28 – Judgement :- લેન્ડ રેવેન્યુ કેસની સમયમર્યાદા અંગેનાં અગત્યનાં ચુકાદાઓ

Bombay Provincial Municipal Corporation Act, 1949 – S.231 (a) – Power of Municipal Commissioner – Power to remove encroachment on public places without notice. [PARA- 29, 32]

CODE OF CRIMINAL PROCEDURE, 1973 Section 378–Appeal against acquittal–Appeal barred by limitation-Condonation of delay–Sufficient cause therefore–Must be referable to event or circumstances falling prior to the expiry of limitation and not those after expiry of such limitation. Now it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allowed limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. In the instant case, there being no such cause, it was held that the High Court erred in condoning the delay. [PARA-3]

LIMITATION ACT, 1963 (XXXVI OF 1963) – Sec. 5 – State filing appeal against acquittal after lapse of 58 days – Sufficient cause must have been shown for the purpose of condoning the delay – State failing to make out any case for condoning delay – Application for condonation of delay deserves to be dismissed.

Prevention of Food Adulteration Act, 1954 Sec 16, Sec 7 – Limitation Act, 1963 Sec 5 – No reason assigned for applying for certified copy within the limitation – scope of procedural delay – it amounts to valid reason – in the instant case no valid reason shown – held, dismissed the application.

Limitation Act, 1963 – Sec 5 – Civil Procedure Code – Sec 114, Order 47 Rule 1 – Revision – Regular Civil Suit – Money decree – Suit was decreed in favour of Plaintiff – Appeal – Dismissed – Revision before High Court – Dismissed – Review with application for delay condonation – Delay about 440 days – “Sufficient cause” to satisfaction of Court of condoning delay – If appellant does not show sufficient cause nor does the Court record finding that the cause show by appellant is sufficient for not preferring appeal in time – The Court does not possess power to arbitrarily condone delay name of advancing substantial justice merely because appellant litigant happens to be Government – Merits of the case of review cannot be considered while deciding condonation application – Entire proceeding carried upto this Court is a proceeding under a special Statue namely Rent Act – No provision which specifully or confer a jurisdiction on this Court to review its own decision – Held, No merits in this dismissed.[PARA-15, 16, 17, 18, 20, 22]

LIMITATION ACT, 1963 (XXXVI OF 1963) – Sec. 5 – Condonation of delay – Sufficient cause is a question of fact in each case and not a pure question of law – Delay must be explained and established – Government departments and statutory bodies cannot claim for condonation of delay on grounds of administrative follow up delays. [PARA-5.3, 5.4, 20, 22]

LIMITATION ACT, 1963– Section 5 — Condonation of delay — Special favour to Government — Permissibility — Liberal construction of term “sufficient cause” — Scope of. The expression “sufficient cause” cannot be construed too liberally, merely because the party in default is the Government. It is no doubt true that whether it is a Government or a private party, the provisions of law applicable are the same, unless the statute itself makes any distinction. But it cannot also be gainsaid that the same consideration that will be shown by courts to a private party when he claims the protection of Section 5 of the Limitation Act should also be available to the State. The words “sufficient cause” should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party.

It was held that, “It is stated that a plea of limitation concerns the jurisdiction of Court which tries the proceedings, since a finding on that may oust jurisdiction of the Court. The Tribunal, thus, committed a jurisdictional error in examining merits of the case without deciding the issue of limitation.

The Hon’ble Supreme Court while dealing with suo moto action against irregular assignments under the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977, held that, “it would be hard to give an exact definition of the word ‘reasonable’ and a reasonable period would depend upon the facts of the case concerned and on the facts of the case in which the decision arose, suo motu action taken after a period of thirty years was remitted to the High Court for afresh consideration.”

The Hon’ble Supreme Court while dealing with the revisional power under Section 45 of Maharashtra Agricultural Land (Ceiling and Holdings) Act, 1961 held that, “ suo motu revisional power may not be exercised after expiry of three years from the date of the impugned order, however, where suppression of material facts, namely, existence of the undeclared agricultural land had come to the knowledge of the higher authorities after a long lapse of time, the limitation would start running only from the date of discovery of the fraud or suppression.

The Hon’ble Supreme Court while dealing with the revisional power under Section 38-B of Orissa Estates Abolition Act, 1951 held that, “ the Board of Revenue exercised the power of revision 27 years after the date of alleged grant of patta but its authenticity and correctness was shrouded with suspicious features and, therefore, exercise of revisional power was legal and valid.

While adverting to Sections 65 and 211 of the Bombay Land Revenue Code, 1979 held that, “ though there is no period of limitation prescribed under Section 211 to revise an order made under Section 65 of the Act, the said power must be exercised in reasonable time and on the facts of the case in which the decision arose, the power came to be exercised more than one year after the order and that was held to be too late.

The Hon’ble Supreme Court while dealing with Section 84-C of Bombay Tenancy and Agricultural Lands Act, 1976 held that, “ though the said Section does not prescribe for any time limit for initiation of proceeding such power should be exercised within a reasonable time and on the facts of the case, the suo motu enquiry initiated under the said Section after a period of nine months was held to be beyond reasonable time.

The Hon’ble Supreme Court while dealing with the power of revision under Section 257 of the Maharashtra Land revenue Code, 1966 held in para-11 that, “11. It seems to be fairy settled that if a statute does not prescribe the time-limit for exercise of revisional power, it does not mean that such power can be exercised at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is plain that exercise of such power within reasonable time is inherent therein.

Bombay Tenancy and Agricultural Lands Act, 1948 (67 of 1948) – Secs. 63, 64 & 84C – Powers under Sec. 84C have to be exercised within reasonable time – Even if the order is void, the same hasto be so declared by a competent forum – Held, powers of revision exercised after 15 years and ordering compulsory eviction – Order set aside. [PARA- 5 and 7]

LAND LAWS – Bombay Land Revenue Code, 1879 – S. 211 – Power of the State Government and certain Revenue Officers to call for to examine the records and proceedings – Scope and ambit – The Revenue Officers named in the Section are authorized to call for and satisfy itself as to legality or propriety of the decision or order – The powers having being statutorily invested in the specific Revenue Officer are contemplated to be exercised by such Officer on recording his own satisfaction and not the satisfaction of his superior officer – On the facts of the case, the Deputy Collector did not take a decision for revising the order of the Mamlatdar on his own satisfaction but he acted upon the satisfaction being recorded by the Collector – Held, the exercise of power by the Deputy Collector is not proper – Further held on facts, the power was exercised by the Deputy Collector beyond a period of 4 years and that two under the influence of the Collector was unwarranted. [PARA-21.3 and 23]

CONSTITUTIONAL LAW – Constitution of India, 1950 – Art. 226 – Writ Jurisdiction – Concurrent findings of facts – Scope of Interference – The powers under Art. 226 invest a discretion in the High Court to issue necessary writs even in the cases where concurrent findings are recorded by the statutory Authorities, if apparently such findings are shown to be arbitrary, biased, perverse or actuated by malice. [PARA-30]

Bombay Tenancy and Agricultural Lands Act, 1948 – S. 2(2), 2(6), 63 – Bombay Land Revenue Code, 1879 – S. 211 – Gujarat Land Revenue Rules, 1972 – R. 108(6) – unpaid dues – auction sale – sanction of Government – petitioner challenged the order of SSRD – petitioner purchased the land in public auction – possession of land given to petitioner – subsequently Collector initiated suo moto proceedings under Rule 108(6) of the Rules on the ground of breach S. 63 of the Act – Collector held that petitioner is not an agriculturist – revision preferred by petitioner against the order of Collector – revision allowed – however, Secretary issued notice with respect to the legality of the auction sale itself – challenged – auction taken place in the year of 1976 and after period of 24 years validity of auction came to be examined by the Special Secretary – time limit not prescribed in the statute it does not mean that action can be taken after long time – reasonable time limit when there is no time limit prescribed in the statute – no explanation offered by respondents why action was not taken within reasonable time limit – petitioner did hold agriculture land at the time of auction sale though beyond 8 kms from the land in question is not a seriously in dispute – order set aside – petition allowed. [PARA-5 and 7]

Bombay Land Revenue Code, 1879 (5 of 1879) – Secs. 65 & 211 – Collector forfeited new tenure land as it was sold without prior permission of Collector – Delay of 32 years in taking action – Plea to regularise the sale – Petitioner in possession of the land since many years and has developed land incurring heavy costs – Ready to pay “Today’s Jantri price” – Held, impugned orders set aside, matter remanded to concerned Deputy Collector for taking action as per observations made in this judgment – Petition allowed. [PARA-12]

(A) Bombay Land Revenue Code, 1879 (5 of 1879) – Sec. 211 – Gujarat Land Revenue Rules, 1972 – Rule 108(6) – Delay in exercise of suo motu revision power – Such power can be exercised within a reasonable time – Held, seven years’ period not a reasonable time – Order by Collector and by Special Secretary (Appeals), quashed. [PARA-13]

(B) Bombay Land Revenue Code, 1879 (5 of 1879) – Sec. 211 – Gujarat Land Revenue Rules, 1972 – Rule 108(6) – Bombay Tenancy and Agricultural Lands Act, 1948 (67 of 1948) – Secs. 63, 84C, 2(2) & 2(6) – Bombay Tenancy & Agricultural Lands Rules, 1956 – Rule 36(1)(f) – Collector cancelling ‘entry’ on ground that it is in breach of Secs. 2(6) & 63 of Tenancy Act – Held, order by Collector without jurisdiction as Mamlatdar and A.L.T. is competent authority to adjudicate question arising under Tenancy Act – Further, Civil Court and not Collector competent to decide question relating to inheritance under Succession Act. [PARA-16]

(A) Constitution of India, 1950 – Arts 226 & 227 – Gujarat Town Planning & Urban Development Act, 1976 – Issue for cancellation of development permission – As per the law at the relevant time common plot is required to be maintained, & thereafter 5% of the total area of the land is required to be maintained as a common plot – Held – At the most the res no. 3 – Society could make a claim for 5% of the land as a common plot & not the whole of the remaining parcel of the land which admittedly belonged to the petitioner – No claim could be made for the remaining area of the land which is laying belonging to the original owner – Petitioner allowed. [PARA-12,13]

(B) Constitution of India, 1950 – Arts 226 & 227 – Gujarat Town Planning & Urban Development Act, 1976 – Held – The exercise of power at such a belated stage as rightly contended by the petitioner is without any justification – The powers have to be exercised within a reasonable period – Impugned order by revenue authorities quashed and set aside – Petition allowed. [PARA-18, 19]

Bombay Land Revenue Code, 1879 – S. 108 – cancellation of entry – limitation period thereof – cancellation of entry in revenue records – consideration as to reasonable period for taking up proceeding for cancellation – suo moto action has been started 11 years after sale deed was executed and certification of entry was made – in another case action has been started after 2 years – held, action under S. 108 has to be taken within reasonable time – 11 years period is not reasonable period – delay of 2 years in another case is fatal to action taken against petitioners – impugned orders are set aside – application allowed. [PARA-4]

LAND LAWS – Bombay Land Revenue Code, 1879 – Section 79A- For breach of condition, Dy. Collector ordered to vacate the land and forfeited the same in 1985 – Entry to that effect was also mutated in the Revenue records and certified in the year 1985 – After 20 years, the petitioner applied for a copy of the order of 1985 – However, the Deputy Collector informed the petitioner that the papers of the proceedings have been destroyed as the said proceedings fall in class ‘C’ of the rules business – Thereafter, the petitioner filed appeal to Collector along with application for condonation of delay which was rejected – Further held, both the Authorities have come to the conclusion that order of 1985 was passed after affording an opportunity of hearing to the petitioner – For 20 years order was not challenged – No infirmity found – Petition dismissed. [PARA-8 to 12]

Bombay Land Revenue Code, 1879 – Secs. 211 & 65 -Bombay Tenancy & Agricultural Lands Act, 1948 – Sec. 63 -Land belonging to Trust was sold with permission of Charity Commissioner and purchaser built Dharamshala and hostel after obtaining N.A. permission – Respondent approached Competent Authority under Act of 1948 challenging N.A. permission etc. after six years of grant of N.A. premission – Respondent who claimed to be tenant had surrendered the land and the Trust had became absolute owner and respective entries were mutated – Petitioner or its predecessor was not joined as party – Competent Authority in exercise of revisional powers cancelled N.A. permission – Petition – Held, when land is converted for non-agricultural use, restriction under Sec. 63 of Act of 1948 will not apply – Authority exercised revisional powers after unreasonable period – Petitioner had had incurred huge expenses on the land and authority did not consider prejudice that was caused as rights of parties have altered – Petition allowed. [PARA-6]

Delay of 4 years ought to have been condoned – Sec. 206 – Gujarat Land Revenue Rules – the Collector exercised powers after delay of 35 years – party should not be non-suited on technical ground.

Delay of 15 years in preferring an appeal before SSRD – the order of 1995 challenged in 2011 – petition dismissed on ground of inordinate delay in preferring appeal – upheld by High Court.

Delay in challenging the Entry – Fraud.

Wherein by observing the facts narrated by the Single Judge regarding the issue of exercise of suo motu powers by the Collector was contrary to law and if the order is allowed to remain, it would cause immense hardship to the petitioner. – further observed by citing decision reported in 2013 (2) GLR 1788 that, the law does not expect a settled thing to be unsettled after a long lapse of time, at the most the powers should have been exercised within a reasonable period of time even in the case transaction which would be termed as void transaction. Held – dismissed the Appeal.