support of his submission, he has referred and relied upon the judgment of this High Court reported in 1984 (2) GLR 1225 and also the judgment reported in 1988 (1) GLR 40 (para 22). Learned advocate Shri Patel also submitted that as the notice is not issued, nor any opportunity of hearing is given, the rules of natural justice have been violated. He has referred to and relied upon the judgment in the case of Sahara India (Firm), Lucknow Vs. Commissioner of Income Tax, Central-I and Another, wherein it has been observed that even administrative order is required to be served before taking the decision. Similarly, he has referred and relied upon the judgment reported in Commissioner of Sales Tax and Others Vs. Subhash and Company, in the case of Ashok Tshering Bhutia Vs. State of Sikkim, and Canara Bank and Others Vs. Shri Debasis Das and Others, He therefore submitted that the order would be a nullity.

Learned advocate Shri Patel also submitted that the provisions of the Fragmentation Act are not violated as the transfer is in respect of the land which is beyond the prescribed limit under the Act. Further, he submitted that thereafter the land has been included in the residential zone by Gandhinagar Urban Development Authority as per the communication dated 8.12.2011 at Annexure-A/7 and also there is a T.P. Scheme as stated in the advertisement dated 9.7.2003 by Gandhinagar Urban Development Authority produced at Annexure A/8. He has therefore submitted that when the part of the land as could be seen from the record has already been permitted for non-agricultural use and residential use, there is no scope now for any consolidation etc. and the petitioner cannot be discriminated and he should have been given equal treatment.

Learned AGP Shri Bharat Vyas submitted that the exercise of power cannot be said to be beyond the reasonable period or there is no delay in exercising the powers. He therefore submitted that the matter may be remanded for deciding it afresh. He pointedly referred to the provisions of the Act and submitted that prior permission is necessary and only on payment of the premium or required procedure such permission could be granted. He therefore submitted that as provided in sec. 31(1)(b), prior permission of the Collector is necessary and as there is no such permission obtained, the matter may be remanded and the order cannot be said to be totally without jurisdiction. He submitted that once the powers have been exercised within reasonable period in purported exercise of the powers, it cannot be challenged when there is a breach committed by the petitioner in compliance of the procedure. He therefore submitted that the petitioner by way of this petition cannot short-cut the procedure. He has referred to the affidavit-in-reply and submitted that the notice as required can be said to have been served when it is published in the office of the gram panchayat and therefore also the submission about the rules of natural justice are misconceived. He has also referred to the judgment reported in Patel Somabhai Devidas Vs. Dahyaji Somaji Thakor and Others and submitted that the length of reasonable time must be determined with reference to the facts of the case. In the facts of the present case, after the transaction took place in 1995, the powers are exercised in 1996 which cannot be said to be beyond reasonable time. Therefore, he submitted that when any transfer is made in breach of the provisions of law, particularly sec. 7, it would be hit by the provisions of sec. 31(2)(b) and therefore the order may not be set aside and the matter may be remanded for deciding afresh.

Learned advocate Shri Satta for respondents Nos. 6/1 to 6/6 and learned advocate Shri Mehta for respondent No. 7.2 have stated that as they have already sold the land they have nothing to add.

In view of the rival submissions it is required to be considered whether the present petition can be entertained.

As could be seen from the details which have been referred to at length by learned advocate Shri Tatvam Patel, the exercise of power may not be said to be beyond a reasonable period and therefore this court may not interfere with the exercise of such powers on the ground of delay. However, it has to be examined as to whether there is any justification for exercise of power in background of facts as well as the contentions raised particularly with regard to service of notice and the hearing. Again, assuming that the notice has been served, the fact remains that the provisions of the Fragmentation Act would be applicable only if the land in question is covered within the provision of the Act. In the facts of the present case, as could be seen from the sale deed in favour of the petitioner, the area is beyond the limit prescribed under the Fragmentation Act and therefore it would not have any application, prima facie. Further, it is not in dispute that by operation of law like the T.P. Scheme and the decision taken in purported exercise of power under sec. 17 of the Urban Development Act, 1976, the whole area including this land has been covered in the residential zone. Admittedly, part of the land has been granted N.A. permission for non-agriculture use. The same has also been now covered by the T.P. Scheme. It is in these circumstances it is required to be considered whether the matter could be remanded for not having obtained necessary permission.

If the matter is remanded it would have been considered by the authorities for the purpose of compliance of the procedure on payment of some premium or some other condition. However, since the land is now covered in the T.P. Scheme and since N.A. permission has been granted to other lands, the land in question would also be covered in the same manner for non-agriculture use.

The High Court in a judgment in the case of Bochasanwasi Shri Akshar Purushottam Sanstha by his Pramukh Vs. Thakore Umedji Nanaji and Others, has made the observation,

...Once the land has already been converted into NA use, restriction u/s 63 of Tenancy Act would cease to operate and consequent transfer could not be said to be hit by provisions of Tenancy Act - Powers exercised unreasonably without verification of position of land on site....

Thus, when the land is granted N.A. Permission, then such provision would not be attracted. Therefore, no useful purpose could be served in light of the subsequent development and therefore the submission made by the learned AGP for remanding the matter cannot be sustained.

The impugned order passed by the authorities therefore cannot be sustained and the present petition deserves to be allowed and accordingly stands allowed. Prayer in terms of para 14(A) is granted. The impugned order passed by the Dy. Secretary (Appeals), Revenue Department, dated 2.8.1999 at Annexure-E and the order passed by the Prant Officer dated 30.11.1996 at Annexure-A are hereby quashed and set aside. Rule is made absolute with no order as to costs.