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Evergreen Apartment ... v. Special Secretary (A...
Structured Summary of the Opinion
Factual and Procedural Background
The petitioner is a Co-operative Society (registered on 7 August 1973) which obtained land bearing Survey No. 159/2 by bidding at a sale held by the Special Recovery Officer following recovery proceedings under the Gujarat Co-operative Societies Act. The society's bid was the highest and a sale certificate was issued in its favour for Rs. 2,45,000/-. Seventy-seven members of the society contributed towards the cost. A mutation/entry (Entry No. 2226) was recorded in the revenue records and certified on 5 July 1983.
The society prepared and obtained approval for plans from the Surat Municipal Corporation and carried out development and construction, completing about sixty tenements together with associated infrastructure (roads, drainage, street-lighting, electrical fittings, doors/windows and plastering). Approximately sixty houses have been occupied since 1987.
Subsequently, the Assistant Collector initiated suo motu revision and passed an ex parte order on 2 December 1985 cancelling the certified entry. The petitioner applied for revision; the Special Secretary, Ahmedabad by order dated 13 April 1987 directed the Collector, Surat to decide the society's application on merits as an appeal under Rule 108(5) of the Bombay Land Revenue Rules. The Collector, by order dated 30 January 1988 (Annexure-C), confirmed the Assistant Collector's cancellation. The Additional Chief Secretary, Revenue Department dismissed the petitioner's revision application on 29 November 1989 (Annexure-B). The petitioner challenged these orders under Article 226 of the Constitution, contending they were ultra vires and founded on misconceptions of law.
Note: The opinion records two different dates for the auction in different paragraphs (28 April 1981 in one paragraph and 25 May 1971 in another). Both dates appear in the provided text.
Legal Issues Presented
- Whether the Revenue Authorities had the power to cancel or revisit an entry certified by a competent authority after an unreasonable delay, particularly where construction and occupation have taken place.
- Whether authorities exercising powers under the Bombay Land Revenue Rules (Rule 108 and its subrules) can exercise or usurp powers properly vested in competent authorities under other enactments (for example, the Urban Land (Ceiling and Regulation) Act and related statutes).
- Whether the Assistant Collector had power to take Suo motu revision under Rule 108 and whether the State Government alone could call for and examine records under sub-rule (6) of Rule 108.
- Whether the impugned revisional orders were vitiated by unreasonable delay and/or misconception of relevant statutory provisions (including references to Section 27 of the Urban Land (Ceiling and Regulation) Act).
Arguments of the Parties
Petitioner's (Appellant's) Arguments
- The Revenue Authorities had no power to cancel an entry certified by a competent authority after an unreasonable delay when the society had expended money and occupied the tenements.
- The Revenue Authorities, proceeding under the Bombay Land Revenue Rules, could not exercise powers that belong to competent authorities under the Urban Land (Ceiling and Regulation) Act (ULCR Act) or other special enactments.
- Reliance was placed on Section 21 of the ULCR Act, Rule 108 of the Bombay Land Revenue Rules, and a series of judicial decisions establishing that revisional powers must be exercised within a reasonable time.
Revenue Authorities' Position (as reflected in the opinion)
- The Additional Chief Secretary considered that the sale by auction was not consistent with the provisions of Section 27 of the Urban Land (Ceiling and Regulation) Act (i.e., an asserted ground for revising/cancelling the entry).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Gujarat v. Patel Meghnath, AIR 1969 SC 1297 | The revisional power under the Bombay Land Revenue Code (S.211 read with S.65) must be exercised within a reasonable time; delay can render revisional orders invalid where parties may have spent money and altered their position. | The court relied on its ratio that revisional powers must be exercised within reasonable time and applied that principle to conclude that the revisional action in the present case was taken after an unreasonable delay and was therefore invalid. |
| Bhagwanji Bawanji v. State of Gujarat, (1971) 12 Guj LR 156 (AIR 1971 Guj 64) | The State cannot keep a person under perpetual uncertainty; under ordinary law of limitation actions to alter State orders should be brought within one year, and State's power to cancel its order should not extend unduly beyond that period. | The court followed this view to support the proposition that the State (or its revenue authorities) cannot arbitrarily revive or cancel earlier certified entries after an extended period; such delay fatally prejudices affected parties. |
| Ranchhodbhai v. State, (1984) 25 (2) Guj LR 1225 (AIR 1985 NOC 250 (Guj)) | Statutory powers must be exercised within a reasonable time; proceedings against purchasers of land after a long delay (e.g., seven years) may be without jurisdiction because of prejudice caused by delay. | The court cited and applied the proposition that unduly delayed exercise of statutory powers results in material prejudice and may render subsequent proceedings invalid; this principle supported quashing the revisional orders in the present case. |
| Rajul Co-op. Housing Society Ltd. v. State, 1985 (2) 26 Guj LR 1187 (AIR 1985 NOC 250 (Guj)) | The State's initiation of proceedings to revise terms (e.g., land price) may be unreasonable where the society has already constructed flats and cannot practically restore the status quo; delay rendered the proceedings unreasonable. | The court applied this reasoning by considering the society's construction and occupation, concluding that it was too late for the Revenue Authorities to cancel the entry and create a cloud on title—thus supporting quashing the impugned orders. |
Court's Reasoning and Analysis
The court proceeded through the following analytical steps, based on the material in the opinion:
- Fact-finding: The court noted the society's purchase at public auction, the contribution of 77 members, the certification of Entry No. 2226 (5-7-1983), approvals obtained from the Surat Municipal Corporation, and substantial development on the land (about 60 tenements occupied since 1987).
- Delay and prejudice: Relying on established judicial precedent, the court emphasized that revisional powers must be exercised within a reasonable time. It found that the Revenue Authorities' cancellation of the entry, effected after significant delay and after the society had incurred development costs and occupation had occurred, would create a cloud on title and cause material prejudice. On that ground the revisional orders were held to be invalid.
- Jurisdiction under Rule 108: The court analyzed Rule 108 of the Bombay Land Revenue Rules and its subrules. It observed that subrule (5) allows an aggrieved party to prefer an appeal within 60 days from service of the Mamlatdar's order, while subrule (6) permits the State Government to call for and examine records. The court held that the Assistant Collector did not have power to take suo motu revision of an entry under Rule 108 and that only the State Government could invoke the power under subrule (6).
- Limits of revenue authority powers: The court reiterated the established position that entries in revenue records have primarily a fiscal value and do not, by themselves, create title. It emphasized that the Revenue Authorities cannot cancel entries on an assumption that the underlying transaction contravenes provisions of other enactments; those questions must be adjudicated by the competent authority under the relevant enactment following the prescribed procedure, including opportunity of hearing.
- Misconception of law: The court observed that the revisional authority proceeded on a misconception of relevant legal provisions—specifically, it noted the Additional Chief Secretary's conclusion that the sale was inconsistent with Section 27 of the Urban Land (Ceiling and Regulation) Act, while the court observed Section 27 had been struck down as ultra vires and, in any event, that the facts did not involve transfer of urban land with a building thereon. This reinforced the conclusion that the revisional orders were beyond jurisdiction and founded on legal error.
- Conclusion from combined grounds: On the combined grounds of unreasonable delay, lack of proper revisional power by the Assistant Collector, exclusive power vested in the State Government under subrule (6) for certain interventions, and misconception of legal provisions, the court found the impugned orders to be invalid and beyond jurisdiction.
Holding and Implications
Holding: The court made the rule absolute and quashed and set aside the order of the Collector at Annexure-C dated 30 January 1988 and the order of the Additional Chief Secretary, Revenue Department, Annexure-B dated 29 November 1989. The petition was allowed and there was no order as to costs.
Implications:
- Direct effect on the parties: The impugned revisional orders cancelling the certified entry were quashed and set aside, thereby removing the immediate administrative orders that created a cloud on the society's position.
- Jurisdictional and procedural guidance: The judgment underscores that revisional powers under the Bombay Land Revenue Rules must be exercised within a reasonable time and that revenue officers cannot, in the exercise of RTS or Rule 108 powers, displace the functions of competent authorities under other enactments without following the procedures and safeguards those enactments require.
- Scope of precedent: The opinion applies earlier case law on unreasonable delay and limitation of revisional powers to the facts; the court did not purport to lay down a new broader legal principle beyond applying established authorities to the present facts.
No additional facts, arguments or precedents have been added beyond those explicitly contained in the provided opinion.
1. In this petition, purporting to internal and approach roads, street-lighting, be under Article 226 of the Constitution of internal electric fittings, doors and window India, the petitioner Co-operative Society has fittings and plastering and about 60 houses challenged the order Annexure-C dated 30-1- have been occupied since 1987. 1988 passed by the Collector, Surat in Appeal No. 427/87 and the confirming order by the Additional Chief Secretary, Revenue Department, Annexure-B, in Appeal No. 12/88 under the provisions of the Bombay Land Revenue Code and Bombay Land Revenue Rules.
2.The petitioner Society was registered on 7th August 1973 . According to the petitioner the land in question bearing Survey No. 159/2 belonged to Ranchhodbhai Pershottamdas, Ishwarlal Pershottamdas and Chhaganlal Pershottamdas jointly. The said Ranchhodbhai Pershottamdas had guaranteed repayment of loan taken by one Laxmiben Chhotabhai 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 S. 106 of the said Act was issued. The Special Recovery Officer, Surat held public auction of Survey No. 159/2 admeasuring about 4acres on 28th April 1981. The petitioner's bid was the highest in the auction and a sale certificate was issued in favour of the petitioner for a consideration of Rs. 2,45,000/-.
3.All the 77 members of the petitioner society contributed towards the cost of the and. 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 tenements 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 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 13th April 1987 directed the Collector, Surat to decide the application of the petitioner Society on merits as an appeal under R. 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 petitioner's 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 S. 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 Meghnath reported in AIR 1969 SC 1297, the Supreme Court held that even though no period of limitation is prescribed under S. 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 2nd July 1960. The Commissioner of Rajkot Division set aside this permission by his order dated 12th October, 1961. The Supreme Court held that reading the provisions of Section 211 and Section 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 Commissioner's 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. 38/1968 in the case of Bhagwanji Bawanji v. State of Gujarat, reported in (1971) 12 Guj LR 156: (AIR 1971 Guj 64). 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 order at its sweet will, that particular case it was held that under 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, reported in (1984) 25 (2) Guj LR 1225: (AIR 1985 NOC 250 (Guj) a learned single Judge of this Court held that any proceedings initiated against a purchaser of agricultural 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 Section 9 and the petitioner was liable to be summarily evicted. The Court observed:
"But the said statutory powers like any other statutory powers have to be exercised within 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 back, if such powers can be exercised after unduly long delay."
10. Similar views have been expressed in the case of Rajul Co-op. Housing Society Ltd. v. State reported in 1985 (2) 26 Guj LR 1187 : (AIR 1985 NOC 250 (Guj). In that case the Government had issued a notice to the Housing Society calling upon it to show cause why the price of the land granted to the society should not be revised to Rs. 275/ - 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 taken by the Government in initiating proceedings under Section 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/-. 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 Section 21 of the Gujarat (sic) 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 tenements 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 society's 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 account 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 subrule (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 or 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 Mamlatdar's 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 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 itself
"as to the regularity of such proceedings and as to the legality or propriety 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 Section 27 of the Urban Land (Ceiling and Regulation) Act. Section 27 relates to prohibition of transfer of any urban land with a building thereon. Apart from the legal position that Section 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 30th January, 1988 and the order of the Additional Chief Secretary, Revenue Department, Annexure 8 dated 29-11-1989 are hereby quashed and set aside. In the circumstances of the case there will be no order as to costs.
14. Petition allowed.
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