Gujarat High Court
Aher Jagmalbhai Punjabhai vs V.C.Trivedi on 4 October, 2013
Author: Jayant Patel
Bench: Jayant Patel
AHER JAGMALBHAI PUNJABHAI....Petitioner(s)V/SV.C.TRIVEDI,SPECIAL SECRETARY (APPEALS) AND/OR HIS SUCCESSOR C/SCA/9904/2005 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 9904 of 2005 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE JAYANT PATEL ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ AHER JAGMALBHAI PUNJABHAI....Petitioner(s) Versus V.C.TRIVEDI,SPECIAL SECRETARY (APPEALS) AND/OR HIS SUCCESSOR & 2....Respondent(s) ================================================================ Appearance: MR AMAR D MITHANI, ADVOCATE for the Petitioner(s) No. 1 MR HARDIK SONI, AGP for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 1 - 3 ================================================================ CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL Date : 04/10/2013 ORAL JUDGMENT
The short facts of the case are that the Revenue Entry No.47 in Village Form No.6, at the time of promulgation was recorded, whereby the name of Patel Aher Punja Jadav was shown in possession of the land bearing Survey No.22. The said entry was examined and certified on 3.12.1952. Thereafter, as Patel Aher Punja Jadav expired on 15.6.1984, another Entry No.365 was mutated on 27.8.1986, whereby the names of legal heirs were inserted in the Revenue record. The said entry was also certified on 19.4.1987. Suddenly in the year 2002, after the period of about 16 years, the matter was taken up for suo motu revision by the District Collector and the notice was issued on 25.7.2002, calling upon the petitioner to show cause as to why Entry No.47 dated 3.12.1952 and Entry No.365 dated 27.8.1986 should not be cancelled. The petitioner appeared in response to the notice and contended that the land was allotted as Police Patel prior to the independence and also contended the ground of limitation. However, the District Collector passed the order on 1.10.2002, whereby he set aside the entries and directed that the land be entered in the Revenue Record as waste land. The matter was carried in revision before the State Government by the petitioner and the State Government vide order dated 30.1.2004/22.9.2004 dismissed the revision. Under these circumstance,s the present petition before this Court.
I have heard Mr.Mithani, learned Counsel for the petitioner and Mr.Soni, learned AGP for the respondent State.
It is an undisputed position that the entries were recorded in the year 1952 and 1986, and these entries have been taken up in suo motu revision for the first time in the year 2002. If the period is considered from 1952, it will be about 50 years and if the period is considered from 1986, it will be around 16 years. Considering the matter in either way, one cannot say that such period could be termed as reasonable period by any stretch of imagination. Therefore, the delay did operate in exercise of the power by the first authority.
The learned AGP is not in a position to dispute the period of delay. However, it was only contended that as found by both the authorities, the entry was void ab initio and, therefore, the power could be exercised.
In my view, the examination of the issue either on the point of delay or on the point of alleged voidness of the order is already covered by the decision of this Court in the case of Vithalbhai M. Patel & Ors. v. Deputy Collector, Kaira and Anr., reported in 2011(1) GLR 611.
In the said decision, this Court observed at paragraphs 4 to 10 as under:-
4.
As such on the aspect of delay the law is well settled. We may record that, as there were two different views of learned Single Judges of this Court, one, in case of KOLI NAGJIBHAI VARJAN Vs. STATE OF GUJARAT & ORS., reported in 1992 (1) GLR, Pg. 14 (Coram:
Abichandani, J); and another in case of RANCHHODBHAI LALLUBHAI PATEL Vs. STATE OF GUJARAT & ORS, reported in 1984 (2) GLR, pg. 1225 (Coram: S.B. Majumdar, J), the matter was referred to the Division Bench of this Court. The matter was ultimately considered by the Division Bench of this Court in case of VALJIBHAI JAGJIVANBHAI Vs. STATE OF GUJARAT, reported in 2005(2) GLH, pg. 34. The view taken and conclusion recorded by the Division Bench at para-23 is as under:-
23.
Looking to the aforesaid different situations, there is no doubt in our mind that even the void transaction under Section 9(1) if allowed to remain effective for considerably long period, the authority named therein will be precluded from initiating proceedings to annul it. The ratio laid down by the Apex Court in the decisions cited by Mr. Patel clearly states that even the void transaction cannot be said to be nonexistent in all cases and in all situations. It can remain effective and in existence till it is invalidated and set aside. If its existence is allowed to remain for a considerable period and with the passage of time it brings about several changes, creating valuable rights in favour of considerable section of people, it is difficult to accept the proposition that despite the change the Collector would be entitled to exercise power under sub-section (3) of Section 9 of he Act. Similar observations can also be made with regard to the land wherein no change is brought about, but number of years have passed after the transfer against the provisions of the Act has taken place. In our opinion when the things have been allowed to remain as such for years together, the purchaser cannot be deprived of his possession so as to render indirect benefit to the seller who was equally responsible for entering not such illegal transaction. Thus, in our view, when the authority had considerable opportunities to know about the transaction and despite that, has not taken any action thereon for years together, such authority cannot be allowed to exercise powers conferred upon it at a belated stage. The concept of reasonableness of time will equally apply in such cases.
5. We may also refer to the decision of the Apex Court in case of PUNE MUNICIPAL CORPORATION Vs. STATE OF MAHARASHTRA & ORS, reported in 2007 (3) GLR, pg. 2610, on the aspect of concept of null & void order and applicability of Article 113 of the Limitation Act. The Apex Court in the said decision at para no.36 & 41 have observed thus:-
36.
It is well settled that no order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law. As prof. Wade states (See Administrative Law by H.W.R. Wade, 6th Edn. Page 352):
The principle must be equally true even where the 'brand of invalidity' is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the Court. He further states Ibid., pages 352-53: The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case, the 'void' order remains effective, and is in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person, but valid against another.
41.
In the present case, no period of limitation is prescribed for preferring revision under Sec. 34 of the Act. The principle laid down in State of Gujarat V. Patel Raghav Natha, 1969 (2) SCC 187, hence, applies. If, therefore, the revisional authority was inclined to exercise jurisdiction, it ought to have been satisfied that such power was invoked by the petitioner within reasonable time. Merely on the ground that the order passed in 1977 was unlawful was not sufficient to ignore length of delay and other attenuating circumstances.
6. If the facts of the present case is examined in light of the aforesaid, it is an admitted position that after a period of 12 years from the entry mutated in the revenue record based on the alleged transaction, the action is initiated. Under these circumstances, as such the action could be said as after an unreasonable period and the delay would operate against as a bar to the authority in initiating action for annulment or setting aside the alleged sale on the alleged ground of breach of provisions of the Act.
7. It appears that, learned Single Judge in the impugned order has been guided by the broad principles, instead of considering or concentrating on the aspects as to whether the equitable consideration as well as the delay should be considered as a bar in initiation of action when the transaction of sale was made known to the authority for more than a decade before.
8. It is true that the delay in taking action ipso facto may not be sufficient, but the aspect of delay can be considered with the prejudice to be caused and the limitation of the rights of the parties and irreversible situation. The fact that the person has continued to enjoy the property by cultivation thereof for a long period of 12 years is one of the relevant aspects, and the another aspect is that, it was not a case where the factum of sale having entered into between the parties was not made known to the revenue authority. It was an admitted position that, based on said sale, revenue entry was mutated in the revenue record and it was made known to the revenue authority and that entry in the revenue record also remained for a period of about 12 years. The provisions of Bombay Land Revenue Code provides that revenue record is required to be inspected periodically by the Mamlatdar as well as Pranth Officer as per the Gujarat Land Revenue Rules. At no point of time the action was initiated. Further, if the order of the lower authorities are considered, no material is brought on record showing the reason as to why the action could not be initiated well in time. Under these circumstances, we find that the action was barred, but the learned Single judge did not consider said aspects and, therefore, the impugned order for invalidating the sale deserves to be set aside.
9. Learned AGP Mr. Trivedi did contend that there is no evidence produced on record about any investment made by the petitioner during the period of 12 years and, therefore, the delay should not operate as a bar to the authority for initiation of action. He also relied upon another unreported decision of this Court in case of ABDULBHAI DAOODBHAI MUMAN Vs. DY. COLLECTOR & 1, in Letters Patent Appeal No. 2155 of 2007, decided on 2/2/2009, taking the view that the sale could be said to be illegal even after expiry of reasonable period. He further contended that the aforesaid both the decisions of the Division Bench of the Court in case of Valjibhai Jagjivanbhai (supra) as well as of the Apex Court in case of Pune Municipal Corporation (supra) were considered and inspite of the same, the order by which transaction was declared as illegal was allowed to operate. Therefore, he submits that the matter may be considered accordingly.
10. It is true that aforesaid both the decisions were considered by this Court in case of Abdulbhai Daoodbhai Muman (supra), but the Division Bench has not laid down law otherwise than as was declared in case of Valjibhai Jagjivanbhai (supra), but only distinguished on facts and same position remained while considering the decision of the Apex Court in case of Pune Municipal Corporation (supra). Therefore, considering facts of that case, this Court in case of Abdulbhai Daoodbhai Muman (supra) has taken the view, but, it cannot be said that position of law and the settled legal position is different, nor such decision would be of any assistance to the learned AGP. The pertinent aspect is that, even if the delay exists, the ground of delay is to be considered and while considering said aspects the question of investment or development is also to be considered. In the present case, no explanation has come on record as to why action was not initiated for a period of 12 years, i.e. more than a decade by the authority. The action on the part of the authority to wake-up from slumber at one fine morning and initiate action without there being any sufficient material placed on record for not taking any action prior thereto, could hardly be countenanced by this Court, even if the action is to be tested on the ground of reasonableness, so as to meet with the test of Article 14 of the Constitution of India.
The reference may also be made to another decision of this Court in the case of Shambhuram Videshiram Morya v. State of Gujarat through Secretary (Appeals) & Ors., reported in 2012(1) GLR 665, wherein at paragraph 4 to 7, it was observed thus:-
4. The controversy is in a very narrow compass and the position of law applicable in the present case is also now no longer res integra.
For the first time, in the case of State of Gujarat v/s. Patel Raghav Natha and others, reported in (1969)X GLR 992, the Supreme Court held that powers under Section 211 of the Bombay Land Revenue Code (for short, 'the Code') have to be exercised within reasonable time and what would be a reasonable time would depend upon the facts of each case and the nature of the impugned order. The Supreme Court in the case of Raghav Natha (supra) was constrained with the exercise of revisional powers under Section 211 of the Code. Section 211 of the Code prescribes no period of limitation for exercise of powers thereunder. The concept of reasonable time qua Section 211 of the Code has been applied to the powers exercised by the authorities, inter alia, under Section 84-C of the Tenancy Act in several rulings of the Apex Court as well as this High Court in various matters.
5. It is by now well-settled by catena of decisions that powers under Section 84-C of the Tenancy Act will have to be exercised within reasonable time. In the present case, as it is evident from the record that the transaction of 1993 was taken up in suo motu review for the first time in the year 2007 i.e. almost after a period of 15 years. Further, in the present case, the alleged breach is that of Section 63 of the Tenancy Act. Any transaction in contravention of Section 63 or 64 of the Tenancy Act is made 'invalid' and not 'void'. This becomes clear from the language of Section 63 and the provisions contained in Section 64(8) thereof. What is the basic difference between the two terms 'invalid' and 'void' has been very well explained by this Court in the case of Mavjibhai Dharsibhai and others v/s. State of Gujarat and others, reported in 1994(2) GLR 1168, wherein the learned Single Judge held in paragraphs 12, 13 and 14 as under :-
12.Ordinarily, I would have accepted the aforesaid submission canvassed by Shri D.N.Patel for the contesting respondents to the effect that there is practically no difference between the two terms 'invalid' and 'void' in the light of the aforesaid ruling of the Nagpur High Court in the case of Mohammad Ibrahim Khan Ikramkhan (supra). The scheme of the Act, however, makes a clear distinction between void transactions on the one hand and invalid transactions on the other. It is not open to me to say that the Legislature did not understand the distinction between the two terms 'void' and 'invalid'. In fact, as transpiring from the various provisions of the Act, the Legislature was fully aware of the distinction between the two aforesaid terms. In Sec.17(5) of the Act it has been provided, Any sale of a site held in contravention of this section (that is, Sec.17 thereof) shall be null and void. As against this, Sec.64(8) has provided any sale made in contravention of this section (that is, Sec.64 thereof) shall be invalid. The language of Sec.63 thereof also makes it clear that the transaction in contravention thereof would be invalid and not void.
13.
The material provision, however, occurs in Sec.83A of the Act. It reads :
(1)No person shall acquire land by transfer where such transfer or acquisition is invalid under any of the provisions of this Act.(2)
Any person who acquires land in contravention of sub-sec.(1) shall, in the event of the transfer or acquisition being decided or declared invalid, be liable to suffer, the consequences under Sec.84 or 84-C as the case may be.
It becomes clear from the language of the aforesaid statutory provision that any invalid transaction will have to be decided or declared invalid. It would thus mean that an invalid transaction per se may be invalid but it will not be invalid unless it is decided or declared to be so. It has to be invalidated. It thus becomes clear that an invalid transaction is made equivalent to a voidable transaction and not a void transaction. It is a trite principle of law to say that a voidable transaction remains valid till it is avoided, annulled or invalidated. Even at the cost of repetition, I reiterate that the language of Sec.83A of the Act has likened an invalid transaction to a voidable transaction.
14.
In order to annul, avoid or invalidate a voidable transaction, powers for the purpose will have to be exercised within reasonable time. The aforesaid rulings of this Court in the case of Govindbhai Somabhai Nai (supra) and in the case of Koli Nagjibhai Varjan (supra) will not be applicable in the instant case as they were dealing with void transactions and not voidable transactions.
6. We may also refer to a recent decision of the Division Bench in the case of Bhanji Devshibhai Luhar v/s. State of Gujarat and others, reported in 2011(2) GLR 1676, wherein the Division Bench has held that, even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. The Division Bench, in paragraphs 22.2, has observed as under :-
22.2 We may also refer to a recent decision in the case between Krishnadevi Malchand Kamathia vs. Bombay Environmental Action Group (2011 {3} SCC 363), the Apex Court, has, with regard to void order, observed in paragraph No.16 that:-
16.
It is a settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In Sate of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil, Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd., M. Meenakshi v. Metadin Agarwal and Sneh Gupta v. Devi Sarup, this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum.
While referring to the earlier decisions in the case State of Punjab (supra) as well as in the case of Sultan Sadik v. Sanjay Raj Sabba (2004 [2] SCC 377) the Apex Court has observed:-
19.Thus, from the above it emerges that even if the order / notification is void / voidable, the party aggrieved by the same cannot decide that the said order / notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person
7. Under the circumstances, upon considering the overall facts of the present case and in light of the foregoing discussion and having regard to the fact that at the time of the transaction the appellant was an agricultural labourer and he purchased the land for agricultural use jointly with one another person way back in the year 1993 and since then he has maintained the status of the land and put the land to agricultural use, the decision to compulsorily evict the appellant after lapse of almost 15 years deserves to be set-aside. Therefore, in view of the facts of the present case and having regard to the aspects noted above, we are inclined to set-aside the impugned orders passed by the revenue authorities.
If the facts of the present case are examined in light of the aforesaid legal position, I do find that the exercise of power in suo motu revision by the Collector at the first instance was barred by delay. Even if it was a matter pertaining to the alleged ground of voidness, then also the declaration could be made within reasonable time and in absence of such declaration within reasonable time stretching to the extent of three years, the action cannot be sustained in the eye of law.
Unfortunately, both the lower authorities namely; the District Collector and the State Government in revision have failed to consider the aforesaid settled legal position and also the decision brought to the notice of the lower authorities, whereby similar principle has been reiterated.
Under these circumstances, the action cannot be sustained, since the same was barred by delay. Hence, the impugned order passed by the District Collector and its confirmation thereof by the State Government at Annexure-E and J respectively are quashed and set aside. The Entry No.47 dated 3.12.1952 and Entry No.365 dated 27.8.1986 shall stand restored in the Revenue Record of Village Form No.6.
The petition is allowed to the aforesaid extent. Rule is made absolute accordingly. Considering the facts and circumstances, there shall be no order as to costs.
(JAYANT PATEL, J.) vinod Page 15 of 15