Gujarat High Court
Dashrathlal vs State on 26 July, 2011
Author: S.J.Mukhopadhaya
Bench: S.J.Mukhopadhaya
Gujarat High Court Case Information System
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C/LPA/1875/2007
JUDGEMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 1875 of 2007 In SPECIAL CIVIL APPLICATION No 3134 of 2001 With LETTERS PATENT APPEAL No 1065 of 2007 In SPECIAL CIVIL APPLICATION No 4380 of 2006 With LETTERS PATENT APPEAL No 981 of 2010 In SPECIAL CIVIL APPLICATION No 12758 of 2009 With LETTERS PATENT APPEAL No 1074 of 2010 In SPECIAL CIVIL APPLICATION No 3214 of 2009 With CIVIL APPLICATION No 7872 of 2007 In LETTERS PATENT APPEAL No 1065 of 2007 With CIVIL APPLICATION No 12331 of 2007 In LETTERS PATENT APPEAL No 1875 of 2007 With CIVIL APPLICATION No 4484 of 2010 In LETTERS PATENT APPEAL No 981 of 2010 With CIVIL APPLICATION No 13830 of 2010 In LETTERS PATENT APPEAL No 981 of 2010 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. S.J.MUKHOPADHAYA HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================= 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 ?
================================================= DASHRATHLAL M PATEL HEIRS & L.R.MAGANBHAI JOITARAM &
3....Appellant(s) Versus STATE OF GUJARAT & 6....Respondent(s) ================================================= Appearance:
MR SB VAKIL, SR. ADVOCATE with MR KV SHELAT and MR MIHIR THAKORE, SR. ADVOCATE with Mr MANAV MEHTA for Appellant(s) MS MANISHA LAVKUMAR, AGP for Respondent(s) No. 1 ,4 MR AJ PATEL for Respondent(s) No. 2 - 3 MR PERCY KAVINA, SR. ADVOCATE with Mr VIRAL SHAH for Respondent(s) No. 5 MR HARDIK B KALMEKH for Respondent(s) No. 6 ================================================= CORAM:
HONOURABLE THE CHIEF JUSTICE MR. S.J.MUKHOPADHAYA and HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : /07/2011 COMMON CAV JUDGEMENT (PER : HONOURABLE THE CHIEF JUSTICE MR. S.J.MUKHOPADHAYA) In the case of Govindsingh Ramsinghbhai Vaghela vs. G. Subbarao, Asstt. Collector, Dholka, reported in 1970 (11) GLR 897, a Division Bench of this Court while dealing with Sub-section (3) of Section 9 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 [hereinafter referred to as "the Fragmentation Act"] held that -
"17. RE.
GROUND (F) : ... ... ... The Collector is given the power to summarily evict a person when it is found that by reason of the transfer being void, he is unauthorizedly in occupation or wrongfully in possession of the land. And this power is obviously conferred upon the Collector to secure enforcement of the salutary and beneficent provisions of the Act. If transfer has been made contrary to the provisions of the Act, it must not have any effect at all and the status quo ante must be restored, for otherwise the object of the Act would be frustrated. Even after the transfer is declared void, the transferor may not take action to recover possession of the land, for then he would have to return the purchase price received by him which he may not want to do and in that event the land would continue to remain in possession of the transferee and the object of the legislation would be defeated. ... ... ... The Collector cannot, in the absence of specific provision to that effect, retain possession as against the owner of the land. This ground is, therefore, without substance and must be rejected."
2. On the other hand, in the case of Patel Ratilal Maganbhai vs. State of Gujarat, reported in 2003 (1) GLR 562, another Division Bench of this Court while held that -
"The competent authorities under law can take up the stand that the transaction is without obtaining prior permission and therefore is void and no limitation would come in the way of the competent authority for declaring that the transaction is void. However, same is not the case when the transaction is to be declared void and the restoration of possession is to be made at the instance of the seller of the property because the seller will have to establish before the competent court that when the transaction of sale was entered into it was disclosed by the seller to the purchaser that the permission of the competent authority before entering into the registered sale deed was required and inspite of the same the purchaser has at his own risk agreed to purchase the land without permission of the competent authority. If the purchaser establishes that the seller of the property has withheld this information from the purchaser and has made the purchaser to believe that on account of sale transaction the rights and titles of the seller are fully conveyed and he would become the absolute owner of the property, the court may decline the relief to the seller for declaring the sale as illegal or void. If the seller establishes that the seller himself as well as the purchaser, both were under the bonafide mistake that the permission of the competent authority for sale is not required, then in the given case, the court keeping in view the intent of the legislature may declare the transaction of sale as void. But, in those circumstances also the court may decline the equitable relief of restoring the possession back to the seller and even if the court decides to restore the possession back to the seller, the court may also put the seller on condition of repaying the sale consideration and the compensation also if circumstances so demand. All these questions of facts can only be examined in the proceedings of civil suit."
further held that "a Court of equity when exercising its equitable jurisdiction under Art. 226 must so act as to prevent perpetration of a legal fraud and the Courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law."
3. Mr SB Vakil and Mr Mihir Thakore, learned Senior Advocates appearing on behalf of the appellants contended that if a sale is void under the provisions of law, no separate declaration is required to be obtained from any Civil Court of competent jurisdiction. Once it is found void, the Collector, under Sub-section (3) of Section 9 of the Fragmentation Act, is required to take possession of the land transferred in contravention of the of the provisions of the Fragmentation Act and hand over the same in favour of the land owner (seller). At the best, a penalty of Rs.250/- can be imposed under the law. According to them, the judgment of the Division Bench in the case of Patel Ratilal Maganbhai [2003 (1) GLR 562] runs counter to the decision rendered by the earlier Division Bench in the case of Govindsingh Ramsinghbhai Vaghela [1970 (11) GLR 897].
It was in this background, the matter has been referred to the Larger Bench for decision whether the aforesaid decisions run counter to each other.
4. For determination of the issue, it is not necessary to discuss all the facts in detail, but it will be desirable to notice the relevant facts as mentioned hereunder.
The land bearing original Survey Nos. 261, 262, 263, 291 and 302 of village Shela, Taluka Sanand, District Ahmedabad belonged to deceased Joitaram Patel. The land was purported to have been consolidated in Block No. 335. The appellants - Dashrathbhai and others are the offspring of Joitaram Patel. Said Joitaram Patel initially sold the land admeasuring 18,004 sq. mtrs. out of the total land admeasuring 78,914 sq. mtrs. from Block No. 335 to one Ibrahimbhai by registered sale deed dated 10.4.1980. Thereafter on 6.7.1981, said Joitaram Patel sold the balance land admeasuring 60,910 sq. mtrs. from out of Block No. 335 to Savitaben Govindbhai Patel and Hasmukhbhai Govindbhai Patel [hereinafter referred to as "the interested respondents"]. Necessary mutation entry was effected in the revenue record on 11.6.1982.
The lands which were purchased by the interested respondents were converted into non-agriculture by order dated 3.8.1982 passed under Section 65 of the Bombay Land Revenue Code by the competent authority i.e. Taluka Development Officer. The Deputy Collector under the provisions of the Fragmentation Act initiated proceedings and held that the sale in favour of the interested respondents was in violation of the Fragmentation Act in the year 1983. The order of the Deputy Collector was challenged before the State Government, which remanded the matter to the Deputy Collector by order dated 23.4.1984. The Deputy Collector again held the transaction to be in violation of the Fragmentation Act by order dated 30.9.1986. The interested respondents preferred a revision application before the State Government and the State Government dismissed the said revision application by order dated 24.4.1990. The non-agriculture permission granted on 3.8.1982 was taken into suo moto revision after a lapse of nearly 7 to 8 years from the date of the permission and the said order was set aside by the Special Secretary, Revenue Department (SSRD) by order dated 30.8.1990. Three writ petitions were filed against the aforesaid two orders of the SSRD. Special Civil Application No. 7011 of 1990 was filed by the interested respondents against the order dated 30.8.1990 cancelling the non-agriculture permission. Special Civil Application No. 5183 of 1990 was filed by the original owners (vendors) challenging the order of confiscation of the land by the SSRD. Special Civil Application No. 5767 of 1990 was filed by the interested respondents against the order passed by the SSRD regarding taking action for alleged violation of the Fragmentation Act qua the sale deed dated 6.7.1981 of the interested persons (purchasers). The said writ petitions were admitted and interim orders were passed.
During pendency of the writ petitions, the heirs of deceased Joitaram Patel, the appellants in one set of appeals, notwithstanding the fact that they were contending that the sale in favour of the interested respondents was violative of Section 31 of the Fragmentation Act, they executed a registered agreement to sale in favour of one Vasibhai Haribhai Desai and others, the appellants in other set of appeals. On the one hand, the seller (offsprings of deceased Joitaram Patel) were contending that the sale dated 6.7.1981 was in violation of the Fragmentation Act and at the same time, on the other hand, inspite of the interim orders were operating, they executed the registered agreement to sale as aforesaid.
All the three matters were sent back by the Court to the SSRD to decide the matter on merits, as the Court found consideration of the entire matter to be defective by the SSRD. The SSRD on examination of the entire matter, came to the conclusion that the first sale was effected in favour of Ibrahimbhai. The SSRD observed that the sale in favour of Ibrahimbhai regarding part of the land was upheld by this Court in Special Civil Application No. 4741 of 1998 decided on 22.2.1998. Even otherwise, there was no formation of block and even if there was need of permission, the permission was deemed to have been granted; besides that even the entire exercise was academic, because the land was non-agricultural land, the Fragmentation Act cannot be made applicable to a land which is a non-agricultural land.
Special Civil Application No. 3134 of 2001, filed by one set of the appellants against the aforesaid order of upholding the sale, was placed for final hearing in the year 2006. At that stage, the fresh purchaser [2nd pendente-lite, i.e. Vasibhai Haribhai] knowing full well that litigation was going on because he was impleaded in the contempt proceedings, filed Special Civil Application No. 13380 of 2006 after six years sensing that something was going wrong in the first Special Civil Application No. 3134 of 2001 and challenged the order of the SSRD, which was the same order challenged earlier.
The learned Single Judge by common judgment dated 23.8.2006, taking into consideration the conduct of both the appellant - petitioners, held that no relief should be granted by entrustment of the writ in exercise of the power under Article 227 of the Constitution of India and dismissed the writ petitions with costs.
5. The learned counsel appearing on behalf of the appellants would contend as follows :-
(i) If the sale is void under Section 9 of the Fragmentation Act, no separate declaration is required to be obtained from a Civil Court of competent jurisdiction.
(ii) Once it is found that the transfer of land is void under Section 9 of the Fragmentation Act, the Collector under Sub-section (3) of Section 9 of the Fragmentation Act is required to take possession of the land and handover the same in favour of the original land owner. At the best, a penalty of Rs.250/- can be imposed under the Act.
(iii) There is no estoppel against the right of a person accrued under the law. The duty of the Collector is to solve the purpose and objects of the Fragmentation Act and to ensure that the consolidation is not fractured. It is to be maintained that the consolidation continue and no fracture of consolidation is made even in future without permission.
(iv) Once Sub-section (3) of Section 9 takes place, the transfer is void, it is the duty on the part of the Collector to hand over the possession to the original land owner. If the possession is not given, a suit is barred under Section 36A which render the provision ineffective and, therefore, the Collector is duty bound to handover possession to the original land owner.
(v) If the statute provides to give benefit even to a wrong doer in a wider aspect, in public interest such right cannot be denied on the ground that the application is a wrong doer.
They relied on the following decisions and the relevant provisions of the Fragmentation Act which will be discussed at the appropriate stage :-
(i) Govindsingh Ramsinghbhai Vaghela vs. G. Subbarao, Asstt. Collector, Dholka, reported in 1970 GLR 897
(ii) Revenue Officer vs. Prafulla Kumar Pati, reported in 1990 (2) SCC 162
(iii) Shah Chandulal Velchand vs. Amthaji Balaji Thakore, reported in 1990 (1) GLH 448
(iv) Shevantabai Maruti Kalhatkar vs. Ramu Rakhamaji Kalhatkar, reported in (1998) 8 SCC 76
(v) BBL & T Merchant's Association vs. Bombay State, reported in AIR 1962 SC 486
(vi) Assistant Collector of Central Excise vs. National Tobacco Co. of India Ltd., reported in AIR 1972 SC 2563
(vii) Hirday Narain vs. Income-tax Officer, Bareilly, reported in AIR 1971 SC 33
6. Ms Manisha Lavkumar, learned AGP appearing on behalf of the respondent - State of Gujarat, on the contrary, submitted that on summary eviction, by the Collector under Sub-section (3) of Section 9 of the Fragmentation Act, of any person unauthorizedly in occupation or wrongfully in possession, the transfer or partition, either by the act of the parties or by the operation of law is void under the provisions of the Fragmentation Act, the land would not automatically be restored to the original owner. The scheme of the Fragmentation Act does not contemplate automatic or consequential restoration of the title and/or of possession and/or of ownership and other rights in favour of the original land owner after the transaction is declared invalid under the Fragmentation Act. Restoring the possession back to the owner/seller who has voluntarily sold the land in breach of the provisions of the Act, pocketed the consideration, divested himself of all rights, title and interest in the land, rendering the sale void, would be permitting a wrong doer to put a premium of his wrongful actions. It is a settled proposition of law that the powers under Article 226 of the Constitution of India are discretionary in nature and if the Court finds that equitable considerations are against the seller/owner, who is seeking to invoke the extraordinary, equitable jurisdiction of the Court, this Court would decline to entertain the petition since the powers vested in the Court would not be empowered to encourage the wrong actions committed by persons, who themselves are parties to the voluntary sale and want to seek benefit of their own wrong. Equity is known to defend the law from crafty evasions and new subtleties invented by a wrong doer to evade the law and seek benefit from his own illegal deals.
7. She would contend that the scheme of the Fragmentation Act elaborately provides for consolidation of holdings, amalgamation of holdings and the redistribution thereof. Several Sections thereof refer to "entitlement of possession" of holding being allotted to the owner under the scheme. Such holding is allotted subject to the conditions and restrictions imposed under the scheme, with regard to transfer, alienation, partition, etc. Breach of those statutory restrictions would render such sale, transfer, alienation as void, rendering the owner liable to compensation, and the person wrongfully in possession to eviction. Section 21(2A) stipulating the right to possession of new holdings expressly refers to eviction of any person from any lands for the purpose of putting the owners in possession of the holdings which they are entitled to under the consolidated scheme. The Fragmentation Act does not contemplate automatic or consequential restoration of the title and/or of possession and/or of ownership and other rights in favour of the original land owner upon the transaction being declared invalid under the Act.
8. The learned counsel for the State would further submit that the fundamental principle upon which the Courts would act in dealing with an illegal contract was explained by Lord Mansfield in the case of Holman vs. Johnson, reported in (1775) 1 COWP.341 at page 343, as follows :-
"The objection that a contract is immoral or illegal as between plaintiff and defendant sounds at all times very ill in the mouth of the defendant. It is not for his sake, however that the objection as ever allowed; but is founded on general principle of policy, which the defendant has advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so, the principle of public police is this; ex dolo malo non oritur actio. No Could will lend its aid to a man who founds is cause of action upon an immoral or illegal act. If from the plaintiff's own stating or otherwise, the cause of action appears to arise Ex turpi causa, or in transgression of a positive law of this country, there the Court says he has no right to be assisted ..."
She would further contend that the consequence is that no person who is aware of the illegal nature of a contract can enforce it, or recover money or property transferred under it. Property transferred under an illegal contract cannot be recovered.
9. She further submitted that in the event of any "person" referred to in Section 9 is wrongfully in possession of any land in breach of the provisions of the Act, transfer of which having been declared as void under Section 9(1), the said person unauthorizedly occupying or wrongfully in possession of such land shall be summarily be evicted by the Collector and the land from which such person has been evacuated would naturally vest in the State Government. The owner having divested himself of all right, title and interest in the land on execution of the sale would cease to have any ownership rights in the said land. Upon eviction by the operation of law, the land would vest in the State, since all lands which belong to nobody, over which no ownership rights could be established belong to the State in view of the provisions of Section 37(1) of the Bombay Land Revenue Code, 1879.
10. The learned counsel for the State would contend that Section 9 of the Fragmentation Act stipulates following eventualities :-
(i) The voiding of a transfer or partition contrary to the Act;
(ii) The imposition of a penalty of Rs.250/- on the owner who has transferred or partitioned such land; and
(iii) The eviction of any person in unauthorized occupation or wrongfully in possession of the land, transfer of which is void under the Act.
It was contended that the legislature could not have contemplated penalizing the seller/owner under Section 9(2) and at the same time envisaged the restoration of possession and ownership of valuable land in favour of the wrong doer under Section 9(3). In the year 1947 when the Fragmentation Act came into force, a sum of Rs.250/- had substantial value. It was submitted that as held by the Division Bench of this Court in the case of Govindsinh Ramsinh Vaghela [1970 (11) GLR 897], the legislature whilst voiding the transfer in breach of the Act, provided for the imposition of penalty on the owner for having committed a breach of the Act and vested the Collector with powers of eviction whilst barring the jurisdiction of the Civil Court under Section 36A. Land sold at a pittance after several subsequent sales, cannot revert in the original owner, since the same would not be just and would encourage such void transactions and would put a premium on the illegality, considering the increased prices of land.
It was further contended that Section 9 refers to not just the "transferee" but "any person" wrongfully in possession, since from the time of the first sale the land may have undergone several transfers.
11. On the facts of the present appeals filed by the erstwhile owners of the land, the learned counsel for the State would submit that the present appellant
- original writ petitioners have no locus standi to challenge the order passed by the Revenue Tribunal since the sale entered into by the seller/owner has been upheld. The authorities having upheld the transfer of the land, as a valid sale, the first purchaser is the lawful owner of the said lands and consequentially the second purchaser has no right to the said lands, as said sale is illegal and invalid, the owner having already disposed of the land to the first purchaser and the said sale is held valid having been approved/permitted by the authorities.
12. Similar arguments were advanced by the learned counsel appearing on behalf of the other respondents.
13. The object of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 is to prevent fragmentation of agricultural holdings and to provide for consolidation of agricultural holdings for the better cultivation thereof.
Section 2(2) defines "consolidation of holdings" to mean the amalgamation and where necessary the redistribution of holdings or portions of holdings in any village, mahal or talukas or any part thereof so as to reduce the number of plots in holdings. Section 2(4) defines "fragment" to mean a plot of land of less extent than the appropriate standard area determined under the Act, provided that no plot or land shall be deemed to be a fragment by reason of any diminution in its area by diluvion. Section 2(5) defines "land" to mean agricultural land, whether alienated or unalienated.
Section 7 prohibits transfer of any fragment only in the manner prescribed therein, which reads as follows :-
"7. Transfer and lease of fragments.- (1) No person shall transfer any fragment in respect of which a notice has been given under sub-section (2) of section 6 except to the owner of a contiguous survey number or recognized sub-division of survey number :
Provided that the holder of such fragment may mortgage or transfer it to the State Government or a land mortgage bank or any other co-operative society as security for any loan advanced to him by the State Government or such bank or society as the case may be.
(2) Notwithstanding anything contained in any law for the time being in force or in any instrument or agreement, no such fragment shall be leased to any person other than a person cultivating any land which is contiguous to the fragment."
Fragmentation is prohibited under Section 8, which reads as follows :-
"8. Fragmentation prohibited.- No land in any local area shall be transferred or partitioned so to create a fragment."
There is a restriction on partition of land under Section 8AA and Section 9 stipulates penalty for transfer or partition contrary to the provisions of the Act, which is the relevant provision for the purpose of the present case and reads as follows :-
"9. Penalty for transfer or partition contrary to provisions of Act.-
(1) The transfer or partition of any land contrary to the provisions of this Act shall be void.
(2) The owner of any land so transferred or partitioned shall be liable to pay such fine not exceeding Rs.250 as the Collector may, subject to the general orders of the State Government, direct such fine shall be recoverable as an arrear of land revenue.
(3) Any person unauthorized occupying or wrongfully in possession of, any land, the transfer or partition of which, either by the act of parties or by the operation of law, is void under the provisions of this Act, may be summarily evicted by the Collector."
Under Section 31, there are restrictions on alienation and sub-division of consolidated holdings, as quoted hereunder :-
"31. Restrictions on alienation and sub-division of consolidated, holdings .-
(1) Notwithstanding anything contained in any law for the time being force, no holding allotted under this Act, nor any part thereof, shall be -
(a) transferred, whether by way of sale (including sale 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) or by way of gift, exchange, or lease, or otherwise, except in accordance with such conditions as may be prescribed;
(b) sub-divided (including sub-division by a decree or order of a Civil Court of any other competent authority) except with the permission in writing of the Collector.
(2) Nothing in Sub-section (1) -
(a) shall apply to a transfer of a Holding allotted under this Act where the transfer is of the entire holding, not involving any sub-division thereof, or to a sub-division of a holding allotted under this Act where such sub-division is made to provide for the shares of persons entitled thereto on the death of the owner, and does not create any fragment; or
(b) shall be deemed over to have applied to a transfer of a holding allotted under this Act, made after the 19th February, 1969, but before the date of the commencement of the Bombay Prevention of Fragmentation and Consolidation of Holdings (Gujarat Amendment) Act, 1978 (hereinafter referred to as "the said date") where such transfer was of an entire holding not involving any sub-division thereof and the transferee or his successor-in-interest was occupying or was in possession of the holding so transferred immediately before the said date and had not been evicted from such holding before the said date in pursuance of an order of eviction passed by the Collector under sub-section (3) of Section 9, and such transfer shall not be, and shall be deemed never to have been, void on the ground that it was contrary to the provisions of this section.
(3) Where in respect of any holding to which clause (b) of sub-section (2) applies an order for payment of fine by the owner transferring such holding was made by the Collector under sub-section (2) of section 9, or an order for eviction was made under sub-section (3) of section 9 but such order was not given effect to, such order shall be deemed to have become ineffective on the said date and the fine, if paid by the owner, shall be refunded to him. Any revision proceedings pending against any such order which becomes in effective under this sub-section shall abate."
Bar of jurisdiction of the Civil Court and the Court of Mamlatdar is stipulated under Section 36A, which reads as follows:-
"36A. Bar of Jurisdiction .- (1) No Civil Court or Mamlatdar's Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the State Government or any officer or authority.
(2) No order of the State Government or any such officer or authority made under this Act shall be questioned in any Civil, Criminal or Mamlatdar's Court."
14. The suit involving the issue is required to be decided under Section 36B, whereunder if any suit instituted in any Civil Court or Mamlatdar's Court in which any issue which was required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issue under the Act, the Civil Court or the Mamlatdar's Court shall stay the suit and refer the issue to the competent authority for determination.
15. The aforesaid provisions can be summarized as follows:-
(i) `Fragmentation' is prohibited under Section 8.
(ii) There is `restriction on partition of land' under Section 8AA.
(iii) `Restrictions on alienation, sub-division and sub-division of consolidated holdings' is stipulated under Section 31.
(iv) If transfer or partition is made contrary to the provisions of the Fragmentation Act, under Sub-section (1) of Section 9, the transfer or partition of any land contrary to the provisions of the Act shall be void. Under sub-section (2) of Section 9, the owner of the land so transferred or partitioned is liable to pay a penalty upto Rs.250/- as may be determined by the Collector and under Sub-section (3) of Section 9, any person unauthorizedly occupying or wrongfully in possession of any land, the transfer or partition of which, either by the act of the parties or by the operation of the law is void, may be summarily evicted by the Collector.
(v) There is a bar of jurisdiction of the Civil Court or the Mamlatdar's Court under Section 36A to settle, decide or deal with any question which is by or under the Fragmentation Act required to be settled, decided or dealt with by the State Government or any officer or authority.
16. Sub-section (3) of Section 9 of the Fragmentation Act fell for consideration before a Division Bench of this Court in Govindsingh Ramsinghbhai Vaghela [1970 (11) GLR 897]. The Bench presided over by Hon'ble Mr Justice PN Bhagwati (as he then was) while dealing with the provisions, observed that the power conferred on the Collector by Sub-section (3) of Section 9 of the Fragmentation Act is not a legislative power. It is an adjudicatory power in so far as it empowers the Collector to make an order of summary eviction against a person when he is satisfied that such person in unauthorizedly occupying, or wrongfully in possession of, any land, the transfer or partition of which either by the act of parties or by the operation of law, is void under the provisions of the Act. The power given to the Collector to summarily evict a person who is unauthorizedly in occupation or wrongfully in possession of the land, by the reason of the transfer being void, and to restore possession of the land to the original owner is obviously conferred upon the Collector to secure enforcement of the salutary and beneficent provisions of the Act. The Collector cannot in absence of specific provision to that effect, retain possession as against the owner of the land. The relevant finding at para 17 is as follows :-
"17. RE.
GROUND (F) : It is no doubt true that the words used in sec. 9 sub-sec. (3) are only these, namely, "Any person ... may be summarily evicted by the Collector" and the sub-section does not say in so many terms that having summarily evicted such person, the Collector may restore possession of the land to the original owner but that is clearly implicit in the sub-section. The Collector is given the power to summarily evict a person when it is found that by reason of the transfer being void, he is unauthorizedly in occupation or wrongfully in possession of the land. And this power is obviously conferred upon the Collector to secure enforcement of the salutary and beneficent provisions of the Act. If transfer has been made contrary to the provisions of the Act, it must not have any effect at all and the status quo ante must be restored, for otherwise the object of the Act would be frustrated. Even after the transfer is declared void, the transferor may not take action to recover possession of the land, for then he would have to return the purchase price received by him which he may not want to do and in that event the land would continue to remain in possession of the transferee and the object of the legislation would be defeated. The Legislature, therefore, did not leave it to the transferor to adopt proceedings for recovering possession of the land but provided that the Collector may summarily evict the transferee or any other person who is unauthorizedly in occupation or wrongfully in possession of it, so that possession could be restored to the transferor and the effect of the transfer obliterated. It could not have been intended by the Legislature that the Collector after evicting the unauthorized occupant should retain possession of the land with himself or it should be appropriated to the use of the State. If such had been the intention, there would have been clear and express words to that effect. There being no such provision, the Collector must obviously, after summarily evicting the unauthorized occupant, hand back possession to the person who is the owner of the land. The Collector cannot, in the absence of specific provision to that effect, retain possession as against the owner of the land. This ground is, therefore, without substance and must be rejected."
17. The said provisions of the Fragmentation Act subsequently when fell for consideration before a learned Single Judge of this Court in Shah Chandulal Velchand vs. Amthaji Balaji Thakore, reported in 1990 (1) GLH 448, the learned Single Judge observed that it is no doubt true that there is no specific provisions as in some other Acts providing either by way of a function of the authority or duty of the authority to decide certain questions arising under the Act. But Sections 7 and 9 clearly imply that whenever a question arises as to whether there is a transfer of fragment or not and whether that transfer is void or not has to be decided either by the State Government or by the authority to whom the powers might have been delegated by the State Government. Section 9 authorizes the Collector to impose fine or to summarily evict a person unauthorizedly in occupation or wrongfully in possession of any fragment. That necessarily implies that the Collector will have to decide first whether transfer is contrary to the provisions of the Act and, therefore, void or not. Once that conclusion is reached, it will have to be held, in view of the provisions contained in Sections 36A and 36B of the Act, that neither the Civil Court nor the Mamlatdar's Court can settle, decide or deal with such questions.
18. Similar provisions under the Bombay Tenancy and Agricultural Lands Act, 1948 fell for consideration before another learned Single Judge of this Court in Mavjibhai Dharsibhai vs. State of Gujarat, reported in 1994(2) GLR 1168 : 1994 (1) GLH 20. Therein, the Court explained the distinction between "invalid" and "void" transactions. In absence of any prescribed limitation, the Court held that the power under Section 84C of the Tenancy Act has to be exercised within a reasonable time, what is "reasonable time" has been explained. The Court further held that the action can be taken even after long lapse of time and that the authority initiating such action will have to justify such belated action.
The same very provisions of Section 84C of the Bombay Tenancy and Agricultural Lands Act, 1948 fell for consideration before another learned Single Judge of this Court in Saburbhai Hemabhai Chauhan vs. State of Gujarat, reported in 2000 (1) GLH 580. In the said case, the learned Single Judge held that the sale transaction if found void, it could be so declared at any time. Mere lapse of time would not make the action of the authorities invalid. Any action, transaction, decision or order which is illegal and void ab initio to be treated as non est. The validity of such an illegal non est order could be questioned in any proceedings at any stage by anybody. Non est order doest not create any right, title or interest. It confers neither any status nor any right.
19. The provisions of the Orissa Land Reforms Act, 1960 fell for consideration before the Supreme Court in the case of Revenue Officer vs. Prafulla Kumar Pati, reported in (1990) 2 SCC
162. The transfer of land by member of SC/ST to non-member without permission of the Revenue Officer is prohibited under Section 22 of the Orissa Land Reforms Act. In the said case, the Supreme Court held that once the transfers were void, the transferors are entitled to restoration of their land under the Act.
20. The provisions of Sections 36A and 36B as also Section 8 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 fell for consideration before the Supreme Court in the case of Shevantabai Maruti Kalhatkar vs. Ramu Rakhamaji Kalhatkar, reported in (1998) 8 SCC 76. That was the case in which the only contention raised by the appellant was that the land being a fragment, the sale in favour of the respondents was void and, therefore, it was rightly declared by the first appellate Court to be so. Such contention was negatived by the Supreme Court which found that the competent authority, on a reference being made to it by the trial Court under Section 36B of the Act, had held that the sale is valid. The High Court was, therefore, right in holding that it was not open to the first appellate Court, being a Civil Court, to go behind the order passed by the competent authority. Section 36A of the Act clearly bars jurisdiction of the Civil Court to settle, decide or deal with any question which is by or under the Act required to be settled, decided or dealt with by the State Government or any officer or authority.
21. So far as the case of Patel Ratilal Maganbhai [2003 (1) GLR 562] is concerned, the Court made the following observations :-
"In a matter of voluntary sale between the parties, the purchaser as well as the seller have the right as well as obligation under law. It is the duty of the seller of the property to see that the lawful rights are conveyed in favour of the purchaser and the titles which are held by the seller are completely transferred to the purchaser and it is upon the said legal obligation on the part of the seller, the purchaser enters into the transaction of purchasing the property by paying consideration thereof. It is true that it is also the duty of the purchaser of the immovable property to verify the title of the seller. However, in a case where the permission to sell is required to be obtained of any competent authority, it is obligatory on the part of the seller to disclose to the purchaser that the permission of the competent authority is required to be obtained, and thereafter, the sale should be effected. When such informations are withheld by the seller from the purchaser and subsequently on account of nonavailability of permission the sale is declared illegal or void and the purchaser is visited with the consequences of depriving of the property or otherwise, the purchaser can legitimately sue the seller for recovery of damages permissible under law. Therefore, in such circumstances, when any voluntary sale is required to be declared void on account of breach of any of the provisions of law, the court will have to examine as to whether the seller had disclosed all the material facts before the purchaser regarding the requirement of obtaining permission of the competent authority or not. However, when the sale deed of any immovable property is once registered, it goes on the public record and it is known to public at large. The competent authorities under law can take up the stand that the transaction is without obtaining prior permission and therefore is void and no limitation would come in the way of the competent authority for declaring that the transaction is void. However, same is not the case when the transaction is to be declared void and the restoration of possession is to be made at the instance of the seller of the property because the seller will have to establish before the competent court that when the transaction of sale was entered into it was disclosed by the seller to the purchaser that the permission of the competent authority before entering into the registered sale deed was required and inspite of the same the purchaser has at his own risk agreed to purchase the land without permission of the competent authority. If the purchaser establishes that the seller of the property has withheld this information from the purchaser and has made the purchaser to believe that on account of sale transaction the rights and titles of the seller are fully conveyed and he would become the absolute owner of the property, the court may decline the relief to the seller for declaring the sale as illegal or void. If the seller establishes that the seller himself as well as the purchaser, both were under the bonafide mistake that the permission of the competent authority for sale is not required, then in the given case, the court keeping in view the intent of the legislature may declare the transaction of sale as void. But, in those circumstances also the court may decline the equitable relief of restoring the possession back to the seller and even if the court decides to restore the possession back to the seller, the court may also put the seller on condition of repaying the sale consideration and the compensation also if circumstances so demand. "
Court further held at para 19 that "a Court of equity when exercising its equitable jurisdiction under Art. 226 must so act as to prevent perpetration of a legal fraud and the Courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law.
the said case, while holding that the Court may decline the equitable relief of restoring the possession back to the seller, held as follows :-
"All these questions of facts can only be examined in the proceedings of civil suit. Therefore, in the circumstances, it can not be said that no independent proceedings are required to be initiated by the transferor who is seeking declaration that the sale is void. In our view, the seller of such transaction in a case of voluntary sale is required to file suit before the appropriate court for declaration that the sale is void, even if he is seeking a declaration that the transaction of sale is void on account of nonavailability of permission of the competent authority."
22. When the very same provisions of Section 9 of the Fragmentation Act fell for consideration before another Division Bench of this Court in the case of Valjibhai Jagjivanbhai vs. State of Gujarat, reported 2005 (2) GLH 34, the Division Bench referring to different decisions, including the decision in the case of Govindsingh Ramsinghbhai Vaghela [1970 (11) GLR 897], held that -
"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 the 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 into 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. We, therefore, hold that even powers conferred upon the Collector under sub-sections (2) and (3) of Section 9 are required to be exercised within a reasonable time."
23. A Full Bench of this Court in the case of Jadav Prabhatbhai Jethabhai vs Parmar Karsanbhai, reported in 2001 (1) GLR 16 (FB) had an occasion to consider as to whether the alienation of minor's property by de facto guardian of a minor is always void and whether it is obligatory for the minor to get it quashed by the legal process and whether the minor is also obliged to resort to such legal process within the period of three years from the date of attaining majority or not. In the said case, the Full Bench held that "the party aggrieved by the invalidity of the order has to approach the court for relief of declaration that the order against him is inoperative and not binding upon him." The Full Bench further observed that "he must approach the court within the period of limitation."
24. In the case of AP State Financial Corporation vs. Gar Re-rolling Mills, reported in (1994) 2 SCC 647, while discussing Article 226 of the Constitution of India, held that equitable extraordinary jurisdiction should be exercised to prevent perpetration of legal fraud and to promote good faith and honesty. It cannot be exercised in favour of a defaulting party to frustrate legitimate claim of the other party.
25. The learned counsel appearing on behalf of the appellants referred to some of the decisions of the Supreme Court on "implied power" as follows :-
In the case of BBL & T Merchant's Association vs. Bombay State, reported in AIR 1962 SC 486, the Supreme Court observed that -
"19. ...
.... It is conceded by the respondent that there is no express provision in the Act which authorised the setting up of the machinery as prescribed by Cls.3 and 4 or for laying down the manner in which the employer should make payment for the discarded bidis. It is, however, strenuously urged that the validity of these clauses should be upheld on the ground of the implied power of the respondent; and that takes us to the question as to the true scope and effect of the doctrine of implied power."
In the case of Assistant Collector of Central Excise vs. National Tobacco Co. of India Ltd., reported in AIR 1972 SC 2563, the Supreme Court observed that "it is well established rule of construction that a power to do something essential for the proper and effectual performance of th work which the statute has in contemplation may be implied."
The Supreme Court explained the power coupled with the duty in the case of Hirday Narain vs. Income-tax Officer, Bareilly, reported in AIR 1971 SC 33 :-
"12. ....
.... If a statute invests a public Officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima faice enabling, the Court will readily infer a duty to exercise power which is invested in aid of enforcement of a right - public or private - of a citizen"
But it is not necessary to give any finding on the same, as this Court had already held in the case of Govindsingh Ramsinghbhai Vaghela [1970 (11) GLR 897] that Sub-section (3) of Section 9 does not say in so many terms that having summarily evicted such person, the Collector may restore possession of the land to the original owner but that is clearly implicit in Sub-section (3) of Section 9. If transfer has been made contrary to the provisions of the Act, it must not have any effect at all and the status quo ante must be restored, for otherwise the object of the Act would be frustrated. [Govindsingh Ramsinghbhai Vaghela [1970 (11) GLR 897]
26. The decisions rendered by this Court can be summarized as follows :-
(i) The power conferred on the Collector under Sub-section (3) of Section 9 is not a legislative power. It is an adjudicatory power in so far as it empowers the Collector to make an order of summary eviction against a person when he is satisfied that such person is unauthorizedly occupying or in possession of the land, the transfer or partition of which either by the act of the parties or by the operation of law, is void under the provisions of the Fragmentation Act, and is an executive power in so far it authorizes the Collector to summarily evict such person in enforcement of the order made by him. [Govindsingh Ramsinghbhai Vaghela [1970 (11) GLR 897].
(ii) This power is obviously conferred upon the Collector to secure enforcement of the salutary and beneficent provisions of the Act. [Govindsingh Ramsinghbhai Vaghela [1970 (11) GLR 897].
(iii) Sub-section (3) of Section 9 does not say in so many terms that having summarily evicted such person, the Collector may restore possession of the land to the original owner but that is clearly implicit in Sub-section (3) of Section 9. If transfer has been made contrary to the provisions of the Act, it must not have any effect at all and the status quo ante must be restored, for otherwise the object of the Act would be frustrated.
[Govindsingh Ramsinghbhai Vaghela [1970 (11) GLR 897]
(iv) The Legislature did not leave it to the transferor to adopt proceedings for recovering possession of the land but provided that the Collector may summarily evict the transferee or any other person who is unauthorizedly in occupation or wrongfully in possession of it, so that possession could be restored to the transferor and the effect of the transfer obliterated. [Govindsingh Ramsinghbhai Vaghela [1970 (11) GLR 897].
(v) The Collector must obviously, after summarily evicting the unauthorized occupant, hand back possession to the person who is the owner of the land. [Govindsingh Ramsinghbhai Vaghela [1970 (11) GLR 897].
(vi) The Collector cannot, in the absence of specific provision to that effect, retain possession as against the owner of the land. [Govindsingh Ramsinghbhai Vaghela [1970 (11) GLR 897].
(vii) The competent authorities under law can take up the stand that the transaction is without obtaining prior permission and, therefore, is void and no limitation would come in the way of the competent authority for declaring that the transaction is void. [Patel Ratilal Maganbhai, 2003 (1) GLR 562].
(viii) However, the same is not the case when the transaction is to be declared void and the restoration of possession is to be made at the instance of the seller of the property because the seller will have to establish before the competent Court that when the transaction of sale was entered into it was disclosed by the seller to the purchaser that the permission of the competent authority before entering into the registered sale deed was required and inspite of the same the purchaser has at his own risk agreed to purchase the land without permission of the competent authority. If the purchaser establishes that the seller of the property has withheld this information from the purchaser and has made the purchaser to believe that on account of sale transaction the rights and titles of the seller are fully conveyed and he would become the absolute owner of the property, the Court may decline the relief to the seller for declaring the sale as illegal or void. If the seller establishes that the seller himself as well as the purchaser, both were under the bona fide mistake that the permission of the competent authority for sale is not required, then in the given case, the Court keeping in view the intent of the legislature may declare the transaction of sale as void. But, in those circumstances also the Court may decline the equitable relief of restoring the possession back to the seller and even if the Court decides to restore the possession back to the seller, the Court may also put the seller on condition of repaying the sale consideration and the compensation also if circumstances so demand. All these questions of facts can only be examined in the proceedings of civil suit. [Patel Ratilal Maganbhai, 2003 (1) GLR 562]
(ix) A Court of equity when exercising its equitable jurisdiction under Art. 226 must so act as to prevent perpetration of a legal fraud and the Courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law.
[Patel Ratilal Maganbhai, 2003 (1) GLR 562].
(x) Article 226 of the Constitution is an equitable extraordinary jurisdiction, it should be exercised to prevent perpetration of legal fraud and to promote good faith and honesty. It cannot be exercised in favour of a defaulting party to frustrate legitimate claim of the other party. [AP State Financial Corporation, (1994) 2 SCC 647]
(xi) Sections 7 and 9 clearly imply that whenever a question arises as to whether there is a transfer of fragment or not and whether that transfer is void or not has to be decided either by the State Government or by the authority to whom the powers might have been delegated by the State Government. Section 9 authorizes the Collector to impose fine or to summarily evict a person unauthorizedly in occupation or wrongfully in possession of any fragment. That necessarily implies that the Collector will have to decide first whether transfer is contrary to the provisions of the Act and, therefore, void or not. Without deciding those questions, the Collector cannot impose fine or summarily evict a person in occupation or possession of the same. [Shah Chandulal Velchand vs. Amthaji Balaji Thakore, 1990 (1) GLH 448].
(xii) 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. 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 the Act. 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 into such illegal transaction. 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. Therefore, even powers conferred upon the Collector under sub-sections (2) and (3) of Section 9 are required to be exercised within a reasonable time. [Valjibhai Jagjivanbhai vs. State of Gujarat, 2005 (2) GLH 34].
27. From the decisions rendered aforesaid, it will be evident that both the Division Benches in their respective judgments in the case of Govindsingh Ramsinghbhai Vaghela [1970 (11) GLR 897] and in the case of Patel Ratilal Maganbhai [2003 (1) GLR 562] held that the Collector, competent authority under the law, can take up the stand that the transaction against the provision of law and without obtaining prior permission is void and no limitation would come in the way of the competent authority for declaring the transaction as void. Similar view was expressed by the learned Single Judge in the case of Shah Chandulal Velchand [1990 (1) GLH 448], and in the case of Saburbhai Hemabhai Chauhan [2000 (1) GLH 580] where the learned Single Judge held that mere lapse of time would not make the action of the authorities invalid. Though there is no limitation prescribed, as held by the Division Bench as mentioned above, in the case of Valjibhai Jagjivanbhai, [2005 (2) GLH 34], the Division Bench referring to the different decisions held that even the powers conferred upon the Collector under Sub-sections (2) and (3) of Section 9 are required to be exercised within the reasonable time. That means, the valid explanation should be shown for not re-opening the matter for an appropriate long period.
28. What will be the position if the restoration of possession is to be made at the instance of the seller of the property. The said issue has been decided by the Division Bench in the case of Patel Ratilal Maganbhai [2003 (1) GLR 562] wherein the Division Bench held that the seller will have to establish before the competent Court that when the transaction of sale was entered into, it was disclosed by the seller to the purchaser that the permission of the competent authority before entering into the registered sale deed was required and in spite of the same, the purchaser has at his own risk agreed to purchase the land without permission of the competent authority.
In the case of Govindsingh Ramsinghbhai Vaghela [1970 (11) GLR 897], the aforesaid issue regarding restoration of possession at the instance of the seller has not bee discussed and the Division Bench is silent on the issue.
However, this Court in the case of Shah Chandulal Velchand [1990 (1) GLH 448] held that the question of transfer is void or not has to be decided either by the State Government or the authority to whom the power might have been delegated by the State.
29. In the case of Shevantabai Maruti Kalhatkar [(1998) 8 SCC 76], taking into consideration the provisions of Section 36A and 36B of the Fragmentation Act, the the Supreme Court held that Section 36A of the Act clearly bars the jurisdiction of the Civil Court to settle, decide or deal with any question which is by or under the Act required to be settled, decided or dealt with by the State Government or any officer or authority.
30. In view of Section 36A of the Act and the decision rendered by the Supreme Court, while we hold that no Civil Court has any jurisdiction, we further hold that the "competent Court"
as mentioned by the Division Bench in the case of Patel Ratilal Maganbhai [2003 (1) GLR 562] should be referred to as "this Court" under Article 226 of the Constitution of India, with respect to which the Division Bench observation that a Court of equity when exercising its equitable jurisdiction under Article 226 must so act as to prevent perpetration of a legal fraud and the Court are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law and thereby must refuse to grant relief.
31. Thus, we hold that the Division Bench decision in the case of Govindsingh Ramsinghbhai Vaghela [1970 (11) GLR 897] and the Division Bench decision in the case of Patel Ratilal Maganbhai [2003 (1) GLR 562], hold good on the ratio laid down by the Division Bench and they do not run counter to each other.
32. The rest of the questions as raised in the appeals including the question whether the decision of the competent authority that the transfer of the land is valid or not, are left open for decision by the Division Bench before whom the appeals were pending. For such decision on such issue, the matter may be placed before the Division Bench.
The question thus raised for determination by the Larger Bench is answered as detailed above.
[S.J.MUKHOPADHAYA, CJ.] [AKIL KURESHI, J.] [J.B.PARDIWALA, J.] Sundar/PPS Page 32 Top