G.T Nanavati, J.:— The petitioner is a co-operative housing society registered under the provisions of the Gujarat Co-operative Societies Act, 1961. The petitioner applied to the Government to grant it some land for constructing flats for its members. By an order dated 25-1-1971 passed by the Collector of Ahmedabad, the petitioner was granted 1429 sq. yds. of land at the rate of Rs. 50/- per sq. yd. The land was granted subject to the terms and conditions mentioned in the said order. The petitioner society took possession of the said land and constructed flats thereupon. On 9-9-1976 it received a notice from the Government whereby it was called upon to show cause why the price of the land granted to it should not be revised to Rs. 75/- per sq. yd. After hearing the petitioner, the Government by its order dated 20-4-1977 (Annexure ‘C’) revised the original price and fixed it at Rs. 70/- per sq. yd. The petitioner was directed to pay the difference in the price, by the Collector by his order dated 19-5-1977. That order was challenged by the petitioner society by filing a revision application before the State Government. The said revision application was dismissed on the ground that the Collector had passed the order on the basis of the order passed by the State Government; and, therefore the original order being that of the Government itself, it could not be revised under Section 211 of the Bombay Land Revenue Code, 1879 (hereafter referred to as “the Code”). The petitioner society has, therefore, filed this petition under Article 226 of the Constitution and prayed for a writ of mandamus directing the State Government and the Collector of Ahmedabad to forebear from giving effect to the orders passed by them at Annexures C, D and E to the petition.
2. It was urged by Mr. Patel, the learned advocate for the petitioner that the State Government has no power under the Code to revise the terms of the grant once it is made. He also submitted that even if it is assumed that the State Government has such power under Section 211, even then, such power could not have been lawfully exercised in this case.
3. As this petition deserves to be allowed accepting the second contention, it is not necessary to deal with the first contention.
4. It was urged by Mr. Patel that the power under Section 211 is required to be exercised within a reasonable time as held by the Supreme Court in State of Gujarat v. Raghav Natha, 10 GLR 992 and by this Court in Habib Nasir Khanji v. State 11 GLR 307 and Bhagwanji Bamanji v. State 12 GLR 156. He submitted that in this case, the power was exercised after a lapse of about 5½ years and after the petitioner had taken over possession of the land, put up construction thereon and allotted the flats to its members by recovering price of the land and the cost of construction. It, therefore, cannot be said that the power was exercised by the State Government within a reasonable time. It is not in dispute that the State Government had put the petitioner society into possession of the land and that the society has already constructed flats over it. It is also not in dispute that the flats have been allotted to its members. Therefore, the question which arises for consideration is whether it can be said that the State Government exercised the power within a reasonable time? Looking to the facts and circumstances of the case it must be held that the power under Section 211 has not been exercised by the State Government within a reasonable time in this case. As pointed out above, the petitioner society has already constructed flats over the land and it is now not in a position to return the land to the Government if it is not desirous of paying price of the land at the revised rate. As pointed out by Mr. Patel, the society has now no funds from which the additional amount demanded by the Government can be paid.
5. In its reply the State Government has not been able to justify the exercise of its power after 5½ years. Only ground put forward by it is that subsequently it was noticed by the Government that the price was not properly fixed as the Deputy Town Planner had reported that the proper market value of the said land at the relevant time was Rs. 75/- per sq. yd. It is not stated in the said affidavit as to when the Deputy Town Planner had made the said report. It is also not explained why the State Government was not able to exercise the power earlier. In absence of any material on record, it cannot be said that the time of 5½ years taken by the, Government in initiating proceedings under Section 211 of the Code was reasonable. As it is held that the State Government did not exercise the power within a reasonable time, the orders passed by the Collector and the State Government will have to be quashed and set aside.
6. In the result, this petition is allowed. The orders passed by the State Government and the Collector at Annexures C and D respectively as also the order passed by the Special Secretary to the Government of Gujarat, Revenue Department at Annexure ‘E’ are quashed and set aside. A writ of mandamus shall issue restraining the respondents Nos. 1 and 2 from giving effect to the orders at Annexures C, D and E to the petition and from recovering any additional amount from the petitioner society on the basis of the said orders. Rule is accordingly made absolute with no order as to costs.
7. Rule made absolute.
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