Gujarat High Court
Vrundavan Co. Operative Housing ... vs State Of Gujarat on 15 February, 2021
Equivalent citations: AIRONLINE 2021 GUJ 716
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/16875/2020 CAVJUDGMENT
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/SPECIALCIVILAPPLICATIONNO. 16875of 2020
With
CIVILAPPLICATION(FORJOININGPARTY) NO. 1 of 2021
In R/SPECIALCIVILAPPLICATIONNO. 16875of 2020
FORAPPROVALANDSIGNATURE:
HONOURABLEMR. JUSTICEBIRENVAISHNAV
==========================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copyNO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
VRUNDAVANCO. OPERATIVEHOUSINGSOCIETYLTD.
Versus
STATEOF GUJARAT
==========================================================
Appearance:
M B AGRAWAL(8631)for the Petitioner(s)No. 1
MRMEHULSHAH,SENIORCOUNSELFORMRVIMALA PUROHIT(5049)for the
Petitioner(s)No. 1
for the Respondent(s)No. 2
MS. NIDHIVYAS,ASSISTANTGOVERNMENTPLEADER/PP(99)for the Respondent(s)No.
1
CIVILAPPLICATION(FORJOININGPARTY)NO. 1 of 2021
MR. ANSHINDESAI,SENIORCOUNSELFORMR. ARJANGAMARA,ADVOCATEfor the
Applicant(s)
MRMEHULSHAH,SENIORCOUNSELFORMRVIMALA PUROHIT(5049)for the for the
Respondent(s)No. 1
MS. NIDHIVYAS,ASSISTANTGOVERNMENTPLEADER/PP(99)for the Opponent(s)No.2
==========================================================
CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date: 15/02/2021
Page 1 of 23
Downloaded on : Tue Feb 16 00:56:21 IST 2021
C/SCA/16875/2020 CAVJUDGMENT
CAVJUDGMENT
1. In this petition under Article 226 of the Constitution of India, the prayer of the petitioner reads as under:
"27 (A) YOUR LORDSHIPS may be pleased to issue a writ of prohibition or any other appropriate writ, order or direction may be issued upon the learned Mamlatdar and ALT, Kalol to drop the impugned show cause notice dated 10.2020 (undated) being Ganot Case / Santej 84C/02/2020 issued under Form22, Rule 50 issued under the provision of Section 84(B)(1) of the Bombay Tenancy and Agricultural Land Act, 1948;"
2. Facts in brief are as under:
2.1 With a view to put up residential units for its members, the petitioner purchased a parcel of land being Survey No. 1343 at Santej. The land was purchased in 198283. The case of the petitioner is that there was no breach of Section 63 of the Gujarat Tenancy and Agricultural Land Act, 1948 (for short ' the Tenancy Act') by virtue of Section 64A of the Act. The subject land was sold by the vendors by a registered sale deed and mutation entries were posted in favour of the petitioner society which are subject matters of challenge in this Court where there is interim relief in favour of the vendors.
2.2 The case of the petitioner is that in proceedings for breach of Section 63 of the Tenancy Act which were initiated invoking Page 2 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021 C/SCA/16875/2020 CAVJUDGMENT provision of Section 84C of the Act, the Mamltadar held against the petitioner. On a challenge to the order, the Deputy Collector, by his order dated 09.04.1999 set aside the order of the Mamltadar in favour of the petitioner, by virtue of Section 64A of the Tenancy Act. The challenge to the order at the hands of the vendors is pending at the Gujarat Revenue Tribunal. The challenge is made after 19 years and is pending. Those proceedings under Section 84 C were in respect of Block Nos. 1339, 1114, 1109, 1110, 1123, 1254, 1261 and 1341. The present parcel of land being block No. 1343 was not included. Once 84C proceedings for other blocks are concluded in favour of the person, such proceeding for another parcel cannot be reinitiated once again under the garb of missing out one parcel of land.
3. Mr.Mehul Shah, learned Senior Advocate for Mr.Vimal Purohit, would therefore submit that the show cause notice dated /10/2020 is bad. He would further factually point out that since the Deputy Collector recommended inquiry for breach of the provisions of Agricultural Lands Ceiling Act, 1960, (for short 'the Land Ceiling Act') such proceedings were under challenge and even on such count the chapter under the Land Ceiling Act has attained Page 3 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021 C/SCA/16875/2020 CAVJUDGMENT finality as the order of the GRT is not challenged by the State.
3.1 On the aspect of the proceedings on the civil side, the petitioner's case is that 44 suits filed before the civil court with regard to challenge to the sale deeds failed as the applications of the petitioner society under Order 7 Rule 11 of the Code of Civil Procedure were entertained and the suits were dismissed. Mr.Mehul Shah, learned Senior Advocate, would invite the attention of the court to the table at page 69 of the paper book and the order of the High Court dated 13.07.2017 (page 98) in Civil Application for condonation of delay in second appeal, wherein, this Court dismissed the delay condonation application in 7 appeals and the order was confirmed as SLPs before the Supreme Court were dismissed.
3.2 According to Mr.Mehul Shah, learned Senior Advocate, since the vendors failed at all stages, the present show cause notice has been issued in collusion by them with the Mamlatdar, under Section 84B of the Tenancy Act. The notice is without jurisdiction. The provision of Section 84B is applicable only to transactions entered into between 15.06.1955 and 21.07.1956, whereas the Page 4 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021 C/SCA/16875/2020 CAVJUDGMENT present sale took place in the year 1982. The notice is issued after 35 years after registered sale deed of 198384. The show cause notice is therefore grossly belated. In support of his submission, Mr.Mehul Shah, learned Senior Advocate, would rely on the following decisions:
➢ Mohamad Kavi Mohamad Amin vs. Fatima Ibrahim reported in (1997) 6 SCC 71.
➢ State of Punjab & Ors vs. Bhatinda District Cooperative Producers Union Ltd., reported in (2007) 11 SCC 363, where the Supreme Court set aside the show cause notice as powers were exercised after an unreasonable period of 24 years. 3.3 Mr. Shah, learned Senior Advocate, would further submit that the notice is an empty formality as from the language of the notice it is clearly apparent that the authority has already taken a decision to restore the land in question to the vendors. The notice is issued with a predetermined mind.
3.4 Mr.Shah, learned Senior Advocate, would submit that once for the other parcels of land the proceedings under Section 84C have attained finality, second invitation of proceedings would Page 5 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021 C/SCA/16875/2020 CAVJUDGMENT tantamount to reviewing its earlier order. This is not maintainable.
Reliance is placed on the decision reported in 2006 (2) GLR 1073, in the case of Abdul Kasim Alibhai Chauhan vs. State of Gujarat. 3.5 On the aspect of delay and unreasonable period in issuing the notice, Mr.Shah, learned Senior Advocate, relied on the decision in the case of Amitbhai Kantilal Jayswal & Ors vs. State of Gujarat, reported in 2019 e GLR 10006359 where this Court placed reliance in the decision in the case of Bhanabhai Morarbhai Solanki vs. State of Gujarat, reported in 1994 (1) GLR 822; Chandulal Gordhandas Ravodariya & Ors vs. State of Gujarat & Ors., reported in 2013 (2) GLR 1788 and Bharatbhai Naranbhai Vegda & Ors vs. State of Gujarat & Ors., reported in 2016 (2) GLR 1021. In the context of delay in exercising the powers by the authority, reliance was placed on the decision in the case of Jt. Collector Ranga Reddy Dist. & Anr vs. D. Narsing Rao & Ors. Etc. Etc., reported in (2015) 3 SCC 695.
3.6 Mr. Shah, learned Senior Advocate, relying on the decision of this Court rendered in Special Civil Application No. 23469 of 2017 in the case of Hasmukhbhai Dahyalal Soni vs. Collector Page 6 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021 C/SCA/16875/2020 CAVJUDGMENT Gandhinagar, (decided on 30.11.2018) submitted that even at the stage of a show cause notice a petition is maintainable when there is a question of limitation. He also relied on the decision in the case of Motiben Somaji v. State of Gujarat, reported in 1996 (2) GLH
22. 3.7 Mr.Shah, learned Senior Advocate, would submit that vendors are neither necessary nor proper parties though their names appear in the notice. The mentioning of them as respondents Nos. 3 to 15 in the petition is a clerical error. They are not affected parties as they have already sold the land and pocketed the consideration. Reliance was placed on the decision in Civil Application No. 3 of 2017 in F/LPA no. 1380 of 2017 and in the case of Purshottambhai Rhanjibhai Patel vs. Shivganga Farm Pvt Ltd., reported in 2018 JX (Guj) 250. The vendors would also have no locus. He placed reliance in the decision in the case of Geetaben Ishwarbhai W/o. Dhansukhbhai Patel vs. State of Gujarat, rendered in Special Civil Application No. 8115 of 2020 decided on 12.10.2020. He would rely on paras 6.1 and 6.2 of the said decision.
Page 7 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021
C/SCA/16875/2020 CAVJUDGMENT
4. Civil Application No. 1 of 2021 in Special Civil Application has been filed by vendors for being joined as parties. Mr.Anshin Desai, learned Senior Advocate, with Mr. Arjan Gamara, learned advocate, has appeared for the applicants / proposed respondents. Since the arguments on the civil application and the main petition were overlapping, I have heard Shri Desai, learned Senior Advocate for the applicants on merits simultaneously.
5. Mr.Anshin Desai, learned Senior Counsel would make the following submissions:
5.1 Mr.Desai, learned Senior Counsel would submit that the petitioner has suppressed certain facts. The applicants /vendors are still in actual possession of the land. In fact, what is annexed to the petition is only a reminder dated /10/2020. The proceedings were actually initiated on 21.04.1994 and a further notice was issued on 27.02.2020 and since the petitioner is not appearing, this is the third notice. Notices of 1994 and 27.02.2020 are not challenged. 5.2 Though the notice categorically mentions the name of vendors, they are not joined as parties. Caveat against notice of 27.02.2000 was avoided by only challenge to the present notice and changing the name of district to Ahmedabad. The petition at Page 8 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021 C/SCA/16875/2020 CAVJUDGMENT para 4 does mention them as respondents.
5.3 The contention that since the 44 suits are dimissed and therefore the civil litigation has also attained finality is disputed by Shri Desai, learned Senior Counsel. He would submit that only 7 appeals are dismissed and reviews have been filed and same are pending. Even other appeals are pending circulation as heirs of the Power Of Attorney and vendor are to be brought on record. 5.4 Even though the suits were dismissed, in the proceedings, admittedly the petitioner could not produce the PowerofAttorney, which according to them was used by the vendors to execute the registered sale deed. It was a case of fraud where Navin Shah acted as a vendor and sold the land to himself as Chairman of a Society under the guise of a PowerofAttorney. Even the mutation proceedings carried out pursuant to the sale deed is a subject matter of challenge by the vendors in Special Civil Application No. 17052 of 2007 where there operates an interim relief. Even before the subregistrar, it has become apparent by a communication dated 12.03.1999 that no PowerofAttorney was produced. 5.5 The lands are undisputedly agricultural lands. The exemption under Section 64A as it stood prior to deletion is not applicable to the petitioners as the same is applicable to societies Page 9 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021 C/SCA/16875/2020 CAVJUDGMENT registered under the Bombay Cooperative Societies Act, 1925. The petitioner is not such a Society. He would rely on the decision reported in 1977 GLR 700 in the case of Gandhi Park Co operative Housing Society Ltd., Maneja vs. State of Gujarat and submit that the petitioner Society is a housing society and not a Society for agricultural purpose. Exemption under Section 64A would not apply.
5.6 The notice is correctly issued. The argument of the petitioner that it is a notice under Section 84B is misconceived. It is a notice under Section 84C. Mr.Desai, learned Senior Counsel, invited the attention of the Court to the provisions of Section 84B(1), 84C of the Act, Form 22 and Rule 50 of the Bombay Tenancy & Agricultural Lands Rules, 1956 (for short 'the Rules'). 5.7 Even the civil suit filed by the petitioner where the vendors are defendants is pending.
6. Ms. Nidhi Vyas, learned Assistant Government Pleader, has appeared for respondents 1 and 2. She would submit as under:
6.1 The notice impugned is a notice issued under Section 84 C of the Tenancy Act and not under Section 84 B. Section 84C of the Tenanct Act has a wider scope, however, for proceedings under Page 10 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021 C/SCA/16875/2020 CAVJUDGMENT Section 84C, the procedure to hold inquiry is as provided under Section 84B of the Tenancy Act and hence the format under Form 22 and Rule 50 of the Rules. Even the impugned notice mentions in the last line of para 1 that it is a notice under Section 84C of the Act. The notice is, therefore, completely within jurisdiction. 6.2 Assuming without admitting that a wrong provision of law is mentioned ie. Section 84B instead of Section 84C, quoting of a wrong provision of law would not vitiate the proceedings. She would rely on a decision in the case of M.T.Khan vs. Govt of Andhra Pradesh, reported in (2004) 2 SCC 267.
6.3 The language in the format that land be returned to the vendor need not necessarily reflect predetermination at the hands of the authority.
6.4 With regard to the contention of Mr.Mehul Shah, learned Senior Counsel, that there is unreasonable delay in issuing the notice, Ms.Vyas, learned AGP, would submit that in all there were 11 block numbers namely, 1107, 1113, 1114, 1254, 1261, 1339, 1341, 1340, 1316 and 1343. In the year 1994, the Mamlatdar issued notice except for 3 blocks. For 8 blocks, order was issued on 09.06.1994. For the present block, which was issued on 21.04.1994 Page 11 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021 C/SCA/16875/2020 CAVJUDGMENT and the proceedings for this block are still pending. A notice was again issued on 10.02.2020. The judgment on unreasonable delay would therefore not apply.
6.5 Ms.Vyas, learned AGP, on the applicability of Section 64A of the Tenancy Act would submit that it is a contention that can be answered to in reply to the notice. The authority would take a decision as and when a response to the show cause notice is filed by the petitioner. Merely because for other Blocks Section 84C proceedings have attained finality can be no ground to invoke Article 226 of the Constitution of India. On the basis of the reply filed, the authority will take an appropriate decision.
7. Having considered the submissions made by the learned counsels for the respective parties, the locus of the civil application to be heard may not detain me long. Firstly, even without proceeding to adjudicate on whether the notice impugned is one under Section 84B or Section 84C of the Tenancy Act the notice itself mentions the vendors. Even otherwise, what is evident is that the respective parties in respect to the same parcels of land were engaged in civil proceedings interse and are admittedly engaged in a pending suit at the hands of the petitioner. Even in the Page 12 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021 C/SCA/16875/2020 CAVJUDGMENT proceedings under the Agriculture Land Ceiling Act before the GRT, the applicants of the civil application were arrayed as parties, on their request. The petitioner himself admits that in respect of the similar notices under Section 84B / 84C of the Tenancy Act, the civil applicants / vendors have challenged the decision of the Deputy Collector before the Gujarat Revenue Tribunal. Therefore, in accordance with the decision of the Supreme Court in the case of Sumitbhai & Ors vs. Paras Finance Co., reported in (2007) 10 SCC 82, there is a semblance of title or interest in the dispute involved and therefore the civil application is allowed and the applicants are treated as parties. Even otherwise, as referred to in the earlier part of this judgment, I have heard the learned Counsels on the application on all issues including on merits too.
ANALYSIS
8. It is the case of the petitioner that the present notice that is impugned is a notice under Section 84B of the Tenancy Act. Reading the contents, in the petitioner's perception would make it evident. The respondent State and private party vendor would contend otherwise and submit that the notice is in fact under Section 84C of the Tenancy Act. Reference was made to the Page 13 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021 C/SCA/16875/2020 CAVJUDGMENT provisions of Section 84B, 84C, Form 22 and Rule 50 of the Bombay Tenancy and Agricultural Lands Act, 1956. Section 84B, 84C, Rule 50 and Form 22 read as under:
"84B. Certain transfers made between appointed day and commencement of Amending Act, 1955 invalid. (1) Where in respect of a transfer or acquisition of any land made on or after the 15th day of June 1955 and before the commencement of the Amending Act, 1955, the Mamlatdar, suo motu or on the application of any person interested in such land, has reason to believe that such transfer or acquisition.
(a) was in contravention of section 63 or 64 as it stood before the commencement of the Amending Act, 1955, or
(b) is inconsistent with any of the provisions of this Act as amended by the Amending Act, 1955, the Mamlatdar shall issue a notice in the prescribed form to the transferor, the transferee or the person acquiring such land, as the case may be, to show cause as to why the transfer or acquisition should not be declared to be invalid and shall hold an inquiry and decide whether the transfer or acquisition is or is not invalid:
[Provided that where the transfer or acquisition was in favour of the tenant in possession of the land and the area of the land so transferred together with the area of other land, if any, cultivated personally by the tenant did not exceed the ceiling area, such transfer or acquisition shall not be declared to be invalid if the tenant pays to the state Government a penalty of one rupee within such period not exceeding three months as the Mamlatdar may fix.] (2) If after holding such inquiry the Mamlatdar declares the transfer or acquisition to be invalid, he shall direct that the land shall be restored to the person from whom it wasacquired, and that the amount of consideration paid, if any, shall be recovered as an arrear of land revenue from the transferor and paid to the transferee and until the amount is so fully paid, the said amount shall be a charge on the land.
Page 14 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021
C/SCA/16875/2020 CAVJUDGMENT
(3) If the person to whom the land is directed to be restored
refuses to take possession of the land, the Mamlatdar shall, subject to the provisions of section 63A, dispose of the land by sale in the prescribed manner in the following order of priority:-- (i) the tenant in actual possession of the land if he is not the transferee, (ii) the persons or bodies in the order given in the priority list.
(4) The amount of price realised under subsection (3) shall subject to the payment of any encumbrances subsisting on the land, be paid to the 4[transfer or].
(5) If the transferee refuses to accept the amount paid to him under sub section (2) 1[or the transferor refuses to accept the amount paid to him under subsection (4)] the amount shall be forfeited to the State Government.] 84C. Disposal of land, transfer or acquisition of which is invalid.(1) Where in respect of the transfer or acquisition of any land made on or after the commencement of the Amending Act, 1955, the Mamlatdar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is or becomes invalid under any of the provisions of this Act, the Mamlatdar shall issue a notice and hold any inquiry as provided for in section 84B and decide whether the transfer or acquisition is or is not invalid. (2) If after holding such inquiry, the Mamlatdar comes to a conclusion that the transfer or acquisition of land to be invalid, he shall make an order declaring the transfer or acquisition to be invalid, [unless the parties to such transfer or acquisition give an undertaking in writing that within a period of three months from such date as the Mamlatdar may fix, they shall restore the land alongwith the rights and interest therein to the position in which it was immediately before the transfer or acquisition, and the land is so restored within that period]:
[Provided that where the transfer of land was made by the landlord to the tenant of the land and the area of the land so transferred together with the area of other land, if any, cultivated personally by the tenant did not exceed the ceilling Page 15 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021 C/SCA/16875/2020 CAVJUDGMENT area, the Mamlatdar shall not declare such transfer to be invalid
(i) if the amount received by the landlord as the price of the land is equal to or less than the reasonable price determined under section 63A and the transferee pays to the State Government a penalty equal to Re.1 within such period not exceeding three months as the Mamlatdar may fix;
(ii) if the amount received by the landlord as the price of the land is in excess of the reasonable price determined under section 63A and the transferor as well as the transferee pays to the State Government each a penalty equal to onetenth of the reasonable price within such period as may be fixed by the Mamlatdar.] (3) On the declaration made by the Mamlatdar under sub section (2),-- (a) the land shall be deemed to vest in the State Government, free from all encumbrances lawfully subsisting thereon on the date of such vesting and shall be disposed of in the manner provided in subsection (4); the encumbrances shall be paid out of the occupancy price in the manner provided in section 32Q for the payment of encumbrances out of the purchase price of the sale of land but the right of the holder of such encumbrances to proceed against the person liable, for the enforcement of his right in any other manner, shall not be affected;
(b) the amount which was received by transferor as the price of the land shall be deemed to have been forfeited to the State Government and it shall be recoverable as an arrear of land revenue; and
(c) the Mamlatdar shall, in accordance with the provisions of section 63A determine the reasonable price of the land.
(4) After determining the reasonable price, the Mamlatdar shall grant the land on new and impartible tenure and on payment of occupancy price equal to the reasonable price determined under subsection (3) in the prescribed manner in the following order of priority:--
(i) the tenant in actual possession of the land;Page 16 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021
C/SCA/16875/2020 CAVJUDGMENT
(ii) the persons or bodies in the order given in the priority list:
[Provided that where the transfer of land was made by the landlord to the tenant of the land and area of the land so transferred together with the area of the land, if any, cultivated personally by the tenant did not exceed the ceiling area then--]
(i) [if the amount] received by the transferor as the price of the land is equal to or less than the reasonable price, the amount forfeited under subsection (3) shall be returned to the transferor and the land restored to the transferee on payment of a penalty of rupee one in each case; and
(ii) [if the amount] received by the transferor as the price of the land is in excess of the reasonable price, the Mamlatdar shall grant the land to the transferee on new and impartible tenure and on payment of occupancy price equal to onetenth of the reasonable price and out of the amount forfeited under sub section (3), the transferor shall be paid back an amount equal to ninetenths of the reasonable price.] (5) The amount of the occupancy price realised under sub section (4) shall subject to the payment as aforesaid of any encumbrances subsisting on the land, be credited to the State Government:
Provided that where the acquisition of any excess land was on account of a gift or bequest, the amount of the occupancy price realised under subsection (4) in respect of such land shall, subject to the payment of any encumbrances subsisting thereon, be paid to the donee or legatee in whose possession the land had passed on account of such acquisition.
Explanation.--For any purposes of this section "new and impartible tenure" means the tenure of occupancy which is non transferable and nonpartible without the previous sanction of the Collector.]
50. Form of notice under section 84B(1). A notice to be issued by the Mamlatdar under subsection (1) of Section 84B shall be in Form XXII Page 17 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021 C/SCA/16875/2020 CAVJUDGMENT FORM XXII (SEE RULE 50) NOTICE TO BE ISSUED UNDER SUBSECTION (1) OF SECTION 84 B OF THE BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948 NOTICE Whereas it has been brought to my notice that the transfer / acquisition of the below mentioned land which has taken place during the period from 15th June 1955 to 31st July 1956 was in contravention of the provisions is consistent with the provisions of section 63/64 of the Bombay Tenancy and Agricultural Lands Act, 1948 as it stood before the 1st August 1956.
Whereas under the provisions of section 84B of the said Act, the said land is required to be restored after holding an inquiry to Shri from whom the land was acquired.
Now, therefore, I hereby call upon the transferor transferee viz. Shri.......................................... to appear person acquiring the said land before me in my office at ..........on.........to show cause as to why the said transfer/acquisition should not be declared to be invalid and the said land should not be restored to the said Shri.................................
Description of Land District Taluka Village Survey No. PotHissa No. Area Assessment A.g Rs. P. Date.............................
To Mamlatdar Page 18 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021 C/SCA/16875/2020 CAVJUDGMENT of.................... Shri"
9. Let this be answered on reading the impugned notice /10/2020 annexed to the petition. Reading Section 84C makes it evident that where in respect of a transfer or acquisition of any land made on or after the commencement of the Amending Act, 1955, the Mamlatdar has reason to believe that such a transfer or acquisition is invalid, the Mamlatdar shall issue a notice and hold inquiry as provided for in Sec. 84B. Rule 50 of the Rule says that has to be under subsection (1) of section 84B in Form XXII. Reading section 84B(1)(a) provides for within its fold contravention of Section 63 and Section 64 as it stood before the commencement of the amending Act of 1955.
The impugned notice especially paragraph 1 thereof clearly states that this is a notice under Section 84C of the Tenancy Act. The notice suggests that the transfer of land is in contravention of Section 84C of the Tenancy Act. The notice has to be in Form 22 which format is the same for both purposes i.e. For adjudication of transfers under Section 84B or Section 84C of the Tenancy Act. Therefore, the notice impugned in the petition though perceived by Page 19 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021 C/SCA/16875/2020 CAVJUDGMENT the petitioner under Section 84B of the Act is in fact a notice under Section 84C of the Tenancy Act, merely because the format mentions the names of the vendors that itself would not be a ground to presume it to be one under Section 84B. Ms. Nidhi Vyas, learned AGP, is right in her submission that even if it is assumed that is is issued under a wrong provision of law, it would not make it bad. Ms.Vyas, learned AGP, relies on para 15 of the decision in the case of M.T.Khan vs. Government of Andhra Pradesh, reported in 2004 (0) AIJEL SC 16216, which read as under:
"15 We are however, unable to agree withe the submission of Mr. Har Dev Singh to the effect that the appointments of Additional Advocate Generals cannot be traced to the source of the State's power under Art.162 of the Constitution of India. It is now wellsettled principles of law that nonmentioning or wrong mentioning of a provision of law does not invalidate an order in the event it is found that a power therefore exists."
10. Now coming to the question whether the notice issued on /10/2020 suffers from the jurisdictional defect for being issued beyond a reasonable time, there can be no dispute on the proposition of law canvassed by way of the decisions cited at the bar on the question of the court issuing a writ in cases where the notices have been issued on the ground of dealy of unreasonable period. The petitioner in this case has only annexed the notices dated /10/2020. A selective and suppressed pleading has been Page 20 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021 C/SCA/16875/2020 CAVJUDGMENT made at the hands of the petitioner to suggest that for the parcels of land Block No. 1343, the authority for the first time has issued the impugned notice, whereas for other block proceedings were initatied in 1994. Through the arguments advanced at the hands of the vendors who were not joined as party respondents and through the submissions of the learned Assistant Government Pleader notices dated 20.04.1994 and 27.02.2020 are placed on record. The petitioner therefore has suppressed this vital fact of a notice of 1994 earlier issued. The submission of unreasonable delay in the impugned notice therefore would have to be viewed in a different context. The Court, had the petitioner pleaded on ground of further proceedings being bad for not proceeding forward after 1994, could have taken a view, however a bold assertion made to believe that no proceedings except this first notice of /10/2020 was canvassed. A half baked truth cannot be countenanced at the hands of a party founding his case on delay. What is evident is that for this parcel of land after the first notice of 20.04.1994 no proceedings could be brought forward to a logical end like in case of other eight blocks. That may be a plausible argument on merits in the response to the notice and also a ground that if for other parcels of land proceedings under Section 84C have attained Page 21 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021 C/SCA/16875/2020 CAVJUDGMENT finality. In case of the petitioner, however, the court is not inclined to answer and exercise discretion in favour of the petitinoer on two counts, firstly for not coming clean on factual details of the earlier notices and secondly if the stand of the petitioner is that the present notice be dropped on the analogy of the other eight blocks, he can very well do so by filing records and submissions in response to the notice. The petitioner's contention that with the rest of the blocks since 84C proceedings have attained finality of course subject to its challenge at the hands of the vendor, all these contentions can be raised before the Mamlatdar who has issued a show cause notice and an appropriate direction can be rendered thereon.
11. As far the contention with regard to the society being exempted under Section 64A prior to its deletion, the same has been countered, both on behalf of the vendors by submitting that the exemption is not applicable to the petitioner society as interpreted in the decision in the case of Gandhi Park Co operative Housing Society (supra). Normally, when such an issue is raised and arguments are advanced on merit, a determination ought to be rendered. However, as in the present case, the Page 22 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021 C/SCA/16875/2020 CAVJUDGMENT petitioner's contention of exemption under Section 64A is available to be taken in its response to the show cause notice which is under challenge in this petition, the court would not want to adjudicate either way to prejudice the rights of either parties. The Mamlatdar can take an appropriate decision on this aspect as and when raised by the petitioner in reply to the show cause notice. Several other contentions and counter claims are raised by the parties which are pertaining to the termination and /or pendency of civil proceedings at the hands of the petitioner and the vendor. Similarly, in context of mutation proceedings an adjudication is pending consideration before this Court. Orders of this court in context of civil proceedings and the Supreme Court are shown. Even a civil suit at the hands of the petitioner is pending. These issues are best not decided in this petition where a challenge is to the show cause notice, lest it prejudices either parties in pending proceedings.
12. For all these aforesaid reasons, the petition is dismissed. As discussed in the judgment, civil application is allowed.
(BIRENVAISHNAV,J) BIMAL Page 23 of 23 Downloaded on : Tue Feb 16 00:56:21 IST 2021