Gujarat High Court
The State Of Gujarat vs Hussainbhai Satarbhai Meman on 14 October, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1825 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 21151 of 2015
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1825 of 2019
With
R/LETTERS PATENT APPEAL NO. 1512 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13381 of 2013
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020 In
R/LETTERS PATENT APPEAL NO. 1512 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13381 of 2013
With
R/CIVIL APPLICATION NO. 1036 of 2020
In
R/LETTERS PATENT APPEAL NO. 1512 of 2024
With
R/LETTERS PATENT APPEAL NO. 1463 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 1989 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1463 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 1989 of 2013
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2022 In
R/LETTERS PATENT APPEAL NO. 1463 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 1989 of 2013
With
R/LETTERS PATENT APPEAL NO. 1513 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 12196 of 2015
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1513 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 12196 of 2015
With
R/CIVIL APPLICATION NO. 1830 of 2019
Page 1 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
In
R/LETTERS PATENT APPEAL NO. 1513 of 2024
With
R/LETTERS PATENT APPEAL NO. 1514 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 1521 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1514 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 1521 of 2013
With
R/CIVIL APPLICATION NO. 2305 of 2019
In
R/LETTERS PATENT APPEAL NO. 1514 of 2024
With
R/LETTERS PATENT APPEAL NO. 1371 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 16853 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1371 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 16853 of 2017
With
R/LETTERS PATENT APPEAL NO. 1516 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 3624 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1516 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 3624 of 2013
With
R/CIVIL APPLICATION NO. 1812 of 2019
In
R/LETTERS PATENT APPEAL NO. 1516 of 2024
With
R/LETTERS PATENT APPEAL NO. 1828 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 13375 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1828 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 13375 of 2013
Page 2 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
With
R/LETTERS PATENT APPEAL NO. 1568 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 10502 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1568 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 10502 of 2017
With
R/LETTERS PATENT APPEAL NO. 1539 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 3624 of 2013
With
R/LETTERS PATENT APPEAL NO. 1518 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 705 of 2015
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1518 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 705 of 2015
With
R/CIVIL APPLICATION NO. 4083 of 2019
In
R/LETTERS PATENT APPEAL NO. 1518 of 2024
With
R/LETTERS PATENT APPEAL NO. 1520 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 17180 of 2012
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1520 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 17180 of 2012
With
R/CIVIL APPLICATION NO. 3343 of 2019
In
R/LETTERS PATENT APPEAL NO. 1520 of 2024
With
R/LETTERS PATENT APPEAL NO. 1522 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 3273 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1522 of 2024
Page 3 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
In
R/SPECIAL CIVIL APPLICATION NO. 3273 of 2016
With
R/CIVIL APPLICATION NO. 3342 of 2019
In
R/LETTERS PATENT APPEAL NO. 1522 of 2024
With
R/LETTERS PATENT APPEAL NO. 1826 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 9925 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1826 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 9925 of 2011
With
R/CIVIL APPLICATION NO. 3879 of 2019
In
R/LETTERS PATENT APPEAL NO. 1561 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 1640 of 2012
With
R/LETTERS PATENT APPEAL NO. 1523 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 1704 of 2012
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1523 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 1704 of 2012
With
R/CIVIL APPLICATION NO. 4084 of 2019
In
R/LETTERS PATENT APPEAL NO. 1523 of 2024
With
R/LETTERS PATENT APPEAL NO. 1827 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 21153 of 2015
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1827 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 21153 of 2015
With
R/LETTERS PATENT APPEAL NO. 1525 of 2024
In
Page 4 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
R/SPECIAL CIVIL APPLICATION NO. 7496 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1525 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 7496 of 2013
With
R/CIVIL APPLICATION NO. 3346 of 2019
In
R/LETTERS PATENT APPEAL NO. 1525 of 2024
With
R/LETTERS PATENT APPEAL NO. 1527 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 7499 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1527 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 7499 of 2013
With
R/CIVIL APPLICATION NO. 3275 of 2019
In
R/LETTERS PATENT APPEAL NO. 1527 of 2024
With
R/LETTERS PATENT APPEAL NO. 1529 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 1336 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1529 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 1336 of 2016
With
R/CIVIL APPLICATION NO. 4025 of 2019
In
R/LETTERS PATENT APPEAL NO. 1529 of 2024
With
R/LETTERS PATENT APPEAL NO. 1531 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13736 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1531 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13736 of 2013
With
Page 5 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
R/CIVIL APPLICATION NO. 4040 of 2019
In
R/LETTERS PATENT APPEAL NO. 1531 of 2024
With
R/LETTERS PATENT APPEAL NO. 1532 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 15047 of 2012
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1532 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 15047 of 2012
With
R/CIVIL APPLICATION NO. 4086 of 2019
In
R/LETTERS PATENT APPEAL NO. 1532 of 2024
With
R/LETTERS PATENT APPEAL NO. 1533 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 2507 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1533 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 2507 of 2013
With
R/CIVIL APPLICATION NO. 3338 of 2019
In
R/LETTERS PATENT APPEAL NO. 1533 of 2024
With
R/LETTERS PATENT APPEAL NO. 1534 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 10414 of 2012
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1534 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 10414 of 2012
With
R/CIVIL APPLICATION NO. 3864 of 2019
In
R/LETTERS PATENT APPEAL NO. 1534 of 2024
With
R/LETTERS PATENT APPEAL NO. 1535 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 1565 of 2016
Page 6 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1535 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 1565 of 2016
With
R/CIVIL APPLICATION NO. 3337 of 2019
In
R/LETTERS PATENT APPEAL NO. 1535 of 2024
With
R/LETTERS PATENT APPEAL NO. 1536 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 17638 of 2015
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1536 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 17638 of 2015
With
R/CIVIL APPLICATION NO. 3341 of 2019
In
R/LETTERS PATENT APPEAL NO. 1536 of 2024
With
R/LETTERS PATENT APPEAL NO. 1537 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 20542 of 2015
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1537 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 20542 of 2015
With
R/CIVIL APPLICATION NO. 3863 of 2019
In
R/LETTERS PATENT APPEAL NO. 1537 of 2024
With
R/LETTERS PATENT APPEAL NO. 1538 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 14078 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1538 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 14078 of 2013
With
R/CIVIL APPLICATION NO. 80 of 2020
Page 7 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
In
R/LETTERS PATENT APPEAL NO. 1538 of 2024
With
R/LETTERS PATENT APPEAL NO. 1509 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 14133 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1509 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 14133 of 2013
With
R/CIVIL APPLICATION NO. 17 of 2020
In
R/LETTERS PATENT APPEAL NO. 1509 of 2024
With
R/LETTERS PATENT APPEAL NO. 1510 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 18798 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1510 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 18798 of 2017
With
R/CIVIL APPLICATION NO. 235 of 2020
In
R/LETTERS PATENT APPEAL NO. 1510 of 2024
With
R/LETTERS PATENT APPEAL NO. 1511 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 18789 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1511 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 18789 of 2017
With
R/CIVIL APPLICATION NO. 220 of 2020
In
R/LETTERS PATENT APPEAL NO. 1511 of 2024
With
R/LETTERS PATENT APPEAL NO. 1515 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13895 of 2013
With
Page 8 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1515 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13895 of 2013
With
R/CIVIL APPLICATION NO. 236 of 2020
In
R/LETTERS PATENT APPEAL NO. 1515 of 2024
With
R/LETTERS PATENT APPEAL NO. 1517 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 19405 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1517 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 19405 of 2016
With
R/CIVIL APPLICATION NO. 96 of 2020
In
R/LETTERS PATENT APPEAL NO. 1517 of 2024
With
R/LETTERS PATENT APPEAL NO. 1519 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13011 of 2012
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2019 In
R/LETTERS PATENT APPEAL NO. 1519 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13011 of 2012
With
R/CIVIL APPLICATION NO. 47 of 2020
In
R/LETTERS PATENT APPEAL NO. 1519 of 2024
With
R/LETTERS PATENT APPEAL NO. 1521 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13010 of 2012
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2019 In
R/LETTERS PATENT APPEAL NO. 1521 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13010 of 2012
With
R/CIVIL APPLICATION NO. 237 of 2020
In
Page 9 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
R/LETTERS PATENT APPEAL NO. 1521 of 2024
With
R/LETTERS PATENT APPEAL NO. 1524 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13009 of 2012
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2019 In
R/LETTERS PATENT APPEAL NO. 1524 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13009 of 2012
With
R/CIVIL APPLICATION NO. 238 of 2020
In
R/LETTERS PATENT APPEAL NO. 1524 of 2024
With
R/LETTERS PATENT APPEAL NO. 1526 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13007 of 2012
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2019 In
R/LETTERS PATENT APPEAL NO. 1526 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13007 of 2012
With
R/CIVIL APPLICATION NO. 152 of 2020
In
R/LETTERS PATENT APPEAL NO. 1526 of 2024
With
R/LETTERS PATENT APPEAL NO. 1528 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 8753 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS
PATENT APPEAL NO. 1528 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 8753 of 2013
With
R/CIVIL APPLICATION NO. 4755 of 2019
In
R/LETTERS PATENT APPEAL NO. 1528 of 2024
With
R/LETTERS PATENT APPEAL NO. 1530 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1530 of 2024
With
Page 10 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
R/CIVIL APPLICATION NO. 4754 of 2019
In
R/LETTERS PATENT APPEAL NO. 1530 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
=============================================
1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
=================================================
THE STATE OF GUJARAT & ORS.
Versus
HUSSAINBHAI SATARBHAI MEMAN
=================================================
Appearance:
MS MANISHA LAVKUMAR, ADDITIONAL ADVOCATE GENERAL with MR
KM ANTANI, MR SIDDHARTH RAMI, MS HETAL G. PATEL, MR KRUTIK
PARIKH and MR JAY TRIVEDI, AGPs for the State Appellant(s) No. 1,2,3
in the respective Appeals
MR SHALIN MEHTA, SR. ADVOCATE, assisted by MS ADITI RAOL, MR
ANSHIN DESAI, SR. ADVOCATE assisted by MR ZALAK PIPALIA, MR.
MEHUL S. SHAH, SR. ADVOCATE assisted by MR. VISHAL C. MEHTA,
MS MEGHA JANI with MR MIT THAKKAR, MR ARJUN JOSHI,
MS.KRISHA BHIMANI and MS ADITI SHETH, MR J.V. VAGHELA, MR
UDIT D. MEHTA, MR HITESH N. ACHARYA, MR AMAR D MITHANI,
MR. MANAN K. PANERI, MR VIRAL K SHAH, MR. RAJ A TRIVEDI, MR
J.A. ADESHRA, MR PREMAL R JOSHI, MR HRIDAY BUCH, MR TULSHI
R. SAVANI, MR. BRIJESH TRIVEDI, MR RUTVIJ S. OZA, MS SONAL D.
VYAS, MR YN RAVANI, MR ARPIT P PATEL, MR RAJESH O GIDIYA, MR.
Page 11 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
ZUBIN F. BHARDA, MR BM MANGUKIYA, MS BELA A. PRAJAPATI, MR
AR MAJMUDAR, MR VM TRIVEDI and MR SATYAM CHHAYA for the
concerned respondent(s) in the respective Appeals
=================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 14/10/2024
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. The Civil Applications filed by the applicants for condonation of delay in preferring the respective Letters Patent Appeals are condoned as the delay is explained to the satisfaction of the Court. The delay condonation applications are accordingly allowed. The office shall allot regular number to the concerned appeals.
2. In the present group of appeals, the common question that has arisen for consideration is about the validity of the proceedings under Section 75 of the Saurashtra Gharkhed, Tenancy Settlement and Agriculture Lands Ordinance, 1949 (in short the "Ordinance' 1949") initiated by the Collector for alleged breach of Section 54 of the Ordinance' 1949 against the petitioners at different points of time.
3. The original Writ petitions were filed in the year 2013 onward and most of the Writ petitions, in the bunch, are of the year 2019, which have been filed after dismissal of the revision filed by the petitioners before the Special Secretary (Appeals), Revenue Department (SSRD) thereby confirming the order Page 12 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined passed by the Collector. The original order of eviction was passed by the Collector invoking the power under Section 75 of the Ordinance' 1949.
4. It may be noted that the proceedings under Section 75 of the Ordinance' 1949, were initiated with respect to the sale deeds executed as early as in the years 1975, 1987, 1989, 1990 onwards. From the chart prepared by Ms. Manisha Luvkumar, the learned Additional Advocate General in consultation with the learned counsel for the petitioners, it may be noted that with respect to the sale deeds executed in favour of the petitioners or their predecessor in interest, mutation entries were made and certified. For instance, in Writ petition being Special Civil Application No. 19405 of 2016, the Sale deed is dated 24.06.1975, the mutation entry was certified on 08.01.1986 and the show-cause notice under Section 75 of the Ordinance' 1949 was sent by the Deputy Collector on 26.07.1990. The Deputy Collector, thereafter, passed the order dated 24.09.1990 declaring the sale transaction in favour of the father of the original petitioner as not legal. The Collector has upheld the order of the Deputy Collector vide order dated 19.03.1991 and in revision, while passing the order dated 05.06.1991, the SSRD had directed to apply for the Certificate of agriculturist from the Deputy Collector. The Deputy Collector had not considered the application for grant of agriculturist certificate by passing the order dated 13.07.1992. The Collector further passed the order dated 25.09.1992 confirming the same. The SSRD, in its order dated 29.08.2016 in revision, had held that the original purchaser Page 13 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined was an Ex-army man and under Section 54 of the Ordinance' 1949, he was required to produce evidence establishing his status as an agriculturst or a labourer.
5. In similar fashion, in another Writ petition, being Special Civil Application No.17180 of 2012, the date of the sale deed is 01.01.1993, mutation entry was certified on 03.07.1995. The show-cause notice was issued on 07.04.2005, on the premise that the factum of execution of the sale deed in violation of Section 54 of the Ordinance' 1949, came into light when RTS inspection was made on 01.03.2005. The Collector has passed the order thereafter on 27.10.2006 and the order of the SSRD is dated 17.12.2011.
6. The learned Single Judge while allowing the Writ petitions out of which the appeals in this group, have arisen, had primarily delved on the issue of delay and held that since the proceedings with the show-cause notice were initiated after a period of more than 3 years, which is a reasonable period for exercise of suo motu power considered by the Apex Court in State of Gujarat vs. Patel Raghav Natha 1, followed by the Division Bench of this Court in Chandulal Gordhandas Ranodariya vs. State of Gujarat2 and various other decisions subsequent thereto, the exercise of power at such a belated stage cannot be sustained.
7. It was held by the learned Single Judge that in the facts and circumstances of the case as well as the judicial 1 1969 (2) SCC 187 2 2013 (2) GLR 1788 Page 14 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined pronouncements of the Apex Court and this Court regarding the word "reasonable period for exercise of such powers", it is evident that the exercise of power by the Collector in the proceedings under Section 75 of the Ordinance' 1949 cannot be said to be within a reasonable period and, therefore, cannot be justified. It was also noted that if such exercise of power is permitted at such a belated stage, it would amount to allowing unsettling the settled position after a long lapse of period which may cause serious prejudice as the parties may have altered their position. The transactions which may have taken place may have led to further transactions and third party rights may have been created which would result in affecting those who may not be before this Court or the Authority in the proceedings conducted under the Ordinance' 1949. Even those persons who have purchased the land may have incurred further expenses for the development of the land. From all angle, there is no justification for exercise of such power at such a belated stage.
8. Having gone through various orders passed by the learned Single Judge, in light of the opinion drawn by the learned Single Judge about the exercise of suo motu power belatedly beyond the reasonable period of time, with the consent of the learned counsels for the parties, we have heard all the appeals in this bunch together and they are being decided by this common order.
9. In order to compile the data on the factual aspect stated in the original Writ petitions out of which this bunch of appeals have Page 15 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined arisen, we may extract the chart given to us by Ms. Manisha Lavkumar, learned Additional Advocate General for the State appellant :-
Sr. Orig. LPA No. SCA No. Impugned Date of Mutation Show cause Reason for No. Sr. Order Dt. Sale Entry notice initiating suo motu No. Deed Certified issuance Dt. revision Dt. proceedings
1. 26 1538/24 14078/13 04/12/18 17/01/94 14/09/98 07/04/05 - RTS inspection 6years State of Guj. - Collector order-
Vs. 26/03/10
Nanjibhai Ramjibhai
&Ors.
- SSRD order-
(Bhavnagar)
21/06/13
- Produced the
certificate of
agricultural
labourer of the year
1998. However, the
sale transaction was of
1994.
2. 5 1814/24 1521/13 27/11/18 19/12/89 19/02/90 06/11/97 - Deputy collector
After 2 yrs. 6 years order-29/03/00
State of Gujarat Thro
Additional Secretary - Collector
Vs. order-__/09/01
Sehenshahbhai
Sharifbhai - SSRD order-
Dadwani 10/10/12
(Surendranaga)
- Did not produce
any proof or
documents to
establish the status
of an agriculturist
or agriculturist
labourer.
3. 13 1826/19 9925/11 27/11/18 16/12/94 26/05/98 11/08/04 - Based on RTS
Inspection on
State of Gujarat 4 years 5years 09/07/03
Vs. -Collector order-
Dudhiben Sodabhai 8/11/06
Devipujak - SSRD order-
(Bhavnagar) 14/7/2011
- Affidavit in Reply-
page no 285
onwards
- TDO had granted
the permission for
transaction of land.
- Opponent's father
had sold the
agricultural land in
1980 on the basis of
which he was
having the status of
Page 16 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
an agriculturist.
Hence, opponent's
father had lost the
status of
agriculturist way
back in1980.
- However no proof
of any other land
purchased by
petitioner's father
was brought on
record to establish
the status of
agriculturist.
- Argument of the
State was not dealt
with by the Ld
Single Judge.
4. 3 1463/19 1989/13 27/11/18 18/12/87 08/02/88 03/02/96 - Deputy collector
order-15/05/01
State of Gujarat & 7years
Ors. - Collector order -
06/07/01
Vs.
- SSRD order-
L/H of Shah 04/09/01
Mahendrakumar - No documents
Amratlal (Legal produced to
Heirs)& Ors. establish that
(Surendranagar) purchaser is an
agriculturist.
5. 21 1533/24 2507/13 27/11/18 05/02/98 17/04/98 07/05/09 - Collector order-
27/10/09
State of Gujarat 9years
- SSRD order-
Vs. 27/12/12
Kanaiyalal Amrutlal
- When the
Parekh
opponent
(Bhavnagar) purchased the land
on 05/02/98, he had
produced evidence
of land holding in
Maharashtra in the
year 1995 (i.e
07/04/95)
- The land holder of
the region outside
of Gujarat cannot
be considered as an
agriculturist in
state of Gujarat.
- On this basis, he
has effected
multiple purchase
of 7 pieces of land.
6. - Deputy collector-
30 1517/24 19405/16 26/03/18 24/06/75 08/01/86 26/07/90 24/09/90 declared
State of Gujarat & 10 4years the sale transaction
Ors. years in favour of
opponent's father as
Vs. was not legal.
Deceased Girdharlal
- Collector
Suryavanshi Gopal
& Ors. -19/03/91 upheld the
Page 17 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
(Jamnagar) order of deputy
collector
- SSRD-05/06/1991
Ld. SSRD had
directed to apply for
certificate of
agriculturist from
deputy collector
- Deputy collector
order-13/07/92
- The application for
grant of agriculturist
certificate was not
considered
- Collector-25/09/92
- SSRD-29/08/16-
Girdharlal was ex-
army man. However,
the land in question
was never granted to
him as an ex-army
man. Thus u/s 54 of
the Act, Girdharlal
was required to
produce evidence
establishing the
status of
agriculturist or
labourer.
- vide order
26/03/18, the
Learned single on
paragraph 5 has
erred in considering
the delay of 15
years. However, the
sale deed of
24/06/75 was
mutated on 08/01/86
after 10 years. For
the same, the show
cause was issued on
26/07/1990. Hence,
there was a delay of
4 years in initiating
suo-moto revision
proceedings.
- No documentary
evidence
establishing the
status of
agriculturist or
labourer produced
by opponent.
7. 11 1520/24 17180/12 27/11/18 01/01/93 03/07/95 07/04/05 - RTS Inspection on
01/03/05.
State of Gujarat & 9 years delay
Anr. - Collector order-
27/10/06
Vs.
- SSRD order-
Page 18 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
Narigara 17/12/11
Shibabhai - Did not produce
Meghjibhai any proof or
documents to
(Bhavnagar) establish the status
of an agriculturist
or agricultural
labourer.
8. 16 1525/24 7496/13 27/11/18 14/08/89 22/03/96 29/11/06 - Collect or order-
31/12/10
State of 7 years 8years
Gujarat& - SSRD order-
Ors. 20/02/13
Vs. - After the death of
father of opponent,
Raliyatben no entry of heirship
BhikhabhaiKoli&A was mutated in the
name of opponent.
nr.
Hence,it was
(Bhavnagar) admitted by the
opponent that she
is not an
agriculturist.
- As per the say of
opponent, she is an
agricultural
labourer. However,
did not produce any
proof or documents
to establish the
status of
agricultural
labourer.
9. - Based on RTS
22 1534/19 10414/12 27/11/18 05/09/88 04/12/88 6/12/97 inquiry
State of Gujarat Vs. 9years - Deputy collector
Sultanbhai order-29/03/00
Sharifbhai
- Collector order-
Dadwani 4/9/01
(Surendranagar) - SSRD-3/6/12
- No show cause
notice annexed with
the petition
- Did not produce
any proof or
documents to
establish the status
of an agriculturist
or agricultural
labourer.
10. 20 1532/19 15047/12 04/12/18 24/10/91 25/11/91 07/04/05 - Based on RTS
inspection dated
State of Gujarat 13 years 28/02/05.
Vs. - Collector order-
Dharamsinhbhai 2/2/07
Narsinhhai & Ors. SSRD order-13/09/12
(Bhavnagar) - The opponent had
accepted that he is
not an agriculturist
Page 19 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
- As per the say of
opponent, he is an
agricultural
labourer not having
income exceeding
Rs5000.
- However, no
documentary
evidence was
produced to
establish that he is
an agricultural
labourer.
11. 31 1519/24
13011/12 04/12/18 06/10/94 28/12/94 07/08/06 - No documentary
State of Gujarat evidence
10 years establishing the
Vs.
Nirmalaben status of
agriculturist or
Laxmishankar agricultural
Sompura & Ors. labourer produced
in the proceedings
(Surendranagar) by opponent
- As per the case of
opponent, her
brother owned an
agricultural land
through which
opponent had
availed
agriculturist's
status. The
brother's land was
self-acquired
property.
- However, as per
sec 8 of Hindu
Succession Act,
1956 ,the property
of male Hindu dying
intestate shall
devolve according
firstly upon the
heirs in class I and
if there is no heir of
class 1 then upon
heirs in class II.
- Deputy collector
order-22/12/08
- Collector order-
31/03/10
- Appeal before
SSRD
- Opponent had
filed SCA 4739
of2011 to quash
and set aside the
interlocutory order
passed by revision
authority refusing
to grant stay during
the pendency and
finaldisposalofrevisi
Page 20 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
onapplication.Video
rderdated20/04/201
1, the petition was
dismiss as not
pressed.
- SSRD order-
13/06/12
12. 32 1521/24
13010/12 04/12/18 06/10/94 28/12/94 07/08/06 - No documentary
State of Gujarat evidence
10 years establishing the
Through Secretary
& Ors. Vs. status of
Nirmalaben agriculturist or
labourer produced
Laxmishankar in the proceedings
Sompura & Anr. by opponent
(Surendranagar) - As per the case of
opponent, her
brother had owned
land through which
opponent had
availed
agriculturist's
status. The
brother's land was
self-acquired
property.
- However, as per
sec 8 of Hindu
Succession
Act,1956, the
property of male
Hindu dying
intestate shall
devolve according
firstly upon the
heirs in class I and
if there is no heir of
class 1 then upon
heirs in class II.
- Deputy collector
order-22/12/08
- Collector order-
31/03/10
- Appeal before
SSRD
Opponent had filed
SCA 4740 of 2011
to quash and set
aside the
interlocutory order
passed by revision
authority refusing
to grant stay during
the pendency and
final disposal of
revision
application.
Vide order dated
20/04/2011, the
petition was
dismiss as not
pressed.
- SSRD order-
Page 21 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
13/06/12
13. 33 1524/24 13009/12 04/12/18 06/10/94 28/12/94 07/08/06 - No documentary
evidence
establishing the
State of Gujarat status of
Vs. agriculturist or
Nirmalaben labourer produced in
Laxmishankar the proceedings by
Somura & Ors. opponent
(Surendranagar)
- As per the case of
opponent, her
brother had owned
land through which
opponent had
availed
agriculturist's
status.
The brother's land
was self-acquired
property.
- However, as per
sec 8 of Hindu
Succession
Act,1956 ,the
property of male
Hindu dying
intestate shall
devolve according
firstly upon the
heirs in class I and
if there is no heir of
class1then upon
heirs in class II.
- Deputy collector
order-22/12/08
- Collector order-
31/03/10
- Appeal before
SSRD
Opponent had filed
SCA 4741/11 to
quash and set aside
the interlocutory
order passed by
revision authority
refusing to grant
stay during the
pendency and final
disposal of revision
application. Vide
order
dated20/04/2011,th
e petition was
dismiss as not
pressed.
- SSRD order-
13/06/12
14. 34 1526/24 13007/12 04/12/18 05/09/97 20/12/1997 07/08/06 - No documentary
evidence
State of Gujarat establishing the
Vs. status of
Niramalaben agriculturist or
Page 22 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
Laxmishankar
Sompura & Ors. labourer produced
(Surendranagar) in the proceedings
by opponent
- As per the case of
opponent, her
brother had owned
land through which
opponent had
availed
agriculturist's
status. The
brother's land was
self-acquired
property.
- However, as per
sec 8 of Hindu
Succession Act,1956,
the property of male
Hindu dying
intestate shall
devolve according
firstly upon the heirs
in classI (i.e son and
daughter) and if
there is no heirs of
class 1 then upon
heirs in class II.
- Deputy collector
order-22/12/08
- Collector order-
31/03/10
- Appeal before
SSRD
Opponent had filed
SCA 4742 of2011 to
quash and set aside
the interlocutory
order passed by
revision authority
refusing to grant
stay during the
pendency and final
disposal of revision
application. Vide
order dated
20/04/11,the
petition was dismiss
as not pressed.
- SSRD order-
13/06/12
15.
18 1529/24 1336/16 04/12/18 19/07/97 19/02/01 - Collector order-
27/12/10
State of Gujarat &
Ors. Vs. - No issue of
Dipakkumar Transaction in
Nagindas Shah & breach of section
Ors. (Bhavnagar) 54 of Saurashtra
Gharkhed
Ordinance to non-
agriculturist.
- Issue is with
regards to payment
Page 23 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
of stamp duty while
waiving the rights
in favour of
opponent.
16.
19 1531/24 13736 of 27/11/18 14/02/96 09/12/2010 - Collector order-
2013 30/12/10
State of Gujarat &
Anr. Vs. Harjibhai - SSRD order-
Bhimjibhai Lathiya 31/05/13
& Ors.
(Bhavnagar) - No documentary
evidence
establishing status
of agriculturist was
produced.
17
17 1527/24 7499/13 27/11/18 14/08/89 22/03/96 29/11/06 - Collector order-
31/12/10
State of Gujarat
vs. Labhubhai Koli SSRD order-
& Ors. 20/02/2013
(Bhavnagar) - The opponent had
accepted that he is
not an agriculturist
but an agricultural
labourer not having
income exceeding
Rs 5000.
- However, no
documentary
evidence was
produced to
establish that he is
an agricultural
labourer.
18. 1827/19 21153/15 04/12/18 21/10/88 08/10/99 08/12/06 - Collector order-
15 State of Gujarat & 31/12/10
Ors.
vs - SSRD order-
Legal heirs of 30/09/15
deceased
Satarbhai - No certificate of
Musabhai Meman competent
(Bhavnagar) authority with
respect to being an
agriculturist or no
prior permission of
competent
authority obtained.
19. 1535/24 1565/16 27/11/18 22/05/85 01/01/86 07/10/01 - HUF in the name
23 State of Gujarat of "Vadodarai
vs. Agricultural Farm"
Gunvantrai could not claim the
Trambaklal status of
Vadodariya agriculturist.
(Botad) Opponents are
shown to be
members of HUF
and partner of
Agricultural Farm,
However, no
evidence to show
that they were
cultivating the land
personally.
Page 24 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
20. 1537/24 20542/15 04/12/18 15/12/88 03/05/93 09/12/10 - Collector order-
25 State of Gujarat 23/12/10
vs.
Decd. Bachubhai - SSRD order-
Chhaganbhai Thro 30/09/15
L/H & LR
- No certificate of
(Bhavnagar) agriculturist issued
by competent
authority produced
on record.
- Though not being
an straight line
heirs, wrongly
established before
the authority.
21. 1509/24 14133/13 27/11/18 18/03/97 21/04/97 09/12/10 - No documentary
27 State of Guj evidence
vs. establishing the
Dilipbhai status of
Jesingbhai & Ors. agriculturist or
(Bhavnagar) labourer produced
in the proceedings
by opponent.
22. 1536/24 17638/15 04/12/18 24/12/76 24/04/87 23/05/12 - Collector order-
24 State of Gujarat 20/07/13
Vs.
Samuben - SSRD order-
Naranbhai 28/09/2015
Savariya
(Bhavnagar) - No documentary
evidence produced
on record to
establish that
purchaser was an
agriculturist or
agricultural
labourer.
23. 1825/19 21151/15 04/12/18 16/12/94 20/12/02 15/02/06 - RTS inspection on
1 State of Gujarat 29/12/2003
vs.
Hussainbhai - Collector order-
Satarbhai Meman 31/12/2010
(Bhavnagar)
- SSRD order-
31/09/2015
- No documents
produced to
establish that
purchaser is an
agriculturist
Opponent was not
an agriculturist at
the time of
purchase of Land
- It was stated by
opponent that
grandfather was
agriculturist and
therefore as the
heir of an
agriculturist.
However, the first
agriculture land
was sold.
Page 25 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
- No documents
shown to prove that
which another land
purchased after
selling of the first
land.
24. 1512/24 13381/13 27/11/18 01/09/18 04/10/81 19/05/05 - Deputy collector
2 State of Gujarat order-03/07/07
vs.
Manishbhai - Collector order-
Lilchandbhai 31/03/08
Mehta
(Surendranagar) -SSRD order-
08/07/2013
- No documents
produced to
establish that
purchaser is an
agriculturist.
25. 1513/24 12196/15 27/11/18 05/01/81 20/03/81 09/04/10 - Deputy collector
4 State of Gujarat order-31/10/10
vs.
Rabari Motibhai - Collector order-
Merabhai 10/12/13
(Surendranagar)
- No certificate
produced to
establish the status
of "Maldhari"
26. 1371/19 16853/13 23/08/18 06/07/91 23/09/91 24/11/14 - Collector order-
6 State of Gujarat 08/08/16
vs. Kantaben
Bhagvanbhai Vaya - SSRD order-
28/07/17
- Did not produce
document /proof of
agriculturist.
- Transaction in
breach of section
54 of Saurashtra
Gharkhed
Ordinance to non-
agriculturist.
27. 1516/24 3624/13 27/11/18 03/02/86 20/12/86 06/10/08 - Collector order-
7 State of Gujarat 10/07/09
through
Special Secretary - SSRD order-
Vs. 09/01/2013
LH. of LT. Vaghri
Kurjibhai - Show cause notice
Bhikhabhai not annexed with
Parmar - Jakalben petition.
& Ors.
(Gir Somnath) - Based on deputy
collector, Veraval's
reporting on dated
31/12/2007 to
collector, Junagadh,
suo-moto was
initiated.
- Purchaser had not
produced
Page 26 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
agricultural labour
certificate.
28. 1828/19 13375/13 27/11/18 -- 01/09/81 19/04/81 - Deputy collector
8 State of Gujarat order-03/07/07
vs.
Pushpaben - Collector order-
Lilchandbhai 31/03/08
Mehta & Ors.
(Surendranagar) - SSRD order-
08/07/13
- Copy of the
khata(Account
holding)which was
produced at the
time of mutation of
revenue entry no
696 dated
01/09/1981 was
produced of a
different village
named Gasido and
was shown in name
of one Kapurchand
Bhagwanji and not
in the name of
Purchaser.
Therefore, there
was no evidence
establishing that
the purchaser was
an agriculturist.
29 1522/24 3273/16 04/12/18 18/01/91 02/04/93 02/04/93 - Collector order-
12 State of Gujarat 20/07/13
Vs.
Niruben - SSRD order-
Maheshchandra 26/11/2015
Karelia
- No evidence
establishing being
farmer through
promulgation was
produced.
30. 1561/19 1640/16 04/12/18 08/04/88 28/06/88 13/08/2006 - Collector order-
14 State of Gujarat 27/07/2007
Vs.
Muktaben W/o - SSRD order-
Naranbhai 23/09/2015
Maganbhai
- Opponents had not
purchased
agricultural land
within 6 months of
closure of account
of an agriculturist
and he was not
holding of status of
same for the period
of 15 years.
31. 1528/24 8753/13 27/11/18 07/12/90 10/12/90 01/10/12 - No show cause
35 State of Gujarat notice annexed with
vs. the petition
Alpesh Pravinbhai
Ganatra - Collector order-
(Bhavnagar) 29/01/13
- SSRD order-
1/04/13
Page 27 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
- No documentary
evidence
establishing the
status of
agriculturist or
labourer produced
in the proceedings
by opponent.
32. 1516/24 3624/13 27/11/18 03/02/86 20/12/86 16/10/08 - Show cause notice
9 Noormuhammad not annexed with
Kalubhai Sumra petition
Vs.
Jakalben Kurjibhai - Based on deputy
Parmar collector, Veraval's
(Gir Somnath) reporting on dated
31/12/2007 to
Collector, Junagadh,
suo-moto was
initiated.
- Purchaser had not
produced
agricultural labour
certificate.
33 21518/24 705/15 04/12/18 08/01/91 01/02/91 28/06/13 - Show cause notice
10 State of Gujarat not annexed with
Vs. the petition.
Decd. Ambaben D/
o. Muljibhai - Entry no 3745 in
Odhabhai Vaghani respect to earlier
& Ors. sale transaction
entered into by the
(Bhavnagar) opponent was
cancelled by the
authorities on
25/03/1991 as she
was not an
agriculturist.
Thereafter, attempt
was made to
acquire the status
of agriculturist by
family distribution.
34 1515/24 13895/13 27/11/18 18/03/97 21/04/97 09/12/10 - No certificate of
29 State of Gujarat agriculturist issued
Vs. by competent
Dhirubhai authority produced
Mohanbhai Goti & on record.
Ors.
(Bhavnagar)
35 1511/24 18789/17 04/12/18 21/07/93 17/08/93 23/03/12 - Transfer by device
28 State of Gujarat of adoption cannot
vs. be said to be legal
Jayaben and valid transfer
Narsinhdas land can only be
W/o. Madhavji transferred by sale
Gokaldas Nathvani deed attempt to
& Ors. transfer the land in
such manner could
(Porbandar) be a matter of
verification.
Page 28 of 110
Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION
C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024
undefined
It is reiterated that the copy of the chart has been supplied to the learned counsels appearing for the original petitioners and they have verified the same.
10. Having gone through the reasons for initiation of the proceedings by the Collector shown in the chart, at least one thing is clear that in almost all the matters, the proceedings for eviction were initiated at least beyond the period of 6 years of the date of certification of the mutation entry and in few with respect to the sale deeds of the year 1990 and 1991, where mutation entries were certified in the year 1990 and 1993, the show-cause notice was issued in the year 2012 and 2013.
11. Having noted the above, we do not find any reason to go to the individual facts of each case, inasmuch as, the common question is about the propriety of the eviction proceedings initiated by the Collector primarily on the ground of delay. It may, however, be noteworthy that while passing the order of eviction under Section 75 of the Ordinance Act' 1949 with the removal of the name of the vendees from the land in question, it was directed that the name of the State Government (Sarkarshri) be entered over the lands in question and the lands be deemed to have been vested with the State Government. This aspect of the order passed by the Deputy Collector/Collector, in individual cases, has not been disputed by the learned Additional Advocate General appearing for the appellants. The result is that with the orders impugned, the mutation entries in the name of the vendees of various sale deeds have been deleted while passing the order of eviction and the name of the State Government was directed to be Page 29 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined entered in the revenue records.
12. From a perusal of the reasons for initiating proceedings for eviction as narrated in the chart provided by the learned Additional Advocate General is that none of the vendees could prove their status as agriculturists or labourers by filing any documentary evidence. It was, thus, concluded that the sale of the lands in question were made in favour of Non-agriculturist and, admittedly, since there was no permission for such sale obtained from the Collector or the authorised officer, the sales deeds are invalid and no valid, right, title or interest could pass on to the vendees by virtue of the said sale deeds.
13. It was argued by the learned Additional Advocate General that since none of the vendees could establish that the sale deeds were executed in their favour after permission of the Collector, by virtue of Section 54 of the Ordinance' 1949 they are treated to be unauthorised occupant or being in wrongful possession of the lands in question. They are all liable to be evicted, as such, and hence the order under Section 75 was passed by the Deputy Collector or the Authorised officer, as the case may be. The submission is that the transfer of agricultural land to a non-agriculturist is hit by Section 54 of the Ordinance' 1949. Admittedly, none of the petitioners or their predecessor in interest have taken permission of the Collector nor they have applied for permission. Sale once invalid, validity can only be attached to it after permission is granted by the Collector on fulfillment of the conditions in the order of grant of permission. As no permission has been granted to any of the petitioners herein, the transactions do not acquire any efficacy or legality Page 30 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined with the passage of time. The petitioners or their predecessor in interest have been conferred right into the lands in question by virtue of the sale deeds which are hit by Section 54 of the Ordinance' 1949 and they had no legal and indefeasible right on the date of filing of the Writ petition.
14. The proceedings, in most of the cases, were initiated within a span of 4 to 9 years from the date of the mutation entry. There was, thus, no occasion for the learned Single Judge to hold that the proceedings were initiated beyond a reasonable period of time. Moreover, the action of the State cannot be said to be illegal on the ground of delay. In fact, the result of setting aside the orders passed by the competent authority under Section 75 of the Ordinance' 1949 would be that an illegal document would acquire validity. No stamp of approval or validity can be attached to an illegal document while exercising the power under Article 226 of the Constitution by this Court entrusting writ to the petitioner to perpetuate illegality. The action of the State was held illegal by the learned single Judge only on the ground of delay on the basis of the decisions of the Apex Court and of this Court, which pertain to the exercise of the revisional power under Section 211 of the Gujarat Land Revenue Code, 1879 or under the Gujarat Tenancy and Agricultural Lands Act, 1948.
15. The nature of the power exercised in this case differs from the suo motu power of revision conferred under Section 211 of the Gujarat Land Revenue Code, 1879 or the power of the Mamlatdar under Section 84C of the Gujarat Tenancy and Agricultural Lands Act, 1948. The ratio of the decisions relied Page 31 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined upon by the learned Single Judge to set aside the orders passed by the Collector and SSRD are not applicable in the facts and circumstances of the present cases, which have arisen out of the summary eviction proceedings conducted under the Ordinance' 1949. It was argued that Section 75 provides for summary eviction of an unauthorised occupant or a person who is in wrongful possession of any land covered by the Ordinance' 1949. The nature of the power exercised by the Collector under Section 75 of the Ordinance' 1979 for summary eviction of an unauthorised occupant cannot be confused with the revisional power of superintendence.
16. The concept of reasonable period for invocation of proceedings hence, would not be attracted. The action taken by the Collector cannot be said to suffer from any delay. There is no question of unsettling the settled rights when no revenue rights exist in favour of the occupants. The illegality cannot be removed or corrected with the passage of time. The occupation of the land subject matter of the sale deeds being hit by Section 54, is a continuous wrong and can be corrected only if when permission is granted by the Collector subject to the conditions mentioned in the order granting permission. Admittedly, no such application has been made nor any permission has been granted in favour of any of the petitioners herein.
17. The result is that the petitioners cannot resist the order of eviction which has been passed under Section 75 of the Ordinance' 1949, which empowers the Collector for summary eviction of an unauthorised occupant when the transfer by Page 32 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined operation of law is invalid under the provisions of the Ordinance' 1949. As none of the petitioners are entitled to hold the lands in question as they have not acquired a valid right, title or interest in the lands, as the sale deeds executed in their favour were hit by Section 54 of the Ordinance' 1949 for there being no permission of the Collector to transact, none of the petitioners can seek any right to hold the lands as valid transferees or successors-in- interest of valid transferees. The learned Single Judge in passing the judgments impugned, has completely ignored this aspect of the matter.
18. Placing the judgment of the Apex Court in Mannanlal Khetan & Ors. vs. Kedar Nath Khetan3, it was argued that negative, prohibitory and exclusive words are indicative of the legislative intent when the statute is mandatory. It is a question of construction in each case whether the legislature intended to prohibit the doing of the act altogether or merely to make the person who did it liable to pay the penalty. It was argued that where a contract, express or implied, is expressly or by implication forbidden by statute, no court will lend its assistance to give it effect. A contract is void if prohibited by a Statute under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibition. The penalty may be imposed with intent merely to deter persons from entering into the contract or for the purposes of revenue or that the contract shall not be entered into so as to be valid at law. A distinction is sometimes made between contracts entered into with an object of committing an illegal act or contracts expressly or impliedly prohibited by 3 (1977) 2 SCC 424 Page 33 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined the Statute. The distinction is that in the former class one has only to look and see what acts the Statute prohibits; it does not matter whether or not it prohibits a contract; if a contract is made to do a prohibited act that contract will be unenforceable. In the latter class, one has to consider not what act the Statute prohibits, but what contracts it prohibits. The intention of the parties would not be relevant if the parties enter into a prohibited contract, as the contract is unenforceable.
19. It was vehemently urged that it is well established that a contract which involves in its fulfillment the doing of an act prohibited by statute, is void. What is done in contravention of the provisions of an Act of the legislature cannot be made the subject of an action. In every case where a Statute inflicts a penalty for doing an act, even though the act be not prohibited, yet the thing is unlawful, because it is not intended that a Statute would inflict a penalty for a lawful act.
20. Para 22 of the said judgement has been placed before us to assert as under :-
"22. Penalties are imposed by statute for two distinct purposes:
(1) for the protection of the public against fraud, or for some other object of public policy; (2) for the purpose of securing certain sources of revenue either to the State or to certain public bodies. If it is clear that a penalty is imposed by statute for the purpose of preventing something from being done on some ground of public policy, the thing prohibited, if done, will be treated as void, even though the penalty if imposed is not enforceable."Page 34 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined
21. Placing the decision in Madhegowda (dead) by Lrs. vs. Ankegowda (dead) by Lrs. and Ors 4, it was argued that a transferee of an alienation which is prohibited by statutory provision would not acquire any title of the property, inasmuch as, the alienation would be void ab initio.
22. Placing the judgment of the Full Bench of Allahabad High in Nutan Kumar and Ors. Vs. IInd Additional District Judge5, it was argued that interdiction of any matter or thing, on which an agreement is founded, may be expressly provided for in a statute. It is not always necessary to do so. Rather, the statute may instead of expressly declaring any matter or thing to be prohibited, merely provide penalty for the offender, and in that event also the matter or thing will be taken as forbidden by the Statute. In a penalty a prohibition is implicit and inherent. The Full Bench while answering the question on a reference, whether an agreement of lease between the landlord and the tenant for letting and occupation of a building in contravention of the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is enforceable in law and a decree for ejectment of the tenant can be passed thereon, has considered the decisions in Gheru Lal Parekh v. Mahadeo Das6; Deep Narain Singh v. Nageshwar Prasad7, and Manna Lal Khetan3 to hold that :-
"88. Therefore, in my opinion, the contract of letting and occupation of a building otherwise than in pursuance of 4 (2002) 1 SCC 178 5 1993 SCC OnLine All 176 6 AIR 1959 SC 781 7 AIR 1930 All 1 Page 35 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined an order of allotment is of such a nature that 'if permitted' it would defeat the provisions of law. Any other view of the question would be non-sequitur and destructive of the objectives of the Act.
89. It is true that mere agreement of lease in itself may not be illegal for what is forbidden is letting without an allotment order but if the consideration or objects of the agreement are found to be tainted with the kind of illegality which is struck by Section 23 of the Contract Act, the agreement would be rendered void. The object of the agreement of lease when carried out and given effect to, gets materialised in letting and occupation which, in absence of an order of allotment are unlawful being prohibited by Sections 11 and 13 of the U.P. Act 13 of 1972 and punishable under Section 31. Such an agreement is tantamount to a mechanism or device meant and evolved by the parties to the agreement to defeat and circumvent what the law has actually forbidden."
23. With the aid of the decision of the Apex Court in Life Insurance Corporation of India vs. Escorts Ltd. and Ors. 8, it was argued that there is a clear distinction between the expression "ex post facto permission" and "previous permission". The distinction between the "previous permission" and "permission simplicitor" in the provisions of the Act cannot be ignored. Ordinarily the difference between approval and permission is that in the first the act holds good until disapproved, while in the other case, it does not become effective until permission is obtained, though the permission subsequently obtained may all the same validate the previous act. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying words in one provision and its non-use in another provision may not 8 (1986) 1 SCC 264 Page 36 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined be disregarded. The approving authority is not bound to give ex post facto permission wherein previous permission for doing an act is necessary. It was, thus, argued that the word "prior" or "previous" may be implied if the contextual situation or the object and design of the legislation demands and it would depend on the implication of the section.
24. Further reliance is placed on the decision in Waman Shriniwas Kini vs. Ratilal Bhagwandas & Co.9 to argue that an agreement contrary to the provisions of the statute would be unenforceable and it is not permissible for any person to rely on such contract.
25. With the aid of the above decisions, it was vehemently argued that the Legislature by Amendment Act of 2015, i.e. Gujarat Act 28 of 2015 has inserted Section 75A, which confers power upon the Collector to make an inquiry suo motu or on the application of any person, if he has reason to believe that a transfer is made in breach of the provisions of Section 54 in favour of a non-agriculturist. Sub-section (2) of Section 75A confers power on the Collector to impose penalty of three times the amount of the prevailing Jantri of such land on the person in whose favour such land is not validly transferred, if the Collector comes to a decision that the transfer of such land is not valid.
26. The statement of Objects and Reasons of the 2015 Act shows that Section 75A was inserted to make the law more stringent to curb or prohibit occurrence of such transfer by imposing 9 1959 Supp.(2) SCR 217 Page 37 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined penalty on the transferee in the same year. The statement of Objects and Reasons of the Amendment Act of 2015 placed before us reads as under :-
"At present there are three different tenancy laws in operation in the State. In the Bombay area of the State of Gujarat, the Bombay Tenancy and Agricultural Lands Act, 1948, is in force, in the Kutch area of the State of Gujarat, the Bombay Tenancy and Agricultural Lands (Vidarbh Region and Kutch Area) Act, 1958, is in force, whereas in the Saurashtra area of the State of Gujarat, the Saurashtra Gharkhed, Tenancy Settlement and Agricultural Lands Ordinance, 1949 is in force.
The said Acts have been enacted about more than sixty years ago and with the rapid industrialization and urbanization, it is considered necessary to amend and insert certain provisions in the said Acts in order to make the procedural parts of the Acts more simple and to mitigate the undue hardships the people have to suffer.
A provision in all the aforesaid Acts is proposed to be inserted to the effect that where the land is sold for bonafide industrial purpose, the purchaser of such land, if it is a company may offer the equity shares of such company in lieu of sale price of such land to the person by whom such land is being sold and if such person agrees to accept such equity shares either in full or partly then it shall be obligatory on the part of such company to allot such shares. Sub-clause (1) of clause 2, sub-clause (1) of clause 6 and sub-clause (1) of clause 9 of the Bill provides for the same.
It is proposed to raise the time limit for commencing the production from five years to seven years and such period of seven years can be extended by another there years on payment of fifty per cent of prevailing Jantri value. A new provision is also proposed to be inserted in all the Acts for allowing the purchaser of the land for industrial purpose after a period of three years on payment of different rates of the prevailing Jantri value at the different intervals of time. Sub- clause (2) of clause 2, sub-clause (2) of clause Page 38 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined 6 and sub-clause (2) of section 9 of the Bill provide for the same.
Special provisions with regard to the establishment of industrial park are also proposed to be incorporated particularly with regard to the conditions to be fulfilled by the purchaser, transfer or sale of such land or portion of such land. Sub-clause (3) of clause 2, sub-clause (3) of clause 6 and sub-clause (3) of clause 9 of the Bill provides for the same.
It is also considered necessary to insert a provision to protect the interests of an agriculturist who is at present as such despite the fact that earlier transaction or transactions in respect of the concerned land was or were invalid. It is also proposed to make provision for conversion of land for non-agricultural purpose if the land in question is purchased on or before the 30th June, 2015, by any institution registered for charitable purpose under the Gujarat Public Trusts Act, 1950 or by a company registered under the Companies Act, 2013 which has in its objects, the promotion of charity on payment of such amount as may be prescribed. A stringent provision is also proposed to be made to the effect that where the transfer of the land has taken place to a non-agriculturist, the person in whose favour such land has been invalidly transferred shall be liable to pay three times the amount of the prevailing jantri of such land and that such person shall be required to restore such land in the same position in which it was immediately before such transfer. Clauses 3, 7 and 10 of the Bill provide for the same.
This Bill seeks to amend the said three Tenancy Acts to achieve the aforesaid objects."
27. In the same year 2015, the Gujarat Tenancy and Agricultural Lands Laws (Amendment) Bill, 2015, Gujarat Bill no.30 of 2015 has been brought in to amend the Gujarat Tenancy And Agricultural Lands Act, 1948, the Saurashtra Gharkhed, Tenancy Settlement and Agriculture Lands Ordinance, 1949 Page 39 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined and the Gujarat Tenancy and Agricultural Lands (Vidarbh Region and Kutch Area) Act, 1958 and the provisions of penalty for breach of the provisions of Section 63, Section 54 and Section 89 of the aforesaid three Statutes, have been brought into force by insertion of Section 63AD in the Gujarat Tenancy And Agricultural Lands Act, 1948; Section 75A in the Saurashtra Gharkhed, Tenancy Settlement and Agriculture Lands Ordinance, 1949 and Section 89D in the Gujarat Tenancy and Agricultural Lands (Vidarbh Region and Kutch Area) Act, 1958. These three provisions are pari materia providing powers to the Mamlatdar/Collector to make inquiry suo motu on the application of any person for breach of the provisions of Sections 63, 64 and Section 89 of the aforesaid Statutes; respectively, when transfer is made in favour of a person who is not an agriculturist. These three provisions prescribe for imposition of penalty for violation of the provisions contained in the three Statutes holding field in three different areas of the State of Gujarat. However, the crux is that the legislature on prescribing for penalty for any transfer made in favour of an agriculturist in breach of the provisions of the Statute, makes its intention clear that the provisions of the Statute providing for permission of the Collector or Authorised officer before making transfer in favour of a non-agriculturist are mandatory.
28. In all the present bunch of cases, admittedly, there has been no permission nor any of the petitioners have applied for seeking permission of the Collector as required under Section 54 of the Ordinance' 1949. The result is that in view of the Page 40 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined express provision contained in the Statute prescribing consequence for breach of the provisions, all agreements in favour of the petitioners would be illegal in view of the prohibition in the Statute, whether express or implied. This Court would not lend its support to enforce an illegal agreement or to attach legality to the transaction or agreement, which is otherwise illegal.
29. With the aid of the decision of the Apex Court in State of Orissa vs. Brundaban Sharma10, it was argued that a nonest order, which is a void order, confers no title and its validity can be questioned or invalidity may be set up in any proceeding, at any stage.
30. With the aid of the decisions of this Court in Special Secretary (Appeal), Revenue Department vs. Boricha Ashokbhai Palabhai11 and in State of Gujarat Thro Additional Secretary vs. Heirs of Deceased Samat Khoda12, it was argued that the Division Bench of this court refused to reject the Letters Patent Appeal on the ground of delay noticing that once the respondent therein was holding the land illegally, on the basis of an invalid document, the power to initiate suo motu proceedings within a reasonable time will not be applicable. On detection of discrepancy, the authorities have taken immediate steps to rectify the same. Invocation of suo motu power, therefore, cannot be said to be beyond reasonable time.
101995 Supp (3) SCC 249 11 CA (for condonation of delay) No. 1309 of 2023 in LPA No. 1217 of 2023 (22.09.2023) 12 CA (for condonation of delay) No. 365 of 2023 in LPA No. 23470 of 2022 (03.01.2024) Page 41 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined
31. Referring to the decision of the Apex Court in State of Maharashtra vs. Rattanlal13, it was argued that if after the inquiry or proceedings which became final, the higher authorities discovered illegality or impropriety committed in the inquiry or proceedings, action would always be available for initiation by the competent authority.
32. The judgment of the Apex Court in Raghunath Rai Bareja vs. Punjab National Bank14 has been placed before us to submit that wherever there is a conflict between the law and equity, it is the law which has to prevail. Equity can only supplement the law, but it cannot supplant or override it. Considerations of equity cannot prevail and do not permit a High Court to pass an order contrary to the law. Equity and law are twin brothers and law should be applied and interpreted equitably, but equity cannot override written or settled law. It was, thus, argued that in all these matters, the Court has proceeded on equitable considerations ignoring the written or settled law that the transactions in favour of non-agriculturist without the permission of the Collector, being in breach of Section 54 of the Ordinance' 1949, cannot be given a legal character, inasmuch as, illegality in the transaction cannot be overridden by applying the law of equity.
33. Lastly, the judgment of the High Court of Saurashtra in Kalikakumarsinhji Lagdhirji & Ors. vs. Saurashtra State15 has been placed before us which narrates the whole scheme of the Saurashtra Land Reforms legislation, viz. Saurashtra Land 13 (1993) 3 SCC 326 14 (2007) 2 SCC 230 15 1952 SCC OnLine Guj 48 Page 42 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined Reforms Act of 1951, which was passed by the Saurashtra State Legislative Assembly and has received the assent of the President on 23rd of July 1951.
34. The judgment of the Apex Court in Vinodchandra Sakarlal Kapadia vs. State of Gujarat16 has been placed before us to submit that while considering the question as to whether Section 63 of the Bombay Tenancy and Agricultural Lands, Act, 1948 (Gujarat Tenancy and Agricultural Lands Act, 1948) debars an agriculturist from parting with his agricultural land to a non-agriculturist through a Will and further whether Section 43(1) of the Tenancy Act restricts transfer of any land or interest purchased by the tenant under various provisions of the Act mentioned therein through the execution of a Will by way of testamentary disposition, the Apex Court has considered the scope and ambit of Sections 43 and 63 of the Gujarat Tenancy and Agricultural Lands Act, 1948. It was noted therein that the Bombay Tenancy Act was enacted with an avowed object of safeguarding interest of the tenant who holds the land for over a number of years on the principle that the land tilled belongs to the tillers of the soil and also to preserve agricultural lands to safeguard interest of the agriculturists. The object is also to improve the economic and social conditions of peasants ensuring full and efficient use of land for agriculture and to assume management of estates held by landholders and to regulate and impose restrictions on transfer of agricultural lands, dwelling houses, sites and lands appurtenant thereto belonging to or occupied by agriculturists, agricultural labourers and artisans. The Act is covered by 16 (2020) 18 SCC 144 Page 43 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined Schedule VII List II of the Constitution of India and was enacted for the protection of tenants and to organise agriculture by maintaining agricultural lands so as to be in tune with the directive principles of the State policy. It was noted therein by the Apex Court that the necessity of meeting agricultural production and to preserve agricultural land is purely discernible in Article 14 of the Constitution of India. Further, by enacting clause (g) in Article 51(A), Parliament has given the status of fundamental duties to Article 48 and honoured the spirit and message of Article 48 as a fundamental duty of the citizens. The Bombay Tenancy Act not only takes a positive step towards achieving the goal of transferring the land tilled to the tillers, but also wanted to preserve and protect agricultural lands and for improving the economic and social conditions of persons and to ensure the full and efficient use of land for agriculture. Section 43 in Chapter III of the Tenancy Act deals with special rights and privileges of tenants and provisions for distribution of land for personal cultivation. Whereas Section 63 in Chapter V of the Tenancy Act deals with the restrictions on transfer of agricultural lands, management of uncultivated lands and acquisition of estates and lands.
35. The provisions of Section 54 of the Ordinance' 1949 also aims in the same direction. Section 54(1)(c) provides that an agreement made by an instrument in writing for the sale, gift, exchange, lease or mortgage of any land or interest therein shall not be valid in favour of a person who is not an agriculturist without prior permission of the Collector. Any such transaction in favour of a non-agriculturist which is Page 44 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined without the permission of the Collector cannot be attached validity by the order of this court or any implications as it is an act prohibited by the Statute, which cannot be validated, except as prescribed in the Statute itself.
36. Mr. Shalin Mehta, learned Senior advocate assisted by Ms. Aditi Raol, learned advocate appearing on behalf of the original petitioner, the respondent in one of the appeals in this group, would argue that the object of the Saurashtra Gharkhed, Tenancy Settlement and Agriculture Lands Ordinance, 1949 can best be gathered from the reading of the relevant provisions contained in Section 54 and Section 75 contained therein. The reading of Section 54(1) with the proviso gives a clear indication that invalidity attached to the sale transaction can be cured. The breach of Section 54 would not make a sale transaction void ab initio. The consequences of breach has not been provided in any of the provisions, i.e. Section 54 or Section 75 of the Ordinance' 1949. The result is that if the invalidity is not incurable, then the invalidity can be cured at the option of the State or the purchaser, which would also require institution of a proper proceedings even to declare it invalid. Till the alleged invalid sale is set aside in a proper proceeding drawn within a reasonable time frame, the sale deed would be de facto valid till it is set aside. If it has been the proper proceedings, the proceedings ought to have been initiated within the prescribed or reasonable time frame, which would commence from the date, the State authorities came to know of the invalidity or fraud.
37. No such proceeding within reasonable time frame had been Page 45 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined initiated. Even in some cases, further sale had been effected as it was not barred by law. The burden is, thus, on the State to prove about the proceedings having been initiated within a reasonable time frame.
38. It was further argued that in the event of the defects being incurable, the sale deed would be void ab initio, whereas curable defects only make it invalid. The distinction between the two is that in case of the former, there is no need for declaration by any court of law or authority and the validity can be looked into even in a collateral proceeding. However, in latter case, there is a need for declaration of invalidity and the transaction remains valid till it is declared invalid in a legal proceeding conducted in a timely manner. No proceeding suo motu can be taken after an unreasonable time. The sales are 40 to 45 years old. The part and parcel of the lands in question have been sold in the meantime and there is no worthy reason to take a contrary view that the sales are invalid. The delay, in any case, would be fatal to the proceedings initiated by the State department.
39. The decision of the Apex Court in Bharati Reddy vs. State of Karnataka17 has been placed before us to substantiate the arguments about distinction between a void and voidable instrument. Paragraph '30' of the report has been placed before us to submit that it was held therein that income and caste certificates could only be validated after affording opportunity to the holder of the certificate. As the certificate still holds the field and until it is invalidated by the competent 17 (2018) 6 SCC 162 Page 46 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined authority, it is unfathomable as to how the appellants therein could be said to have occupied the public office without legal authority so as to invoke the extraordinary writ jurisdiction of issuing a Writ of quo warranto. The submission is that the sale deeds cannot be said to be void ab initio or invalid from inception having no effect of transfer of a valid right, title and interest of the lands in question till a full-fledged inquiry is made by affording opportunity of hearing to the petitioners/purchasers in a substantive proceedings for holding the sale deed invalid. No such declaration has been made by any court of law or authority having jurisdiction to do so.
40. With the aid of the decision of the Apex Court in State of Maharashtra34, it was argued that the limitation would start running from the date of discovery of the fraud or suppression of material or relevant facts or omission thereof. In the instant case, the mutation entries were made by the competent revenue authorities after due perusal of the sale deeds and notice to the party concerned and further the mutation entries were certified after due verification, it, thus, cannot be assumed that the State was not aware of execution of sale deeds, alleged breach of Section 54 of the Ordinance' 1949.
41. The judgment of the Apex Court in Mohamad Kavi Kohamad Amin vs. Fatmabai Ibrahim18, passed in a matter arising out of the suo motu inquiry under Section 84C of the Bombay Tenancy and Agricultural Lands Act, 1948, as applicable to the State of Gujarat, has been placed before us to submit that the issue before the Apex Court was of validity of the sale deed and 18 (1997) 6 SCC 71 Page 47 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined the plea was of breach of Section 63 of the 1948' Act wherein the Mamlatdar held that the sales in question were invalid as the appellant therein was not an agriculturist belonging to the State of Gujarat. The Apex Court while relying upon the decisions in State of Gujarat vs. Bhagwandas Shah19 in connection with Section 84C itself and the previous decision in Patel Raghav Natha1 and in the case of Ram Chand vs. Union of India20 rendered in connection with other statutory provisions, has held that where no time limit is prescribed for exercise of power in a Statue, it does not mean that it can be exercised at any time, such power has to be exercised within a reasonable time.
42. Placing the judgment of the Apex Court in Joint Collector Ranga Reddy District and Anr. vs. D. Narsing Rao & Ors.21, it was submitted that the issue before the Apex Court in the said case was pertaining to Section 116B of the Andhra Pradesh (Telangana Area) Land Revenue Act for cancellation of entries of the year 1953-1954 by fixing the date of inquiry as 05.02.2005. The notice of inquiry was subject matter of challenge therein. It was noted by the Apex Court that though no time limit has been prescribed in the aforesaid provision, conferring revisional power for exercise of suo motu power, if the power is permitted to be exercised after five decades, it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties over immovable properties. It was held that the suo motu revision undertaken after a long lapse of time even in absence of any 19 Special Writ Application No. 2770 of 1979 (01.03.1990) 20 (1994) 1 SCC 44 21 (2015) 3 SCC 695 Page 48 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined period of limitation was arbitrary and opposed to the concept of rule of law.
43. In his concurring judgment, speaking for the bench, Justice T.S. Thakur (as he then was) observed that the legal position is fairly well-settled by a long line of decisions of the Apex Court which have laid down that even when there is no period of limitation prescribed for exercise of any power, revisional or otherwise, such power must be exercised within a reasonable period. The same is true even in cases where allegations of fraud have necessitated the exercise of any corrective power. Absence of a stipulated period of limitation makes little or no difference, insofar as the exercise of the power is concerned which ought to be permissible only when the power is invoked within a reasonable time. Referring to the previous decisions of the Apex Court in S.B. Gurbaksh Singh v. Union of India22, it was noted therein that what would constitute reasonable time would depend upon the facts of each case. In any case, the power to revise cannot be exercised arbitrarily or interminably. The Court has to construe the statutory provision in a way which makes the provisions workable, advancing the purpose and object of enactment of the Statute. Belated exercise of revisional power is frowned upon because if actions or transactions were to remain forever open to challenge, it would mean avoidable and endless uncertainty in human affairs, which is not the policy of law. The Apex Court has noted that the intervening delay may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary jurisdiction especially when no 22 1976 (2) SCC 181 Page 49 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined cogent explanation for the delay is in sight. Much emphasis has been laid on the observations in paragraph 31, which reads as under:-
"31......Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority."
44. Reliance is further placed to substantiate the said point on the judgment of the Apex Court in Shyamo Devi and Others vs. State of U.P. through Secretary and Others 23 to emphasize on the legal position as to what would be the reasonable time for exercise of suo motu power of revision, where the Statue does not prescribe any period of limitation. It was vehemently argued that in the instant group of petitions out of which the appeals have arisen there is no statement on behalf of the State authorities as to when they came to know about the transaction. The date of knowledge of the authorities would determine their jurisdiction to invoke the proceeding. Specific pleading with respect to jurisdictional facts were to be incorporated in the show-cause notice which are missing in each and every case. The submission, thus, is that the State cannot sustain the challenge to the order of the learned Single judge when it has not disclosed honestly and categorically as to when it had received the knowledge of transaction and further for the delay in initiation of summary eviction 23 2024 SCC OnLine SC 966 Page 50 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined proceedings under Section 75 of the Ordinance' 1949.
45. Reliance is placed on the decision of this Court in State of Gujarat Thro Additional Secretary vs. Heirs of Deceased Samat Khoda12 to impress upon the Court that in the similar fact situation, it was held by the Division Bench of this Court that the reasoning given by the learned Single judge that the suo motu exercise of power by the Collector was not within a reasonable time, was liable to be affirmed.
46. Mr. Anshin Desai, learned Senior counsel assisted by Mr. Zalak Pipaliya, learned advocate for the original petitioner would further argue to add that the Ordinance' 1949 is a pre- constitutional Ordinance, which was framed to decide the disputes between the land holders and their tenants and other related matters, as is evident from its long title to bring peace and good governance in the State of Saurashtra. The Ordinance' 1949 provided for settlement of disputes relating to the quantum of Gharkhed land, rent and evictions between the land holders and their tenants, for improvement of the economic and social conditions of peasants, so that full and efficient use of land for agriculture was ensured. There is no provision of forfeiture in the Ordinance' 1949 as it was an interim arrangement till land reforms had taken place in the State of Saurashtra. Five districts were covered by the Ordinance' 1949 and there were four types of tenure. Most of the provisions of the Saurashtra Gharkhed, Tenancy Settlement and Agriculture Lands Ordinance, 1949 have been repealed by the Saurashtra Land Reforms Act, 1951, notified on 01.03.1950. However, Section 54 and Section 75, relevant Page 51 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined for our purposes, remained operative as on date.
47. With the reading of Sections 54 and 75 of the Ordinance' 1949, it was urged that even the object of these two provisions is to save the agricultural lands in the hands of peasants and requirement of permission in the proviso to sub-section (1) of Section 54 of the Collector for effecting sale or transfer by any other mode is there so as to ensure that no agricultural land is occupied unauthorisedly by any person and no one can continue to be in wrongful possession of the agricultural lands covered by the Ordinance' 1949. The transactions, in the instant bunch of Writ petitions, are valid transactions executed by the land owners and there are no allegations of fraud, nor the sale deeds have been termed as surreptitious. There are long drawn entries in the name of the land owners, which have been certified. The proceedings drawn by the State authorities suffer from the vice of delay and the delay in drawing the proceedings to delete the long drawn mutation entries by entering the name of the State for summary eviction of the land of the purchasers/land holders, is inordinate and unexplained. Even the Letters Patent Appeals are suffering from the delay of more than 253 days. Though the delay in filing the Letters Patent Appeals have been condoned by this Court, but that would not mean that the eviction proceedings were initiated within a reasonable time. The decisions of the Apex Court and the High Court in Patel Raghav Natha1, Vipul Khodidas Pobaru vs. State of Gujarat 24 confirming the order passed by the Division Bench of the High Court of Gujarat in Bharatbhai Naranbhai Vegda vs. State of 24 Special leave to Appeal No.29190 of 2015 Page 52 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined Gujarat25, Joint Collector Ranga Reddy District 21, State of Rajasthan vs. D.R. Laxmi26, Sulochana Chandrakant Galande v. Pune Municipal Transport 27, Delhi Development Authority v. Ram Prakash 28, Vallabhbhai Rambhai vs. State of Gujarat 29, State of Gujarat vs. Amrutlal Hansrajbhai30, Labhubhai Valjibhai Gajera vs. Secretary (Appeals), Revenue Department, Gujarat State31, Rameshbhai Ambalal Shah vs. State of Gujarat 32, Gulabbhai Ravjibhai Patel vs. Badriprasad Vithalrao Bende33, Chandulal Gordhandas Ranodriya2 have been placed before us to submit that the courts have refused to hold the transactions invalid or void after expiry of reasonable period of time as per the law laid down in Patel Raghav Natha1.
48. The decision in Patel Raghav Natha1 has been referred to and relied upon by the Apex Court consistently in the following decisions :-
(1) Pune Municipal Corporation vs. State of Maharashtra & Ors. 34 (2) Madhya Pradesh Housing Board vs. Shiv Shankar Mandil & Ors.35 (3) Santoshkumar Shivgonda Patil vs. Balasaheb Tukaram Shevale36 25 2016 (2) GLR 1021 26 (1996) 6 SCC 445 27 (2010) 8 SCC 467 28 (2011) 4 SCC 180 29 LPA No.422 of 2010 (20.03.2014) 30 2008 (5) GLR 4006 31 2011(1) GLR 279 32 2011(3) GLR 2587 33 2011(3) GLR 2472 34 (2007) 5 SCC 211 35 (2008) 14 SCC 531 36 (2009) 9 SCC 352 Page 53 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined (4) Sulochana Chandrakant Galande27 (5) Ram Kishun & Ors. vs. State of Uttar Pradesh37 (6) Telangana Housing Board vs. Azamunnisa Begum (Died) Through Legal Representatives & Ors.38
49. With the aid of decisions in State of Punjab & Ors. Vs. Gurdev Singh39 and Krishna Devi Malchand Kamathia & Ors. vs. Bombay Environmental Action Group & Ors. 40, it was argued that even if an order is void or voidable, the court may refuse to quash the same on various grounds including the ground of delay.
50. Referring to the judgments of the Apex Court in Shanker Raju vs. Union of India41, Medley Pharmaceuticals Limited vs. Commissioner of Central Excise and Customs, Daman42, Delhi Development Authority vs. Sukhbir Singh & Ors. 43, Shiv Kumar & Anr. vs. Union of India & Ors. 44, it was argued that it is settled principle of law that a judgment which holds the field for a long time should not be unsettled. It is unnecessary to inquire or determine now after a long time as to what was the rationale of the earlier decision, which is to operate as stare decisis. Even the legislative policy in the country must accept the final pronouncement of the Apex Court. The doctrine of binding precedent has the merit of promoting certainty and consistency in judicial decisions and 37 (2012) 11 SCC 511 38 (2018) 7 SCC 346 39 (1991) 4 SCC 1 40 (2011) 3 SCC 363 41 (2011) 2 SCC 132 42 (2011) 2 SCC 601 43 (2016) 16 SCC 258 44 (2019) 10 SCC 229 Page 54 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined enables an organic development of the law. The policy of the courts is to stand by precedent and not to disturb the settled point and such decision having withstood the changes in time.
51. With these submissions, it was argued that the law laid down by the Apex Court as early as in 1969 in Patel Raghav Natha1, is the law of land, which has withstood the test of time. Having been relied and referred to even by the Apex Court consistently in the latest decisions and this Court as well, there is no reason to hold a contrary view.
52. On the facts of the cases, viz. Special Civil Application No.18798 of 2017 and Special Civil Application No.18789 of 2017, it was argued by the learned senior counsel that Entry No. 3509 dated 01.10.1978 was made on the basis of the sale deed dated 08.06.1978 and suo motu proceeding was initiated by the Collector in the month of December 2009, after about 31 years under Section 108(6) of the Bombay Land Revenue Code. The order of the Collector was set aside in the revision by the Special Secretary, Revenue Department vide order dated 24.02.2011. Subsequent thereto, in the month of March 2012, the show-cause notice under Section 75 of the Saurashtra Gharkhed Ordinance' 1949 had been issued, to which reply was submitted by the petitioner. The petitioner though lost before the revenue authorities, but has succeeded, with the setting aside of the proceeding vide judgment and order dated 04.12.2018 by this Court. The Letters Patent Appeal out of the decisions dated 04.12.2018 in the aforesaid Writ petitions were filed by the State with a delay of 253 days.
Page 55 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined
53. Similarly, other revenue entries, subject matter of consideration in the Writ petitions, were also sought to be cancelled by way of the proceedings initiated under Section 75 of the Gharkhed Ordinance' 1949 in the month of March 2012 after setting aside of the suo motu proceedings under Section 108(6) of the Bombay Land Revenue Code initiated by the Collector. In all matters, the proceedings were initiated after about 19, 20, 26 and 34 years of the mutation entries, which were based on the sale deeds of the year 1993, 1992, 1986 and 1978; respectively.
54. With these contentions, it was vehemently submitted by Mr. Anshin Desai, learned Senior counsel appearing for the original petitioners that there was no justification for initiation of the proceedings under Section 75 of the Saurashtra Gharkhed Ordinance' 1949 when the sole object of the Ordinance is to protect the lands of the agriculturists who themselves have parted away with their rights by execution of the sale deeds. The original tenure holders are not in picture and there is no provision of vesting of the land under the Saurashtra Gharkhed Ordinance' 1949. The petitioners who are bonafide purchasers of the lands in question cannot be dispossessed by cancellation of the long drawn mutation entry on the premise of the provision of Summary eviction under Section 75 of the Ordinance' 1949, by entering the name of the State Government when no right could be accrued in favour of the State Government even after the Summary eviction under the Ordinance' 1949. The original owners and occupants, viz the vendors, are not in picture at all.
Page 56 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined
55. Ms. Megha Jani, learned advocate appearing for the petitioners in the connected Writ petitions would further submit that the concept of reasonable period is applicable even to the exercise of power under Section 75 read with Section 54 of the Ordinance' 1949. All the issues raised with respect to the exercise of power under Section 54 and Section 75 of the Ordinance' 1949 have been discussed and deliberated in the Division Bench judgment of this Court in Bharatbhai Naranbhai Vegda,25 wherein the show-cause notice issued under Section 75 of the Ordinance' 1949 was challenged on the ground that it not only sought for invalidating the transaction under Section 54 of the Ordinance' 1949, but further action contemplated therein was eviction and resumption of the land by the State Government, whereas there is no power with the State authorities to resume back the land under the Gharkhed Ordinance' 1949. It was contended that there is no vesting under the Ordinance' 1949 and only the original owner would be entitled to get back the land. Considering the said arguments, it was noted by the Division Bench that Section 75 of the Ordinance' 1949 provides for enabling power of summary eviction by the Collector. However, there is no express power for forfeiture by the State Government nor there is any express power for re-entrustment of the land to the original owner.
56. Making distinction between the two provisions, viz. Section 75 of the Ordinance' 1949 and Section 84C of the Bombay Tenancy and Agricultural Lands Act, 1948, it was noted therein that wherever the legislature wanted, it provided for the Page 57 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined entrustment of the land to the transferor or the forfeiture thereof by the State Government. However, such is not the language used in Section 75 of the Ordinance' 1949. Thus, in absence of any express language used in Section 75 in contradiction to the language used under Section 84C of the Bombay Tenancy and Agricultural Lands Act, 1948, one possible view is that the notice of eviction and forfeiture of the land in question would be ultra vires to the powers under Section 75 of the Ordinance. The Division Bench therein though did not express any final view on the aspect of Section 75 of the Ordinance' 1949, but quashed the notice holding it being without jurisdiction. It was placed before us that the Special Leave to Appeal (C) No. 29190 of 2015 against the judgment and order dated 29.07.2015 passed by the Division Bench in Bharatbhai Naranbhai Vegda25 (Letters Patent Appeal No. 798 of 2011), has been dismissed by the Apex Court on 16.10.2015.
57. Another decision of the Division Bench in Bhanji Devshibhai Luhar vs. State of Gujarat45 has been placed to submit that the question of validity of the order passed by the competent authority in exercise of power under Section 75 of the Ordinance' 1949 to evict the appellant therein on the premise of the transfer in favour of the appellant being in breach of Section 54 of the Saurashtra Gharkhed Ordinance' 1949 was subject matter of consideration therein. Noticing the provisions of Section 54 and Section 75 of the Ordinance' 1949, it was observed that the decision and declaration under Section 75 of the transaction being in breach of the provisions 45 2011 (2) GLR 1676 Page 58 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined of Section 54 of the Ordinance' 1949 was made after 17 years. At the time when the transaction was executed and the entry was mutated in the revenue record, the petitioner therein had submitted certain documents showing him as agriculturist. The authority, at that stage, did not demand any other details or clarifications from the appellant and/or did not initiate any action. The authority allowed the transaction to operate for 17 years and the action to annul the transaction came to be initiated after inordinate delay of 17 years. Further, since the transaction was entered into, the appellant had put the land in question to agricultural use only. Resultantly, the nature and the status of agricultural land has been retained and maintained by him. It was, thus, held that in the said situation, the fact that the appellant had put the land in question for agricultural use only and has not used the land for any purpose other than agricultural use and has not changed its status and had incurred expenditure to improve the quality of soil, would become relevant and would deserve due consideration.
58. On the concept of whether the void action can be validated on the ground of belated action in the facts and circumstances of the said case, it was observed in paragraph '20' as under :-
"20. Even if the concept that the void action cannot be validated on the ground of belated action is applied in present case, then also, in view of the special facts and circumstances of present case it would be appropriate to take into account the peculiar facts of present case which emerge from the record viz:-
(a) during the entire period of 17 years the vendor has not taken out any action in law against the transaction and any suit or proceeding for declaration or for any Page 59 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined other relief does not appear to have been filed by the vendor.
(b) the petitioner was an agricultural labourer at the time when the transaction was executed and was tiling and cultivating various agricultural lands.
(c) the petitioner was also artisan i.e. engaged in the activity of preparing agri-tools.
(d) more important is the fact that even after purchasing the land in question the petitioner has, as claimed by him, continued to use the land for agricultural purpose and the status or nature of the land in question as agricultural land is not changed and it continues to be agricultural land (said factual assertion by the petitioner has not been disputed by the respondents and any contrary evidence is not placed on record)
(e) the petitioner has also claimed that he has incurred substantial expenditure in improving quality of soil.
(f) another important factor which, in the facts of present case, has emerged is that in view of the orders of the authorities it is only the vendor who will stand to gain/benefit since the land, even after the orders, will not vest in the government in absence of any provision providing for such consequential.
59. The Special Leave to Appeal (C) CC No.17746 of 2011 against the judgment in Bhanji Devshibhai Luhar45, has also been dismissed vide judgment and order dated 08.11.2011 passed by the Apex Court.
60. Placing the decision of the Full Bench of this Court in Decd.
Shaikh Ismailbhai Hushainbhai Through LH vs. Vankar Ambalal Dhanabhai46, it was argued that even going by the opinion of the Full Bench, the transaction that may be hit by 46 Second Appeal No. 208 of 2021 (12.01.2024) Page 60 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined Section 54 of the Ordinance' 1949 cannot be held as void transaction, inasmuch as, it can be validated by the competent authority.
61. It was, thus, argued that the only consequence of the provision under Section 75 is that there would be summary eviction of the occupant and neither restoration to the original vendor nor vesting with the State Government is contemplated. Section 75 of the Ordinance' 1949 provides for Summary procedure for eviction of unauthorised occupant who is in wrongful possession of the lands covered by the Saurashtra Ghakhed Ordinance' 1949. No substantive inquiry has, thus, been contemplated to ascertain the status of the transferee nor any such inquiry has been conducted by the competent authority during the pendency of the Writ petitions from the year 2015 onward, when the provision for making such an inquiry was incorporated by insertion of Section 75A in Saurashtra Gharkhed Ordinance' 1949 by virtue of the Amendment Act, viz. Gujarat Act 28 of 2015.
62. It was urged that as per the submission of the learned Additional Advocate General appearing for the State respondent, three provisions were incorporated in three enactments by virtue of the Gujarat Tenancy and Agricultural Lands Laws (Amendment) Bill, 2015. If the provisions of Section 75A of the Saurashtra Gharkhed Ordinance' 1949 and Section 63AD of the Gujarat Tenancy and Agricultural Lands Act, 1949 are read together, which have been inserted simultaneously by the amendment brought in the year 2015, the distinction between the two provisions can be discerned to Page 61 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined the effect that though Section 63AD(2)(ii) contemplates restoration of land along with the rights and interest therein to the original position in which it was immediately before the transfer on a decision arrived by the Mamlatdar that the land was not validly transferred, but there is no such provision even in the newly inserted Section 75A, which only talks of penalty to be imposed upon the transferee of land, transfer of which is held to be not valid, being in breach of the provisions of Section 54 of the Ordinance' 1949. The submission, thus, is that once consequence of breach of transfer was not provided under Section 75, the only provision in existence at the time of initiation of the proceedings against the original petitioners herein and even no proceeding has been conducted after insertion of new provision under Section 75A during the pendency of the Writ petitions, no action now can be taken against the petitioners on the premise that the sale deeds executed in their favour were hit by Section 54 of the Ordinance' 1949.
63. From the chart supplied to us, extracted in this order, it was demonstrated that the action in this bunch of Writ petitions were initiated much prior to the amendment of the year 2015 with the issuance of show-cause notices under Section 75 of the Ordinance' 1949.
64. With the above, it was vehemently argued by Ms. Jani that for the delay on the part of the State Government in initiation of the proceedings under Section 75 of the Ordinance' 1949, the notices were rightly quashed by the learned Single Judge and the said decision is not liable to be interfered in the present Page 62 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined bunch of appeals. It was further argued that indisputably, the lands in question, which were purchased years ago have been put to agricultural use and are being used as on date for agricultural purposes only. All the petitioners in this bunch are agriculturists and mostly small peasants. The intention of the legislature under the Saurashtra Gharkhed Ordinance' 1949 was to save agricultural lands in Saurashtra Area and the object of the Act for "full and efficient use" of the agricultural lands is not compromised, rather fulfilled by the petitioners herein. No inquiry whatsoever has been conducted nor can be conducted now to ascertain the status of the transferee being agriculturist or not at the time of transfer of the land in question, after 40 years. The finding in the summary inquiry made before issuance of the show-cause notice under Section 75 of the Ordinance' 1949 as narrated therein, would not be sufficient to divest the petitioners from the lands in question, which have been legally transferred in their favour and are in agricultural use only.
65. As there is no vesting and the original owner cannot agitate for the restoration of the land having pocketed the money, on the premise that there was a breach of Section 54 of the Ordinance' 1949, which he was mandated to follow as well, the action taken against the petitioners for summary eviction by issuance of notices under Section 75 was nothing but an effort of the State to grab the private lands. All notices have rightly been quashed by the learned Single Judge and in this bunch of appeals, no interference is called for.
66. Lastly, it was argued that equity shall be given due Page 63 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined consideration for final decision as noted by the learned Single Judge. The Saurashtra Gharkhed Ordinance' 1949 was enacted as a part of Agrarian reform to bring an end of feudal structure of the Society with the object of reserving, maximising and utilisation of the agricultural lands available in the region (the then United States of Saurashtra). "Gharkhed" as defined in Section 2(h) of the Ordinance' 1949 means land reserved by a landholder for cultivating personally. All the petitioners are small farmers of rural areas and they are all cultivating the lands in question personally. Moreover, the sale deeds cannot be held to be void ab initio as under Section 54 of the Ordinance' 1949, which is pari materia to Section 63 of the Tenancy Act' 1949 as the sale was permissible with the permission of the Collector and could be validated even with ex post facto permission. The argument of the learned Additional Advocate General that invalidity cannot be validated and the sale deeds once illegal cannot be attached legality, is not sustainable as long lapse of time would be the most relevant consideration in the facts of the present case.
67. With the above, it was vehemently argued that in view of the settled position of law stated by this Court from time to time and the principle of "reasonable period" applied by this Court in the case of Bharatbhai Naranbhai Vegda25 and the decision in Bhanji Devshibhai Luhar45 as also the Full Bench in Shaikh Ismailbhai Hushainbhai46, the opinion drawn by the learned Single Judge that the show-cause notices under Section 75 of the Ordinance' 1949 are liable to be quashed because of inordinate, unexplained delay, needs no Page 64 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined interference.
68. Mr. Mehul Suresh Shah, learned Senior Advocate assisted by Mr.Vishal C. Mehta, learned advocate for the petitioners, in support of the arguments made by Mr. Anshin Desai, learned Senior advocate and Mr. Megha Jani, learned advocate would submit that the main object of the Ordinance' 1949 was to ensure full and efficient use of agricultural land. The idea was to maintain agricultural lands for the improvement of economic and social conditions of peasants.
69. "Agriculturist" as defined in Section 2(c) means a person who cultivates the land personally. Section 2(f) defines the words "to cultivate" means to carry on any agricultural operation. Section 2(g) further defines "to cultivate personally", which reads as under :-
"2(g) "to cultivate personally" means to cultivate on one's own account-
(1) by one's own labour, or (2) by the labour of any member of one's family, or (3) by servants on wages payable in cash or kind, but not in cropshares or by hired labour, under one's personal supervision or of any member of one's family;
Explanation I.- An agriculturist who is a widow or a minor or is subject to any physical or mental disability or who is in active service of the Government of the State of Saurashtra, the Government of India or any State Government in India, shall be deemed to cultivate the land personally if it is cultivated by her or his servants or by hired labour;
Page 65 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined Explanation II.- In the case of Undivided Hindu Family, the land shall be deemed to have been cultivated personally if it is cultivated by any member of such family;
"Gharkhed" land as per Section 2(h) is a land reserved by landholder for cultivating personally.
70. It was submitted that from the reading of the aforesaid provisions of the Ordinance' 1949, it is evident that the word "agriculturist" has a wider implication. It includes not only those who cultivate the land by their own labourer, but also by servants on wages payable in cash or kind under their personal supervision or any member of their family. Even Section 54(2) excludes the transfer by sale etc. of a dwelling house or site thereof or any land appurtenant to it in favour of an agricultural labourer or an artisan. There were three kinds of agriculturists in Saurashtra region; (1) Maldharis; (ii) landless labourers; (iii) holders of the lands. Keeping in mind of the above provisions, a reading of Section 54(1) makes it evident that the provision does not prohibit transfer. There is no absolute bar, rather the transfer is permitted with the permission of the Collector. The restriction is not to put a bar on transfer, rather the idea is that the agricultural land, if transferred to a non-agriculturist, permission be obtained from the Collector.
71. The lands in question which have been transferred to the petitioners are being used for agricultural purposes as on date. The object of the Ordinance' 1949 is, thus, served. Moreover, Page 66 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined the State Government has no locus to challenge the order passed by the learned Single Judge, inasmuch as, the lands in question were private properties and there is no vesting with the State. The orders of Summary eviction of the petitioners, subject matter of challenge in the bunch of Writ petitions out of which Letters Patent Appeals have arisen, were without jurisdiction, inasmuch as, the Collector while passing the order of summary eviction of the petitioners, has directed for entering the lands in question in the name of the State Government. No original owner or vendor of the lands in question have come forward to assert that they have been cheated or transfer made by them was under duress.
72. The Division Bench judgment of this Court in Bhanji Devshibhai Luhar45 has been placed before us to submit that the action of the State under Section 75 of the Ordinance' 1949 scrutinising the transaction after a delay of 17 years was under
consideration. It was noted by the Division Bench that if the State action and decisions are allowed to prevail, the purchaser will be deprived of the land purchased by him almost 30 years ago. Further that the purchaser had put the land in question for agricultural use only and there was no change of status. The purchaser has incurred expenditure to improve the quality of the soil, which would also be a relevant factor for due consideration.
73. Further, it was observed that even if the concept that a void action cannot be validated on the ground of belated action is applied in the facts of his case, it would emerge from the record that during the entire period of 17 years, the vendor Page 67 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined had not taken any action in law against the transaction and no suit or proceeding for declaration of the sale deed being void or for any other relief had been filed by the vendor. The petitioner was found to be an agricultural labourer at the time when the transaction was executed and he was tilling and cultivating various agricultural lands. It was also noted that even after purchasing the lands in question, the petitioner has continued the use of the land for agricultural purposes and the status or nature of the land in question as agricultural land has not been changed. It continues to be agricultural land. No contrary evidence could be placed on record.
74. Taking note of these important factors, it was noted that even after the orders of eviction under Section 75 of the Ordinance' 1949 was passed by the State Government, in absence of any statutory provision, the land in question will not vest in the State Government. Balancing justice and equity, it was held that the action of the State authority in exercise of power under Section 75 of the Ordinance' 1949 to summarily evict the petitioner after the transaction remained alive for 75 years would be unjustifiable.
75. Other decisions in Mohamad Kavi Mohamad Amin18, Joint Collector Ranga Reddy District 21, State of Punjab vs. Bhatinda District Coop. Milk P. Union Ltd.47, Dalsukhbhai Chaturbhai Prajapati vs. State of Gujarat 48 have been placed before us to submit that the delay in exercise of suo motu power would be fatal and the provisions of Section 75A cannot be given retrospective effect.
47(2007) 11 SCC 363 48 2024 (2) GLH 745 Page 68 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined
76. The decisions of the Apex Court and the High Court in State of Kerala vs. Kunhikannan Nambiar Manjeri Manikoth, Naduvil49, Pankaj Mehra vs. State of Maharashtra 50, Ram Karan (Dead) Through Lrs. vs. State of Rajasthan 51,M. Meenakshi vs. Metadin Agarwal (D) by Lrs. 52 Jadav Prabhatbhai Jethabhai vs. Parmar Karsanbhai Dhulabhai53 have been placed before us to submit that even a void order or decision rendered between parties cannot be said to be non-existent in all cases and in all situations. Ordinarily, such an order will, in fact, be effective inter parties until it is successfully avoided or challenged in a higher forum. Mere use of the word "void" is not determinative of its legal impact. The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise, depending upon the facts of the case.
77. It was argued that even though an act is wrong and lacking in jurisdiction, it subsists and remains fully effective unless and until it is set aside by a Court of competent jurisdiction. Until its validity is challenged, its legality is preserved. The word "void" need not automatically indicate that any disposition should be ab initio void. The legal implication of the word "void" need not necessarily be a stage of nullity in all contingencies. It was argued that it is well settled principle of 49 (1996) 1 SCC 435 50 (2000) 2 SCC 756 51 (2014) 8 SCC 282 52 (2006) 7 SCC 470 53 2001 (1) GLR 16 Page 69 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined law that even a void order is required to be set aside by a competent court of law, inasmuch as, an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not nonest.
78. Placing the judgment of the Apex Court in National Insurance Company Ltd. Vs. Swaran Singh54, it was argued that in view of the decisions of this Court on the effect of Section 75 of the Ordinance' 1949 and the proceedings undertaken against the purchaser after a substantial delay from the date of purchase are having persuasive value and applying the doctrine of stare decisis, this Court may not deviate from the same.
79. It was vehemently argued that no notice had been issued for a long period and no action was taken. It was further argued that Section 75A of the Ordinance' 1949 cannot be invoked by the State for the simple reason that after insertion of the said provision in the year 2015, no notice has been issued to the petitioners nor action has been taken. It is not permitted to the State to say that it can reopen the matter to make an inquiry into the validity of the transaction of the lands in question by invoking Section 75A of the Ordinance' 1949. Even otherwise, the notices for summary eviction of the petitioners quashed by the learned Single Judge, were issued much prior to the amendment and the amendment providing for inquiry and penalty can only be applied prospectively, inasmuch as, the provision implies a serious consequence as it imposes penalty. In absence of any such provision at the time 54 (2004) 3 SCC 297 Page 70 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined of initiation of the proceedings against the petitioners with the issuance of notice under Section 75 of the Ordinance' 1949, no inquiry now can be conducted by the Collector.
80. Lastly, it was argued that in the mutation exercise conducted by the Collector entries were certified, the question as to whether the sale deed is void or voidable cannot be adjudicated now as the transactions remain in force for number of years. This Court will not unsettle the settled view that even a void transaction would require to be declared as such in an appropriate proceeding by a competent court of law.
81. The learned counsels for the petitioners would lastly submit that in some of the cases in the bunch, the proceedings were conducted against the daughter of the original tenure holder on the premise that the married daughter would not inherit agricultural land. Under the Hindu Succession Act, 1956 married daughter falls in Class-I heir and no exception for inheritance of agricultural lands can be taken. Moreover, inheritance cannot be assumed to be transfer hit by Section 54 of the Ordinance' 1949.
82. With all these submissions, it was vehemently argued that all the notices of summary eviction are highly belated and suffer from jurisdictional defect. The learned Single Judge has rightly quashed the notice. The present bunch of appeals are, thus, liable to be rejected upholding the judgment of the learned Single Judge.
83. Summing up the arguments of the learned counsels for the Page 71 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined petitioners, we may note the points raised by them to seek dismissal of the appeals :-
(i) No sale transaction carries a stamp of invalidity.
Appropriate order has to be passed to invalidate or else the transaction would be de facto valid.
(ii) Permission includes de facto permission. As no action has been taken for years together, de facto permission can be assumed with the passage of time.
(iii) Limitation must be taken to be a reasonable period of time and what would be a reasonable period of time has to be worked out from case to case basis. While examining the stand of the State, object of the Act is to be kept in mind with the undisputed fact that the lands in question are being used for agricultural purposes since the date of purchase.
(iv) All entries are certified by the Circle officer who is supposed to make an inquiry before certifying the entries. There is nothing on record which would demonstrate that any adverse view had been noted by the Circle officer or certification of entry was wrong.
(v) In some of the Writ petitions, it was argued that even the State had accepted that the sales were in favour of agriculturists and the proceedings were initiated 24 years after certification of entry in favour of the vendees.
84. Having heard the learned counsels for the parties and perused the record, it is noticed that the proceeding for Summary Page 72 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined eviction of the original petitioners in the writ petitions, out of which this bunch of appeals have arisen, were undertaken after a long period of time. We may reiterate from the chart extracted hereinbefore that in Letters Patent Appeal No. 1513 of 2024 arising out of Special Civil Application No. 12196 of 2015, the sale deed was executed in the year 1981 and entry was certified in the same year. The show-cause notice was issued by the Deputy Collector on 09.04.2010 and summary eviction order was passed on 31.10.2010 on the ground that no certificate was produced to establish the status of Maldhari.
85. Similarly, in Letters Patent Appeal No.1826 of 2019 arising out of Special Civil Application No. 9925 of 2011, the sale deed is of the year 1994 and mutation entry was certified on 26.05.1998. Based on the RTS inspection conducted on 09.07.2003, show-cause notice was issued to the petitioner on 11.08.2004. The ground for summary eviction of the petitioner therein was that the father of the petitioner had sold the agricultural land in the year 1980, which was the basis of his having the status of agriculturist. Hence, the petitioner's father had lost the status of agriculturist way back in the year 1980. There was no proof of any other land purchased by the petitioner's father to establish the status of being agriculturist. However, relevant is to note that the Taluka Development Officer had granted the permission for transaction of the land. It is, thus, evident that even after the permission granted by the competent authority, viz. the authorised officer for transaction, proceeding for summary eviction was initiated after about 6 years of certification of the entry on the premise that the petitioner's father was wrongly treated as an Page 73 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined agriculturist at the time of grant of permission for the transaction, as he had sold his land prior to this purchase.
86. In Letters Patent Appeal No. 1517 of 2024 arising out of Special Civil Application No. 19405 of 2016, the sale deed is of the year 1975 and the mutation entry was certified on 08.01.1986, whereas the show-cause notice was issued on 26.07.1990 declaring that the sale transaction in favour of the petitioner's father was not legal. When the proceeding was before the SSRD, he had directed to apply for the certification of agriculturist from the Deputy Collector. However, the application for grant of agriculturist certificate was not considered. Further, the SSRD recorded that the transfee, viz. deceased Girdharilal Suryavanshi Gopal, father of the petitioner was an ex-army man and the land in question was never granted to him as an ex-army man. As such, he was required to produce the evidence establishing the status of agriculturist or labourer. The contention of the State appellant is that the proceeding in the said case cannot be said to suffer from delay of 15 years as the mutation entry of the sale deed was executed on 24.06.1975 was made after 10 years, i.e. on 08.01.1986.
87. In the same manner, in all other matters, while passing summary eviction order, the Collector has recorded that no documentary evidence was produced to establish that the purchasers were agriculturists. In some of the matters, the reason given is that though the petitioner's brother owned agricultural land and documentary evidence establishing the status of agriculturist or labourer was produced in the Page 74 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined proceeding by the petitioner, but the petitioner cannot avail the status of an agriculturist as the land of his brother was self acquired property.
88. From the abovenoted facts reflected from the chart extracted hereinbefore, it is evident that in the summary inquiry conducted by the Collector/Deputy Collector under Section 75, for summary eviction of the occupant/landholder from the lands, which were in agricultural use at the time of initiation of the proceedings, the landholders were asked to produce evidence of the transferees being agriculturists at the time of transfer. The reasons given in most of the orders for holding the transactions being in breach of Section 54 of the Ordinance' 1949 are that the occupants of the lands in question could not establish the status of the transferees being agriculturists or agricultural labourers. However, in none of the orders of summary eviction impugned before the learned Single Judge, any finding has been arrived that the transferee was actually a Non-agriculturist. There is no definition of non- agriculturist in the Ordinance' 1949.
89. As noted above, the word "agriculturist"' has been defined under Section 2(c) to mean a person who cultivates the land personally. Section 2(g) further defines the word "to cultivate personally" means the one who cultivates the land by his own labour or by the labour of any member of his family or by servant on wages payable in cash or kind. Further, agricultural labourer is also not defined in the Ordinance. The word "agriculturist", as submitted before us is to be given a wider meaning to include even a person who is not holder of Page 75 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined any agricultural land, but cultivates the land personally. "To cultivate" as defined in Section 2(f) means to carry on agricultural operation. It was, thus, submitted that any person who carries on agricultural operations either on his own account or through a person engaged on wages would fall within the meaning of an agriculturist. Moreover, the inquiry ordered about the status of the transferee being an agriculturist after a period of at least 6 years and more had not been culminated in any definite finding about the transferees being non-agriculturist at the time of transfer. No such inquiry could have been conducted after such a long lapse of time. The proceedings could have been conducted within a reasonable time, which is not so in the instant bunch of Writ petitions.
90. Considering the above, for ready reference, we may note the long title containing the object and purpose of the Ordinance' 1949, which reads as under :-
"AN ORDINANCE to provide for the settlement of disputes between land holders and their tenants and other matters.
WHEREAS it is expedient for the peace and good government of the State of Saurashtra to provide for the settlement of disputes relating to the quantum of Gharkhed land, rent and evictions, between the land holders and their tenants, for the improvement of the economic and social conditions of peasants, for the full and efficient use of land for agriculture and for certain other matters hereinafter appearing:"
91. The provisions contained in Sections 2(c), (f), (g), (h), (k), read as under :-
Page 76 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined "2(c) "agriculturist" means a person who cultivates the land personally;
(f) "to cultivate" means to carry on any agricultural operation;
(g) "to cultivate personally" means to cultivate on one's own account-
(1) by one's own labour, or (2) by the labour of any member of one's family, or (3) by servants on wages payable in cash or kind, but not in cropshares or by hired labour, under one's personal supervision or of any member of one's family;
Explanation I.- An agriculturist who is a widow or a minor or is subject to any physical or mental disability or who is in active service of the Government of the State of Saurashtra, the Government of India or any State Government in India, shall be deemed to cultivate the land personally if it is cultivated by her or his servants or by hired labour;
Explanation II.- In the case of Undivided Hindu Family, the land shall be deemed to have been cultivated personally if it is cultivated by any member of such family;
(h) "Gharkhed" means land reserved by a landholders for cultivating personally:
Provided that the land shall continue to be Gharkhed land even if a landholder allows the same to be cultivated by the tenant cultivating the land on the 1st January, 1948;
(k) "land" means land which is used for agricultural purpose and includes:-
(a) sites of farm building appurtenant to land used for agricultural purposes; and Page 77 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined
(b) sites of dwelling houses occupied by agriculturists, agricultural labourers or artisans and land appurtenant to such dwelling houses;"
Sections 54 and 75 provides that :-
"54. (1) Save as provided in this Ordinance :-
(a) no sale including sales in execution of a decree of a civil court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue, gift, exchange or lease of any land where lease is by law allowed or interest therein, or
(b) no mortgage of any land or interest (herein in which the possession of the mortgaged property is delivered to the mortgagee, shall be valid in favour of a person who is not an agriculturist; or
(c) no agreement made by an instrument in writing for the sale, gift, exchange, lease or mortgage of any land or interest therein:
Provided that the Collector or an officer authorised by the Government may grant permission for such sale, gift, exchange, lease, where lease is by law allowed, or mortgage, or for such agreement on such conditions as may be prescribed:
Provided further that no such permission shall be granted, where land is being sold to a person who is not an agriculturist for agricultural purpose, if the annual income of such person from other sources exceeds five thousand rupees.
(1A) The State Government may, by notification in the Official Gazette, exempt from the provisions of sub-
section (1), for the transfer of any agricultural land to any public trust established for the charitable purpose and which is non-profitable in nature, for the use of such land in the field of health and education, subject to such conditions as may be specified therein.
Page 78 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined (2) Nothing in this section shall be deemed to prohibit the sale, gift, exchange or lease of a dwelling house or the site thereof or any land appurtenant to it in favour of an agricultural labourer or an artisan."
"75. Any person unauthorisedly occupying or wrongfully in possession of any land,
(a) the transfer of which either by the act of parties or by the operation of law is invalid under the provisions of this Ordinance,
(b) the management of which has been assumed under the said provisions, or
(c) to the use and occupation of which he is not entitled under the said provisions and the said provisions do not provide for the eviction of such persons, may be summarily evicted by the Collector."
Section 75A inserted by Gujarat Amendment Act No. 28 of 2015 reads as under :-
"75A. (1) Notwithstanding anything contained in section 75, where the Collector suo moto or on the application of any person, has reason to believe that, in the breach of the provisions of clause (a), (b) or (c) of sub-section (1) of section 54, transfer of the land has taken place in favour of a person who is not an agriculturist or in favour of any institution, the Collector shall issue a notice to such person or institution and, after affording an opportunity of being heard, decide whether the transfer of the land is valid or not.
(2) If the Collector comes to a decision that the transfer of such land is not valid then he shall pass an order thereby imposing the penalty of three times the amount of the prevailing Jantri of such land on the person or the institution in whose favour such land is not validly transferred.Page 79 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined Explanation.--For the purpose of this Ordinance, the expression "Jantri" means the index of base market values as may be determined by the State Government from time to time."
92. From a careful reading of these provisions, pertinent is to note that Section 54 provides a bar on transfer of agricultural lands in favour of a person who is not an agriculturist and states that any such transfer shall not be valid. The first proviso to sub- section(1) of Section 54, however, states that the Collector or an authorised officer may grant permission for such transfer by sale etc. on such conditions as may be prescribed. Section 2(c) defines 'agriculturist' being a person who cultivates the land personally and from a reading of Section 2(g), it is evident that an agriculturist is a person who cultivates the land personally by his own labour or by labour of his family member or by servants on wages payable in cash or kind. The land reserved by the land holder for cultivating personally is known as Gharkhed land as per Section 2(h) and such land shall continue even if a landholder allows the same to be cultivated by the tenant cultivating the land on 1.1.1948. As per Section 2(u), the tenant means an agriculturist who holds a land on lease and includes a person who is deemed to be a tenant under the provisions of the Ordinance.
93. The 'State' means the State of Saurashtra under Section 2(s) of the Ordinance. The object of the Ordinance as can be seen from the long title itself was for good governance of the State of Saurashtra, settlement of disputes relating to the quantum of Gharkhed land, rent and evictions etc. between the landlord and their tenants, for the improvement of economic and social Page 80 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined condition of peasants residing within the territories of the State of Saurashtra and for full and efficient use of land for agriculture within the State, namely the State of Saurashtra. The consequence is that the 'agriculturist' within the meaning of Section 2(c) of the Ordinance would mean a person who personally cultivates the land situated within the State of Saurashtra. Looking to the object and purpose of the Ordinance, 1949, there cannot be a doubt that the Ordinance, 1949 is in respect of the subject matter within the territorial jurisdiction of the State of Saurshtra and the enactment was made keeping in view the conditions prevailing within the State.
94. As a consequence of the transaction being invalid due to breach of Section 54, Section 75 confers powers upon the Collector to summarily evict such person who is in occupation of the land, the transfer of which is invalid under the provisions of the Ordinance, termed as 'unauthorised occupant' or in 'wrongful possession' of such land. So the assumption is that if the transfer in favour of the occupant is invalid, he is liable to summary eviction being unauthorised occupant of such land. Apart from summary eviction, no other consequence has been provided by the Statute. The Ordinance is silent as to whom the land would go after eviction. Even Section 75(A) inserted by way of amendment in the year 2015, only talks of inquiry and imposition of penalty as a deterrent in addition to the provisions of Section 75 for summary eviction, in case, the Collector holds after inquiry that the transaction of the land is not valid. Neither the statute provided for vesting Page 81 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined of the land with the State Government by operation of law as a consequence of holding the transaction invalid nor it provides for restoration of such land to the transferor. There is complete silence as to who will get the possession of the land after eviction of unauthorised occupant. From the statement of object and reasons of the Amendment Act, 2015, it may be noted that the Act being old, enacted about 60 years ago, with the rapid industrialisation and urbanisation, it was considered to amend and insert certain provisions in the Act in order to make the procedural part of the Act more simple and to mitigate the undue hardships the people have to suffer. It further states that stringent provisions to be made to the effect that where the transfer of the land has taken place to non- agriculturist, the person in whose favour such land is unlawfully transferred, shall be liable to pay penalty three times the amount of the prevalent jantri of such land and that such person shall be required to restore such land in the same position in which it was immediately before such transfer. This would merely mean that the agricultural land in the area if put to use for non-agricultural purposes, shall be restored to in the same position in which it was immediately before such transfer. This idea was to maintain agricultural land in the area so as to prevent dissipation of the agricultural land in Saurashtra area. Even the statement of object and reasons of the Amendment Act, 2015 only talks of restoration of the land to its original position and imposition of penalty upon the transferee.
95. It is, thus, clear that the provision does not talk of restoration Page 82 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined of the land to the transferor or vesting with the State Government. The only consequence of declaration of the transfer as invalid is summary eviction and penalty under Section 75 and 75A of the Ordinance, 1949. With the Amendment Act, 2015 by the Gujarat Act, 28 of 2015, three simultaneous amendments were brought in Saurashtra Gharkhed Ordinace, 1949 and the Gujarat Tenancy and Agricultural Lands Act, 1948 by insertion of Section 75A and Section 63AD; respectively, which read as under :-
"75A. (1) Notwithstanding anything contained in section 75, where the Collector suo moto or on the application of any person, has reason to believe that, in the breach of the provisions of clause (a), (b) or (c) of sub-section (1) of section 54, transfer of the land has taken place in favour of a person who is not an agriculturist or in favour of any institution, the Collector shall issue a notice to such person or institution and, after affording an opportunity of being heard, decide whether the transfer of the land is valid or not.
(2) If the Collector comes to a decision that the transfer of such land is not valid then he shall pass an order thereby imposing the penalty of three times the amount of the prevailing Jantri of such land on the person or the institution in whose favour such land is not validly transferred.
Explanation.--For the purpose of this Ordinance, the expression "Jantri" means the index of base market values as may be determined by the State Government from time to time."
*** "63AD - Penalty to transferee for transfer of land in breach of provisions of sub-section(1) of section 63- (1) Notwithstanding anything contained in section 84C, where the Mamlatdar suo moto or on the application of any person, has reason to believe that, in the breach of Page 83 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined the provisions of clause (a), (b) or (c) of sub-section (1) of section 63, transfer of the land has taken place in favour of a person who is not an agriculturist or in favour of any institution, the Mamlatdar shall issue a notice to such person or institution and, after affording an opportunity of being heard, decide whether the transfer of the land is valid or not.
(2) If the Mamalatdar comes to a decision that the transfer of such land is not valid then he shall pass an order thereby-
(i) imposing the penalty of three times the amount of the prevailing Jantri of such land on such person or institution in whose favour such land is not validly transferred; and
(ii) directing the person or institution in whose favour such land is not validly transferred to restore the land alongwith the rights and interest therein to the position in which it was immediately before such transfer within a period one month of such order."
Explanation- For the purposes of this Act, the expression "Jantri" means the index of base market values as may be determined by the State Government from time to time."
96. On a comparison of Section 63AD of the Gujarat Tenancy and Agricultural Lands Act, 1948 inserted by the same amendment Act of 2015, whereby Section 75A was inserted in the Saurashtra Gharkhed Ordinance, 1949, it may be noted that Section 63AD which has been inserted in the aid of the provisions of inquiry under Section 84C of the Tenancy Act' 1948 not only provides for imposition of the penalty upon the transferree of an invalid transfer, but also contemplates for restoration of the land alongwith the rights and interest therein to position in which it was immediately before such transfer, and the obligation to do so is upon the transferee. This contemplation is in the spirit of Section 84C(2) of the Act' Page 84 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined 1949.
There is no such scheme under the Saurashtra Gharkhed Ordinance' 1949. It can, thus, be discerned that the legislature was conscious enough of the scheme of the Ordinance' 1949, and intentionally did not add any other consequence after inquiry under Section 75A, except imposition of the penalty upon the transferee. There is no vesting nor there is any requirement of the restoration of the transferred land to the transferor/original owner.
97. Further, Section 54A of the Saurashtra Gharkhed Ordinance, 1949 reads as under :-
"54A. (1) Notwithstanding anything contained in section 54, where the Mamalatdar suo moto or on the aplication of any person interested in the land, has reason to believe that, in the breach of the provisions of clauses (a), (b) or
(c) of sub-section (1) of section 54, transfer of the land had taken place in favour of a person who was not an agriculturist, and that certain transaction or transactions have taken place thereafter and the person in whose favour the last transaction was made on or before the 30th June, 2015, is an agriculturist, he shall issue a notice to such person and shall give him an opportunity of being heard and also make an inquiry as he deems fit. (2) If the Mamalatdar comes to the conclusion that as a result of the last transacton in respect of such land the person to whom such land was transferred is indeed an agriculturist, he shall call upon such person to pay to the State Government, for the use of such land only for the agricultural purpose, the amount of ten per cent of the prevailing Jantri and after such payment he shall declare, by an order, such last transaction to be valid irrespective of the fact that any one or more of such transactions was or were invalid and upon such order, no proceedings under section 75 shall be initiated and if already initiated Page 85 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined shall be discontinued forthwith."
98. A perusal of the said provision indicates that the last transaction in respect of such land, of which the initial transfer was in breach of the provisions of Section 54, if made to the person who is an agriculturist, the said transaction may be regularised by an order of the Mamlatdar subject to the conditions provided in sub-section(2) of Section 54(A) and no proceedings under Section 75 shall be initiated, and if already initiated shall be discontinued forthwith.
99. The question, therefore, would be that an inquiry is required to be conducted to determine as to whether the transferee was an agriculturist within the meaning of the Saurashtra Gharkhed Ordiance, 1949 and such inquiry was summary in nature prior to the insertion of Section 75A in the year 2015. In the instant bunch of petitions, most of the transactions have taken place between the years 1975 to 1997, the proceedings wherein with the issuance of the show cause notice were initiated at least after six years of the transaction. The mutation entries in all cases were certified by the competent authority, as is evident from the chart extracted hereinbefore.
100. The contention of the learned Additional Advocate General is that in such a situation where the statute does not provide for vesting of the land with the State Government or restoration to the land holder, the provisions of Section 37 of the Gujarat Land Revenue Code, 1879 would be attracted. The contention is that with the summary eviction of the transferee, the land-in-
Page 86 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined question would cease to remain the property of an individual and hence the Collector has a power to take the possession of such property and dispose of the same in such manner as he may deem fit or as may be authorised by the Rules sanctioned by the State Government. It was, thus, argued that the Collector cannot be said to have erred in passing the order for making entry of the name of the State Government in the revenue records after passing an order of summary eviction and deletion of the names of the transferees.
101. To deal with this submission, Section 37(1) of the Gujarat Land Revenue Code relied on by the learned Additional Advocate General is relevant to be extracted hereinunder :-
"37. All public roads etc. and all lands which are not the property of others belong to the Government :
(1)All public roads, lanes and paths, the bridges, ditches, dikes, and fences, on or beside, the same, the bed of the sea and of harbours and creeks below high water-mark, and of rivers, streams, nallas, lakes, and tanks, and all canals, and water-courses, and all standing and flowing water and all lands wherever situated, which are not the property of individuals, or of aggregates of persons legally capable of holding property, and except in so far as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force are and are hereby declared to be, with all rights, in or over the same, or appertaining thereto, the property of [the [Government] [The words 'the Crown' were substituted for the words 'Government' by the Adaptation of Indian Laws Order in Council.]], and it shall be lawful for the Collector subject to the orders of the [State Government] [These words were substituted for the words 'Commissioner' by Gujarat 15 of 1964, section 4 Schedule], to dispose of them in such manner as he may deem fit, or as may be authorised by general rules Page 87 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined sanctioned by [the Government concerned] [The words 'the Government concerned' were substituted for the words 'Government', by Gujarat 15 of 1964, section 4 Schedule], subject always to the rights of way, and all other rights of the public or of individuals legally subsisting.
Explanation. - In this section "high-water-mark:" means the highest point reached by ordinary spring-tides at any seasons of the year.
102. A bare reading of the said provision indicates that it confers powers upon the Collector to deal with such properties which are not the properties of the individuals or of aggregates of persons legally capable of holding the property. We may note that with the summary eviction of the tranferee under Section 75 of the Ordinance' 1949, though sale deeds in his favour can be held to be invalid, but it does not result in extinction of the right of the vendor or owner in the property-in-question. Though there is no provision for restoration of the land to the vendor, but the provisions does not contemplate divesting of the title of the vendor. So the words "which are not the property of individuals or of aggregates of persons legally capable of holding the property" cannot attract. No declaration of the property-in-question being the State property can be made with the aid of Section 37 of the Revenue Code, 1979 and the Collector has no power to take possession of the lands subject matter of sale and dispose of the same under Section 37 of the Land Revenue Code, 1979.
103. In so far as the right of the vendor to seek possession of the land, sale deed of which has been declared invalid, in view of Page 88 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined the provisions of the Ordinance, 1949, would depend upon the facts situation of the case. In a case where the vendor has been duped or illegally dispossessed by getting the sale deed from an unscrupulous person who is not an agriculturist, the State authorities may be well within their power to consider the request of the vendor for restoration of possession. However, the said issue is not before us. None of the vendors in the bunch of writ petitions have come forward to seek restoration of the lands-in-question on the premise that they have been duped or mis-represented.
104. Moreover, the proceedings for eviction had been initiated after a long lapse of time, which would raise a question with regard to the validity of the action taken by the Collector for summary eviction of the transferees, who are in settled possession of the lands-in-question for a sufficient long time. The question before us is as to whether it was reasonable on the part of the Collector to initiate proceedings for summary eviction of the transferees, who are the holders of the lands in the area for considerably long period of time and who are admittedly carrying on agricultural operations. There is a categorical submission of the petitioners in the bunch of the writ petitions that the lands-in-question have been put to agricultural use since after the date of transfer and are also in agricultural use till date. The status or nature of the lands has not been changed by the transferees, who may not fall within the meaning of agriculturists under Section 2(c) of the Saurashtra Gharkhed Ordinance, 1949. The vehement submission of the learned counsels appearing for the petitioners is that the Page 89 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined notices issued by the office of the Collector/Deputy Collector are ex facie barred by delay.
105. This issues has been considered by the Division Bench of this Court in Bharatbhai Naranbhai Vegda & Ors. vs. State of Gujarat & Ors. [(2016) 2 GLH 1021] wherein dispute was pertaining to the provisions of Section 54 and 75 of the Saurashtra Gharkhed Ordinance' 1949. In the said case, the first transfer was of the year 1970, mutation of which was entered in the year 1973. The land had exchanged many hands and no dispute was raised by the executant of the original sale deeds. However, a private respondent, thereafter, had intervened by filing a separate writ petition inter alia praying for a direction to complete the inquiry. In the proceedings initiated under the Ordinance, show cause notice was challenged by the occupants of the land on the ground that after 37 years from the date of revenue entry, the proceedings initiated under the Ordinance were ex facie barred by delays. The Division Bench of this Court examined three aspects of the matter; firstly the question of reasonable period for initiation of action of issuance of the show cause notice under the Ordinance; the second was as to whether initiation of action is without jurisdiction and the third aspect was about the locus of the respondent therein whose father had executed sale deed and received consideration and by his volition parted with the possession, seeking for invalidation of transfer after death of his father, who did not raise any grievance during his life time.
106. On the question of reasonable period, the Division Bench has Page 90 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined considered the decision of the Apex Court in Patel Raghav Natha1 which pertains to the revisional powers under Section 211 of the Bombay Land Revenue Code, to note that the "revisional powers must be exercised in a reasonable time and the length of reasonable time must be determined on the facts of the said case and the nature of the order which is being refused".
107. The Division bench judgment of this Court in Chandulal Gordhandas Ranodriya2 was noted, wherein the question was of delay in initiation of the action under Section 84C of the Bombay Tenancy and Agricultural Lands Act, 1948. The relevant observations in paragraph Nos. '12' and '13' whereof are noted hereinunder :-
"12.Indisputably, the land in question is a new tenure land, to which the provisions of Section 43 of the Act are applicable. It is also well settled that if a person wants to get the land converted from new tenure to old tenure, then as per the Government Resolutions passed from time to time and other provisions of the Act, the Collector has to determine the amount of premium due and payable by the person who seeks conversion and as per the guidelines laid down such amount determined by the Collector if is paid, then necessary orders are being passed by the authorities converting the land from new tenure to old tenure thereby lifting the restrictions as imposed under Section 43 of the Act. It is also well settled that question is if the land is transferred in violation of the provisions of Section 43 of the Act, then such transactions could definitely be termed as void transactions. However, the question is whether such void transactions could be annulled at any point of time and whether the authorities could be justified in taking over the possession of the land for the purpose of vesting in the Government at any point of time.Page 91 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined
13.In our opinion, it is well settled that even though void transaction if is allowed to remain effective for considerable long period, the authority named therein will be precluded from initiating proceedings to annul it. It can remain effective and in existence till it is invalidated and set aside. If its existence is allowed for a considerable period and by a passage creating valuable rights in favour of a considerable section of people, like the appellants in the present case, it is difficult to accept the proposition that despite the change the competent authority under the Act would be entitled to exercise powers under Section 84(C) of the Act at any point of time."
108. What would be the reasonable time as explained by the Apex Court in Employees State Insurance Corporation v. C.C. Santhakumar55 was taken note of in Chandulal Gordhandas Ranodriya2 in the following manner in paragraph No. '16' as under :-
"16. In the case of Employees State Insurance Corporation v. C.C. Santhakumar reported in 2007(1) SCC 584, the Supreme Court has elaborately explained this principle of action to be taken within a reasonable period of time. It would be appropriate for us to quote paragraph Nos.35, 36, 37, 38, 39 and 40.
"35. A "reasonable period" would depend upon the factual circumstances of the case concerned. There cannot be any empirical formula to determine that question. The court/authority considering the question whether the period is reasonable or not has to take into account the surrounding circumstances and relevant factors to decide that question.
36. In State of Gujarat v. Patel Raghav Natha (1969 (2) SCC 187) it was observed that when even no period of limitation was prescribed, the power is to 55 (2007) 1 SCC 584 Page 92 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined be exercised within a reasonable time and the limit of the reasonable time must be determined by the facts of the case and the nature of the order which was sought to be varied. This aspect does not appear to have been specifically kept in view by the Division Bench. Additionally, the points relating to applicability of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977, and even if it is held that the Act was applicable, the reasonableness of the time during which action should have been initiated were also not considered. It would be hard to give an exact definition of the word "reasonable".
Reason varies in its conclusions according to the idiosyncrasy of the individual and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic stands now like the jingling of a child's toy. But mankind must be satisfied with the reasonableness within reach; and in cases not covered by authority, the decision of the Judge usually determines what is "reasonable" in each particular case; but frequently reasonableness "belongs to the knowledge of the law, and therefore to be decided by the courts". It was illuminatingly stated by a learned author that an attempt to give a specific meaning to the word "reasonable" is trying to count what is not a number and measure what is not space. It means prima facie in law reasonable in regard to those circumstances of which the actor, called upon to act reasonably, knows or ought to know. (See: Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar (1987 (4) SCC
497) and Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. (1989 (1) SCC
532). As observed by Lord Romilly, M.R. in Labouchere v. Dawson (41 LJ Ch 472) it is impossible a priori to state what is reasonable as such in all cases. You must have the particular facts of each case established before you can ascertain what is reasonable under the circumstances. Reasonable, being a relative term is essentially what is rational according to the dictates of reason and not excessive or immoderate on the facts and circumstances of the particular case.
Page 93 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined
37. These aspects were highlighted in Collector and Others v. P.Mangamma and Others (2003 (4) SCC
488).
38. As observed in Veerayee Ammal v. Seeni Ammal (2002 (1) SCC 134), it is "looking at all the circumstances of the case; a "reasonable time"
under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than 'directly'; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea".
39. According to Advanced law Lexicon by P.Ramanatha Aiyar 3rd Edition, 2005 reasonable time means as follows:
"That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer.
"Reasonable Time" is defined to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case.
If it is proper to attempt any definition of the words "reasonable time", as applied to completion of a contract, the distinction given by Chief Baron Pollock may be suggested, namely, that a "reasonable time" means as soon as circumstances will permit.
In determining what is a reasonable time or an unreasonable time, regard is to be had to the nature of the instrument, the usage or trade or business, if Page 94 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined any, with respect to such instrument, and the fact of the particular case.
The reasonable time which a passenger is entitled to alighting from a train is such time as is usually required by passengers in getting off and on the train in safety at the particular station in question.
A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than "directly" such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea.
Reasonable time always depends on the circumstances of the case. (Kinney) It is unreasonable for a person who has borrowed ornaments for use in a ceremony to detain them after the ceremony has been completed and the owner has demanded their return. (AIR 1930 Oudh
395).
The expression "reasonable time" means so much time as is necessary under the circumstances to do conveniently what the contract or duty requires should be done in a particular case". [See: Joseph Severance v. Benny Mathew (2005(7) SCC 667)]
40. In all these cases at hand the factual aspects have not been examined, because the grievance appears to have been focused on the applicability of Section 77 (1A)(b)."
109. In paragraph No. '19' in Chandulal Gordhandas Ranodriya2, it was concluded that:-
Page 95 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined "19. It must be fairly said that if the statute does not prescribe time limit for exercise of revisional powers, it does not mean that such powers can be exercised at any point of time even if there is a breach of Section 43 of the Act, which is a provision which relates to a new tenure land, rather it should be exercised within a reasonable period of time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. It is clear from various judgments of the Supreme Court that where a statutory provision for exercise of any suo motu powers of revision does not prescribe any limitation, the powers must be exercised within a reasonable period of time even in the case of transaction which would be termed as void transaction."
110. Taking note of the law discussed in Chandulal Gordhandas Ranodriya2, the Division Bench of this Court in Bharatbhai Naranbhai Vegda25 has further proceeded to note another Division Bench judgment in Bhanji Devshibhai Luhar45, which also pertains to Section 54 of the Ordinance, 1949 and the question wherein was of reasonable time to initiate action under Section 75 of the Ordinance, 1949 for summary eviction of the occupant, transfer in whose favour was alleged to be invalid. While dealing with various contentions about the validity of the transaction and the effect of the same due to the delay, it was noted therein that at the time when the transaction was executed and the entry was mutated in the revenue record, the petitioner had merely submitted a certificate issued by the Talati of village certifying that the petitioner was preparing agri-tools. However, at that stage, the authority did not demand any other details or clarification from the petitioner and/or did not initiate any action. The State authorities allowed the transaction to operate for 17 Page 96 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined years. Subsequently, when the action to annul the transaction came to be initiated after 17 years, the petitioner raised objection on the ground that the action was unsustainable because of the inordinate delay and that since the time when the transaction was entered into, he had put the land-in- question to the agricultural use only, and further the status and the nature of the agricultural land had been retained and maintained by the transferee. Thus, in the facts and circumstances of that case, considering the aforesaid aspects of the matter specifically that the transferee had not changed the nature or status of the land and also has incurred expenditure to improve the quality of soil, it was held therein that the aforesaid factors would be relevant and would deserve due consideration. It was, thus, observed in paragraph No. '20' as under :-
"20. Even if the concept that the void action cannot be validated on the ground of belated action is applied in present case, then also, in view of the special facts and circumstances of present case it would be appropriate to take into account the peculiar facts of present case which emerge from the record viz:-
(a) during the entire period of 17 years the vendor has not taken out any action in law against the transaction and any suit or proceeding for declaration or for any other relief does not appear to have been filed by the vendor.
(b) the petitioner was an agricultural labourer at the time when the transaction was executed and was tiling and cultivating various agricultural lands.
(c)The petitioner was also artisan i.e. engaged in the activity of preparing agri-tools.Page 97 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024
NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined
(d) more important is the fact that even after purchasing the land in question the petitioner has, as claimed by him, continued to use the land for agricultural purpose and the status or nature of the land in question as agricultural land is not changed and it continues to be agricultural land (said factual assertion by the petitioner has not been disputed by the respondents and any contrary evidence is not placed on record)
(e) the petitioner has also claimed that he has incurred substantial expenditure in improving quality of soil.
(f) another important factor which, in the facts of present case, has emerged is that in view of the orders of the authorities it is only the vendor who will stand to gain/benefit since the land, even after the orders, will not vest in the government in absence of any provision providing for such consequential."
111. While holding so, though it was found by the Division Bench in Bharatbhai Naranbhai Vegda25 that the decision of the competent authority in holding the transaction-in-question as void is in consonance with the provisions of the Ordinance and cannot be faulted, but it was concluded that in the interest of justice and equity, it cannot be overlooked that the impugned action in exercise of powers under Section 75 of the Ordinance to summarily evict the petitioner after having allowed the transaction to remain alive for 17 years, cannot be justified. It was held that the eviction order completely overlooked that the petitioner has continued to put the land to use for agricultural purposes and has not changed the status and the nature of the land, rather he has invested further amounts for betterment of the agricultural land. The reasons for delay of 17 years has remained unexplained and unjustified and the only defence was that the transaction is statutorily void.
Page 98 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined
112. Taking note of the above decisions in Chandulal Gordhandas Ranodriya2 and Bhanji Devshibhai Luhar45, it was, however, observed by the Division Bench in Bharatbhai Naranbhai Vegda25 in paragraph No. '10' as under:-
"In our view, the above referred well considered two decisions of this Court makes the position abundantly clear that if the action is to be initiated for setting aside of a transaction under the Ordinance by invoking section 54 read with section 75 of the Ordinance, it has to be within reasonable period. The above referred two decisions are in respect of the cases wherein the powers were exercised and proceedings were initiated after 5 years and 17 years respectively, whereas in the present case, it is after more than 35 years. Hence, we find that the initiation of the action itself can be said as beyond reasonable period and the bar of delay and laches could operate against the authority in initiation of the action. The aforesaid aspect is coupled with two additional circumstances, one is that the land has changed hands further during the period of delay and the ownership is transferred by the purchaser to the another person and the second is that the revenue entries were mutated. Thereafter, they were also certified by the competent authority and in spite of that, no action was taken for cancellation of such entry or otherwise or even for declaration of the transaction as invalid within reasonable period. If during the period of delay, the rights of the parties in the properties are altered, the delay would operate as a bar with more gravity and when the ownership is changed during the period of delay, the bar for not taking action within reasonable period would also operate with more gravity against the authority in initiation of the action."
113. The Division Bench in Bharatbhai Naranbhai Vegda25 has further taken note of the procedure of certification of the entries as per the scheme of the Land Revenue Rules, 1972 namely the Rule 11 of the Rules and noted that as per the Page 99 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined Bombay Land Revenue Code read with the Rules, before any entry is mutated in the revenue records, the notice under Section 35D is required to be served to the original owner. Further if the notice is served and the entry is signed as pakka entry in the revenue record, the same shall remain as it is until it is certified by the Circle Inspector. It is the duty of the Circle Inspector to verify the relevant records and then to certify. Thus, after the Circle Inspector finding that the proper procedure has been followed, he would certify the entry. After certification of the entries as per the scheme of the Land Revenue Rules, statements are required to be submitted. As per Rule 11 of the Land Revenue Rules, whenever index of the land is prepared and completed, the same is required to be placed before the Collector or the Sub-Divisional Officer for inspection. On receipt of the said material, the Collector or the Sub-Divisional Officer shall fix a date for its inspection and shall cause the notice thereof to be given calling upon all the persons interested to appear on such date on a specified place or in the immediately vicinity of the village concerned, notifying that any such persons may before such date inspect the index on application. Thereafter, the Collector or the Sub- Divisional Officer is required to compare the new copy of the old index and the diary of mutation and has power to make necessary corrections, if it is so required. After such process is undertaken, new index is to be prepared which will show the duly tested entries found correct.
114. Taking note of the above observations in paragraph No. '13' of Bharatbhai Naranbhai Vegda25, we may record that the Page 100 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined provisions contained in Chapter XV pertaining to Record of Rights and Mutations under the Land Revenue Rules, 1979 contemplate verification of entries made in the revenue records of village at various levels upto the level of the officers such as Collector or Sub-Divisional Officer, as the case may be. The mutation entries at the various levels are certified, inspected and corrected by the officers of the State upto the level of the office of the Collector.
115. It is sought to be submitted by the learned Additional Advocate General appearing for the State respondents that the factum of the sale deeds being in breach of Section 54 of the Ordinance 1949 came into light of the State authorities on an RTS inspection made on 29.12.2003. It is, thus, admitted case of the State authority that the factum of the sale deed being hit by Section 54 on the premise that the transferee being a non- agriculturist, was not noted by the revenue authorities at the time of certification of mutation entry. It is admitted that such error was not found during the course of investigation under Rule 111 of the Land Revenue Rules at the relevant point of time. The mutation entries were certified and tested and found to be corrected at the relevant point of time. What was tested and what has been skipped by the competent authority is not the question, which would be required to be examined by us. The result is that if during the course of inspection under Rule 111, the so called alleged discrepancy in the transaction was not found and the registration of the entries were not modified or disturbed under the Rule 111, it is difficult to accept that this discrepancy was found by the authority in the year 2003 in Page 101 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined the RTS inspection conducted after a long delay. At least this fact proves that the proceedings under Section 75 of the Ordinance, 1949 had been initiated much after certification of the revenue entries in accordance with the provisions of the Land Revenue Rules, 1972, i.e. after a long lapse of time. From this angle and in view of the judgment of the Division Bench in Bharatbhai Naranbhai Vegda25, in the facts of the present case, the proceedings cannot be said to have been initiated within a reasonable time.
116. There is one more aspect of the matter. In the instant case, the Collector while passing the order of eviction, issued notice to the petitioners to show cause as to why the transaction be not invalidated under Section 54 of the Ordinance, while contemplating eviction of the petitioner under Section 75 of the Ordinance directing for resumption of the land by the State Government by entering the name of the State as 'shri sarkar'. Once the statute does not provide for power to the authority to resume back any private land and vesting thereof in the State Government, such notices, subject matter of challenge herein, being contrary to the provisions of Section 75 of the Ordinance would be without jurisdiction.
117. It may be noted from the law discussed above pertaining to the reasonable time for exercise of suo motu action, that the legislature in its wisdom did not fix the time limit for exercise of summary eviction, however, it does not mean that the legislature intended to leave the action under the Act for an indefinite period of time, inasmuch as, it would have an effect of rendering title of the land holders/transferees in a state of Page 102 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined perpetual uncertainty. The Court has to construe the statutory provisions in a way which makes the provision workable advancing the purpose and object of the enactment of the statute (reference be made to paragraph No. '28' of the decision of the Apex Court in Sulochana Chandrakant Galande27.
118. In the aforesaid case while considering the provisions of Section 34 of the Urban Land (Ceiling and Regulation) Act, 1976, which provides for revisional power of the State either on application or suo motu, but does not prescribe any limitation, the decision in Patil Raghav Natha1 was referred and relied upon.
119. We may also refer to the judgment of the Apex Court in Joint Collector Ranga Reddy District 21 pertaining to the proceedings of the Andhra Pradesh (Telangana Area) Records- of- Rights in Land Regulations, it was observed that the legal position is fairly well settled by long line of decisions of the Apex court which have laid down that even when there is no period of limitation prescribed for the exercise of any power, the revisional power or otherwise such power must be exercised within a reasonable period. The absence of stipulated period of limitation makes little or no difference insofar as the exercise of powers is concerned, which ought to be permissible only when the power is invoked within a reasonable period. It was noted in paragraph No. '31' as under :-
"31. To sum up, delayed exercise of revisional jurisdiction Page 103 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority."
120. Paragraph Nos. 12 (12.1 to 12.3) of Joint Collector Ranga Reddy District21 is also relevant to be noted hereinunder, "12. In support of their submissions reliance was placed by learned counsel for the respondent on the following decisions of this Court.
12.1 In the decision in State of Gujarat vs. Patil Raghav Natha and others[(1969) 2 SCC 187] this Court while adverting to Sections 65 and 211 of the Bombay Land Revenue Code, 1879 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.
12.2 In the decision in Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim (1997) 6 SCC 71 this 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 Page 104 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined 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.
12.3 In the decision in Santoshkumar Shivgonda Patil and others vs. Balasaheb Tukaram Shevale and others (2009) 9 SCC 352 this Court while dealing with the power of revision under Section 257 of the Maharashtra Land Revenue Code, 1966 held as follows :
"11. It seems to be fairly 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."
121. Similar view has been taken by the learned single Judge of this Court in State of Gujarat vs. Amrutlal Hansrajbhai30.
122. In Rameshbhai Ambalal Shah32, it was held in paragraph No. '17' as under :-
"17. It is clear from the various judgments of the Hon'ble Supreme Court that where a statute provides any suo- motu power of revision without prescribing any period of limitation, the power must be exercised within a reasonable time and what is 'reasonable time' has to be determined on the facts of each case. While exercising such power, several factors need to be kept in mind such as effect on rights of the third parties over the immovable property due to passage of considerable time, change of Page 105 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined hands by subsequent bonafide transfers, the orders attaining finality under the provisions of other Acts (such as Land Ceiling Act) etc. Even the two judgments of the Supreme Court which have been relied upon by the learned counsel for the appellants explain the same principles of law that a reasonable period would be taken upon the factual circumstances of the concerned case. There cannot be any empirical formula to determine the question. The Court/authority considered the question whether the period is reasonable or not as to take into account surrounding circumstances and the relevant factors to decide that question. In the present case, we find that the original owner i.e. the appellants very consciously entered into a transaction way back in the year 1970 and sold land to respondent No.1. It is not their case that at the relevant point of time they were mislead by respondent No.1 herein in any manner or that any fraud was played upon them by respondent No.1 in entering into the transaction and on their own free will and volition they executed the sale deed in favour of the respondent No.1 and accepted the sale consideration. No steps were taken by them for a period of almost 15 years and it is only when the Mamlatdar and ALT, Gandhinagar thought fit to take transaction in suo-motu review that all of a sudden a thought came in the mind of the appellants to say that the transaction was illegal or invalid and now the land should be restored to them as it is."
123. The said case arose out of the proceedings initiated under Section 84C of the Tenancy Act, 1948 on the premise that the sale transactions of the year 1970 was hit by the provisions of Section 63 of the said Act. The appeal filed by the transferor, i.e. the original owner seeking for a declaration of transaction of the year 1970 as invalid and restoration of possession of the property in his favour was dismissed by the Division Bench noticing that legality and the validity of the transaction cannot be looked as power in suo motu review was exercised after unreasonable period of time.
Page 106 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined
124. In view of the above-discussed settled legal position pertaining to the transactions supposedly hit by Section 54 of the Ordinance, 1949 considering that the proceedings were conducted after a long gap of time, we do not find any substance in the submissions of the learned Additional Advocate General that the result of the order passed by the learned single Judge would be to attach validity to invalid transaction. The said submission, in our considered, opinion is only a hypothetical assumption, inasmuch as, in many of the cases, even the original transferors/transferees are not alive and the question as to whether the transferees were not agriculturists within the meaning of Section 2(c) of the Ordinance' 1949 of the time of transfer, would require a full- fledged inquiry, which can not be permitted after a considerable long period of time in the present bunch of cases. The mutation entries admittedly of all the sale deeds subject matter of consideration herein were certified at the relevant points of time and the summary eviction proceedings were not initiated within a reasonable period of time. The plea that the factum of invalid transfer came to the knowledge of the revenue authorities during the RTS inquiry is not worthy of credence.
125. Lastly, the issue as to whether the decision of the learned single Judge in quashing the show cause notice would result in making an invalid transaction valid, suffice it to note that no presumption as to invalidity to the transactions can be made. To hold the transaction invalid even as per the provisions under the Ordinance 1949, with the amendment brought into Page 107 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined force in the year 2015 for insertion of Section 75A, a full- fledged inquiry by giving notice to the parties would be necessary. Moreover, no such inquiry was conducted even during pendency of the Writ petitions before this Court. In such a situation, the transaction remains valid and effective in reality till date
126. As noted by the Division Bench in Bharatbhai Naranbhai Vegda25 the settled position cannot be unsettled in a belated action taken by the revenue authorities. The notices issued to the petitioners to show cause for invalidating the transactions under Section 54 of the Ordinance and the action for eviction as contemplated under Section 75, having been initiated after a long lapse of time and in most cases after the death of both the original transferees and even the original transferor, cannot be said to be justified from any angle.
127. For the above discussion, we do not find any good ground to deviate from the legal position settled with the Division Bench judgments of this Court in Bharatbhai Naranbhai Vegda25 and Bhanji Devshisinh Luhar45 where belated actions taken for eviction of the transferee under Section 75 of the Ordinance, 1949, were found to be inequitable and unjustified. Exercise of powers in a reasonable time where the legislature does not fix the time limit for exercise of such powers is a well settled position of law, which cannot be unsettled on the submissions of the learned Additional Advocate General that the decision in Patil Raghav Natha1 was rendered while making scrutiny of the exercise of revisional powers under Section 211 of the Bombay Revenue Code, 1879 and hence is Page 108 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined not applicable to the proceedings initiated under Section 75 of the Ordinance, 1949 for summary eviction.
128. At the cost of repetition, it may be reiterated that a declaration of the sale deed as invalid was required to be made after an inquiry which must have been conducted within a reasonable time before the Summary eviction. The sale deeds remained valid for considerable long period of time and moreover, they are binding on the vendors. The inquiry into the status of the predecessor-in-title of the petitioners or the petitioners herein after such a long lapse of time, can not be permitted, as it may not be possible to bring on record all the relevant documents in such an inquiry(s). A transaction hit by Section 54 is not void ab initio, but may be invalidated and hence remains valid till it is declared invalid. The settled position of law that the transaction which remained valid and effective for a considerable period of time cannot be unsettled, is not to be deviated. Further, there is no vesting contemplated under the Ordinance, 1949 and as noted hereinbefore, the show cause notices are prescribing for not only eviction of the transferees, but resumption of the land in favour of the State Government by directing for entry of the name of the State in the revenue records after deletion of the entries, even of the original landholders while deleting the name of the transferees, which is wholly without jurisdiction.
129. Before parting, we may note the arguments of the learned Additional Advocate General giving liberty to initiate an inquiry under Section 75A of the Ordinance, 1949 brought into force in the year 2015. In that regard, suffice it to note that as we have Page 109 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024 NEUTRAL CITATION C/LPA/1825/2019 CAV JUDGMENT DATED: 14/10/2024 undefined reached at the conclusion that the inquiries initiated by the revenue authorities with the issuance of the show cause notice under Section 75 are highly belated, being ex facie barred by unexplained and unreasonable delay,there is no occasion for us to consider the applicability of Section 75A, which came into force in the year 2015, during the pendency of the writ petitions before this Court.
130. In view of the above discussion, we do not find any error in the judgment of the learned single Judge. The Appeals are found devoid of merits and hence are dismissed.
Connected Civil applications would not survive and shall stand disposed of accordingly.
(SUNITA AGARWAL, CJ ) (PRANAV TRIVEDI,J) BIJOY B. PILLAI/C.M. JOSHI Page 110 of 110 Uploaded by BIJOY B. PILLAI(HC00202) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:39:32 IST 2024