Gujarat High Court
Dudhiben Muljibhai Patel & vs State Of Gujarat & 4 on 26 February, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/758/1997 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 758 of 1997
With
CIVIL APPLICATION NO. 11154 of 2013
In
SPECIAL CIVIL APPLICATION NO. 758 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
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 ?
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DUDHIBEN MULJIBHAI PATEL & 1....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1 - 2.5
MS JYOTI BHATT, AGP for the Respondent(s) No. 1 , 3
MR RC SEJPAL, ADVOCATE for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date :26/02/2016
CAV JUDGMENT
The petitioners have addressed their challenge to order dated 21st November, 1996 passed by Deputy Page 1 of 16 HC-NIC Page 1 of 16 Created On Thu Mar 03 01:01:32 IST 2016 C/SCA/758/1997 CAV JUDGMENT Collector, Rajkot, whereby the Deputy Collector allowed appeal under Rule 108(5) of Gujarat Land Revenue Rules of respondent No.4-Gopalnagar Cooperative Housing Society Limited and directed cancellation of order dated 7th June, 1964 of Mamlatdar, Rajkot mutating Entries Nos. 2679, 2680 and 2681 dated 18th April, 1964. Those entries were mutated in the name of the petitioners in respect of land bearing Survey No. 266 admeasuring 22 Acres and 17 Gunthas.
2. The aforesaid land belonged to respondent No.4 society which was purchased by the society in the year 1959. As per the case of the petitioners, the society remained defunct, and the general body of the society resolved on 15th April, 1964 to sell the land to the petitioners. By three different sale deeds dated 6th August, 1964, 19th January, 1967 and 31st August, 1968 in the name of petitioner No.1-Dudhiben and petitioner No.2-Bava Kesha, the property came to be sold. Thereupon on 18th April, 1964, three Entries Nos. 2679, 2680 and 2681 came to be mutated. According to the petitioners, the land was sold to them by one Jagannath Gaurishankar Bhatt who happened to be the president of respondent No.4-society. Petitioners have stated that since then they have been in possession and have tilled the land and that their names are reflected in the Village Form 7/12 also. Out of the total land, 12 Gunthas of land was got converted into non-agricultural in the year 1975 by the petitioners and came to be sold to a third party. Respondent No.4 society went into liquidation and as order dated 13th Page 2 of 16 HC-NIC Page 2 of 16 Created On Thu Mar 03 01:01:32 IST 2016 C/SCA/758/1997 CAV JUDGMENT January, 1972 came to be passed under Section 107(3) of the Cooperative Societies Act. The liquidation order was set aside by Additional Registrar, Cooperative Societies on 7th March, 1994. The subsequent development about the land in question falling under Town Planning Scheme No.6, Rajkot is not in dispute. The State Government sanctioned the said town planning scheme in which the land in question came to be converted to Original Plot No.10 and Final Plot No.23.
3. It is the case of the petitioners that the aforesaid revenue entries recorded in the year 1964 upon purchase of land by the petitioners, sought to be questioned by an organizer of respondent No.4-society who made an application in the year 1996. The appeal culminated into the impugned order.
3.1 According to respondent No.4-society which contested the petition by filing affidavit-in-reply, the so-called purchase of land of the society by the petitioners was fraudulent; said Jagannath Gaurishankar was never either member or president of the society; the society had purchased the said land by sale deed on 16th February, 1959, for which Entry No.360 was recorded on 31st August, 1959. The stamp duty was not adequately paid and the deficit stamp duty was paid on 19th August, 1984, whereupon only the sale deed was registered in favour of the society on 19th September, 1984, therefore when the petitioners claimed to have purchased the land, the title could not be said to have passed in favour of the society.
Page 3 of 16HC-NIC Page 3 of 16 Created On Thu Mar 03 01:01:32 IST 2016 C/SCA/758/1997 CAV JUDGMENT It was contended that petitioner Nos.1 and 2 were husband and wife who suppressed the facts to enter into the transaction, and did not hand over the possession to the liquidator. It was contended that the alleged document of sale dated 17th April, 1964 in favour of the petitioners was never registered document, and the registered document was executed subsequently. Therefore, it was contended that on the basis of such unregistered document, entry could not have been mutated. It was contended that the petitioners suppressed about Lavad Case No.102 of 1997 before the Board of Nominee.
3.2 In rebuttal to reply of respondent No.4, petitioners contended that lavad suit was never the basis and they maintained that the document of sale was signed by the president of the society, that is, Shri Jagannath Gaurishankar Bhatt who died on 23rd June 1989, whereas the lavad suit by the society was filed in the year 1994. It was submitted that it was a strange that award came to be passed against a dead person.
4. Learned advocate for the petitioners Mr. S. P. Majmudar assailed the impugned order on various grounds. At the outset, he submitted that it suffers from unreasonable delay of more than three decades; he submitted that after such long and inordinate delay, the Collector could not exercise the powers and cancel the entries. Subsequently, he submitted that the appeal was time-barred and the same was preferred much after the period of 60 days; not only that the appeal Page 4 of 16 HC-NIC Page 4 of 16 Created On Thu Mar 03 01:01:32 IST 2016 C/SCA/758/1997 CAV JUDGMENT was not accompanied with a separate application for condonation of delay which was an indispensable requirement without which the Deputy Collector could not have assumed the jurisdiction to entertain the appeal. He relied on decisions of the Supreme Court and of this Court to support his contention that the delay could not have been condoned without there being an application for condonation.
4.1 Learned advocate for the petitioners assailed the impugned order with reference to each of the major findings recorded therein. Questioning the finding that the order mutating the entries was void and nullity therefore the same could be challenged at any time, learned advocate submitted that the impugned entries were mutated in the revenue record by the competent revenue officer having powers to mutate the same. With regard to the finding that there was no sale in favour of the petitioners on 18th June 1964, the following was submitted that the finding is contrary to the record of the case and without jurisdiction, and that the question of title cannot be decided by the Deputy Collector in RTS proceedings.
4.2 Learned advocate emphasized that the sale deeds were executed between the petitioners and the president of respondent No.4 society on 17th April, 1964 and the same was registered on 6th August, 1964. He submitted that genuineness of the documents cannot be considered by the learned Deputy Collector under Gujarat Land Revenue Code, 1879. He further submitted that the sale deeds in favour of the petitioners are Page 5 of 16 HC-NIC Page 5 of 16 Created On Thu Mar 03 01:01:32 IST 2016 C/SCA/758/1997 CAV JUDGMENT not challenged by respondent No.4 society before any civil court and therefore unless the sale deeds in favour of the petitioners are quashed, the entries on the basis of the said sale deeds cannot be cancelled by the revenue authority. He submitted that the Collector was also not justified in recording the finding about the possession and in any case, the possession and occupation indicated to be of the petitioners as non agricultural permission to them in respect of the portions of the land.
4.3 As to the finding recorded in the order that the entries were contrary to the provisions of the Transfer of Property Act, it was submitted that the Deputy Collector could not have looked into another statute for deciding on the aspect of legality of the entries, for, the powers were being exercised by the Deputy Collector under Rule 108(5) of the Rules. In support of this proposition, learned advocate relied on these decisions, (i) 2001 (2) GCD 1065, para 14 and 15, (ii) 2012 (2) GLR 1275, para 25, (iii) 1997(1) GLR 50, para 8, 10 and 11 and (iv) 1991(1) GLH 155, para 11 and 12.
4.4 Learned advocate for the petitioners with reference to Lavad Case No. 786 of 1994 proceeded to submit that order dated 18th October, 1994 was passed against a dead person. Said Jagannath Gaurishankar Bhatt had died on 23th June, 1989; the lavad case was filed subsequent to his death. He submitted that the petitioners were not parties to the said proceedings. In any view, the order being against a dead person, it Page 6 of 16 HC-NIC Page 6 of 16 Created On Thu Mar 03 01:01:32 IST 2016 C/SCA/758/1997 CAV JUDGMENT was a nullity. He further submitted that the application for mutation entry in the revenue record in favour of the petitioners was given by respondent No.4 society itself.
4.5 Learned advocate for the respondent society Mr. Divyesh Sejpal countered the above submission on behalf of the petitioners by raising following contentions, (i) The society purchased the subject land on 16th February, 1959 but it did not have clear title until 19th September, 1984 because the stamp duty was deficit and then it was paid. Therefore, when the purchase deed itself was not registered until the year 1984, there was no question of selling the subject land to the petitioners in the year 1964. (ii) The society was not served with a notice under Section 135D of the BLR Code. According to submissions, it was served upon a third party who was not connected with the society. The society was also not heard before mutating the entries in question. (iii) Name of Jagannath Gaurishankar Bhatt was used to create forgery by petitioner No.2. The petitioner No.2 had ample experience of revenue proceedings as he was Talati-Mantri in past. He was also in charge of affairs of the society and therefore, being in command of the affairs, he committed this forgery by creating three hand writing notes, all on 10 rupee stamp papers, which are unregistered and have no value.(iv) The petitioner No.1 happens to be wife of the petitioner No.2. The petitioner No.2 has as such tried to grab away entire land of the society. (v) No resolution is on record to say that Jagannath Page 7 of 16 HC-NIC Page 7 of 16 Created On Thu Mar 03 01:01:32 IST 2016 C/SCA/758/1997 CAV JUDGMENT Gaurishankar Bhatt was the president of the society any time. On the contrary, he has filed an affidavit (page 90) stating contrary to the claim of the petitioners that he was not a president, nor he had ever remained present in any meeting of the society.
(vi) The possession of the land is with society as per the panchnama (page 113) carried out on 29th January, 1997. (vii) Order dated 7th March, 1994 of the Additional Registrar, Co-operative Societies, by which the liquidation of the society is set aside, clearly stated that petitioner No.2 committed breach of trust of the society being in charge of its affairs. He did not work in the interest of the society and that the society ought to have prosecuted him for his misconduct. (viii) The society remained under liquidation from 1972 to 1994 and during this period also nothing is pointed out by the petitioners before any authority that entire land of the society is sold to them, which was not a bona fide conduct. Petitioner No.2 remained silent all throughout. (ix) Appeal memo filed before the Deputy Collector contained reasons for delay. The limitation would have to be counted from the date of knowledge. Though the sale deed was registered on 19th September, 1984, revenue entries were not updated in the name of the society. The society did not have knowledge, hence the appeal was not preferred within 60 days. It was only on the Sub- Registrar replying on 28th February, 1996, in response to application of the society dated 20th January, 1996 that the knowledge was acquired and therefore there was no delay.
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5. Having considered the facts and the contentions above, it clearly emerges that the Deputy Collector exercised the powers after a long gap of 32 years. It is cardinal principle that any statutory power vested in an authority would be required to be discharged within a reasonable time, even if no period is prescribed for such exercise. Inordinate and unreasonable delay is treated as vitiating factor itself. The principle applies with force in respect of the powers exercised or functions discharged by the revenue authorities under the revenue jurisdiction and they are not allowed to upset the action taken long back which may have resulted into vesting of rights and creation of equities with passage of time.
5.1 The aforesaid principle is underlined right from a decision of Supreme Court in State of Gujarat vs. Patil Raghavnatha [(1969) 2 SCC 187] and caravan of decisions of the Apex Court and of this Court. In Ranchodbhai Lallubhai Patel vs. State of Gujarat [1984 (2) GLR 1225] this Court disapproved the exercise of powers after long delay observing that in the meantime the affected parties would have materially altered their position and irreparable injury would be caused to them. In another decision in respect of powers exercised under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 the Division Bench of this Court held that the passage of 31 years in that case was too unreasonable to be countenanced shielded, observing, "Even the void transaction under Section 9(1) if allowed to remain effective for considerably long period, the authority named therein will be precluded Page 9 of 16 HC-NIC Page 9 of 16 Created On Thu Mar 03 01:01:32 IST 2016 C/SCA/758/1997 CAV JUDGMENT from initiating proceedings to annul it. Even the void transaction cannot be said to be nonexistent in all cases and in all situations. It can remain effective and in existence till it is invalidated and set aside. If its existence is allowed to remain for a considerable period and with the passage of time it brings about several changes, creating valuable rights in favour of considerable section of people, it is difficult to accept the proposition that despite the change the Collector would be entitled to exercise power under Sub-section (3) of Section 9 of the Act. When the things have been allowed to remain as such for years together, the purchaser cannot be deprived of his possession so as to render indirect benefit to the seller who was equally responsible for entering into such illegal transaction. When the authority had considerable opportunities to know about the transaction and despite that, has not taken any action thereon for years together, such authority cannot be allowed to exercise powers conferred upon it at a belated stage. The concept of reasonableness of time will equally apply in such cases. Therefore, even powers conferred upon the Collector under sub-sections (2) and (3) of Section 9 are required to be exercised within a reasonable time. [Valjibhai Jagjivanbhai vs. State of Gujarat, 2005 (2) GLH 34 : (2005(3) GLR 1852)]."
5.2 The facts are not disputed in the present case that the revenue entries under challenge were mutated on 18th April, 1964 and came to be certified on 7th June, 1964. The appeal was preferred by respondent No.4 society before the Deputy Collector in the year 1996 which was after 32 years. The period of 32 years by any standard is unreasonably long period to countenance an action initiated after such delay.
5.3 The case of the respondent No.4 about lack of knowledge about the transaction and the related entries for long 30 years and acquisition of such knowledge only in the year 1996, hardly inspires a tenability. The entires remained in force for 32 years and in the meantime part of the land, that is 12 gunthas came to be converted into Non-Agriculture on Page 10 of 16 HC-NIC Page 10 of 16 Created On Thu Mar 03 01:01:32 IST 2016 C/SCA/758/1997 CAV JUDGMENT 11th August, 1975 as per the order of the competent authority. Entry No.891 was mutated and the said part of the land came to be sold to third party. It is difficult to believe that the society was unaware. Furthermore, from the Memorandum of Appeal filed by the society before the Deputy Collector, it could be noticed that the society had averred specific details about the three sale deeds and their details which were executed in respect of the land in question in favour of the petitioners, which could not but, was suggestive about the society having been in knowledge of the transaction prior at least dislodging its own case that it came to knowledge in the year 1996. It could be legitimately contended that the knowledge of the transaction was attributable to respondent No.4.
5.4 As per Section 205 of the Gujarat Land Revenue Code, 1879 read with Rule 108(5) of the Gujarat Land Revenue Rules, 1972 the period of limitation to prefer appeal is 60 days. The appeal of respondent No.4 was admittedly filed much after said period of limitation.
5.5 The contention that no separate application for delay condonation was filed eventhough the appeal was filed much after the limitation period, was well placed in law. The Supreme Court in Ragho Singh vs. Mohan Singh [2001 (9) SCC 717] observed to held thus, "Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. The Board of Revenue before which the question of limitation was agitated was of Page 11 of 16 HC-NIC Page 11 of 16 Created On Thu Mar 03 01:01:32 IST 2016 C/SCA/758/1997 CAV JUDGMENT the view that though an application for condonation of delay was not filed, the delay shall be deemed to have been condoned. This is patently erroneous. In this situation, the High Court was right in setting aside the Judgment of the Additional Collector as also of the Board of Revenue." (para 6) 5.6 This Court in Kalpeshbhai Natvarlal Patel vs. State of Gujarat [(2009) 3 G.L.H. 372] stated the same principle that the authority cannot entertain the appeal without delay condonation application when appeal was filed beyond the limitation period. It held that only because the appeal is entertained, it cannot be presumed that the delay has been condoned. The court stated thus, "The law is well settled that in case where a statutory time limit is prescribed for initiating remedial action, the aggrieved person is bound by the said time schedule and in the event the remedy is invoked beyond the statutory period of limitation, the Authority cannot entertain the proceeding on merits before first recording a decision as to whether the delay which has occasioned in initiating the proceedings has been explained or not. In the facts of the present case, in absence of any such decision by the Deputy Collector, the order dated 23.10.2003 is bad in law having been made without jurisdiction to entertain the Appeal on merits."
(para 12) "A faint attempt during course of hearing was made on behalf of the petitioners that as the order was made on merits one can presume that the delay has been condoned. This submission cannot be countenanced. As recorded here-in-before, the order was made in 1963 when deceased Somabhai was alive and right to challenge the same was available to the said gentleman. Deceased Somabhai having not raised that challenge without prescribed period of limitation the law assumes that the cause was abandoned by the aggrieved person. The Law of Limitation is very clear that once a cause has been abandoned the aggrieved person has to be put to strict proof for explaining the delay in question as consequential rights in favour of the other side would come into existence by then, i.e., the end of the period of limitation."
(para 13) Page 12 of 16 HC-NIC Page 12 of 16 Created On Thu Mar 03 01:01:32 IST 2016 C/SCA/758/1997 CAV JUDGMENT 5.7 In another decision of this Court in Darabsha Sorabji vs. State of Gujarat [(2005) 3 GLH 436], it is held with reference to the provisions under the Gujarat Agricultural Land Ceiling Act, 1960 that where the Revision Application before the Collector was time-barred, yet allowed in absence of delay condonation application, the course was impermissible. The Court allowed the petition on the said ground alone remanding the case for decision afresh.
5.8 In view of the above position of law, since the Deputy Collector entertained the appeal which was admittedly filed after the period of limitation, it amounted to assumption of jurisdiction to decide the appeal in a manner impermissible in law. This ground alone was a good ground to set the impugned order aside.
6. Amongst the several grounds on merits urged by both the sides and considered by the Court, two significant aspects having material bearing emerged from the facts. They would reign. The first is that eventhough the case of the other side was that at the time when the entries were mutated on 18th April, 1964 the transaction of sale was not registered, it was followed by execution of registered sale deed dated 6th August, 1964. After four months from the date of entries, in any case, the registered document was created. The entries thus stood supported by a registered document of sale in favour of the petitioners. The second important aspect is that Page 13 of 16 HC-NIC Page 13 of 16 Created On Thu Mar 03 01:01:32 IST 2016 C/SCA/758/1997 CAV JUDGMENT eventhough the case of respondent NO.4 society has been consistently that the transaction of sale in favour of the petitioners was fraudulent and invalid, at no point of time during all these years since 1964 till date, respondent No.4 did not choose to institute a civil suit for getting the said sale and the registered sale deed set aside. Learned advocate when asked about inaction on part of respondent No.4 on this score, had no explanation to offer except showing that one of the members of the society has filed a lavad suit, which takes the case of respondent No.4 nowhere. Admittedly, respondent No.4 has not taken any action in law to seek declaration about the sale deed in favour of the petitioners being void or invalid, and to get it set aside.
7. When there is a registered sale deed executed in favour of the petitioners and the same is not challenged in any civil proceedings, much less set aside, the revenue authority is bound by the same. It is trite principle that an entry in the revenue record has to follow to be mutated when the transaction is by a registered document. This Court in Javerbhai Savjibhai Patel vs. Kanchanben Nathubhai Patel & ors. [2005 (3) G.L.H. 657] laid down such principle and further ruled in Nathubhai Meraman Darji vs. Special Secretary (Appeals) [1996(3) GCD 691] that when the transaction is represented by a registered document, the revenue authority is required to take suo motu cognizance thereof for the purpose of mutation in the revenue record. It was held that question of following procedure of Section 135D of the Bombay Land Revenue Page 14 of 16 HC-NIC Page 14 of 16 Created On Thu Mar 03 01:01:32 IST 2016 C/SCA/758/1997 CAV JUDGMENT Code would not arise when a transaction is by a registered deed. Such transaction cannot be disputed by the revenue authority unless the competent civil court annuls the same.
8. In the aforesaid view, therefore when there stands executed a registered sale deed in respect of the land in question in favour of the petitioners, the entry in the revenue record on the basis of such transaction has to mutate in the revenue records. Even if the other considerations, though meritorious for setting aside the order, are set apart, on the aforesaid count alone, the order of the Deputy Collector directing cancellation of entries cannot be permitted to stand. The petitioners are within their right to continue with the entries in their name in the revenue record on the basis of the registered sale transaction which is holding the field and is not sought to be set aside by the other side in any civil proceedings.
9. For the foregoing reasons and discussion, the impugned order is hereby set aside as registered sale deed dated 6th August, 1964 was executed in respect of the land in question in favour of the petitioners. The entires in question cannot be allowed to go off and obliterated from the revenue record. They have to be allowed to stand in view of registered sale deed. However, the same shall abide by the proceedings which may be competently taken out by the parties or private parties, as the case may be, if they are so advised.
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10. Rule is made absolute accordingly.
ORDER IN CIVIL APPLICATION NO. 11154 of 2013 No orders are needed to be passed in this Civil Application in view of decision in the main petition as well as interim orders which were already passed during the pendency of the main matter.
(N.V.ANJARIA, J.) chandrashekhar Page 16 of 16 HC-NIC Page 16 of 16 Created On Thu Mar 03 01:01:32 IST 2016