Gujarat High Court
Coram vs State Of Gujarat on 7 February, 2013
Author: Jayant Patel
Bench: Jayant Patel
PATEL KEVALBHAI MANJIBHAIV/SSTATE OF GUJARAT C/SCA/2667/2004 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 2667 of 2004 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE JAYANT PATEL ================================================================ 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ 1 - PATEL KEVALBHAI MANJIBHAI 3 - PATEL JAYANTIBHAI KEVALBHAI 2 - PATEL SURESHBHAI KEVALBHAI Petitioner(s) VERSUS 1 - STATE OF GUJARAT 2 - DEPUTY COLLECTOR (S.K.) 3 - BHAMBHAI MANGABHAI GALBABHAI Respondent(s) ================================================================ Appearance: MR SK PATEL, ADVOCATE for the Petitioner(s) No. 1 - 3 MR DHAWAN JAYSWAL, AGP for the Respondent(s) No. 1 - 2 MR MEHTA for MR PJ VYAS, ADVOCATE for the Respondent(s) No. 3 ================================================================ CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL Date : 07/02/2013 ORAL JUDGMENT
The petitioners have preferred the present petition for challenging the legality and validity of the order passed by the Deputy Collector dated 31.3.2003 and its confirmation thereof by the order of the State Government in revisional jurisdiction, copy whereof is produced at Annexure-A, whereby the transaction for purchase of the land by the petitioners is held to be in contravention to the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as the Act for short).
The short facts of the case are that the petitioners purchased the land situated at Village Dahegamda vide registered sale deed dated 17.12.1979. Based on the said registered sale deed, the revenue entry was mutated vide Mutation Entry No.976 dated 10.3.1989 and the said entry was certified on 7.6.1989. Thereafter, the proceedings under the Act came to be initiated for the first time by Notice dated 6.3.2003 by the Deputy Collector for declaration of the sale as illegal on the ground that the same was in breach of the provisions of the Act. The petitioners replied to the said show-cause notice, but the explanation was not accepted and the order dated 31.3.2003 came to be passed by the Deputy Collector, whereby the sale was declared as illegal, in breach of the provisions of the Act and it was directed for restoration of the possession and the fine of Rs.250/- was also imposed. The petitioners carried the matter in revision before the State Government and before the State Government the contention of delay was raised. However, the State Government did not consider the said aspect properly, in spite of the same was brought to its notice and ultimately, dismissed the revision. Under these circumstances, the present petition before this Court.
I have heard Mr.Dharmesh Patel for Mr.S.K. Patel, learned Counsel for the petitioners, Mr.Jayswal, learned AGP for respondents No.1 and 2 and Mr.Mehta, learned Counsel for Mr.Vyas for respondent No.3.
It is undisputed position that the petitioners purchased the property in the year 1979. The revenue entry was mutated in the year 1989 and the action is initiated under the Act for the first time on 6.3.2003. Even if it is considered from the date of the revenue entry, then also, the period of about more than 12 years had passed at the time when the action was initiated and, therefore, it can be said that the action was barred by delay and the same was, in any case, beyond reasonable period.
Similar issue had come up before the Division Bench of this Court in the case of Vitthal M. Patel & Ors v. Deputy Collector, Kaira & Anr., reported in 2011(1) GLR, 610 and the Division Bench, on the aspect of delay, at paragraphs 4 to 6, had observed as under:-
4. As such on the aspect of delay the law is well settled. We may record that, as there were two different views of learned Single Judges of this Court, one, in case of KOLI NAGJIBHAI VARJAN Vs. STATE OF GUJARAT & ORS., reported in 1992 (1) GLR, Pg. 14 (Coram:
Abichandani, J); and another in case of RANCHHODBHAI LALLUBHAI PATEL Vs. STATE OF GUJARAT & ORS, reported in 1984 (2) GLR, pg. 1225 (Coram: S.B. Majumdar, J), the matter was referred to the Division Bench of this Court. The matter was ultimately considered by the Division Bench of this Court in case of VALJIBHAI JAGJIVANBHAI Vs. STATE OF GUJARAT, reported in 2005(2) GLH, pg. 34. The view taken and conclusion recorded by the Division Bench at para-23 is as under:-
23.
Looking to the aforesaid different situations, there is no doubt in our mind that even the void transaction under Section 9(1) if allowed to remain effective for considerably long period, the authority named therein will be precluded from initiating proceedings to annul it. The ratio laid down by the Apex Court in the decisions cited by Mr. Patel clearly states that even the void transaction cannot be said to be nonexistent in all cases and in all situations. It can remain effective and in existence till it is invalidated and set aside. If its existence is allowed to remain for a considerable period and with the passage of time it brings about several changes, creating valuable rights in favour of considerable section of people, it is difficult to accept the proposition that despite the change the Collector would be entitled to exercise power under sub-section (3) of Section 9 of he Act. Similar observations can also be made with regard to the land wherein no change is brought about, but number of years have passed after the transfer against the provisions of the Act has taken place. In our opinion when the things have been allowed to remain as such for years together, the purchaser cannot be deprived of his possession so as to render indirect benefit to the seller who was equally responsible for entering not such illegal transaction. Thus, in our view, when the authority had considerable opportunities to know about the transaction and despite that, has not taken any action thereon for years together, such authority cannot be allowed to exercise powers conferred upon it at a belated stage. The concept of reasonableness of time will equally apply in such cases.
5. We may also refer to the decision of the Apex Court in case of PUNE MUNICIPAL CORPORATION Vs. STATE OF MAHARASHTRA & ORS, reported in 2007 (3) GLR, pg. 2610, on the aspect of concept of null & void order and applicability of Article 113 of the Limitation Act. The Apex Court in the said decision at para no.36 & 41 have observed thus:-
36.
It is well settled that no order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law. As prof. Wade states (See Administrative Law by H.W.R. Wade, 6th Edn. Page 352):
The principle must be equally true even where the 'brand of invalidity' is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the Court.
He further states Ibid., pages 352-53: The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case, the 'void' order remains effective, and is in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person, but valid against another.
41.
In the present case, no period of limitation is prescribed for preferring revision under Sec. 34 of the Act. The principle laid down in State of Gujarat V. Patel Raghav Natha, 1969 (2) SCC 187, hence, applies. If, therefore, the revisional authority was inclined to exercise jurisdiction, it ought to have been satisfied that such power was invoked by the petitioner within reasonable time. Merely on the ground that the order passed in 1977 was unlawful was not sufficient to ignore length of delay and other attenuating circumstances.
If the facts of the present case is examined in light of the aforesaid, it is an admitted position that after a period of 12 years from the entry mutated in the revenue record based on the alleged transaction, the action is initiated. Under these circumstances, as such the action could be said as after an unreasonable period and the delay would operate against as a bar to the authority in initiating action for annulment or setting aside the alleged sale on the alleged ground of breach of provisions of the Act.
6.In the very decision, on the aspect of effect of the revenue entry and the consideration of delay for the time consumed, it was observed at paragraphs 8 and 10 as under:-
8.
It is true that the delay in taking action ipso facto may not be sufficient, but the aspect of delay can be considered with the prejudice to be caused and the limitation of the rights of the parties and irreversible situation. The fact that the person has continued to enjoy the property by cultivation thereof for a long period of 12 years is one of the relevant aspects, and the another aspect is that, it was not a case where the factum of sale having entered into between the parties was not made known to the revenue authority. It was an admitted position that, based on said sale, revenue entry was mutated in the revenue record and it was made known to the revenue authority and that entry in the revenue record also remained for a period of about 12 years. The provisions of Bombay Land Revenue Code provides that revenue record is required to be inspected periodically by the Mamlatdar as well as Pranth Officer as per the Gujarat Land Revenue Rules. At no point of time the action was initiated. Further, if the order of the lower authorities are considered, no material is brought on record showing the reason as to why the action could not be initiated well in time. Under these circumstances, we find that the action was barred, but the learned Single judge did not consider said aspects and, therefore, the impugned order for invalidating the sale deserves to be set aside.
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10. It is true that aforesaid both the decisions were considered by this Court in case of Abdulbhai Daoodbhai Muman (supra), but the Division Bench has not laid down law otherwise than as was declared in case of Valjibhai Jagjivanbhai (supra), but only distinguished on facts and same position remained while considering the decision of the Apex Court in case of Pune Municipal Corporation (supra). Therefore, considering facts of that case, this Court in case of Abdulbhai Daoodbhai Muman (supra) has taken the view, but, it cannot be said that position of law and the settled legal position is different, nor such decision would be of any assistance to the learned AGP. The pertinent aspect is that, even if the delay exists, the ground of delay is to be considered and while considering said aspects the question of investment or development is also to be considered. In the present case, no explanation has come on record as to why action was not initiated for a period of 12 years, i.e. more than a decade by the authority. The action on the part of the authority to wake-up from slumber at one fine morning and initiate action without there being any sufficient material placed on record for not taking any action prior thereto, could hardly be countenanced by this Court, even if the action is to be tested on the ground of reasonableness, so as to meet with the test of Article 14 of the Constitution of India.
7.If the facts of the present case are examined in light of the aforesaid legal possession, it can be concluded that the action cannot be sustained in the eye of law. Consequently, the final order passed based on the initiation of the action would also fall to ground and the same will be the situation for the order of State Government, since the State Government has not properly considered the aspect of delay. It can be said that the error apparent on the face of record has been committed by the lower authority, which would call for interference for exercise of the power under Article 227 of the Constitution of India.
8.In view of the aforesaid observation and discussion, the impugned order passed by the Deputy Collector and its confirmation thereof by the State Government deserve to be quashed and set aside and hence, they are quashed and set aside.
9.The petition is allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs.
(JAYANT PATEL, J.) vinod Page 10 of 10