Gujarat High Court
State Of Gujarat vs Shree Sachin Udhyognagar Sahkari ... on 19 September, 2003
Equivalent citations: (2004)1GLR381
Author: K.A. Puj
Bench: K.A. Puj
JUDGMENT
1. The present group of petitions are filed by the State of Gujarat, through its Deputy Collector, Choryasi Prant, Surat, under Article 227 of the Constitution of India praying for quashing and setting aside the order dtd. 29.02.1996 passed by the Gujarat Revenue Tribunal in 89 Revision Applications being TEN B.S. 229/93 to 261/93, 317/93 to 345/93, 66/94, 114/94, 249/94 to 263/94, 275/94, 131/95, 132/95 and 151/95 to 157/95, whereby the Tribunal has allowed all the aforesaid 89 Revision Applications filed by the present respondent No.1 i.e. Shri Sachin Udyognagar Sahkari Mandali Ltd., Surat, quashing and setting aside the orders of Deputy Collector, Choryasi Prant, Surat and Deputy Collector (L.R.), Surat.
2. It is the case of the petitioner that the respondent No.1 Society was formed for the exclusive object and purpose of setting up an industrial township in the area covering the villages Sachin, Vanz, Lapore, Popada and Bhatia in Choryasi Taluka of Surat District. At the relevant point of time, the areas which the said Society sought to develop as an industrial area was in the agricultural zone and the entire lands in the said area were agricultural lands. It is the say of the petitioner that without complying with certain relevant and important statutory requirements as laid down in the Bombay Tenancy & Agricultural Lands Act, 1948 (hereinafter referred to as the "Tenancy Act"), it was not permissible for the said Society to purchase the agricultural land in the said areas from the agriculturists. It is further stated that despite this fact, the said Society upon its registration and enrolling 1700 members for allotment of proposed industrial sheds, started purchasing a huge area of agricultural lands during the period from 1980 to 1984 and started getting the possession of such lands under the Agreements for sale. The said Society has also spent about Rs. 19,96,200/= towards the registration of the sale documents. It is further stated that neither the vendors of the said agricultural lands nor the respondent No.1 purchaser Society had sought any prior permission from the state authorities with regard to the said purchases. At the time when such purchases were made by the respondent Society, the area covering the said agricultural lands was not notified as "Industrial Zone."
3. It is further stated that in the year 1985, Additional Mamlatdar and ALT (Ceiling), Choryasi, had initiated suo motu inquiry under Section 84C of the Tenancy Act by issuing notices to the respective vendors of different parcels of land and also to the respondent No.1 society for the purpose of holding an inquiry into the legality vis-a-vis Section 63 of the Tenancy Act, of the various sales, executed / effected by the vendors in favour of the said Society and also for the purpose of holding inquiry as to whether there was any breach of Section 2(6) of the Tenancy Act.In the said proceedings, the respondent No.1 filed its written reply and contended that in view of the provisions contained in Section 64A of the Tenancy Act, the sales were lawful and in order and that there was no breach of Section 2(6) of the Tenancy Act and requested for withdrawal of the notices issued to the Society. However, the Additional Mamlatdar and ALT vide his orders passed on different dates had held that there was a breach of the Provisions of Section 63 of the Tenancy Act and as the parties were not agreeable for the restoration of the lands to the position obtained immediately before the sales in question, the lands in question were ordered to be forfeited to the State Government.
4. Being aggrieved by the said orders of the Additional Mamlatdar & ALT, the respondent No.1 Society and other respective vendors have preferred separate Tenancy Appeals before the Deputy Collector, Choryasi Prant, Surat / Deputy Collector (L.R.) Surat. All these appeals were dismissed and the orders passed by the Additional Mamlatdar & ALT were confirmed by the Appellate Authorities.
5. Being further aggrieved by the said orders of the appellate authorities, the respondent No.1 Society had filed in all 89 Revision Applications before the Gujarat Revenue Tribunal, under Section 76 of the Tenancy Act and the Tribunal, vide its common judgment and order dtd.29.02.1996 have allowed all these Revision Applications and quashed and set aside the orders passed by the appellate authorities.
6. It is this common order and judgment of the Tribunal which is under challenge in all these 89 petitions.
7. Mr. A.D.Oza, learned Government Pleader appearing for the petitioner in all these 89 petitions, before he addresses the Court on merits of the matter, was asked to explain as to why there is gross delay of more than seven years in preferring all these 89 petitions before this Court. In reply to this, he has drawn the attention of the Court to para 7 of the petition. It has been admitted by him that there is considerable delay in filing the present petitions. However, the said delay was neither deliberate nor intentional. It is further stated that the impugned order and judgment of the Tribunal came to be received by the office of the Deputy Collector, Choryasi Prant, Surat on 14.03.1996 and thereafter it was sent to the office of the Additional Mamlatdar and ALT on 10.04.1996 for necessary action. It was further stated that the Collector vide his letter dtd. 16.12.1996 advised the Deputy Collector to take appropriate action for challenging the impugned judgment and order and for that purpose, the case papers were sent to the office of the Additional Mamlatdar & ALT on 22.04.1997 for further follow up action. It is further stated that due to the unforeseen heavy work load in the office of the Addl. Mamlatdar & ALT as also in the office of the Deputy Collector, Choryasi Prant, in the wake of extraordinary events like floods, heavy rains, elections to the State Assembly and the Lok Sabha resulting in the drafting of the majority of work force to these unavoidable tasks, necessary actions could not be taken by the concerned authorities during the period from March 1997 to August 2001, for challenging the impugned judgment and order before this Court. It is further stated that in September 2001, by letter dtd. 13.09.2001, the matter was taken up with the Revenue Department, which in turn vide its letter dtd. 24.09.2001, advised the local authorities to expedite the filing of an appropriate writ petition before this Court and accordingly, the legal department, vide its letter dtd. 07.09.2002 addressed a letter to the Government Pleader's Office attached to this Court and the Govt. Pleader's Office vide its letter dtd. 13.09.2002 advised the Deputy Secretary, Revenue Department, Gandhinagar to arrange to send all the concerned papers and documents for necessary action in the matter. It is further stated that the office of the District Collector, Surat by its letter dtd. 19.10.2002 addressed a letter to the Govt. Pleader's Office instructing the office to draft an appropriate writ petition to be filed before this Court and it was only in the Month of May, 2003 that the Govt. Pleader's Office came to be supplied with some of the background papers. However, due to the summer vacation and AGPs remaining away from head quarters, necessary action for drafting all the writ petitions could not be taken up on hand till 16.06.2003. It is further stated that on reopening of the Court, the papers as supplied to the Govt. Pleader's Office were perused by the concerned AGPs and it was found that the important / crucial documents such as the orders passed by the authorities below, the Revision Applications filed by the respondent No.1 and others as also the written statements, if any, filed by the State of Gujarat before the Tribunal have not been supplied. Hence, on being informed by the concerned AGP, the office of the Deputy Collector, Choryasi Prant, immediately made an application to the Tribunal on 09.07.2003 requesting for issuance of the copy of the said documents to facilitate the drafting of the writ petitions. Upon receipt of the copies of the said documents from the Tribunal in the second week of July 2003, the Office of the Deputy Collector, Choryasi Prant, Ahmedabad had forwarded the same to the concerned AGP in the 3rd week of July, 2003 and thereafter, the draft petition as prepared by the concerned AGP came to be received by the Office of the Deputy Collector in the 2nd week of August 2003 and after necessary vetting and approval, the finally drafted writ petitions were got engrossed & affirmed and the same are filed in the registry on 25.08.2003.
8. In the above background of the matter, Mr. A.D. Oza has submitted that the delay involved in filing all these petitions deserves to be condoned in public interest as otherwise the public exchequer would be deprived of its legitimate entitlement to receive from the respondent No.1 / original owner, a huge amount of Rs.1,80,07,520.30 as per prevalent Jantri, towards premium in respect of new tenure lands which the respondent No.1 Society has purchased from the agriculturist in gross violation of the statutory provisions of the Tenancy Act.
9. As far as the merits of the matters are concerned, Mr. Oza has submitted that the impugned judgment and order passed by the Tribunal is contrary to law and patently illegal and null and void as the Tribunal has not taken into consideration the premium payable by the seller / transferor to the State Govt. as Section 43 of the Tenancy Act makes it abundantly clear that new tenure lands cannot be alienated without prior permission of the Collector. Mr. Oza has further submitted that the Tribunal has committed an error by accepting the submissions made on behalf of the respondent Society with regard to applicability of Section 64 A of the repealed Bombay Co.op. Society Act. The said Section is not applicable at all for two reasons, namely, the said Act has been repealed by Gujarat Co.op. Societies Act and there is no provision similar to Section 64A in the new Act. Since the respondent No.1 is registered under the new Act, it cannot take shelter or claim exemption under the old repealed Act. Evenif the respondent No.1 Society is eligible for such alleged exemption, Section 64 A of the old Act does not in any manner exempt the respondent No.1 from payment of premium or seeking permission for sale, transfer etc. under Section 43 of the Tenancy Act. Mr. Oza has further submitted that the Tribunal has committed serious error of law in holding that 84C inquiry initiated by the Addl. Mamlatdar and ALT is vitiated by delay. He has further submitted that there was no delay in initiating 84C inquiry by the competent authority. He has further submitted that in S.C.A. No. 2770 of 1979, this Court has rightly held that what is reasonable time for exercise of power is a question of fact and 84C inquiry should not be equated with the "revisional power" of the revenue authorities.
10. Mr. Oza has further submitted that the Tribunal has committed a grave error of law in holding that the Notification dtd. 14.11.1991 issued by the State Government under Section 88(1)(b) of the Tenancy Act is retrospective in nature. As a matter of fact, the said Notification dtd. 14.11.1991 is prospective in its application and further submitted that all lands in question were purchased much before the issuance of the aforesaid notification.
11. As far as delay in filing the present group of petitions is concerned, Mr. Oza has submitted that such delay is required to be condoned in view of the binding decision of this Court as well as the decision of the Hon'ble Supreme Court. Mr. Oza has relied on the Division Bench Judgment of this Court in the case of STATE OF GUJARAT AND ANOTHER V/s. N.K. JADHAV AND OTHERS, 2000 (4) G.L.R. 3577 wherein after relying on the decision of the Hon'ble Supreme Court in the case of STATE OF HARYANA V/s. CHANDRA MANI, A.I.R.1996 S.C. 1623, BALAKRISHNAN V/s. M. KRISHNAMURTHY, JT 1998 (6) S.C. 242, this Court has held that in light of the facts and circumstances of the case, there was sufficient cause within the meaning of Section 5 of the Limitation Act and the delay therefore was condoned accordingly.
12. In the case of STATE OF HARYANA V/s. CHANDRA MANI, A.I.R.1996 S.C. 1623, the Hon'ble Supreme Court has observed as under :-
"When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and inherited bureaucratic methodology imbued with the note making, file pushing, and passing on the buck ethos, delay on the part of the State is less difficult to approve. The Hon'ble Supreme Court has further observed that it was axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time, causing delay intentional or otherwise is a routine."
13. In the case of STATE OF UTTAR PRADESH V/s. HARISH CHANDRA, A.I.R. 1996 S.C. 2173, the Hon'ble Supreme Court has observed as under :-
"It is undoubtedly true that the applicant seeking for condonation of delay is duty-bound to explain the reasons for the delay but as has been held by this Court in several cases, the very manner in which the bureaucratic process moves, if the case deserves merit, the Court should consider the question of condonation from that perspective."
14. In the case of STATE OF BIHAR V/s. SUBHASH SINGH, A.I.R. 1997 S.C. 1390, the Hon'ble Supreme Court has observed as under :-
"It is known fact that in transaction of the Government business, none would own personal responsibility and decisions are leisurely taken at various levels. It is not uncommon that delay would be deliberately caused in filing appeal or revision by Government to confer advantage to the opposite litigant; more so when stakes involved arehigh or persons are well connected/influential or due to obvious considerations. The Courts, therefore, do not adopt strict standard of proof of every day's delay."
15. In the case of BALKRISHNAN V/s.M. KRISHNAMURTHY, JT 1998 (6) S.C. 242, the Hon'ble Supreme Court has reiterated the principles laid down in earlier cases and held as under :-
"It is no doubt true that condonation of delay is a matter of discretion of the Court, but Section 5 of the Limitation Act must be liberally construed so as to advance the cause of justice. The said Section does not say that such discretion can be exercised only if the delay is within a certain limit. In the opinion of the Court, length of delay is no matter, acceptability of the explanation is the only criterion." The Hon'ble Supreme Court has further observed that "Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. That the words "sufficient cause" under Sec. 5 of the Limitation Act would receive a liberal construction so as to advance substantial justice."
16. Mr. Oza has further relied on the Division Bench Judgment of this Court in the case of SPECIAL LAND ACQUISITION OFFICER V/s. LILAVATIBEN KODAR RANCHHOD & ORS., 2002 (3) G.L.R. 1874 wherein this Court has held as under :-
"Obviously, willful indifferent person cannot be helped by the Court of law when he seeks the justice for condonation of delay. Nevertheless, if the record discloses that the parties in a given case, though delay has occasioned, had not abandoned animus to question the impugned order, decision or judgment, is an important factor which should be taken into consideration for determining the genuineness and sufficiency of the ground for condonation of delay." The Court has further observed that "Apart from the ultimate anxiety of the Court while dealing with an application of condonation of delay has been, to see that ordinarily no meritorious matter is thrown overboard on the technical grounds of delay. The purpose and design incorporating the provisions of Sec. 5 of the Limitation Act is to see that ordinarily a substantial justice is required to be given and ordinarily, unless there are circumstances running counter to the spirit of the provision of Sec. 5, the meritorious matters are required to be dealt with and adjudicated upon on merits. It is rightly said that no party or person would stand benefited by filing appeal or application late without any reason ordinarily when he has made up his mind to challenge the impugned order, award, judgment or decision, as the case may be. There cannot be such presumption also. This proposition of law is also very well settled since long. Therefore, while dealing with an application for condonation of delay, one cannot start with presumption that party did not intend to question it. On the contrary, the presumption may be other way round." This Court has also taken note of the fact that the State should not be penalised for the lapses of some of its Officers and in that particular circumstances, there were sufficient grounds justifying the condonation of delay in filing Appeals. It was a matter of discretion of the High Court and it cannot be said that such discretion was improperly exercised."
17. Mr. Oza has further relied on the decision of this Court rendered in C.A. No. 7393 of 2000 in LPA St. No. 96 of 2000 and other cognate matters on 31.08.2001 (Coram :- M.R. CALLA, J.) once again discussing the entire case law on condonation of delay. It has been held that "It is a case in which the officers of the Government Pleader and the concerned Assistant Government Pleaders did not pay any heed to the constant reminders and approaches made by the Revenue Department as well as the competent authorities and in such matters, when the public interest suffers and large number of cases are going to be affected to the utter prejudice of the public interest, the delay of 54 days in filing these Letters Patent Appeals can not come in the way of a party desirous of obtaining the decision on merits." The delay was therefore condoned in the said matters.
18. Mr. Oza has lastly relied on the Division Bench judgment of this Court in the case of UNION OF INDIA AND ORS. V/s. RAMESHCHANDRA JOSHI, 2002 (3) G.L.R. 2332 wherein this Court has held as under :-
"Even being conscious about the fact that the delay occurred in this case is 5 years and 39 days. This application could not have been entertained if it was for a different cause, but having regard to the peculiar facts and circumstances of the case, and keeping in mind the judgment of the Hon'ble Supreme Court in case of Collector, Land Acquisition, Anantnag V/s. Mst. Katiji, AIR 1987 S.C. 1353, this Court is of the considered opinion that this is a fit case where the delay should be condoned, because by condoning delay the applicants do not stand to benefit and refusing to condone the delay is likely to result a meritorious matter being thrown out at the threshold, whereby cause of justice is likely to be defeated. By condoning delay the highest that can happen is that the case would be decided on merits after hearing the parties."
19. As far as the merits of the matters are concerned, Mr. Oza has submitted that the reliance placed by the Tribunal on the decision of the Hon'ble Supreme Court in the case of MOHANLAL CHUNILAL KOTHARI V/s. TRIBHOVEN HARIBHAI TAMBOLI, A.I.R. 1963 S.C. 358 is uncalled for, as in that case, the notification in question was under Section 88(1)(d) and not under Section 88(1)(b) as in the present case. He has further submitted that the notification dtd. 14.11.1991 issued under Section 88(1)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 is perspective in its application as all the lands in question were purchased much before the issuance of the said notification. By virtue of the said notification, the villages specified therein and the Survey Nos. mentioned in the said notification are reserved for non-agriculture and industrial development. In this connection, he relied on the decision of this Court in the case of SMT. RATNAPRABHABAI V/s. M/S. TULSIDAS V. PATEL & ORS., 1982 (23) 2 G.L.R. 213 wherein this Court at length discussed the effect of the notification issued under Section 88(1)(b) as amended by Bombay Tenancy & Agricultural Lands (Gujarat Amendment) Act, 36 of 1965. It is held therein which is as under :-
"First proviso to Section 88(1)(b) providing that no transaction in respect to land subsequently brought within municipal limits would be subject to Provisions of Sections 1 to 87 of the Tenancy Act. Second Proviso providing that if any transaction has taken place between two terminal dates of notification, such transaction will remain effective. Second Proviso applicable only if at the time when transaction takes place the concerned lands were included in the added area of Municipal limits. The Court has further held that the scope of such Provision will have to be ascertained by adopting rule of strict construction and the Court should accept that construction which advances main purpose of legislation. It was also held that the lands at the time of transaction were not within the added Municipal limits question of exemption from Provisions of Tenancy Act would not arise and second Proviso to Section 88(1)(b) would be out of picture in such cases as it is not meant to cover such transactions. The Court has further held that it cannot be gainsaid that the Tenancy Act has a piece of beneficial legislation meant for protection of the rights of tenants and cultivators of agricultural lands. Any statutory Provision which seeks to carve out an exception to the operation of this beneficial provision will have to be construed strictly. The first Proviso to Section 88(1)(b) is a beneficial Provision for confirming the applicability of Tenancy Act to such agricultural lands subsequently brought within the Municipal limits and it takes to protect the tenancy rights of the tenant of such lands. The second Proviso to Section 88(1)(b) however seeks to curtail the operation of the aforesaid beneficial provision and seeks to carve out an area of its own wherein beneficial Provision of Sections 1 to 87 of the Act would get excluded qua the transactions pertaining to concerned agricultural lands as contemplated by the second Proviso."
20. Mr. Oza has further relied on the decision of the Hon'ble Supreme Court in the case of NAVINCHANDRA RAMANLAL V/s. KALIDAS BHUDARBHAI AND ANOTHER, A.I.R. 1979 S.C. 1055 wherein the Hon'ble Supreme Court has held as under :-
"Sections 43 and 88(1)(b) of the Tenancy Act of 1948 were amended by the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1965, (Gujarat Act 36 of 1965). Both these amendments to the Principal Act came into force from 29th December 1965. However, looking to the language of the amendments both the amendments were retrospective from 1st August 1956, i.e. from the date Bombay Act 13 of 1956 came into force. In other words, amended Section 43C and Section 88(1)(b) with its proviso had to be read as if they were introduced in that very form from 1st August 1956. Indisputably, Survey No. 165, the land involved in this case, being situated within the revenue limits of Acher Village, was included in the area of Ahmedabad Municipal Corporation from 30th May 1959. Therefore, on 1st August 1956 when the amended Sections 43C and 88(1)(b) with its proviso as amended by Act 36 of 1965 came into force, the land being not in Municipal Corporation area, would not enjoy the exemption as conferred on the land within the Municipal Corporation area by the Notification issued on 9th August, 1956, superseded by the subsequent Notification dated 14th February, 1957 in exercise of the power conferred by Section 88(1)(b). In no case the additional area which was included within the Municipal Corporation area after 1st August 1956 would enjoy the exemption granted by the Notification unless a fresh Notification was issued. As the land bearing Survey No. 165 did not enjoy the benefit of exemption under Section 88(1)(b) and it was agricultural land in respect of which the respondent was tenant on the tiller's day, the respondent, had, by operation of law, become the owner and was a deemed purchaser under Section 32 as amended by Act 13 of 1956. The Agricultural Lands Tribunal would have to proceed with the enquiry to determine the price as required by Section 32C."
21. Even in that case, the decision of the Hon'ble Supreme Court in the case of MOHANLAL CHUNILAL KOTHARI V/s. TRIBHOVEN HARIBHAI TAMBOLI, A.I.R. 1963 S.C. 358 relied on by the Tribunal was distinguished. On the basis of the aforesaid two decisions, Mr. Oza has submitted that the Tribunal has committed a grave error in allowing all these revision applications and since the order passed by the Tribunal is contrary to binding decisions of this Court as well as the Hon'ble Supreme Court, all these petitions deserve consideration by this Court and hence, they are required to be admitted.
22. Mr. S.H. Sanjanwala, learned senior counsel with learned advocate Mr. Amit V. Thakkar appearing on behalf of the respondents in all these petitions, however strongly objected to admission of these petitions on both the grounds, namely, on the ground of delay and latches as well as on merits. As far as gross and inordinate delay of more than 7 years in filing these petitions before this Court is concerned, Mr. Sanjanwala has submitted that the delay has not at all been explained by the petitioners and whatever explanation is tendered in the petition, is absolutely vague and evasive and it does not satisfy the conscience of the Court. It is so general in nature that it can hardly be believed that during the period of more than seven years, the petitioners could not be in a position to file these petitions before this Court. He has submitted that it is only when the respondent has filed S.C.A. No. 11194/03 before this Court and notice was issued by this Court on 01.08.2003, present group of petitions were thereafter filed before this Court on 01.09.2003. He has further submitted that there are innumerable decisions of the Courts taking the view that when there is no reasonable explanation given by the party for condonation of delay, the delay should not be condoned. As per the majority view taken by the Court in the case of MUNICIPAL CORPORATION OF AHMEDABAD V/s. VOLTAS LIMITED, 1994 (2) G.L.R. 1325, it is held as under :-
"The phrase 'sufficient cause' as occurring in Sec.5 of the Limitation Act pertains to the establishment of the appropriate facts before the Court to which the Court can apply its mind and arrive at a conclusion regarding the sufficiency of the cause or otherwise. In essence, therefore, the phrase 'sufficient cause' is not a question of principle, but is a question of fact.
Hence, whether to condone delay or not depends upon the facts and circumstances of each case as 'sufficient cause' for condonation of delay depends only on the facts placed by the applicants before the Court.
The plea on the part of the applicants that the delay was caused by 'administrative delay/administrative reasons/administrative procedure' (and analogous expressions) is merely an averment in the nature of a plea which by itself and ipso facto does not establish sufficiency of the cause for condonation. Precise factual reasons for the delay within the general ambit of the said phrase must be established and that too to the satisfaction of the Court. Hence, it cannot be held that, because the applicant is a Municipal Corporation or a statutory authority, delay should be condoned even if no reason or cause for delay in filing appeal is mentioned in the application and mere mention of the phrase 'administrative delay' in the application for condonation of delay is no sufficient cause by any standard.
The merits of the substantial case in respect of which condonation is sought cannot over-ride the provisions of Secs.3 and 5 of the Limitation Act and the merits of the case cannot be regarded as the sole factor or a predominant factor while adjudicating upon the sufficiency of the cause for condonation of delay.
Whether the delay is for a short period or a long period is of no consequence. If sufficient cause is shown, long delay can be condoned and if no cause is shown, even delay for a short period may not be condoned.
The principle in law only is that the Courts are required to take a liberal view while considering the facts constituting the sufficiency of the cause, on the basis of which condonation of delay is sought. This does not necessarily amount to saying that all applications for condonation must be granted. This is necessarily within the discretionary jurisdiction of the Court, and the Court deciding the application for condonation would necessarily exercise its discretion judicially in the light of the well established principles, as regards the application of the relevant facts."
23. Mr. Sanjanwala has further relied on the decision of the Hon'ble Supreme Court in the case of NETAI BAG AND OTHERS V/s. STATE OF WEST BENGAL AND OTHERS, 2000 (8) S.C.C. 262 wherein the Hon'ble Supreme Court has held in para 26 as under :-
"The inaction of the appellants in approaching the Court, almost after three years of the impugned lease deed is an additional circumstance to doubt their bona fides in challenging the impugned action. During the pendency of the litigation between the parties, a huge project has actually, by now, come into existence where the production has also commenced. Respondent No.5 is claimed to have spent a sum of Rs.73.01 crores as of 30-10-1999 on the project. Interference at this stage will not only adversely affect the business of Respondent No.5 but would also render a large number of people unemployed and deprive the State its cherished desire of developing the industrial growth."
24. So far as the merits of the matters are concerned, Mr. Sanjanwala has relied on the decision of the Hon'ble Supreme Court in the case of SMT. PARVATI AND OTHERS V/s.SMT. FATEHSINHRAJ PRATAPSINHRAO GAEKWAD, 1987 (2) G.L.R. 791 wherein it is held as under:-
"On a plain reading of the provisions of Sec. 88 of the Act, it is quite clear and apparent that the provisions of the Act are not applicable to any area notified by the State Government as being reserved for non agricultural or industrial development. The argument that in view of the provisions of Sec.89(2)(b) the right title, interest, obligation, liability already acquired, accrued or incurred before the issuance of the notification are not affected is not sound. Sec. 89(2)(b) inter alia reads "shall, save as expressly provided in this Act, not affect or deemed to be affected" Sec. 88(1)(b) is a specific provision, and says that on the issue of a notification in the Official Gazette specifying areas reserved for non-agricultural or industrial development, the provision of the Act shall not apply."
25. Mr. Sanjanwala has further submitted that the above decision has been followed by this Court in the respondent's own case i.e. in the case of MARIAMBEN WD/O. MOHAMMED AHMED AMEJI & ANOTHER V/s. STATE OF GUJARAT AND ANOTHER, 1997 (2) G.L.R. 1056 wherein this Court has taken the view that "Notification issued under Section 88(1)(b) of the Act specifying area reserved for non-agricultural or industrial development, has retrospective effect from date of coming into force of the enactment. The order of the Deputy Collector directing resumption of land for breach of Sec.65 was quashed and set aside on the ground that the land covered within area notified under Sec. 88(1)(b) as being exempted from provisions of the Act and hence, Sec. 65 ceased to apply."
26. Based on the aforesaid two decisions, Mr. Sanjanwala has strongly submitted that even on merits also, the petitioners do not deserve any relief from this Court and hence, all the petitions are required to be dismissed in limine.
27. After having heard learned Government Pleader for the petitioners and Mr. S.H. Sanjanwala, learned Senior advocate appearing for the respondent No.1 and after having considered their rival submissions - both on condonation of delay as well as on merits and after having examined the orders passed by the authorities below in the light of the facts found and evidence available on record and after having applied ratio of decisions of this Court as well as of the Supreme Court, I am of the view that despite there being a case for condonation of delay to some extent, due to binding decisions on the merits of the matter, the petitioners would not get any relief from this Court in any of these petitions.
28. There is gross and inordinate delay of about seven years and hence the Court is very much reluctant to go into the merits of the matter. However, facts narrated in the petitions have inspired the Court to make little more scrutiny as the public exchequer or the Government treasury should not suffer because of any negligence or carelessness of its Officers or because of their alleged involvement or connivance in causing such unprecedented delay. It is true that delay has not been properly explained - neither in the petition nor in making submissions before the Court. The fact still remains that despite there being an order of Gujarat Revenue Tribunal passed on 29.02.1996 in favour of the respondent No.1, no legal steps were taken by them for implementation of the said order till July 2003 when petition is filed before this Court, that too, after the petitioner State has applied for certified copy of the order and documents. It is also found from the record that even after seven years when the petitions are filed, the respondent No.1 is prompt and cautious enough to file the Caveat before this Court, just a few days before the filing of these petitions. This shows that the respondent No.1 might have remained in constant touch with the Officials of petitioner State and might have kept close watch over the movement of the files at the end of the petitioner State. In this process, there is every possibility that files might not have been moved as they ought to have been moved and the resultant effect would be such gross and inordinate delay.
29. In this background of the matter, all criterias and parameters for condonation of delay are changed. Courts have repeatedly held that there is no straight jacket formula for condonation of delay and each matter may be decided on its own facts and that there is not much relevance of the period of delay, if otherwise it deserves to be condoned, and that lapses or inactions either intentional or otherwise, of the Officials would not automatically lead to rejection of prayer for condonation of delay, and that parties should not be non-suited at the very threshold, defeating or frustrating any meritorious matter and denying the substantial justice to the aggrieved parties.
30. Keeping the above factors in mind, with little inclination to condone delay, the Court allowed the parties to make their submissions on merits of the matter, which they did, and the same are being dealt with now.
31. As far as the merits of the matter are concerned, three main issues were raised before the Tribunal. The first issue is that, in view of the exemption granted under Section 64 A of the Act, from the applicability of the Provisions contained in Section 63 and 64 thereof to the sales executed in favour of Co-operative Societies, the sales executed in favour of the present respondent No.1 Society by the respective vendors without prior permission from the Collector were valid and legal, and therefore, the Mamlatdar and ALT had no authority to issue the notices u/S. 84C of the Act and to pass orders against the respondent No.1 Society. The case of the petitioner State is that exemption is available to only those Co-operative societies registered under the Bombay Co-operative Societies Act, 1925 and not to any Co-operative society registered under the Gujarat Co-operative Societies Act, 1961. There is no such provision like Section 64 A of the Bombay Act, in the Gujarat Act. Reliance placed on the decision of this Court in the case of GANDHI PARK CO-OPERATIVE HOUSING SOCIETY LTD. MANEJA V/s. STATE OF GUJARAT AND ORS., 18 G.L.R. 700 by the respondent No.1 Society is opposed on the ground that it was a case of Co-operative Housing Society whereas the present case is not that of Co-operative Housing Society.However, no such distinction is made in Section 64 A of the Act. This Court has held in the above cited judgment as under :-
"On a plain reading of Sec. 64A of the Bombay Co-operative Society Act it is evident that Secs.63 & 64 of the Bombay Tenancy Act do not apply to sales effected either by the Society which is constituted under the Bombay Co-operative Societies Act or in respect of sales made in favour of of such a society. The legislature had incorporated Sec.64A with full awareness of the nature and character of the Co-operative Society formed under the Bombay Co-operative Societies Act and there was valid purpose and a valid reason for exempting the Co-operative Societies from the operation of Secs. 63 and 64. The whole purpose of Secs. 63 and 64 was to prevent exploitation of agriculturists and having regard to the nature of a Co-operative Society formed for a purpose mentioned earlier, there was little or no likelihood of exploitation in a case where a Co-operative Society was purchasing or selling land."
It is true that when the above case was decided, Section 64 A was on the statute book as it was deleted by Gujarat Act 21 of 1987. But at the same time, most of the transactions in question were completed prior to that. Hence, on this ground also, the finding of the Tribunal is not required to be interfered with as the Tribunal has rightly taken the decision that the fact that Section 64 A refers to transactions by or in favour of a Co-operative Society makes it abundantly clear that the legislature has accorded exemption to a Co-operative Society, whether the Co-operative Society happens to be a vendor or vendee in respect of agricultural lands.
32. The second issue which was raised before the Tribunal was that inquiry under Section 84C of the Act, in almost all these cases, was initiated after a span of 4 to 5 years after the certification of the mutation entries regarding the registered Sale Deeds in the respective cases, and hence the inquiries in these cases could not be said to have been initiated within a reasonable time. It is true that there is no fixed period of limitation for exercise of powers u/S. 80 C of the Act, such powers, however, will have to be exercised within the reasonable time, and what is reasonable time is a question of fact, which can be decided depending upon the facts and circumstances of each case. What was weighed with the Tribunal was that the Respondent No.1 Society had purchased the lands in question in the aggregate of 1700 acres, by spending more than two Crores of rupees for industrial purpose for setting up an industrial township and has enrolled more than 1700 members for the purpose of allotment of industrial plots to them. Thereafter, the respondent No.1 Society took steps for changing the designation of the agricultural zone for which all the lands were put by the Surat Urban development Authority, which preparing Draft Development Plan under the Gujarat Town Planning and Urban Development Act, 1976, to industrial zone by spending huge amount, involving Crores of rupees for construction of roads, providing drainage facility, lay out plan, supply of electricity etc. On these facts, reliance placed by Mr. S.H. Sanjanwala on the case of MOHAMAD KAVI MOHAMAD AMIN V/s. FATMABAI IBRAHIM, 1997 (6) S.C.C. 71 is justified wherein the Hon'ble Supreme Court has taken the note of the fact that Section 84C of the Act does not prescribe any time for initiation of the proceedings. But in view of the settled position by several judgments of this Court that whenever a power is vested in a statutory authority without prescribing any time limit, such powers should be exercised within a reasonable time. In the case before the Hon'ble Supreme Court, the transfer took place as early as in the year 1972 and suo motu inquiry was started by the Mamlatdar in September, 1973. If the Sale Deeds were declared to be invalid, the appellant was likely to suffer irreparable injury, because he has made investments after the aforesaid purchase. In this connection, the Hon'ble Supreme Court has referred to the decision of this Court in the case of STATE OF GUJARAT V/s. JETHMAL BHAGWANDAS SHAH in Spe. CA No. 2770 of 1979, disposed of on 01.03.1990, where in connection with Section 84C itself it was said that the powers under the aforesaid Section should be exercised within a reasonable time. The Hon'ble Supreme Court has further referred to the decisions of the STATE OF GUJARAT V/s. PATIL RAGHAV NATHA 10 G.L.R. 992 and in the case of RAM CHAND V/s. UNION OF INDIA, 1994 (1) S.C.C. 44 wherein it was held that where no time limit is prescribed for the exercise of power under statute it does not mean that it can be exercised at any time; such power has to be exercised within a reasonable time. The Hon'ble Supreme Court was, therefore, satisfied that the suo motu inquiry under Section 84C of the Act was not exercised by the Mamlatdar within a reasonable time. The Hon'ble Supreme Court has not found even the period of one and half year or so as reasonable time for the purpose of initiation of proceedings under Section 84C of the Act. Here in the present case, admittedly, the proceedings under Sec. 84C were initiated after about 4 to 5 years. The argument of Mr. A.D. Oza that Sec. 84C inquiry should not be equated with the "revisional power" of an authority and that suo motu revisional power and suo motu inquiry are quite different and distinct from each other, would not lead the petitioner - State's case any further as suo motu inquiry by the Mamlatdar under Sec. 84C of the Act cannot be started beyond the reasonable period and what is reasonable period for the purpose of suo motu revisional power can equally be said to be reasonable period for the purpose of suo motu inquiry. Thus, the Tribunal's order on this point also does not require any interference from this Court.
33. The third issue which was raised before the Tribunal that respondent No.1 Society is an industrial service society, which purchased agricultural lands from the vendors and develop them by sub dividing into plots and providing infrastructure such as roads, electrification, supply of water, drainage system etc. and the lands in question fell under the general industrial zone of Surat Urban Development Authority established under the Gujarat Town Planning and Urban Development Act, 1976 and hence, the lands in question cannot be put to any other use than industry. For this purpose, a reliance was placed on the Govt. Resolution dtd. 14.11.1991 published while exercising powers conferred by Sec.88(1)(b) of Bombay Tenancy & Agricultural Lands Act, 1948 whereby the Govt. has specified the area of land comprised in revenue Survey numbers mentioned in column 4 of the Schedule annexed to the said Resolution of the village specified against those Survey numbers in column 3 thereof and existing on the date of publication of the said Notification in the Official Gazette, as being reserved for non-agricultural and industrial development. All these lands in question are forming part of the said Schedule which is annexed to the Notification dtd. 14.11.1991. After having relied upon the two decisions one of which is of the Hon'ble Supreme Court in the case of SMT. PARVATI & ORS. V/s. SMT. FATEHSINHRAO PRATAPSINHRAO GAEKWAD (SUPRA) and other one of this Court in the case of MARIAMBEN WD/O. MOHAMMED AHMED AMEJI & ANR. V/s. STATE OF GUJARAT AND ANOTHER (SUPRA), it is contended that Notification under Section 88(1)(b) of the Act will have retrospective operation from the date of coming into force thereof. The effect of the said Notification is that the land covered by the Act exempted from operation under Sec. 1 to 87 of the Act and this Court has therefore taken the view that the disputed land would enjoy exemption from the operation of interalia Sec. 65 of the Act retrospectively from the date of coming into force of the Act. If the said statutory provision contained in Sec. 65 is not applicable, Mamlatdar has no jurisdiction to make suo motu inquiry under Sec. 84C of the Act.
34. As stated earlier, Mr. Oza has relied on two decisions one of which is of the Hon'ble Supreme Court in the case of NAVINCHANDRA RAMANLAL V/s. KALIDAS BHUDARBHAI AND ANOTHER (SUPRA) and other one is of this Court in the case of SMT. RATNAPRABHABAI D/O. HIROJIRAO NARANRAO MANE V/s. M/s. TULSIDAS V. PATEL & ORS. (SUPRA). However, these two decisions are not straightway applicable to the facts of the present case. In the case before the Hon'ble Supreme Court, the area in question was not included in the Corporation limit at the time when the Notification was issued and on that basis, the Hon'ble Supreme Court has taken the view that the petitioner would not enjoy the benefit of exemption under Sec. 88(1)(b) of the Act. Similarly, in the case of SMT. RATNAPRABHABAI D/O. HIROJIRAO NARANRAO MANE V/s. M/s. TULSIDAS V. PATEL & ORS. decided by this Court, it was decided that at the time when the transaction in question took place, the concerned lands ought to have been included within the added areas of the Municipal limits. Here, in the present case, by virtue of the Notification issued on 14.11.1991, the exemption was claimed and by virtue of the above two decisions cited and relied upon by Mr. Sanjanwala, the operation of the said Notification was claimed retrospectively. This Court, is therefore, of the view that the case of SMT. PARVATI & ORS. V/s. SMT. FATEHSINHRAO PRATAPSINHRAO GAEKWAD (SUPRA) would squarely cover the issue which is involved in the present group of petitions and hence, no interference is called for so far as the finding of the Tribunal on this point is concerned.
35. In the above view of the matter, though this Court has found some substance with regard to the condonation of delay, looking to the merits of the matters, the Tribunal's finding on all the three legal issues raised before it do not call for any interference because of various judicial pronouncements referred to and discussed hereinabove and despite the fact that the State exchequer may be deprived of its entitlement to receive from the respondent No.1 society a huge amount of Rs. 1,80,07,520.30ps. towards premium in respect of new tenure lands as alleged by the petitioner State in the present group of petitions, the Court rejects this plea of the State. Such aspects of the matter could have been taken care of at the time of issuance of Notification granting certain exemptions and it should be made explicitly clear that the same would not have any retrospective application. Though all the petitions are dismissed on merits and not on the ground of limitation, the State Government should take necessary action against the erring Officers for causing this gross and inordinate delay in filing the present group of petitions, as averred by the petitioner in the present group of petitions.
36. With the above observations, all these petitions are summarily dismissed at the threshold.