Gujarat High Court
Heirs And Legal Heirs Of Deceased ... vs State Of Gujarat & on 10 March, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/11060/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11060 of 2015
with
SPECIAL CIVIL APPLICATION NO. 13024 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
==========================================================
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 copy of No the judgment ?
4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== HEIRS AND LEGAL HEIRS OF DECEASED MISRIMAL ASHARAM & 1....Petitioner(s) Versus STATE OF GUJARAT & 11....Respondent(s) ========================================================== Appearance:
Special Civil Application No.11060/2015:
MR MEHUL S SHAH, SENIOR ADVOCATE WITH MR HITESH N ACHARYA, ADVOCATE for the Petitioner(s) No. 1 - 1.6 , 2 - 2.4 MR VISHRUT JANI, ASSISTANT GOVERNMENT PLEADER for Respondent(s) No. 1 & 3 MR BB NAIK, SENIOR ADVOCATE WITH MR BHARAT JANI, ADVOCATE for the Respondent(s) No. 6 - 8.3 , 9 - 9.3 , 10 - 10.3 , 11 - 11.3 , 12 - 12.3 MR KK TRIVEDI, ADVOCATE, MR MAYANK K TRIVEDI, ADVOCATE for the Respondent(s) No. 4.1 - 4.5 Special Civil Application No.13024/2015: MR KK TRIVEDI, ADVOCATE for the Petitioner(s) No. 1 - 1.5 MR VISHRUT JANI, ASSISTANT GOVERNMENT PLEADER for Respondent(s) No.2,3 & 4 MR BB NAIK, SENIOR ADVOCATE WITH MR BHARAT JANI, ADVOCATE for the Respondent(s) No. 5 , 6.1 - 6.3 , 7.1 - 7.3 , 8.1 - 8.3 , 8.4.1 - 8.4.3 , 9.1 - 9.3 Page 1 of 47 HC-NIC Page 1 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT MR MEHUL S SHAH, SENIOR ADVOCATE WITH MR HITESH N ACHARYA, ADVOCATE for the Respondent(s) No. 10.1 - 10.6 , 12.1 - 12.4 NOTICE SERVED BY DS for the Respondent(s) No. 1 - 4 , 11.1 - 11.5 , 13 ========================================================== CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 10/03/2017 COMMON C.A.V. JUDGMENT
1. Rule. Learned counsel appearing for the respective respondents waive service of notice of Rule on their behalf. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petitions are being heard and decided finally.
2. Both these petitions under Articles 226 and 227 of the Constitution of India have been preferred against the judgment and order dated 10.02.2015, passed by the Gujarat Revenue Tribunal ("the GRT" for short) in Revision Application No. TEN/BA/177/09. In Special Civil Application No.11060/2015, the order dated 24.03.2009, passed by the Deputy Collector (Land Reforms), Gandhinagar, in Page 2 of 47 HC-NIC Page 2 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT Revision Application No.132/2005 with Appeal No.64/2006, is also under challenge.
3. As common and interconnected issues of fact and law are involved in the petitions and the parties are common, the petitions have been clubbed together and common arguments have been addressed by learned counsel for the respective parties.
4. For the sake of convenience, facts are taken and reference to parties is made, from Special Civil Application No.11060 of 2015.
5. Briefly stated, the facts giving rise to these petitions are that land bearing revenue Survey No.1207/2 situated at Village Ognaj, Taluka Daskroi, District Ahmedabad, originally belonged to Dishaji Jusaji Thakore. Before his demise, the said Dishaji Jusaji Thakore executed a Will dated
05.08.1983, bequeathing the land in question to Ramdayalchandra Hardayalchandra (whose heirs are impleaded as respondents Nos.5/1 to 5/5 in Special Civil Application Page 3 of 47 HC-NIC Page 3 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT No.11060/2015 and respondents Nos.11/1 to 11/5 in Special Civil Application No.13024/2015) and Bhanvarlal Champaklal (whose heirs are respondents Nos.4/1 to 4/5 in Special Civil Application No.11060/2015 and are the petitioners in Special Civil Application No.13024/2015). Dishaji Jusaji Thakore passed away on 06.10.1984 and upon his death, Revenue Entry No.2690 came to be mutated in the name of Ramdayalchandra Hardayalchandra and Bhanvarlal Champaklal, which was certified on 28.10.1986 after following the due procedure of the issuance of notices under section 135D of the then Bombay Land Revenue Code, 1879 ("the Code"), conducting an inquiry and recording the statement of the heirs and legal representatives of the testator and drawing up a Panchnama by the Deputy Mamlatdar (Revenue).
6. The Deputy Collector and Prant Officer (Land Reforms), Viramgam, in exercise of suo motu power under Section 76A of the Gujarat Page 4 of 47 HC-NIC Page 4 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT Tenancy and Agricultural Lands Act, 1948 ("the Tenancy Act"), initiated revision proceedings being RTS Case No.30/1990. As a result, Revenue Entry No.2690 dated 28.10.1986 came to be set aside. Aggrieved thereby, Ramdalaychandra Hardayalchandra and Bhanvarlal Champaklal filed a revision application No.93/1991 before the Collector, which came to be dismissed on 30.10.1991.
7. Another parcel of land bearing revenue Survey No.417/1 situated at Village Ognaj, Taluka Dascroi, was owned by Muljibhai Mohanbhai, who executed a Will dated 04.02.1986 in favour of Misrimal Asharam and Sheshmal Dhulaji (whose heirs are the petitioners in Special Civil Application No.11060/2015 and respondents Nos.10/1 to 10/6 and 12/1 to 12/4 in Special Civil Application No.13024/2015). Muljibhai Mohanbhai passed away on 10.07.1986 and Entry No.2718 dated 12.02.1987 came to be mutated in the revenue record in the names of Misrimal Asharam and Sheshmal Dhulaji, after following the due procedure.
Page 5 of 47 HC-NIC Page 5 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT
8. Misrimal Asharam and Sheshmal Dhulaji, the predecessors of the petitioners of Special Civil Application No.11060/2015 purchased land bearing Block No.356, 357, 358 and 359 of Village Jaspur, Taluka Kalol, District Gandhinagar, from Gopaldas Vithaldas Patel and Vithaldas Ranchhoddas Patel (respondents Nos.6 to 12 in Special Civil Application No.11060/2015, hereinafter referred to as Vendors) by executing two different registered Sale Deeds dated 03.06.1987. Revenue Entry No.1036 was mutated in respect of the said sale transaction and certified on 11.08.1987, with the endorsement that "the purchasers are agriculturists of Village Ognaj and the land purchased in Village Jaspur is situated within a periphery of eight kilometers. Similarly, Revenue Entry No.10377 also came to be mutated for the second Sale Deed and certified on 11.08.1987 with a similar endorsement.
9. After a lapse of more than seventeen years, the Vendors and their legal representatives Page 6 of 47 HC-NIC Page 6 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT challenged Revenue Entries Nos.1036 and 1037 by way of RTS Appeal No.51/2003, before the Deputy Collector and Prant Officer (Land Reforms), Gandhinagar. On 23.12.2003, the appeal filed by the Vendors came to be withdrawn. The Deputy Collector, while recording in his order dated 23.12.2003 that the appeal is withdrawn, also directed the Mamlatdar, Kalol, to inquire whether the purchasers were agriculturists or not, under Section 84C of the Tenancy Act. The Mamlatdar and ALT, Kalol, therefore, initiated proceedings under Section 84C of the Tenancy Act by way of Tenancy Case No.32/2004. After considering the material on record, the Mamlatdar and ALT, by an order dated 14.10.2004, dropped the proceedings under Section 84C by holding that the initiation of proceedings after a long period of seventeen years is not reasonable. It was further observed that the land of Block No.358 is not agricultural land.
10. The order dated 14.10.2004 of the Mamlatdar Page 7 of 47 HC-NIC Page 7 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT and ALT came to be taken in suo motu revision by the Deputy Collector (Land Reforms - Appeal), in Tenancy Revision Case No.132/2005. Simultaneously, on 11.10.2006, the Vendors and heirs of the Vendors through their Power of Attorney, filed Tenancy Appeal No.64/2006, against the order of the Mamlatdar dropping the proceedings under Section 84C of the Tenancy Act. The Deputy Collector consolidated the proceedings of Revision Applications Nos.132/2005 and 64/2006 and, by order dated 24.03.2009, set aside the order dated 14.10.2004 of the Mamlatdar and ALT, Kalol, and remanded the matters to him.
11. Aggrieved by this order, the petitioners filed Revision Application No.TEN/BA/177/2009 before the GRT, which has been rejected by the impugned judgment dated 10.02.2015, giving rise to the filing of the present petitions.
12. Mr.Mehul S. Shah, learned Senior Advocate Page 8 of 47 HC-NIC Page 8 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT with Mr.Hitesh N. Acharya, learned advocate for the petitioners, has appeared for the petitioners and advanced detailed submissions, as summarised below:
1) That the registered Sale Deeds have been executed in the year 1987 and, for the first time, notices under Section 84C of the Tenancy Act were issued on 12.04.2004. There is a gross and unreasonable delay of seventeen years in the initiation of proceedings for which there is no explanation, whatsoever. The proceedings had not been initiated by the Vendors, who have now jumped in to the legal arena. Initiation of proceedings after such an unreasonable delay is against the principles of law enunciated by the Supreme Court in the case of State of Gujarat Vs. Patel Raghav Natha and others reported in 1969(2) SCC 187 and a catena of judgments. The delay, therefore, is fatal in the facts of the present case.
2) The revenue entries pursuant to the Sale Page 9 of 47 HC-NIC Page 9 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT Deeds were mutated in the record after following due procedure and verification regarding the status of the petitioners as agriculturists. Endorsements to this effect were also made in the record. The evidence produced by the petitioners was scrutinised and not doubted, therefore, it can hardly lie in the mouth of the concerned authorities to take a different stand after such a long period of time.
3) By his order dated 23.12.2003, the Deputy Collector and Prant Officer permitted the appeal filed by the Vendors to be withdrawn, at the behest of the Vendors. The Deputy Collector, therefore, had no jurisdiction to order an inquiry into the agricultural status of the petitioners in proceedings that are withdrawn, and that too, after such an unreasonable period of time.
4) The aspect of delay had rightly weighed with the Mamlatdar when he closed the proceedings under Section 84C of the Code.Page 10 of 47
HC-NIC Page 10 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT
5) The Vendors, after willingly selling the land and pocketing the consideration, have no locus standi to challenge the sale transactions on the ground of the violation of Section 63 of the Tenancy Act, as per the wellsettled principles of law. The Vendors have entered into the sale transactions with open eyes. They have willingly pocketed the consideration and transferred their title in the land in question to the petitioners. Further, the Vendors have willingly withdrawn the RTS appeal. The above circumstances do not allow the Vendors to challenge the sale transaction before any judicial forum or obtain the benefit of getting the land back.
6) The petitioners had obtained other agricultural lands by Will and were agriculturists when they purchased the land in question. The issue is pending before the Supreme Court but there is no finality on the question till date.
7) Out of the parcels of land purchased by Page 11 of 47 HC-NIC Page 11 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT the petitioners, Block No.358 is Non Agricultural land. Therefore, qua this block, in any case, no order could have been passed under Section 84C of the Tenancy Act.
8) The impugned order of the GRT is beyond the scope of the challenge before it. What was challenged was an order of remand by the Deputy Collector, against which the petitioners were aggrieved. At the best, the revision application could have been dismissed and the remand order would have become operative and the matter would have been decided on merits. It was not open to the GRT, in the revision application filed by the petitioners (and not the Vendors) to travel beyond the scope of what was impugned before it.
9) It is a settled position of law that an appellate or revisional authority cannot decide a matter which is not yet finally decided. It was for the lower authorities to look into the rival cases and evidence and Page 12 of 47 HC-NIC Page 12 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT apply their minds. Under the circumstances, the GRT could not have passed a final order on merits.
13. On the above grounds, it is submitted that the impugned orders cannot be sustained and deserve to be set aside.
14. Mr.K.K.Trivedi, learned advocate for the petitioners in the connected petition has adopted the arguments advanced by Mr.Mehul S. Shah, learned Senior Counsel on behalf of the petitioners.
15. Mr.Bharat B. Naik, learned Senior Advocate, has appeared for respondents Nos.6 to 12 (the Vendors) with Mr.Bharat Jani, learned advocate, and has submitted that the impugned order of the GRT does not suffer from any infirmity as the petitioners claimed to have become agriculturists by Will and have entered into the second sale transaction on the basis of such status derived by the Will. The entries regarding the first sale transaction regarding the land at Ognaj have Page 13 of 47 HC-NIC Page 13 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT been cancelled and the transaction held to be invalid in the year 1991, therefore, the petitioners were not agriculturists when they entered into the second sale transaction at Jaspur, as rightly held by the Tribunal. Once the entries are cancelled, the petitioners cease to be agriculturists from the dates of the entries and cannot contend that when they purchased land at Jaspur, they were agriculturists at Ognaj. The order of the Mamlatdar setting aside the entry of the petitioners being agriculturists has not been challenged and attained finality.
16. It is submitted that the Tribunal has the power to do complete justice, therefore it has rightly modified the order of remand passed by the Deputy Collector and held that the Vendors be put into possession of the land in question.
17. It is further contended that there are findings of fact by the Tribunal against the petitioners regarding their status as Page 14 of 47 HC-NIC Page 14 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT agriculturists, and this Court may not interfere with such findings.
18. On the aspect of delay in the initiation of proceedings, as submitted on behalf of the petitioners, learned Senior Counsel for the Vendors submits that after the petitioners were shown to be agriculturists of village Ognaj, there was a change of Districts and Talukas and the Mamlatdar Kalol was not aware of the order of the Mamlatdar Dascroi passed in the year 1991, when the former issued notice to the petitioners regarding the land at village Jaspur. These proceedings were dropped, which led to a suo motu exercise of power by the Deputy Collector and an appeal being filed by the Vendors. The order dropping the proceedings was set aside and the matter was remanded. The delay has occurred as the Mamlatdar, Kalol, had no knowledge of the proceedings initiated by the Mamlatdar, Dascroi, therefore, such delay would not adversely affect the case of the Vendors and the contention based on this Page 15 of 47 HC-NIC Page 15 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT ground would not be available to the petitioners.
19. It is contended that the petitioners ought to have informed the Mamlatdar, Kalol, of the order passed by the Mamlatdar, Dascroi, which was not done by them.
20. It is further submitted that the Vendors reside at Kalol and were not aware of the order of the Mamaltdar, Dascroi, passed in the year 1991, therefore, in the present case, delay cannot be a ground for setting aside the order of the Mamlatdar and the order of the GRT confirming such order.
21. Regarding the locus standi of the Vendors to file an appeal, it is submitted that apart from the appeal filed by the Vendors against the order of the Mamlatdar dropping the proceedings, the Deputy Collector had also initiated suo motu proceedings. Though such proceedings ended in an order of remand, the GRT has rightly decided the matter and held the petitioners not to be agriculturists and Page 16 of 47 HC-NIC Page 16 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT directed the possession of the land be handed over to the Vendors. The GRT has the power to do complete justice and has correctly exercised the jurisdiction available to it by setting aside the revenue entries of the petitioners.
22. In support of his submissions regarding the delay in the initiation of proceedings, Mr.Bharat B. Naik, learned Senior Counsel for the Vendors has relied upon a judgment of the Supreme Court in the case of B.S.Sheshagiri Setty And Others v. State of Karnataka And Ors. (2016)2 SCC 123, wherein it is held as below:
"28. If a statute does not prescribe the timelimit for exercise of revisional power, it must be exercised within a reasonable time frame. In the instant case, it is evident that constant litigation has been carried on by the appellants, and therefore they cannot be accused of suddenly waking up after 13 years to claim their land. Further, in the context of limitation, it has been held Page 17 of 47 HC-NIC Page 17 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT by this Court in a catena of cases that when what is at stake is justice, then a technical or pedantic approach should not be adopted by the Courts to do justice when there is miscarriage of justice caused to a public litigant."
23. In rejoinder to the contentions raised on behalf of the Vendors, Mr.Mehul S. Shah, learned Senior Counsel for the petitioners has submitted that the judgment in the case of B.S.Sheshagiri Setty And Others v. State of Karnataka And Ors. (supra), relied upon by the Vendors, also speaks of a reasonable timeframe for the initiation of proceedings and seventeen years cannot be said to fall within the definition of a reasonable frame of time. It is submitted that there has to be same material on record to show that there was sufficient cause to condone the delay. Only then can the concept of reasonable time frame be decided. In the present case, no grounds, whatsoever, exist to explain the delay, leave alone sufficient cause being shown. There is nothing on record to show Page 18 of 47 HC-NIC Page 18 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT that the Mamlatdar, Kalol, was not aware of the order of the Mamlatdar, Dascroi, as is now being submitted on behalf of the Vendors. Such a submission at this stage cannot be accepted.
24. On the point of what constitutes a reasonable period of time, learned Senior Counsel for the petitioners has relied upon the judgment of the Supreme Court in the case of Joint Collector Ranga Reddy District And Another v. D. Narsing Rao And Others - (2015)3 SCC 695, wherein it is held as under:
"25. The legal position is fairly well settled by a long line of decisions of this Court which have laid down that even when there is no period of limitation prescribed for the exercise of any power revisional or otherwise such power must be exercised within a reasonable period. This is so even in cases where allegations of fraud have necessitated the exercise of any corrective power. We may briefly refer to some of the decisions only to bring home the point that the absence Page 19 of 47 HC-NIC Page 19 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT of a stipulated period of limitation makes little or no difference insofar as the exercise of the power is concerned which ought to be permissible only when the power is invoked within a reasonable period.
... ... ...
31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of thirdparty rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent Page 20 of 47 HC-NIC Page 20 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority."
25. Another judgment relied upon by learned Senior Counsel for the petitioners is that of the Division Bench of this Court in the case of Bharatbhai Naranbhai Vegda & Ors. v. State of Gujarat & Ors. 2016(2) GLR 1021, wherein, on the aspect of delay, it has been held as below: "10. In our view, the above referred well considered two decisions of this Court makes the position abundantly clear that if the action is to be initiated for setting aside of a transaction under the Ordinance by invoking section 54 read with section 75 of the Ordinance, it has to be within reasonable period. The above referred two decisions are in respect of the cases wherein the powers were exercised and proceedings were initiated after 5 years and 17 years respectively, whereas in the present Page 21 of 47 HC-NIC Page 21 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT case, it is after more than 35 years. Hence, we find that the initiation of the action itself can be said as beyond reasonable period and the bar of delay and laches could operate against the authority in initiation of the action. The aforesaid aspect is coupled with two additional circumstances, one is that the land has changed hands further during the period of delay and the ownership is transferred by the purchaser to the another person and the second is that the revenue entries were mutated. Thereafter, they were also certified by the competent authority and in spite of that, no action was taken for cancellation of such entry or otherwise or even for declaration of the transaction as invalid within reasonable period. If during the period of delay, the rights of the parties in the properties are altered, the delay would operate as a bar with more gravity and when the ownership is changed during the period of delay, the bar for not taking action within reasonable period would also operate with more gravity against the authority in initiation of the action."
26. On the aspect of the locus standi of the Page 22 of 47 HC-NIC Page 22 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT Vendor to challenge the entries of sale, the Division Bench held that:
"16. Examining the matter further, it appears that it is an admitted position that the father of the respondent no.5 after having accepted the consideration, has executed the sale deed and during his life time, he did not raise any grievance for the validity of the transaction nor did he contend that he was under a mistaken belief at the time when the sale deed was executed, but now having realised the said mistake, he is ready to return the consideration. Further, respondent no.5 has also filed Civil Suits after death of his father which are pending in the Civil Court where the rights of the parties are yet to be examined. Under these circumstances, it can be said that when the respondent no.5 originated the Government machinery, the bona fide would be lacking since one who is a party to the transaction cannot be heard to say at a later stage that the transaction is not valid that too after a period of about more than 35 years. In any case, respondent no.5 had moved the authority and the Page 23 of 47 HC-NIC Page 23 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT impugned action of issuance of show cause notice has been taken, but when the Court considers the aspect of reasonable period and finds that the exercise of the jurisdiction was barred by delay and the consequential action could be said as without jurisdiction, the question of locus on the part of respondent no.5 may not assume much importance."
27. Learned Senior Counsel for the petitioners has further placed reliance upon a judgment of this Court in the case of Rinki Shashikant Gandhi v. Mamlatdar, Vadodara Taluka & Ors. 2012(2) GLR 1275, to buttress his submissions on the aspects of delay and the locus standi of the Vendors. The relevant extracts of the judgment are reproduced below:
"20. Considering the above legal and factual aspects of the matter, this Court has no hesitation in concluding that respondent No.4 is not a 'person aggrieved' by the sale transaction. The said respondent is a willing party to the Sale Deed and cannot be permitted Page 24 of 47 HC-NIC Page 24 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT to take advantage of his own wrong. He, therefore, had no locus standi to file an appeal after an unreasonable period of time, against the mutation entry evidencing the sale transaction.
... ... ...
25. The culmination of the above discussion, in light of the judicial pronouncements and reasons stated hereinabove, leads this court to the following conclusions:
(1) The proceedings initiated by the vendor, respondent No.4, after four years of execution of the sale transaction and five years of the registration thereof, suffer from delay, having been instituted after an unreasonably long period of time. As such, the Collector could not have acted upon those proceedings by passing the impugned order.
(2) Respondent No.4, being the vendor of the land in question has no locus standi to challenge the entry of sale, in respect of a transaction to which he was a willing party, after pocketing the sale consideration. Under these circumstances, respondent No.4 is not an aggrieved person and cannot be permitted to take undue advantage of his own wrong...."
28. In the case of Rameshbhai Ambalal Shah v.
State of Gujarat & Anr. 2011(3) GLR 2587, a Page 25 of 47 HC-NIC Page 25 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT Division Bench of this Court examined the concept of "reasonable period of time" for exercising suo motu powers in cases where no period of limitation is prescribed by the statute and held as below:
"17. It is clear from the various judgments of the Hon'ble Supreme Court that where a statute provides any suo motu power of revision without prescribing any period of limitation, the power must be exercised within a reasonable time and what is 'reasonable time' has to be determined on the facts of each case. While exercising such power, several factors need to be kept in mind such as effect on rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bona fide transfers, the orders attaining finality under the provisions of other Acts (such as Land Ceiling Act) etc. Even the two judgments of the Supreme Court which have been relied upon by the learned counsel for the appellants explain the same principles of law that a reasonable period would be taken upon the factual circumstances Page 26 of 47 HC-NIC Page 26 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT of the concerned case. There cannot be any empirical formula to determine the question. The Court/authority considered the question whether the period is reasonable or not as to take into account surrounding circumstances and the relevant factors to decide that question. In the present case, we find that the original owner i.e. the appellants very consciously entered into a transaction way back in the year 1970 and sold land to respondent No.1.
It is not their case that at the relevant point of time they were mislead by respondent No.1 herein in any manner or that any fraud was played upon them by respondent No.1 in entering into the transaction and on their own free will and volition they executed the sale deed in favour of the respondent No.1 and accepted the sale consideration. No steps were taken by them for a period of almost 15 years and it is only when the Mamlatdar and ALT, Gandhinagar thought fit to take transaction in suomotu review that all of a sudden a thought came in the mind of the appellants to say that the transaction was illegal or invalid and now the land should be restored to them as it is."
Page 27 of 47 HC-NIC Page 27 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT
29. On the aspect whether the Vendor can be held to be an aggrieved person so as to justify the restoration of land in his favour, the Division Bench held that:
"18. Secondly, apart from the issue of reasonable time or reasonable period, what is that legal right in favour of the appellants herein to claim that the land should be restored in their favour? We have answered this issue quite elaborately in an identical case while deciding Letters Patent Appeal No.433 of 2011 on 28.04.2011 wherein, we have observed as under: "We are of the view that the learned Single Judge has rightly rejected the petition on the ground that the appellants have no locus standi and, therefore, no relief can be granted in favour of a transferor who himself has violated the provisions of law by entering into a transaction.
We are of the view that the position of law is very clear. Firstly, to maintain a petition under Article 226 or 227 of the Constitution of India, the party aggrieved must show that any of his fundamental rights or any other legal rights have been infringed and thereby the party is aggrieved by such infringement. Who can be said to be "a person aggrieved" ? One of the meanings is that "a person will be held to be aggrieved by a decision", if that Page 28 of 47 HC-NIC Page 28 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved". Again a person is aggrieved, if a legal burden is imposed upon him. Can it be said that the appellants would fall within the words "persons aggrieved" or "a person who has a genuine grievance because an order has been made which prejudicially affects his interest". On the contrary, this is an appeal by persons who are trying to take advantage of their own wrong. The maxim: "Nullus commodum capere potest de injuria sua propria"
(No man can take advantage of his own wrong) is very much applicable in the facts and circumstances of the present case. The maxim: "Nullus commodum capere potest de injuria sua propria"
(No man can take advantage of his own wrong) is one of the salient tenets of equity. The appellants cannot secure the assistance of a court of law for enjoying the fruit of their own wrong.
We may refer the decision of the Supreme Court explaining this principle of law, in the matter of Union of India and others v/s. Major General Madan Lal Yadav [Retd.], reported in (1996)4 SCC
127. In paragraph 28, the Supreme Court observed as under:
"In this behalf, the maxim nullus commodum capere potest de injuria sua propria meaning no man can take advantage of his own wrong squarely stands in the way of avoidance by the respondent and he is estopped to plead bar of limitation contained in Section 123(2). In Broom's Legal Maximum [10th Edn.] at page 191 it is stated:Page 29 of 47
HC-NIC Page 29 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT ...it is a maxim of law, recognized and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognized in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure."
The reasonableness of the rule being manifest, we proceed at once to show its application by reference to decided cases. It was noted therein that a man shall not take advantage of his own wrong to gain the favourable interpretation of the law. In support thereof, the author has placed reliance on another maxim frustra legis auxilium invocat quaerit qui in legem committit. He relies on Perry v. Fitzhowe [(1846)8 Q.B. 757]. At page 192, it is stated that if a man be bound to appear on a certain day, and before that day the obligee puts him in prison, the bond is void. At page 193, it is stated that "it is moreover a sound principle that he who prevents a thing from being done shall not avail himself of the non performance he has occasioned". At page 195, it is further stated that "a wrong doer ought not to be permitted to make a profit out of his own wrong". At page 199 it is observed that "the rule applies to the extent of undoing the advantage gained where that can be done and not to the extent of taking away a right previously possessed'."
30. Expounding on the Latin maxim of "in pari delicto", the Division Bench held as below:
"19. We may now deal with last and important contention as regards the Page 30 of 47 HC-NIC Page 30 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT parties in paridelicto. This term "in paridelicto" as explained by Blacks Law Dictionary is as under: "in pari delicto : [Latin "in equal fault] Equally at fault: the court denied relief because both parties stood in pari delicto. (Cases: Action 4; Equity) In pari delicto doctrine: [Latin] (1917) The principle that a plaintiff who has participated in wrongdoing may not recover damages resulting from the wrongdoing. [Cases: Action 4;
Contracts : 139: Equity65.]"
20. The principle that the Courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud as expressed in the maxim "in paridelicto potior est conditio defendentis".
... ... ...
22. As explained by Law Lexicon;
"In pari delicto. In equal fault ; equally culpable or criminal ; in a case of equal fault or guilt. A person who is in pari delicto with another differs from a paricepes criminis in this, that the former term always includes the latter, but the letter does not always include he former. (Black's Law Dict.) Where both parties are equally at Page 31 of 47 HC-NIC Page 31 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT fault, the condition of the possessor (or defendant) is the stronger. (Latin for Lawyers).
In pari delicto potior est conditio possidentis.
Where the parties are equally in the wrong. The condition of the possessor is better. Where a certain person transferred her land to a near relative benami in order to defeat her creditor and continued in possession of the same for a long period and subsequently the heirs of the benamidar turned her out of possession by asserting their rights and the rightful owner brought a suit for a declaration of her title and for possession and mense profits, held that the original transfer was tainted with fraud and that the maxim in pari delicto potior est conditio possidentis would apply to the case. Held on the facts that the original owner was entitled to the possession of the property, for damages and mense profits but not for a declaration of her title to the land."
23. Even if now, so far as the three classes as explained by the Supreme Court are concerned, the only class which the appellants herein may be able to invoke is that the contract if it is illegal by statute in the interest of a particular class of persons of whom seller of the land is one, then as per this contention, the seller is relieved of the consequences of an illegal contract into which he has entered and Page 32 of 47 HC-NIC Page 32 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT the maxim of paridelicto will not apply. We are afraid it is not as easy as contended by the learned counsel for the appellants to accept this because if restoration of possession is to be made at the instance of the seller of the property, then 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. 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 Page 33 of 47 HC-NIC Page 33 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT 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 invalid. 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."
31. On the aspect of the locus standi of the Vendor to question the sale transaction to which he was a willing party after having protected the sale consideration, another Division Bench of this Court, in the case of Gulabbhai Ravjibhai Patel v. Badriprasad Vithalrao Bende & Ors. 2011(3) GLR 2472, has held that the seller cannot be permitted to say that the sale transaction was in breach of the provisions of the Tenancy act Page 34 of 47 HC-NIC Page 34 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT and cannot take advantage of his own wrong.
32. Mr.Vishrut Jani, learned Assistant Government Pleader appearing for respondent No.1, State of Gujarat and respondent No.3, The Deputy Collector, Land Reforms, has supported the impugned judgment of the GRT (which is formally impleaded as respondent No.2) by submitting that the delay in the initiation of the proceedings cannot defeat the legal issues arising in the case and that the order dated 30.10.1991 of the Mamlatdar, Dascroi, setting aside the entries of the petitioners has not been challenged by the petitioners and has attained finality.
33. Regarding the above stand taken before this Court by the learned Assistant Government Pleader, it has been pointed out by Mr.Mehul S. Shah, learned Senior Counsel for the petitioners, that this stand is not in consonance with the stand taken by the State Government before the GRT as, at that stage, the State Government had supported the order Page 35 of 47 HC-NIC Page 35 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT of the Deputy Collector that was impugned before the GRT, which was an order of remand where no issue between the parties had been finally decided.
34. A perusal of the impugned judgment of the Tribunal, indeed, reveals that the stand of the State Government there was that it supports the order of the Deputy Collector whereby the matter had been remanded for fresh consideration, which part of the order has been set aside by the GRT. There is no doubt that the impugned order passed by the GRT goes beyond the order of the Deputy Collector that it has been set aside, therefore, one wonders why the State Government has changed its stand at this stage to match that taken by the Vendors.
35. In the above factual and legal background, this Court has heard learned counsel for the respective parties at length, perused the averments made in the petition and the documents on record.
Page 36 of 47 HC-NIC Page 36 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT
36. It is an admitted position that the land situated at Village Ognaj was inherited by the petitioners by way of a Will executed by Muljibhai Mohanbhai on 04.02.1986. The testator died on 10.07.1986, and the names of the petitioners were mutated in the revenue record vide Entry No.2718 after following the due procedure as envisaged under the Code. Thereafter, the land situated at Village Jaspur was purchased by the petitioners vide registered Sale Deed dated 03.06.1987 and Entries Nos.1036 and 1037, for different blocks, came to be mutated in the revenue record. Both these entries were certified with the observation that the petitioners were agriculturists of Ognaj Village and had purchased the land of Jaspur village which was in the periphery of eight kilometers.
37. It is also a matter of fact that a challenge to the abovementioned revenue entries was raised by none other than the Vendors who had, with full knowledge of the facts and with full willingness, executed the Sale Page 37 of 47 HC-NIC Page 37 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT Deeds in favour of the petitioners. Needless to state, it is an admitted fact that the Vendors have disputed the said revenue entries of the sale transactions after having conveniently pocketed the full consideration and being divested of their right and title over the land sold by them to the petitioners.
38. Not only did the Vendors challenge the revenue entries regarding the sale of land by their own selves to the petitioners, they thought of doing so after seventeen long years. In this factual scenario, the submissions advanced by learned Senior Counsel for the petitioners, regarding the delay in the initiation of the proceedings and the locus standi of the Vendors to raise a challenge to the entries in question, assume significance.
39. We may now examine the facts of the case in light of the principles of law laid down in the judgments relied upon by learned counsel Page 38 of 47 HC-NIC Page 38 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT for the respective parties, the relevant extracts of which have been reproduced hereinabove.
40. On the aspect of delay, the consistent stand taken by the Supreme Court and this Court is that where the statute does not prescribe any period of limitation, proceedings should be taken within a reasonable period. What would be considered a reasonable period can be determined with regard to the lapse of time between the knowledge of the alleged irregularity and the exercise of power. As stated by the Supreme Court in the case of Joint Collector Ranga Reddy District And Another v. D. Narsing Rao And Others (supra), "delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs which is not the policy of law"
(Paragraph 31 of the judgment). The Supreme Court goes on to say that delay can lead to Page 39 of 47 HC-NIC Page 39 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT the creation of third party rights that cannot be trampled by a belated exercise of a discretionary power "especially when no cogent explanation for the delay is in sight". Though there are no third party rights involved in the present case, however, the delay of seventeen years is quite an enormous one. More so, it is totally unexplained. No cogent explanation, leave alone sufficient cause, has been proferred by the Vendors and the revenue authorities for the late initiation of the proceedings. The attempt on the part of learned Senior Counsel for the Vendors to put together an explanation regarding the change of Districts and Talukas and that the Mamlatdar, Kalol, did not know what the Mamlatdar, Dascroi, had done, derives no support from the record. It does not appear that such an explanation was ever put forth by either the Vendors or the State authorities, at any stage. This explanation is sought to be made at this belated stage before this Court and is Page 40 of 47 HC-NIC Page 40 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT absolutely unconvincing and unbelievable. It is preposterous to assume that the revenue authorities would have no knowledge of the revenue records pertaining to the entries mutated, whether in one Taluka or District or another. The revenue record would remain constant and available to the authorities.
This Court is in agreement with the submissions advanced by learned Senior Counsel for the petitioners in this regard and is unable to agree with the submissions of Mr.Bharat B. Naik, learned Senior Advocate for the Vendors.
41. The judgment in the case of B.S.Sheshagiri Setty And Others v. State of Karnataka And Ors. (supra), relied upon by the Vendors supports the case of the petitioners, as it speaks of a reasonable period of time.
42. The culmination of the above discussion is that this Court is of the view that the GRT was in error in passing the impugned order without taking into consideration the Page 41 of 47 HC-NIC Page 41 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT relevant aspect of delay. The Mamlatdar, Kalol, had rightly dropped the proceedings vide his order dated 14.10.2004 by holding that the initiation of proceedings under Section 84C of the Tenancy Act (pursuant to the order of the Deputy Collector) after a long period of seventeen years, is not reasonable.
43. The initiation of suo motu proceedings by the Deputy Collector thereafter and the appeal preferred by the Vendors are grossly belated as per settled legal principles laid down by the Supreme Court. The challenge of the Vendors, therefore, cannot be sustained on the ground of delay alone.
44. In the judgments referred to hereinabove, the locus standi of the Vendors to challenge the entires of the sale transactions willingly entered into by them, after warming their pockets with the full consideration for the sale, has also been discussed. It has been consistently held by this Court that the Page 42 of 47 HC-NIC Page 42 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT Vendor cannot be permitted to say that the sale transaction that he entered into without demur, after pocketing good money, is allegedly in breach of a statutory provision of an enactment. To say so after entering into the transaction with full knowledge and open eyes would give rise to the question whether there is some ulterior motive of gain on the part of the vendor. In the present case, the GRT has legally erred in not considering the law laid down by this Court in this regard as well but has gone to the extent of directing that the possession of the land be handed over to the Vendors. Such directions are in total disregard of the settled position of law on the aspects of delay and locus standi of the Vendors.
45. There is another facet of the matter, which is, that the Vendors had withdrawn their appeal before the Deputy Collector, which fact is undisputed. After having withdrawn the appeal and given up their challenge to the revenue entries in question, the Vendors Page 43 of 47 HC-NIC Page 43 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT were no longer entitled to pick up the gauntlet of the same challenge again. The Vendors are indulging in shifting stands, which cannot be countenanced by the Court. They cannot be permitted to approbate and reprobate and blow hot and cold, in the same breath.
46. It deserves mention that the order of the Deputy Collector challenged before the GRT is an order of remand, wherein no final decision had been taken on any issue arising in the petition. The GRT was exercising power under Section 76 of the Tenancy Act, which reads as below:
"76. Revision (1) Notwithstanding anything contained in the Bombay Revenue Tribunal Act, 1957 (Bom.XXXI of 1958), an application for revision may be made to the Gujarat Revenue Tribunal constituted under the said Act against any order of the Collector except an order under section 32P or an appeal against an order under subsection (4) of section 32G on the following grounds only :--Page 44 of 47
HC-NIC Page 44 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT
(a) that the order of the Collector was contrary to law,
(b) that the Collector failed to determine some material issue of law, or
(c) that there was a substantial defect in following the procedure provided by this Act or that there has been failure to take evidence or error in appreciating important evidence which has resulted in the miscarriage of justice.
(2) In deciding applications under this section the Gujarat Maharashtra Revenue Tribunal shall follow the procedure which may be prescribed by rules made under this Act after consultation with the Gujarat Revenue Tribunal."
47. It can exercise revisional jurisdiction on the limited grounds mentioned in the above provision if it finds the order of the Collector to be contrary to law, where the Collector had failed to determine a material issue of law or where there is a substantial procedural defect. The order under challenge before the GRT was an order of remand to which none of the above contingencies were applicable as it was not a final order of determination. The GRT definitely has the Page 45 of 47 HC-NIC Page 45 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT power to set aside the order but not to go beyond the order and give a final conclusion to issues on which no final opinion has been pronounced by the Deputy Collector. The concept of "substantial justice" does not occur in Section 76 of the Tenancy Act and cannot be pleaded on the part of the Vendors to enlarge the scope of the jurisdiction of the GRT, beyond what is conferred upon it by the statute. The submission on behalf of the Vendors, therefore fails.
48. In conclusion, this Court is of the view that examined from all angles, on the touchstone of settled principles of law, the petitions deserve to succeed.
49. Accordingly, the petitions are allowed. The impugned judgment of the GRT dated 10.02.2015 in Revision Application No.TEN/BA/177/2009 (under challenge in each case) and the order dated 24.03.2009 of the Deputy Collector (Land Reforms), in Revision Application No.132/2005 with Appeal No.64/2006 (under Page 46 of 47 HC-NIC Page 46 of 47 Created On Sat Mar 11 00:17:30 IST 2017 C/SCA/11060/2015 CAV JUDGMENT challenge in Special Civil Application No.11060/2015), are set aside.
50. Rule is made absolute in each petition.
Parties to bear their own costs.
(SMT. ABHILASHA KUMARI, J.) sunil Page 47 of 47 HC-NIC Page 47 of 47 Created On Sat Mar 11 00:17:30 IST 2017