Nalinkumar R Patel vs Taluka Development Officer and Others

Ravi R. Tripathi, J.—Heard learned advocate Mr. P.J. Vyas for the petitioner. The petitioner-purchaser of land bearing Survey No. 327/1 and 327/2 by registered sale deed dated 17th February 1986, admeasuring 6 acres, 13 gunthas from respondent No. 8-Vinodchandra Harilal Mehta, who in turn purchased this land by registered sale deed 19th May 1981, is before this Court as the Government issued notice to show cause to its original owners in the year 1986 in the month of June dated Nil, as to why order dated 18th October 1980 granting Non-Agricultural Permission passed by Taluka Development Officer, Halol be not cancelled. In the meantime, the authority also directed the parties to maintain status quo of the land, thereby prevented the petitioner from putting the land to any use. The Show Cause Notice reached the petitioner only in the year 1988 when the authority addressed a letter dated 1st August 1988 to the petitioner, a copy of which is annexed at Annexure ''A'', page 20, wherein it is mentioned that Taluka Development Officer, Halol, by order dated 18th November 1980 granted Non-Agricultural Permission for land admeasuring 25596 sq. meters of Survey No. 327 of Village Baska, Taluka Halol for the purpose of industry. That the said order granting Non-Agricultural Permission is not just and legal for the reasons set out in the Show Cause Notice accompanied to this letter. It is further mentioned that it is decided by the authorities to take the order in suo motu revision u/s 211 of the Land Revenue Code. This letter (Show Cause Notice) was replied by the petitioner. A copy of that reply is at Annexure ''B'', page 25. It is specifically mentioned in the reply that the land in question is in possession of the petitioner since 21st February 1986 and that when the land was purchased it was already a Non-Agricultural land. It is also mentioned that the same was purchased from respondent No. 8 herein-Shri Vinodchandra Harilal Mehta.

Learned advocate Mr. Vyas emphatically submitted that it is settled legal position by series of Judgments of this Court that power to take any order in suo motu revision u/s 211 of the Bombay Land Revenue Code can be so exercised within a reasonable time, and the decisions have set out a period of one year as reasonable period for taking any order in suo motu revision. In this regard learned advocate Mr. Vyas relied upon a decision of this Court [Coram: Hon''ble Mr. Justice B.C. Patel (as he then was)] dated 16th January 1995 in Special Civil Application No. 1651 of 1987 and other matters. The relevant for our purpose is set out in paras 3 and 4 of the said judgment, which is reproduced hereunder for ready reference.

In all these cases, Taluka Development Officer granted NA permission. The State issued show cause notice calling upon to show cause as to why the permission for non-agricultural use should not be cancelled. It is undisputed that a person holding land which is agricultural in character can use the land for purposes other than agricultural with the permission of collector u/s 65 of the Bombay Land Revenue code. It is also not in dispute that in exercise of powers conferred u/s 167 of the Panchayat Act, the state Government transferred to the District Panchayat the powers, functions and duties of the state Government and its officers as specified in the schedule thereto. By resolution dated 25.3.1963 all the powers, functions and duties conferred on the collector u/s 59, 65 and 66 of the Bombay Land Revenue code are transferred to the District Panchayat. By another notification of even date, the District Panchayats were permitted to delegate powers to its subordinate panchayats. The Government was also pleased to direct that out of the powers, functions and duties transferred to the District Panchayats under the aforesaid resolutions, the District Panchayats shall delegate to the subordinate panchayats the powers, functions and duties as specified in the statement appended thereto. By the said resolution the Government was pleased to direct that out of the powers, functions and duties transferred to the District Panchayats, the powers, functions and duties is so far as class II villages as per classification made in Rule 81 of the Land Revenue Rules 1921 were concerned. One of the powers which the District Panchayat had to delegate to the Taluka Panchayat was power regarding grant of permission for non-agricultural use of land u/s 65 of the code. Therefore, the District panchayat of panchmahals was under obligation to delegate to the taluka panchayat of Halol such power u/s 65 of the code. This Court, in the case of Yashkamal Builders Vs. State of Gujarat and Another, had an occasion to examine the every notification which is required to be considered in these petitions. The Court, after considering the effect of notification, Section 123 and 157 of the Gujarat panchayats act and the provisions contained in Section 65 of the Bombay Land Revenue Code, held as under, in paragraph 8 (page 388):

Therefore, whether the power conferred u/s 65 of the code is an executive or administrative or not, the Taluka Development Officer has power to act under this section. Therefore, in any view of the matter after delegation of power to the Taluka Panchayat of Halol by the District Panchayat, the Taluka Development Officer had power to grant permission for non-agricultural use of land u/s 65 of the code. As pointed out above the District Panchayat of panchmahals delegate powers to the Taluka Panchayat by its resolution dated March 29, 1979. Permission for non-agricultural use of the land was granted by the Taluka Development Officer on December 17, 1981. Therefore, when the Taluka Development Officer passed the order, he had power to do so u/s 65 of the code read with Section 123 of the panchayats Act. The State Government has completely overlooked the provision of Section 123 of the panchayats act while holding that the Taluka Development Officer has acted without authority or jurisdiction in passing the order granting permission for non-agricultural use of land.

In the case referred to above, the court had also an occasion to consider whether revisional powers could be exercised after expiry of reasonable period, considering the facts, which are similar to the case of Bipinchandra G. Dalal and Another Vs. State of Gujarat and Another, and following the decision of the Supreme Court in the case of State of Gujarat v. Raghav Natha 1969 GLR 992 held to the effect that revisional powers cannot be exercised after expiry of reasonable period. Looking to the period mentioned in each of the instant cases, it cannot be said that the State Government exercised its revisional powers within reasonable time. The State Government could not have cancelled the permission granted u/s 65 of the code after a lapse of the cases. Therefore also it cannot be said that the action of the Government is in accordance with law.

It is required to be noted that after the permission was granted, the petitioners had put up huge constructions on the land and various factories are being run on the said lands. Petitioners are also employing a large number of persons. In some of the cases, petitioners were not heard at all before passing the impugned orders. On account of a long intervening period, titles have been passed on to the petitioner and the state Government ought to have taken this into consideration. There is no explanation as to why there has been delay in exercising revisional powers.

In view of the aforesaid settled legal position this petition is allowed. Order dated 28th February 1989 passed by the Additional Chief Secretary, Revenue Department (Appeals), Gujarat State, Ahmedabad is hereby quashed and set aside. Rule is made absolute. No order as to cost.