Gujarat High Court
Bharatbhai Naranbhai Vegda & 5 vs State Of Gujarat & 13 on 29 July, 2015
Author: Jayant Patel
Bench: Jayant Patel
C/LPA/798/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 798 of 2011
In
SPECIAL CIVIL APPLICATION NO. 4370 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
==========================================================
1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
==========================================================
BHARATBHAI NARANBHAI VEGDA & 5....Appellant(s)
Versus
STATE OF GUJARAT & 13....Respondent(s)
==========================================================
Appearance:
MR MIHIR JOSHI with MR VIMAL M PATEL, ADVOCATE for the
Appellant(s) No. 1 6
MR RAKESH PATEL, AGP for the Respondent(s) No. 1 4
MR HARESH H PATEL, ADVOCATE for the Respondent(s) No. 6
7
MR SANDEEP N BHATT, ADVOCATE for the Respondent(s) No. 12
MR SAURABH G AMIN, ADVOCATE for the Respondent(s) No. 8
14
MR PERCY KAVINA with MR SP MAJMUDAR, ADVOCATE for the
Respondent(s) No. 5
==========================================================
CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
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HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 29/07/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The present appeal is directed against the order dated 7.4.2011 passed by the learned Single Judge of this court in Special Civil Application No. 4370 of 2011, whereby the learned Single, Judge for the reasons recored in the order, has dismissed the petition.
2. The short facts of the case appears to be that 5 parcels of the agricultural land bearing Survey No.111 admeasuring 39 acres 60 gunthas situated at Village: Madhapar, Taluka & District: Rajkot were sold by four persons (1) Jagjivan Kalidas Thakker, (2) Patel Kana Arjan, (3) Khodidas Vashram Thakker and (4) Patel Premji Ganesh to five persons, namely, Sudhaben Buddhidhan Modi, Bhupatlal Chaganlal Shah, Shantaben Dhirajlal Shah, Minaben Nikhilbhai Shah and Niranjan Chimanlal Maniar. Registered sale deed Nos. 471, 430, 429, 428 and 431 were executed on 2.1.1970, 31.1.1970, 30.1.1970, 31.1.1970 and 31.1.1970, respectively. Revenue entries were mutated in the revenue record vide Village Entry Nos. (1) 471 dt. 4.12.1973 for land admeasuring 5 acres 0 gunthas (2) 472 dt. 4.12.1973 for land admeasuring 5 acres 0 gunthas (3) 473 dt. 4.12.1973 for land admeasuring 2 acres 30 gunthas Page 2 of 31 HC-NIC Page 2 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT (4) 474 dt. 4.12.1973 for land admeasuring 2 acres 10 gunthas, and (5) 475 dt. 4.12.1973 for land admeasuring 2 acres 20 gunthas. After the entries were mutated in the revenue record, one of the sellers, Khodidas Vashram Thakker, expired on 28.6.1994. Other executant of the sale deed expired prior thereto. During the lifetime of all the executants of the sale deed, no dispute was raised by any of the sellers for the legality and validity of the sale. In June, 2002 the heirs of the original owner of the land sold the remaining land of Survey No. 111 admeasuring 17 acres 38 gunthas and the revenue entries were also mutated for such purpose vide Entry Nos. 1464, 1465 and 1466 since the transactions were by registered sale deed. On 30th March 2005, the appellant No. 5 purchased the land admeasuring 2 acres 20 gunthas from Niranjan Chimanlal Maniar, respondent No. 14, by registered sale deed bearing No. 2119 and the entry bearing No. 5466 dated 27.2.2009 was mutated in the revenue record and the said entry came to be certified on 30th July 2009. Appellant Nos. 4 and 5 purchased the land admeasuring 2 acres 10 gunthas from Minaben Nikhilbhai Shah, respondent No. 13 , by registered sale deed bearing No. 3065 and the entry bearing No. 5465 dated 27.2.2009 was mutated in the revenue record, which came to be certified on 30th July 2009. On 19.5.2005, the appellant Nos. 1 and 2 purchased the land admeasuring 5 acres 0 gunthas from Rajesh Page 3 of 31 HC-NIC Page 3 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT Buddhidhan Modi, respondent No. 8 being legal heir of Sudhaben Buddhidhan Modi by registered sale deed bearing No. 3410 and the entry bearing No. 5469 dated 27.2.2009 was mutated in the revenue record, which came to be certified on 30th July 2009. On 10.8.2006, the appellant No. 3 purchased the land admeasuring 5 acres 0 gunthas from Shardaben Bhupatlal Shah, being legal heir of deceased Bhuptlal Chaganlal Shah by registered sale deed bearing No. 6790 and the entry bearing No. 5467 dated 27.2.2009 was mutated in the revenue record which came to be certified on 30th July 2009. On 10.8.2006, the appellant No. 4 purchased the land admeasuring 2 acres 30 gunthas from Jyotiben Umeshbhai Rajyaguru, respondent No. 11, who had purchased the land by registered sale deed dated 4.10.2005 bearing registration No. 7307 from Sandip Dhirajlal Shah and Monisha Sandip Shah, legal heirs of deceased Shantaben Dhirajlal Shah The appellant No. 4 purchased the said land by registered sale deed and the entry bearing No. 5729 dated 13.8.2009 was mutated in the revenue record which came to be certified on 19.9.2009.
3. It appears that the respondent No. 5 filed Special Civil Application No. 235 of 2011 in this court inter alia praying for a direction to complete the inquiry as per the report dated 7.11.2009 and since the appellant came to know about the aforesaid litigation, they preferred Page 4 of 31 HC-NIC Page 4 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT Civil Application No. 3062 of 2011 for being joined as party in the aforesaid Special Civil Application. On 8.3.2011, respondent No.3 placed the copy of the notice dated 4.3.2011 in the proceedings of aforesaid Special Civil Application stating, inter alia, that the proceedings under Saurashtra Gharkhed, Tenancy Settlement and Agricultural Land Ordinance, 1949 (hereinafter referred to as 'the Ordinance' for the sake of convenience) were initiated. In view of the said notice, respondent No.5 did not press the petition and consequently the petition was disposed of as not pressed. The application of the appellants was also disposed of accordingly.
4. When the appellants came to know through their advocate about the aforesaid notice initiated by the respondent No. 3, they have preferred Special Civil Application No. 4370 of 2011 challenging the showcause notice, inter alia, on the ground that after 37 years from the date of the revenue entry, the proceedings are initiated under the Ordinance. The learned Single Judge found that the aspects of delay can be examined by the authority while deciding the showcause notice and therefore the learned Single Judge did not interfere with the showcause notice and dismissed the petition without entering into the merits of the showcause notice. It is under these circumstances, the present Appeal before the Division Bench of this Court.
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5. We have heard Mr. Mihir Joshi, learned Sr. Counsel appearing with Mr. Vimal Patel for the appellants, Mr. Percy Kavina, learned Sr. Counsel, appearing with Mr. Majmudar for respondent No. 5, Mr. Rakesh Patel, learned AGP appearing for the State and its officers, Mr. Saurabh Amin appearing for respondent Nos. 814, Mr. Haresh Patel for respondent Nos. 67 and Mr. Sandip Bhatt for respondent No. 12.
6. It is by now wellsettled that if the action of initiation of the showcause notice is without jurisdiction, or exfacie barred by delay, the court may entertain the petition under Art. 226 of the Constitution. At this stage, we may refer to the decision of the Apex Court in case of State of Punjab and ors. v. Bhatinda District Co operative Milk Producers Union Ltd., reported at (2007) 11 SCC 363, wherein the showcause notice issued in purported exercise of the revisional power came to be challenged, inter alia, on the ground that the notice was beyond the period of limitation. A question arose before the Apex Court as to whether such a question could be considered as the jurisdictional question or not. At paragraph 24, it was observed thus "24. Question of limitation being jurisdictional question, the writ petition was maintainable."
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Further, at paragraph 25, it was observed thus "25. We are, however, not oblivious of the fact that ordinarily the writ court would not entertain the writ application questioning validity of a notice only, particularly, when the writ petitioner would have an effective remedy under the Act itself. This case, however, poses a different question. The Revisional Authority, being a creature of the statute, while exercising its revisional jurisdiction, would not be able to determine as to what would be the reasonable period for exercising the revisional jurisdiction in terms of Section 21(1) of the Act. The High Court, furthermore in its judgment, has referred to some binding precedents which have been operating in the field. The High Court, therefore, cannot be said to have committed any jurisdictional error in passing the impugned judgment."
(Emphasis supplied)
7. If the facts of the present case are further examined in light of the above referred legal position, two aspects may be required to be addressed. One would be the question of reasonable period for initiation of the action by issuance of the showcause notice under the Ordinance and the another is whether it could be said that the initiation of the action is without jurisdiction. The third aspect which may incidentally arise for consideration is about the locus on the part of respondent no.5 in insisting for invalidation of the transaction which has taken place between the original owner, i.e., his father and the purchaser wherein father of Page 7 of 31 HC-NIC Page 7 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT respondent no.5 received the consideration and by his own volition, parted with the possession, acted for transfer of the property and did not raise any grievance during his lifetime.
8. On the first aspect, for reasonable period, we may refer to some of the decisions, though of course there are number of such decisions. The first judgment on the principle delay in exercise of power came to be considered in the case of State of Gujarat vs. Patel Raghav Natha reported at (1969) 2 SCC 187, wherein it was held that if the revisional authority was inclined to exercise the power under the Bombay Land Revenue Code, it ought to have been satisfied that such power has been invoked within reasonable time, otherwise the bar of delay would operate. Thereafter, there are number of decisions on the said point but, we may usefully refer to the recent decision of this Court in the case of Chandulal Gordhandas Ranodriya & Ors. v. State of Gujarat reported at 2013(2) GLR 1788, wherein, this Court while considering the question of delay in initiation of action under section 84C of the Bombay Tenancy and Agricultural Lands Act, in a case where delay was about 5 years, observed at paragraph 13 as under:
"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 Page 8 of 31 HC-NIC Page 8 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT 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."
Further, this Court in the said decision elaborately considered the question of delay and the reasonable period at paragraph 16, which reads 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 be exercised within a reasonable time and Page 9 of 31 HC-NIC Page 9 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT 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 Page 10 of 31 HC-NIC Page 10 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT 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.
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 Page 11 of 31 HC-NIC Page 11 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT 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 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 Page 12 of 31 HC-NIC Page 12 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT 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)."
Further, at para 19, it was observed as thus "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."
9. We may also record that in the another decision of this Court in the case of Bhanji Devshibhai Luhar Vs State of Gujarat reported at 2011(2) GLR 1676, the question arose for consideration of the Page 13 of 31 HC-NIC Page 13 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT initiation of the action after 17 years under the Ordinance itself wherein the provisions of section 54 and 75 of the Ordinance were referred to in the showcause notice and the action was initiated. This Court at paragraphs 19 to 23, observed thus -
"19. In this background, it deserves to be considered that when the respondent's action of scrutinizing the transaction in question after delay of 17 years is under consideration and when it is apparent that if the respondent's action and decision are allowed to prevail and are not interfered with, the purchaser (i.e. the appellant), as a consequence of the said decision, will be deprived of the land purchased by him before 17 years (by now almost 30 years) then in such facts, circumstances the aforesaid aspects i.e. the fact that the appellant has 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 has even incurred expenditure to improve the quality of soil, would become relevant and would deserve due consideration.
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.Page 14 of 31
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(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 agritools.
(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.
21. In light of aforesaid facts of present case, we are of the view that while the conclusion and the decision of the competent and appellate authority holding the transaction in question as void, is in consonance with the provisions of the ordinance and cannot be faulted, in the interest of justice and equity it also ought Page 15 of 31 HC-NIC Page 15 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT not be overlooked that the impugned action in exercise of the power under Section 75 of the Ordinance to summarily evict the petitioner, after having allowed the transaction to remain alive for 17 years not only ignores the wide chasm between the date of transaction and the dates of the notice and the order but it also overlooks the fact that the petitioner has continued to put the land to use for agricultural purpose and has not changed the status and nature of the land and that he has also incurred expenditure to improve the quality of soil and invested further amounts for betterment of the land in question. The figures of such expenditure by the petitioner are not available on record, however the respondents have not disputed the said factual assertion by the petitioner.
22. In backdrop of the aforesaid facts and circumstances if we recall the observations by the larger bench in the case of Shailesh J. Varia (supra)to the effect that: " if delay of few months cannot be explained it would be beyond reasonable period. If a delay of years can be explained and justified it would be "within reasonable period" (emphasis supplied) and when we consider present case in light of said observations, then we have to record that from the material on file the respondents do not appear to have, in any manner, explained and justified the long gap of 17 years in initiating the action. The said delay of 17 years has remained unexplained and unjustified. It is only defended on the ground that the transaction is statutorily void. However, while defending the action the aforesaid relevant aspects and the absence of explanation regarding delay are not being taken into account.
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22.1 In this context, we may refer to the decision by the Apex Court in the case between Smt. Sulochana Chandrakant Galande v. Pune Municipal Transport and ors (AIR 2010 SC 2962) wherein, while considering the legal position with regard to Section 34 of Urban Land (Ceiling and Regulation) Act 1976 observed in paragraph 23 that: "23. The legislature in its wisdom did not fix a time limit for exercising the revisional power nor inserted the words "at any time" in Section 34 of the Act, 1976. It does not mean that the legislature intended to leave the orders passed under the Act open to variation for an indefinite period inasmuch as it would have the effect of rendering title of the holders/allottee(s) permanently precarious and in a state of perpetual uncertainty. In case, it is assumed that the legislature has conferred an everlasting and interminable power in point of time, the title over the declared surplus land, in the hands of the State/allottee, would forever remain virtually insecure. 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. In view of the above, we reach the inescapable conclusion that the Revisional powers cannot be used arbitrarily at belated stage for the reason that the order passed in Revision under Section 34 of the Act, 1976, is a judicial order. What should be reasonable time, would depend upon the facts and circumstances of each case." (emphasis supplied) 22.2 We may also refer to a recent decision in the case between Krishnadevi Malchand Kamathia vs. Bombay Environmental Action Group (2011 {3} SCC Page 17 of 31 HC-NIC Page 17 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT
363), the Apex Court, has, with regard to void order, observed in paragraph No.16 that: "16. It is a settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In Sate of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil, Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd., M. Meenakshi v. Metadin Agarwal and Sneh Gupta v. Devi Sarup, this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum.
While referring to the earlier decisions in the case State of Punjab (supra) as well as in the case of Sultan Sadik v. Sanjay Raj Sabba (2004 [2] SCC 377) the Apex Court has observed: "19.Thus, from the above it emerges that even if the order / notification is void / voidable, the party aggrieved by the same cannot decide that the said order / notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person"
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23. Under the circumstances, upon considering the overall facts and circumstances of the present case and in light of the foregoing discussion and having regard to the fact that at the time of transaction the petitioner was agricultural labourer and he purchased the land for agriculture use and since then he has maintained the status of the land and continues to put the land to agricultural use, the decision to compulsorily evict the petitioner after lapse of 17 years (by now almost 30 years) deserves to be set aside.
23.1 One of the reasons for our aforesaid view and conclusion is that the only person who would benefit because of the orders of the lower authorities is the vendor who is party to the disputed transaction. The consequence of the impugned order by the authorities would, ultimately and eventually result into unjust enrichment for the vendor who entered into the transaction and has, since then not taken out any action in law before any competent Court against the transaction.
23.2 Therefore, in view of the facts of the present case, and having regard to the aspects noted in paras 20 to 23.1 above, we are inclined to set aside the impugned orders passed by the lower authorities. We order accordingly."
10. 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 Page 19 of 31 HC-NIC Page 19 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT 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.
11. However, Mr. Kavina, learned counsel appearing for the respondent no.5 attempted to contend that such principles of reasonable period is to be Page 20 of 31 HC-NIC Page 20 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT construed after considering the nature of error committed by the lower authority in exercise of the power. He submitted that if it was a patent error and the action is not taken within reasonable time, the power may not be exercised, but in his submission, if it is a latent error, the period may run after such error is detected and therefore, in his submission, the decision upon which the reliance has been placed by the learned counsel for the petitioners would have no applicability. He submitted that in the present case, after having known about the transaction, when the matters were further inquired in ULC case, it was found that the transaction had taken place between the agriculturist to non agriculturist and therefore, the action has been taken thereafter immediately and hence, it cannot be said that the bar of delay would operate in the present case. He further submitted that the learned Single Judge has exercised the discretion of not interfering with the impugned action on the ground that it was at a show cause notice stage and when the discretion is exercised, unless it is found to be perverse or erroneous on the face of it, this Court may not interfere with such decision in exercise of the appellate jurisdiction.
12. We may first consider the question for interference to the order passed by the learned Single Judge. There cannot be second opinion on Page 21 of 31 HC-NIC Page 21 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT the aspect that if two views are possible and the learned Single Judge has taken one view, the Division Bench of this Court in exercise of the jurisdiction under Letters Patent would be loathe to interfere and may not entertain the appeal, but in a case where only one view was possible or that well settled legal position is not considered, which goes to the root of the matter for the jurisdiction of the authority, such would be an appropriate case for interference for exercise of the jurisdiction under the Letters Patent. Examining the case on the said aspects, we find that as per the above referred decisions of the Apex Court, the limitation provided for initiation of the action or the consideration of the reasonable period for initiation of the action or the bar operating of delay for initiation of the action are jurisdictional aspects on the power of the authority which has initiated the action. If as per the well settled principles of law, the bar of delay operates against the exercise of the jurisdiction or that the initiation of the action is beyond reasonable period as per the well settled principles of law, the action can be said as without jurisdiction. If an action is without jurisdiction, as observed by the Apex Court in the above referred decision in the case of State of Punjab (supra), the petition under Article 226 of the Constitution can be maintained and the jurisdiction of this Court under Article 226 of the Constitution can Page 22 of 31 HC-NIC Page 22 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT be invoked. If the action is decided on the ground of jurisdiction and found to be without jurisdiction by the Court while undertaking judicial scrutiny under Article 226 of the Constitution, the only view possible is that of the action without jurisdiction. If the action was without jurisdiction, we do not see that it would fall in the arena of discretion to be considered while exercising the power under Article 226 of the Constitution. We may record that the contention is not based on the conduct on the part of the petitioners which may lead the Court to decline the interference but the contention is on the ground that two views were not possible as against the settled legal position on the point of reasonable period and the delay for initiation of the action. Hence, we find that it is a fit case for interference with the order passed by the learned Single Judge and it cannot be said to be outside the jurisdiction of the appellate power of the Division Bench of this Court in Letters Patent as sought to be canvassed.
13. On the aspects of error being latent or patent, we find that the contention should fail even if considered in either way. If considered to be patent in any case, the action was required to be initiated within reasonable period which has not been initiated. If the contention is considered on the ground that the error was latent, then Page 23 of 31 HC-NIC Page 23 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT also, as per the provisions of the Bombay Land Revenue Code read with the Rules, before any entry is mutated in the revenue record, the notice under section 135D 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 would remain as it is until it is certified by the Circle Inspector. It is the duty of the Circle Inspector to verify the relevant record and then to certify and then if he finds 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 forwarded. As per Rule 111 of the Land Revenue Rules, whenever index of the land is prepared and is complete, the same is required to be placed before the Collector or the SubDivisional Officer for inspection. After such material is placed before the SubDivisional Officer or the Collector, a notice is required to be issued to the interested person and the notice is also required to be placed in the vicinity of the village concerned and thereafter, the Collector or the Sub Divisional Officer has to compare the index and has power to make necessary correction, if it is so required. After such process is undertaken, new index is to be prepared which will show the tested entries. The aforesaid provisions of Rule 111 leaves room for verification of the entries Page 24 of 31 HC-NIC Page 24 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT made in the revenue record of a village upto the level of the officer by the Collector or the Sub Divisional Officer, as the case may be. It is not the case that such error was found during the period of inspection. If during the period of inspection under Rule 111, such so called alleged discrepancy in the transaction was not found and the registration of the entries are not modified or disturbed under Rule 111, it cannot be said that the error has come to the knowledge of the concerned authority only when it was verified so as to treat it as latent error. On the contrary, in view of Rule 111, the Collector or the Sub Divisional Magistrate cannot be heard to say that since the error came to their notice after a period of 35 years, the power can be exercised for cancellation of such entries or the transaction which has already been entered in the revenue record. Under the circumstances, we cannot accept the contention of the learned counsel for the respondent no.5 that the decision upon which the reliance has been placed and more particularly the decision referred to by us hereinabove in the present judgement has no applicability to the facts of the present case.
14. On the aspect of locus, we may state that it is an undisputed position that father of the respondent no.5, as one of the coowner, has accepted the consideration and has transferred the land in favour of the purchaser. During the Page 25 of 31 HC-NIC Page 25 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT lifetime of the father of the respondent no.5, no grievance was raised regarding the transaction. It is the respondent no.5 who has raised the grievance against the transaction in the year 2005, i.e., roughly after a period of about 35 years and has filed Civil Suit Nos. 325/15, 326/15, 446/15 and 447/15 for setting aside of the sale deed.
15. At this stage, we may usefully refer to the decision of this Court in the case of Patel Ratilal Maganbhai vs. State of Gujarat reported at 2003(1) GLR 562, wherein one of us (Jayant Patel, J.) was party. At paragraphs no.20 to 22, it was observed thus -
"20. A bare perusal of the record clearly shows that even if the competent authority has come to conclusion that there is no breach of the provisions of the Act, legal heirs of the transferor who are appellants herein are desirous to see that the litigation continues for one reason or other even though the transfror has accepted the consideration and the transferor might have made the transferee believe that the transaction was in accordance with law. We are of the view that the legal heirs of the original transferor can not be heard to say that they are entitled to benefit of such transaction which was opposed to law, more particularly, when it is a case of voluntary sale.
21. In our considered opinion, the present appeal is clear misuse of process of law and therefore we can not accept the last submission of Mr.Shelat that the sale to be declared void and the possession of the land Page 26 of 31 HC-NIC Page 26 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT should be restored to the appellants.
22. At this stage we find that equitable considerations are against the appellants and prima facie it appears that the appellants want to use the process of law with a view to take undue benefit by contending that the transaction of voluntary sale was void or was opposed to law. During the period of 16 years not a single whisper is made by the appellants or the transferor regarding any infirmity or illegality in the sale, but at the stage when the Deputy Collector withdrew the notice the appellants want to take undue benefit of such proceedings even though the limitation for filing suit for such relief under Law of Limitation has expired. We are of the view that the instant case is nothing but clear misuse and abuse of process of law and we agree with the view taken by the learned single judge while dismissing the petition and we find that there is no substance in the appeal and therefore the appeal is dismissed. Notice is discharged."
(Emphasis supplied)
16. Examining the matter further, it appears that it is an admitted position that the father of the respondent no.5 after having accepted the consideration, has executed the sale deed and during his life time, he did not raise any grievance for the validity of the transaction nor did he contend that he was under a mistaken belief at the time when the sale deed was executed, but now having realised the said mistake, he is ready to return the consideration. Further, respondent no.5 has also filed Civil Suits after death of his father which are pending Page 27 of 31 HC-NIC Page 27 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT in the Civil Court where the rights of the parties are yet to be examined. Under these circumstances, it can be said that when the respondent no.5 originated the Government machinery, the bonafide would be lacking since one who is a party to the transaction cannot be heard to say at a later stage that the transaction is not valid that too after a period of about more than 35 years. In any case, respondent no.5 had moved the authority and the impugned action of issuance of showcause notice has been taken, but when the Court considers the aspect of reasonable period and finds that the exercise of the jurisdiction was barred by delay and the consequential action could be said as without jurisdiction, the question of locus on the part of respondent no.5 may not assume much importance.
17. We may also record that by the impugned notice, the petitioners are called upon to show cause not only for invalidating the transaction under section 54 of the Ordinance, but the further action is also contemplated under section 75, not only for eviction, but to resume the land by the State Government. As per the respondent no.5, the authority had no such power to resume back the said land and as per Mr.Kavina, in view of the similar provision made under the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 and the Page 28 of 31 HC-NIC Page 28 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT interpretation thereof by this Court, in the decision reported in the case of Govindsingh Ramsinghbhai Vaghela v. G. Subbarao, Asstt. Collector Dholka reported at 1970 GLR 897, the original owner would be entitled to get back the land and not the vesting thereof in the State Government.
18. Section 75 of the ordinance provides for the enabling power of summary eviction by the Collector. There are no express powers for forfeiture by the State Government nor there is any express power for reentrustment of the land to the original owner. If the provisions of section 75 are considered with the provisions of section 84C of the Bombay Tenancy and Agricultural Lands Act, 1948, whenever the legislature wanted, it provided for the entrustment of the land to the transferor or the forfeiture thereof by the State Government. Such is not the language used in section 75 of the Act.
19. We may leave at that without observing further, but in absence of any express language used under section 75 in contradistinction to the language used under section 84 C of the Bombay Tenancy and Agricultural Lands Act, one possible view is that the notice would be ultra vires to the powers under section 75 of the ordinance.
20. In any case, as the notice could be said as Page 29 of 31 HC-NIC Page 29 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT without jurisdiction on the ground of delay and laches as per the well settled principles of law, we do not propose to express any final view on the aspect of section 75 of the Ordinance. In any case, examining the matter on the either of the situation, the action of issuance of showcause notice can be said to be without jurisdiction and hence, the petitioner would be justified in invoking the jurisdiction of this Court under Article 226 of the Constitution.
21. If the matter is examined in light of the observations made hereinabove, the impugned notice deserves to be quashed and set aside. Resultantly, the order passed by the learned Single Judge cannot be sustained. Hence, the order passed by the learned Single Judge is set aside. The impugned show cause notice dated 04.03.2011 (AnnexureA) is quashed and set aside.
22. The petition shall stand allowed. Hence, the LPA shall also stand allowed. Considering the facts and circumstances, no order as to costs.
23. Mr.Jadeja, learned counsel appearing for Mr. Majmudar for respondent no.5 after the pronouncement of the order prays that the Civil Suits which are pending before the Civil Court may be decided in accordance with law without being in any manner influenced by the observations made by this Court in the present judgment and he further submitted that the Page 30 of 31 HC-NIC Page 30 of 31 Created On Tue Aug 04 23:57:04 IST 2015 C/LPA/798/2011 JUDGMENT interim stay prohibiting the petitioner to transfer of property be also continued for some time.
24. Considering the facts and circumstances, it is observed that the Civil Court shall be at the liberty to take appropriate decision in accordance with law without being in any manner influenced by the observations made by this Court and on the basis of the material available before it. However, the request for continuation of the prohibitory order is not granted since the initiation of the action is found to be without jurisdiction of this Court. Hence, the said request is declined.
(JAYANT PATEL, J.) (RAJESH H.SHUKLA, J.) bjoy Page 31 of 31 HC-NIC Page 31 of 31 Created On Tue Aug 04 23:57:04 IST 2015