Gujarat High Court
Jayantibhai Joitaram Patel vs District Collector & on 28 March, 2013
Author: Harsha Devani
Bench: Harsha Devani
JAYANTIBHAI JOITARAM PATELV/SDISTRICT COLLECTOR C/SCA/13457/2011 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 13457 of 2011 FOR APPROVAL AND SIGNATURE: HONOURABLE MS.JUSTICE HARSHA DEVANI ================================================================ 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 ? ================================================================ JAYANTIBHAI JOITARAM PATEL & 4....Petitioner(s) Versus DISTRICT COLLECTOR & 5....Respondent(s) ================================================================ Appearance: MR AM PAREKH, ADVOCATE for the Petitioner(s) No. 1 - 5 MR SHITAL R PATEL, ADVOCATE for the Respondent(s) No. 5 NOTICE SERVED for the Respondent(s) No. 1 - 2 SERVED BY AFFIX.(N) for the Respondent(s) No. 3 - 4 ================================================================ CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 28/03/2013 ORAL JUDGMENT
1) By this petition, which is styled as a petition under Article 226 of the Constitution of India, the petitioners seek the following substantive reliefs;
(A)Your Lordship may be pleased to admit and allow the present petition.
(B)Your Lordship may be pleased to issue a writ of Mandamus or a writ in nature of Mandamus or any other appropriate writ/s, order/s, and/or direction/s, quashing and setting the impugned order passed by the Dy. Collector (LR), Appeals, Ahmedabad in Tenancy Appeal Nos.322 to 324 of 1987 dated 16.10.1989 as well as order passed by the Gujarat Revenue Tribunal in Revision Application No.TEN/BA/55 of 2006 dated 28/3/2007.
(B.1)Your Lordship may be pleased to issue a writ of the Mandamus and direction to the learned Gujarat Revenue Tribunal to file complaint as per the application of the petitioner dated 5.3.2007 and 6.3.2007 under the provision of the section 195 read with section 340 of the Criminal Procedure Code in the facts and circumstances of the case and direct the State C.I.D. Crime to investigate the matter and file report in accordance with law in the facts and circumstances of the case.
2) The facts of the case as stated in the petition are that the petitioners are residents of village Piplavala Vas, Bopal, Taluka: Daskroi, District: Ahmedabad and are cultivating lands bearing Survey No.317/2, Block No.435 and Blocks No.600, 600-A and 600-B respectively of village Bopal, District: Ahmedabad. The petitioners grandfather Shri Damodarbhai had agricultural lands, which were ancestral properties. During the life time of Damodarbhai, a partition took place between two brothers in respect of the properties of Damodarbhai on 7th February, 1968, pursuant to which, certain parts of the above lands came in the share of the father of the petitioners. The entry was certified in the year 1969, which according to the petitioners, clearly indicates that Joitaram Nanalal-Damodarbhai had certain share in the property bearing Survey No.317/2-Block No.435 of village Bopal (hereinafter referred to as the subject land ). According to the petitioners, the subject land was not the individual property of Joitaram, but was of the ownership of all the members of the family, wherein the major as well as the minor members had a share. It is alleged that the respondents No. 3 to 5 and, more particularly, respondent No.5 created forged signatures of their father and his brother Surendrabhai and created forged signatures of the witnesses, who had signed in the sale-deed before the Registrar and that such forged sale-deed was prepared on 16th December, 1980 and was got registered in the office of the Sub-Registrar, Ahmedabad on 16th December, 1980, whereby the land bearing Survey No.317/2, Block No.425 of Bopal was fraudulently transferred in the name of the respondent No.5-Gautambhai Mohanbhai Prajapati.
3) It is further averred in the petition that though the sale-deed was of the year 1980, no attempts were made by the respondents No.3 to 5 to get their names mutated in the revenue record at the relevant point of time and that behind the back of the petitioners, without notice under section 135D of the Bombay Land Revenue Code being issued to the petitioners, the respondents No.3 to 5 got their names mutated in the revenue record despite the fact that the petitioners were in possession of the subject land and were cultivating the same and were paying revenue to the State Government.
4) It is further the case of the petitioners that respondent No.5 was not an agriculturist and that the Mamlatdar and Agricultural Lands Tribunal-respondent No.2 herein (hereinafter referred to as the Mamlatdar and ALT) before certifying the entry, gave several opportunities to the respondent No.5 to produce the sale-deed or to prove that he is an agriculturist and initiated proceedings under section 84C of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Tenancy Act ), which culminated into an order dated 23rd February, 1987 holding that there was a breach of the provisions of section 63 of the Tenancy Act and directing that the subject land be confiscated to the State Government as the purchaser-respondent No.5 was not an agriculturist. It is further the case of the petitioners that their father expired on 3rd December, 1988 and later on they learnt about order passed by the Deputy Collector and came to know that the respondents No.3 to 5 had preferred an appeal before the Deputy Collector, wherein neither the petitioners nor their deceased father had received notices and that the Deputy Collector had passed an order dated 16th December, 1989 against a dead person, in view of the fact that the petitioners father had expired much prior to the date of passing of the said order. It is the case of the petitioners that they were not aware of the aforesaid order made by the Deputy Collector and, hence, could not challenge the same at the relevant point of time. Upon coming to know about the said order, the petitioners applied for a certified copy on 22nd December, 2005 and preferred a revision application, being Revision Application No. TEN/BA/55 of 2006, before the Gujarat Revenue Tribunal (hereinafter referred to as the Tribunal ). In the said proceedings, respondent No.5 appeared and produced copies of the orders passed by the Gujarat Revenue Tribunal in Revision Applications No.115 and 116 of 1994 and alleged that the petitioners had previously preferred two revision applications against the orders passed by the Deputy Collector, which had been rejected. It is the case of the petitioners that they had never filed such revision applications nor had they authorised the concerned advocate to make such applications and that it was the private respondents had filed the said revision applications and had, accordingly, committed the offence of impersonation. They, therefore, requested that action be taken against the private respondents under section 340 of the Code of Criminal Procedure. It is further the case of the petitioners that one Arvindbhai Patel, a cousin of the petitioners, instituted a suit being Civil Suit No.168 of 2006 against the petitioners for partition of their lands, including the subject land. However, without considering the documents placed on record by the petitioners and without considering the contentions raised on behalf of the petitioners in true spirit, the Tribunal, by the impugned order dated 28th March, 2007, rejected the said revision application. It is further averred in the petition that a criminal complaint has also been filed against the private respondents, which is annexed as Annexure-J to the petition. Being aggrieved by the above referred orders passed by the Deputy Collector and the Tribunal, the petitioners have approached this court by way of the present petition.
5) Mr. J. M. Patel, learned counsel appearing on behalf of the petitioners, vehemently assailed the impugned orders passed by the Gujarat Revenue Tribunal as well as the Deputy Collector mainly on the following grounds:
(i) The Deputy Collector had passed the order on 16th December, 1989, whereas the father of the petitioners had died on 3rd December, 1988 and as such the said order undisputedly was an order against a dead person, and was, therefore, illegal and a nullity.
Reliance was placed upon the decision of this court in the case of Jadavji Devshanker (Since Decd by his heirs) v. Jiviben Lavji Rughnath W/o Lavji Rughnath, 1977 GLR 504, for the proposition that a decree in favour of a dead man is a nullity and that if it appears that the court could not have been passed a decree, the executing court is entitled to examine the question. Reliance was also placed upon the decision of the Division Bench of this Court in the case of Jiviben Lavji Raganath v. Jadavji Devshanker, 1977 GLR 883 for the proposition that a decree passed in favour of a dead person is a nullity. The decision of this court in the case of Rahubha Jivubha v. State of Gujarat, 1995 (1) GLR 805 was cited for the proposition that a quasi-judicial order against or in favour of a dead man is a nullity and an order or a decision affirming a nullity would by itself be a nullity. It was, accordingly, urged that the order passed by the Deputy Collector against a dead person was a nullity and consequently, the order of the Tribunal, affirming such decision was also a nullity.
(ii) It was submitted that despite the fact that the father of the petitioners had expired during the pendency of the appeal before the Deputy Collector, no steps were taken to bring his heirs on record and, as such, the order passed by the Deputy Collector is clearly in breach of the principles of natural justice.
(iii) The Deputy Collector, while deciding the appeal preferred by the private respondents, took into consideration additional evidence produced by the said respondents. The Deputy Collector, while deciding a tenancy appeal, has no power to permit the respondents to produce additional evidence without recording reasons in that regard. Moreover, in the present case, no application had even been filed for production of additional evidence and documents were placed on record by way of additional evidence by way of a purshis. Copies of the so called additional evidence and purshis were never supplied to the petitioners. Also the Deputy Collector had not served any notice of hearing of appeal to the petitioners or their father; hence, they had no opportunity to deal with such additional evidence. The action of the Deputy Collector in permitting additional evidence to be led without following the statutory provisions is contrary to the provisions of the Act, which goes to the root of the matter and vitiates the entire proceedings. In support of his submission, the learned counsel placed reliance upon a decision of this court in the case of Vali Ahmed Koyla v. Rasul Mohammad Adam, 1994 (1) G.L.H. 270, for the proposition that the appellate authority has to record reasons for taking additional evidence. Plea as to invalid exercise of power to receive additional evidence by the appellate authority even if taken for the first time before the High Court, such plea can be entertained if it goes to the root of the matter and can be proved that such exercise of power was error of jurisdiction by such authority. Plea of want of jurisdiction can be taken at any stage.
(iv) Next, it was submitted that the respondents No.3 and 5 had produced a sale-deed before the Deputy Collector in support of their say that they were agriculturists. However, such sale-deed was in respect of non-agricultural land and not agricultural land and, as such, respondents No.3 to 5 not being agriculturists were not entitled to purchase the subject land.
v) It was vehemently contended that the Tribunal has held that the proceedings under section 84C had been initiated after a delay, however, the Tribunal has not appreciated the facts on record in proper perspective, inasmuch as, the said proceedings were initiated within a period of two years from the time when the mutation entry came to be made in the revenue record and, as such, the action was taken within a reasonable period of time.
vi) It was argued that while exercising revisional jurisdiction, it is incumbent upon the Tribunal to call for the record and proceedings of the case, whereas in the facts of the present case, the Tribunal has finally decided the revision application without calling for the record and proceedings and, as such, the impugned order passed by the Tribunal stands vitiated on this ground also. It was urged that if the Tribunal had called for the record and proceedings, it would have seen that the sale-deed on which the reliance had been placed by the respondents No.3 to 5 for the purpose of showing that they were agriculturists, was in respect of non-agricultural land.
vii) It was pointed out that before the Tribunal, the petitioners had moved an application (Annexure-L), requesting the Tribunal to take appropriate action under section 340 read with section 195 of the Code of Criminal Procedure against the respondents No. 3 to 5 for having fabricated and filed revision applications in the name of the petitioners and having committed the offence of impersonation. However, the Tribunal, without deciding the said application or dealing with the same in the impugned order, has disposed of the revision application.
(viii) Lastly, it was contended that in view of the provisions of sub-section (2) of section 84C of the Tenancy Act, if the Mamlatdar after holding inquiry comes to the conclusion that the transfer or acquisition is invalid, before making an order declaring such transaction to be invalid, he is required to afford an opportunity to the parties to restore the land along with the rights and interest therein to the position in which it was immediately before the transfer or acquisition. Reliance was placed upon the decision of this court in the case of Suchita Gas Service Vs. Shankerbhai Bhagabhai, 2003 (3) GLR 2315, for the proposition that before exercising powers under section 84C, the Mamlatdar must first give notice to the occupant to show cause about the alleged breach of law and then against the parties to give reasons for restoration of the land. It was submitted that in the present case, the Mamlatdar, after holding that the transaction was in breach of the provisions of section 63 of the Act, has not issued any notice to the parties to give reasons for restoration of the land.
ix) In conclusion, it was urged that the impugned order passed by the Tribunal suffers from various infirmities and, as such, deserves to be quashed and set aside.
6) Vehemently opposing the petition, Mr. Shital Patel, learned counsel for the respondent No.5-Gautambhai Mohanbhai Prajapati, viz., the purchaser of the subject land submitted that the registered sale-deed came to be executed in favour of the respondent No.5 in the year 1980. The name of the respondent No.5 came to be entered in the revenue record by virtue of a mutation entry dated 11.6.1982 and since then, he is continuing as the owner and is in possession of the subject land. The attention of the court was invited to the relevant mutation entries made in the revenue record as well as the extracts of the Village Form No.7/12 to point out that the same reflected the name of respondent No.5 as being the occupant of the subject land. It was submitted that against the order of the Deputy Collector, the petitioners had filed Revision Applications No.115 and 116 of 1994 before the Tribunal, wherein by an order dated 7th April, 1995, the stay application filed by the petitioners had been rejected and by an orders dated 10th December, 1996, the said revision applications came to be dismissed for default on account of non-appearance of the applicants and their advocate. It was argued that without filing any application for restoration or for recalling such order, the petitioners had, at a belated stage in the year 2006, again filed the present revision application before the Tribunal challenging the order of the Deputy Collector. It was submitted that the said revision application came to be decided by the Tribunal by the impugned order dated 28th March, 2007, against which, the present petition has been filed in July, 2012 after a delay of more than five years. It was submitted that thus, at all stages, there is a considerable delay on the part of the petitioners, viz., in challenging the order of the Deputy Collector as well as the order of the Tribunal and, as such, the petition is required to be dismissed on the ground of being barred by limitation. It was urged that even on merits, the petitioners have no case inasmuch as the father of the petitioners having sold the subject land to the respondent No.5, the petitioners did not have any subsisting right therein. It was urged that the Tribunal, after considering all the submissions advanced by the respective parties, has given sufficient, cogent and convincing reasons while rejecting the revision application and that there is no warrant for intervention by this court.
7) Before adverting to the merits of the order passed by the Tribunal, it may be germane to notice certain facts. The record of the case as available before the court reveals that the Village Form No.7/12 in respect of the subject land for the years 1973-74 to 81-82 the name of Joitaram Nanalal is shown under the column name of agriculturist . From 1982-83 onwards, the Village Form No.7/12 shows the name of Gautambhai Mohanbhai under the column name of agriculturist . In the record of rights, viz., Village Form No.6, vide mutation entry No.2438 dated 22.6.1973, it is recorded that Joitaram Nanalal had obtained a loan from the Bank of India, Bhadra, Ahmedabad Branch. Mutation Entry No.2607 dated 19.12.1979 records releasing of the said land from such encumbrance. Mutation Entry No.2773 dated 20.4.1982, which is based upon the sale-deed dated 26.12.1980, records that Gautambhai Mohanbhai has purchased the said land from Joitaram Nanalal under a registered sale-deed No.15976 dated 26.12.1980. Mutation Entry No.3360 dated 21.11.1987 records that since the purchaser has continuously remained absent it is believed to have been proved that he is a non-agriculturist and as there is a breach of the provisions of section 63 of the Tenancy Act, the disputed land is vested in the State Government without any encumbrance. Such entry is made on the basis of the order dated 27.2.1987 of the Mamlatdar, Daskroi in Tenancy Case No.662 of 1984.
8) A perusal of the sale-deed dated 16th December, 1980 reveals that the same has been executed by Joitaram in his capacity of Karta and Manager of the Hindu Undivided Family in favour of the respondent No.5-Gautambhai Mohanbhai. It is pursuant to the said sale-deed that the Mutation Entry No.2773 dated 20.4.1982 came to be made. Subsequently, the Mamlatdar and A.L.T initiated proceedings under section 84C of the Tenancy Act against the respondent No.5 being Case No.662/84/Bopal, wherein it is recorded that notices were issued to the parties and despite sufficient opportunities having been granted, the purchaser has not appeared and, as such, in view of his repeated absence, there is reason to believe that he is a non-agriculturist. It is, therefore, believed that he is proved to be a non-agriculturist and, therefore, the transaction being in breach of the provisions of section 63 of the Tenancy Act, the subject land is vested in the State Government without any encumbrance. It has been contended on behalf of the petitioners that the Mamlatdar, after holding that the transaction was in breach of the provisions of section 63 of the Tenancy Act, has, thereafter, not issued notices to the parties to give reasons for restoration of the land as laid down by this court in the case of Suchita Gas Service v. Shankerbhai Bhagabhai (supra).
In this regard, it may be noted that the petitioners have never challenged the order passed by the Mamlatdar. In fact, the petitioners have called in question the order passed by the Deputy Collector setting aside the order of the Mamlatdar and as such, at this stage, the petitioner cannot be permitted to call in question the validity of the order passed by the Mamlatdar and A.L.T. which has merged with the order passed by Deputy Collector and has no independent existence in the eye of law. Under the circumstances, such contention deserves to be stated only to be rejected.
9) The aforesaid order passed by the Mamlatdar and A.L.T came to be challenged by the respondent No.5 by preferring an appeal under section 74 of the Tenancy Act before the Deputy Collector (Appeals), Ahmedabad. It appears that in respect of an order passed by the Mamlatdar and A.L.T. in respect of some other parcel of land, the respondent No.5 s brother and another had also preferred an appeal before the Deputy Collector. By a common order dated 16th October, 1989, the Deputy Collector allowed the appeals preferred by the respondent No.5 and others and set aside the order of the Mamlatdar and A.L.T. This order of the Deputy Collector dated 16th October, 1989 came to be challenged by the petitioners by way of revision before the Gujarat Revenue Tribunal in the year 2006 by way of Revision Application No. TEN/BA/55/2006. In the said proceedings, it was contended on behalf of the petitioners that the sale-deed allegedly executed by their father in favour of the respondent No.5 was forged and fabricated and that the respondent No.5 was not an agriculturist and, as such, the sale was in violation of the provisions of the Tenancy Act. It was also contended that no attempts had been made by the respondent No.5 to bring the legal heirs of the deceased on record despite the fact that their father had expired during the pendency of the appeal. In the said proceedings, the respondent No.5 placed on record copies of the orders passed in Revision Applications No. TEN/BA/115/1994 AND TEN/BA/116/1994 to contend that the petitioners had previously challenged the order passed by the Deputy Collector and that the said revision application had been dismissed for non-prosecution and, as such, it was not permissible for the petitioners to move the present revision application. At this stage, the petitioners moved an application before the Tribunal to take action against the respondent No.5 under the provisions of section 340 read with section 195 of the Code of Criminal Procedure on the ground that Revision Applications No.115/1994 and 116/1994 were filed by impersonation by the respondent No.5 and others and that the petitioners have never filed such petition nor they ever authorised any advocate to file any revision application on their behalf.
10) It appears that a civil suit being Special Civil Suit No.168 of 2006 came to be instituted by one Arvindbhai Vadilal Patel against the petitioners and their brothers claiming 1/7th share in the properties of his grandfather, wherein he had also filed an application for interim injunction (exhibit-5). By an order dated 22nd April, 2010 passed on the said application, the court directed the parties, namely, the plaintiff and the defendants therein to maintain status-quo qua the suit properties till the final disposal of the suit. In the said suit, the plaintiff also sought for a commission to ascertain the status of the subject land. Accordingly, the Commissioner appointed by the court submitted a report (page 123B of the petition). On behalf of the petitioners, it has been contended that the said report reveals that the petitioners are in possession of the said land. The facts reveal that in the suit was between the petitioners and the said Arvindbhai, the respondents No.3 to 5 herein were not parties and as such any report of the Court Commissioner made in the said proceedings would not be applicable insofar as the dispute between the petitioners and the respondents No.3 to 5 are concerned. Moreover, a perusal of the provisions of Order XXVI of the Code of Civil Procedure which makes provision for Commissions shows that the same makes provision for appointment of Court Commissioner for making inquiries of the nature specified therein. However, there is no provision for appointment of a Court Commissioner for ascertaining as to who is in possession of the disputed lands. Any report made by a Court Commissioner in any such proceeding, therefore, cannot be relied upon for examining as to who is in possession of such land. Under the circumstances, reliance placed upon the said report for contending that the petitioners are in possession of the suit land is misconceived.
11) It appears that the petitioners have also lodged a complaint against the respondent No.5 and others alleging commission of the offences punishable under sections 406, 420, 465, 471 and 120B of the Indian Penal Code on the ground that they have concocted a forged and fabricated the sale-deed dated 16.12.1980. Such complaint is addressed to the Director General of Police, D.S.P and Police Inspector, Special Investigation Team (S.I.T), however, no first information report appears to have been lodged before the concerned police station.
12) A perusal of the impugned order reveals that the Tribunal has taken note of the fact that the respondent No.5 had produced certified copies of the memorandum of Revision Application No. TEN/BA/115/1994 as well as copy of the application for condonation of delay and the final orders passed thereon. Taking note of the aforesaid fact, the Tribunal has found that since the very same order of the Deputy Collector was under challenge in the previous revision application, the case of the petitioners that they were never communicated the impugned order of the Deputy Collector and that they were not aware of the passing of the said order cannot be accepted, inasmuch as, earlier revision applications had been filed by them in the year 1993. The Tribunal has also taken note of the fact that though it is contended on behalf of the petitioners that the sale-deed dated 16.12.1980 is a forged and fabricated one, such sale-deed has never been challenged by the petitioners and that so long as the sale-deed which has been executed in favour of the respondent No.5 by their deceased father in his capacity as Karta and Manager of joint Hindu Undivided Family has not been set aside by a competent court, there is no reason to disbelieve the registered sale-deed. The Tribunal has also taken note of the fact that the proceedings under section 84C of the Tenancy were initiated by the Mamlatdar and A.L.T. in the year 1984, after a delay of four years. In view of various decisions of this High Court as well as the Supreme Court, which lay down that suo motu powers under section 84C of the Tenancy Act are required to be exercised within a reasonable time, the Tribunal found that the Mamlatdar had exercised powers under section 84C beyond a reasonable time and, therefore also, admitting the revision application would be an exercise in futility. The Tribunal has also placed reliance upon a decision of this court in the case of Abhesinh Mohansinh v. State of Gujarat, 2006 (3) GLH 352, for the proposition that in the proceedings under section 84C of the Tenancy Act, when the sale is held to be valid, the vendors have no locus standi to challenge such decision. According to the Tribunal, as the Deputy Collector had held the transaction to be valid, it was not permissible for the vendor to challenge the same after pocketing the amount of consideration. It is in the light of the aforesaid findings recorded by it, that the Tribunal has dismissed the revision application at the admission stage itself.
13) From the facts noted hereinabove, it emerges that a registered sale-deed came to be executed by the father of the petitioners in favour of the respondent No.5 on 16.12.1980. Mutation entry No.2773 recording such transaction came to be certified on 20.4.1982 after issuing notice under section 135D of the Bombay Land Revenue Code and on the basis of statement. Such entry was never challenged during the life time of the father of the petitioners. The revenue record, namely, the village form No.7/12 in respect of the subject land shows the name of the respondent No.5 in the column of occupant right from the year 1982. Thus, it is difficult to believe that the petitioners or their father was not aware of such transfer. The sale-deed executed in the year 1980 has belatedly, in the year 2005, been challenged by the petitioners before a civil court. However, as on date, such sale-deed is a registered sale-deed and has so far not been cancelled by a court of competent jurusdiction. Till the registered sale-deed is cancelled by a court of competent jurisdiction, the same still stands and is valid.
14) As noted hereinabove, the petitioners had challenged the order of the Deputy Collector on various grounds including the ground that the purchaser was not an agriculturist. In the opinion of this court, in case a purchaser is not an agriculturist, it is for the concerned authorities under the Tenancy Act to take appropriate action within a reasonable time by initiating proceedings under section 84C of the Tenancy Act. In the present case the Mamlatdar and A.L.T has taken such action had had held the transaction to be in breach of the provisions of section 63 of the Act and ordered the land to be vested in the State Government. This order was challenged by the respondent No.5 before the Deputy Collector, who, after examining the record produced before him, held that the respondent No. 5 was an agriculturist and set aside the order passed by the Mamlatdar and A.L.T. Thus, by the order of the Deputy Collector, in effect and substance the sale made by the petitioners father in favour of the respondent No.5 has been upheld. Thus, no order which is adverse to the petitioners has been passed by the Deputy Collector. It is true that pending the proceedings before the Deputy Collector, the petitioners father had expired, but it is equally true that no order has been passed against the petitioners father, who at best was a proper party, being the executant of the sale-deed. The contention raised by the petitioners that the order passed by the Deputy Collector was passed against a dead person and is, therefore, a nullity, has to be examined in the aforesaid backdrop. This court is of the view that what was subject matter of review before the Mamlatdar and the Deputy Collector was the validity of the sale-deed executed by the petitioners father in favour of the respondent No.5 under the provisions of the Tenancy Act. Such transaction has been upheld by the Deputy Collector. Under the circumstances, by no stretch of imagination can it be said that the order passed by the Deputy Collector was against the petitioners father. Consequently, no adverse order having been passed by the Deputy Collector against the petitioners father, the decisions on which reliance has been placed by the learned advocate for the petitioner to contend that the order passed by the Deputy Collector is a nullity would not be applicable to the facts of the present case. The aforesaid view is fortified by the view taken by this court in Abhesinh Mohansinh v. State of Gujarat, (supra) wherein it has been held thus:
As such, it appears that the original petitioner transferred the land in favour of respondents No.2 to 4 by receiving the consideration and the petitioners are party to the said transaction of sale. In Special Civil Application No.4647 of 2005, this Court had an occasion to consider the question as to whether the seller of the property who is party to the transaction of the sale-deed after having pocketed the consideration would be entitled to invoke the jurisdiction of this Court under Article 227 of the Constitution or not and this Court in its judgment dated 18/3/2005 observed inter alia as under.
In any case, the State has not preferred petition before this Court and the petitioner s father who was party to the transaction, as such, cannot be said to be aggrieved by the decision of the State Government. So will be the case, in the event, the petitioners are representing the interest as legal heirs of the party to the transaction. One who is a beneficiary of the transaction, once having taken benefit, cannot be allowed to contend that the transaction is illegal or is in contravention to statutory provision and, therefore, even though he has enjoyed the benefit of transaction, the property, which is already sold, should be given back to him or should be taken away by the statutory authority. At this stage, it would be worthwhile to refer to certain observations of the Division Bench of this Court in the case of Patel Ratilal Maganbhai & others Vs. State of Gujarat, 2003(1) GLR 562. This Court had, in the said decision, while considering the challenge made by one of the parties to the transaction of sale against the decision of the authority, observed inter alia at para-13 as under:-
...Seller of the transaction in case of voluntary sale is required to file a suit before the appropriate court for declaration that the sale is void, even if he is seeking a declaration that the transaction of sale is void on account of non-availability of permission of the competent authority. Since it is a question of voluntary sale, seeking declaration of such voluntary sale as void at the instance of the seller of the land, taking into consideration the decision of the Full Bench in the case of Jadav Prabhatbhai Jethabhai, 2001 (1) GLR 16, such seller much approach the Court within the period of limitation for declaration that the sale is invalid or void and the period of limitation as provided under law is of three years from the date of such sale.
It was also observed at the same para, relevant portion of which is as under:-
In case, where permission to sell is required to be obtained of any competent authority, it is obligatory on the part of the seller to disclose to the purchaser that the permission of the competent authority is required to be obtained and thereafter, sale should be effected. When such informations are withheld by the seller from the purchase and subsequently on account of non-availability of permission, the sale is declared or void and the purchaser is visited with the consequences of depriving the property or otherwise, the purchaser can legitimately sue seller for recovery of the damages permissible under law. Therefore, in such circumstances, when any voluntary sale is required to be declared void, on account of breach of any of the provisions of law, the Court will have to examine as to whether seller had disclosed all the material facts before the purchaser regarding requirement of obtaining permission of the competent authority or not.
In the very decision, at para-18, it was observed, inter alia, as under:-
But this shows the conduct of the applicants who are trying to invoke extraordinary equitable jurisdiction of this Court under Article 226 of the Constitution. It is well settled principle of law that the powers under Article 226 of the Constitution are discretionary and if this Court finds that the equitable considerations are against the person who tries to invoke the jurisdiction, the Court may decline to entertain the petition because the powers vested are not to encourage wrong actions, who themselves are party to the litigation.
Further at para-19, it was, inter alia, observed as under:-
A Court of equity when exercising its equitable jurisdiction under Art.226 must so act as to prevent perpetration of a legal fraud and the Courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law.
In the present case also, the facts are more or less common and, therefore, in view of the decision of the Division Bench of this Court, it cannot be said that the order passed by the State Government deserves to be interfered with at the instance of the petitioners.
15) As noted earlier, the main plank of the submissions of the petitioners is that the sale-deed dated 16.12.1980 is a forged and fabricated one and that the revision applications filed in 1994 were also forged and fabricated and that the Tribunal ought to have taken the same into consideration. This court is of the view that merely because the petitioners have alleged that the sale-deed is forged and fabricated or that the revision applications were forged and fabricated, the Tribunal is not expected to accept such submissions at face value unless the same are duly proved before a court of competent jurisdiction. While it is true that fraud vitiates everything, it is equally true that such fraud has to be proved and not merely alleged.
Today, with the various entries in the revenue record staring in the face of the petitioners, it is difficult to believe the allegations of fraud unless the same are duly proved by them.
16) As regards the contention that the Deputy Collector could not have taken into consideration the additional evidence produced by the respondent No.5, firstly the petitioners have no locus standi to challenge the said order, inasmuch as, their father being the vendor who had voluntarily sold the subject land to the respondent No.5, the petitioners being his heirs, cannot be said to be aggrieved by the order passed by the Deputy Collector. These days in view of the tremendous escalation in the prices of the land, it has become very common for the parties to challenge old transactions with the oblique motive of extorting money from the unsuspecting purchaser. This court in Smt. Ratnaprabhabai v. Tulsidas V. Patel, 1982 (2) GLR 213, this court held thus:
The appellate order of the Assistant Collector shows that the petitioner who was the original vendor had no cause of complaint and could not have preferred any appeal before the Assistant Collector challenging the order of the Mamlatdar refusing to invoke his suo motu powers under sec. 84C for invalidating the transaction to which the petitioner was a party being the vendor. It is an admitted position on the record of this case that the petitioner had not initiated any proceedings under sec. 84C. She bad not challenged the transaction by which she herself had sold the lands in question years back in 1961 to respondent No. 1 having taken Rs. 1,00,000/- from it. It was the Mamlatdar who initiated the suo motu proceedings first in 1974 and then in 1980 on the second occasion on the supposition that the said transaction was violative of sec. 84C. If for any reason, the authority bad sought to reinvoke suo motu powers even when there was no occasion for him to exercise such suo motu powers and had therefore subsequently dropped the suo motu proceedings realizing the futility thereof, it passes ones comprehension how the party in whose favour such decision is rendered by the Mamlatdar, can approach the appellate authority alleging to be an aggrieved party. By the order of the Mamlatdar, even on the second occasion, the notice issued suo motu calling upon the petitioner to show cause why her transaction with respondent No. 1 should not be declared invalid, came to be discharged. Result was that the petitioner s sale transaction with respondent No. 1 was not declared invalid and it remained untouched. Thereafter, the petitioner could never be said to be a party aggrieved which would be entitled to carry the matter in appeal. It is pertinent to note that the State of Gujarat has not challenged the order of the Mamlatdar by which the Mamlatdar had refused to exercise suo motu powers under section 84C. The State would have been the proper party which could have felt aggrieved if at all by the order of the Mamlatdar. Under the scheme of section 84C (1) and (2), if a transaction pertaining to any agricultural land is found to be invalid and if the parties to the proceedings are not willing to restore status sue ante, the concerned lands would vest in the State Government. Mr. S. R. Shah learned Advocate appearing for respondents Nos. 1 and 3 made it clear that these respondents are not willing to get status quo ante restored so far as the lands in question are concerned. In such an eventuality, the only order which could have followed would have been the order of the Mamlatdar vesting the lands in the State. Such an order would never have benefited the petitioner in the least. The State which could have got these lands vested in it by any effective exercise of suo motu powers by the Mamlatdar under sec. 84C did not think it proper to challenge his order refusing to take such action. In these circumstances, it is difficult to appreciate how the petitioner-original vendor of the lands felt aggrieved by the decision of the Mamlatdar who had refused to set aside petitioners sale transaction of 1962 in favour of respondent No. 1. The Assistant Collector, as a court of appeal, was justified when he took the view that the petitioners appeal itself before the appellate authority under the Tenancy Act was not maintainable. This is the additional reason why no useful purpose can be served by remanding these proceedings for a fresh decision at the instance of the petitioner. It appears that the petitioner having pocketed Rs. l,00,000/- years back in 1962 is trying to catch at a straw and is practically indulging in the policy of dog in the manger by seeing that the hanging sword of the present litigation lingers on so that at sometime respondents Nos. 1 and 3 may come round and may give some added financial advantage to the petitioner by way of bargain and if the present proceedings are kept pending, such oblique intention of the petitioner may get fructified.
The court obviously cannot be a party to such a design. When the petitioner is not a legally aggrieved party, it is in possible to give her any relief in the present proceedings under Article 227 of the Constitution by restoring these proceedings to the file of the Tribunal so that the transaction entered into by the petitioner in favour of respondent No. 1 years back in 1962 may once again be brought in the melting pot. (Emphasis supplied)
17) The aforesaid decision has been approved by a Division Bench of this court in Patel Ratilal M. v. State of Gujarat, 2003(1) GLR 562.
The decision of this court in Smt. Ratnaprabhabai v. Tulsidas V. Patel (supra) would be squarely applicable to the facts of the present case inasmuch as the petitioner s father having voluntarily sold the subject land to the respondent No.5, the petitioners are clutching at a straw with a view to keep the litigation lingering so that at some point of time the respondent No.5 may get tired and the petitioners may get some additional financial advantage. In the opinion of this court, it is high time that such litigation is deprecated and discouraged. In the light of the above settled legal position, the petitioners being the heirs of the original vendor cannot be permitted to challenge the order of the Deputy Collector upholding the transaction entered into by their father.
18) The contention that the Tribunal could not have decided the matter without calling for the record and proceedings of the case also deserves to be rejected for the reason that it has not been pointed out by the learned counsel as to what prejudice has been caused to the petitioners. Having regard to the grounds on which the Tribunal has rejected the revision application, there was no reason to call for the record and proceedings, as the order of the Deputy Collector was not required to be examined on merits. It may be noted that earlier, by an order dated 1st October, 2012, the learned Assistant Government Pleader was required to call for the original record of the proceeding of the Gujarat Revenue Tribunal. Pursuant thereto, the original record and proceedings of the Gujarat Revenue Tribunal had been received by the office of the Government Pleader and had been placed before this court. By an order dated 3.12.2012, the record was directed to be kept in the custody of the Registrar of the High Court. The court has examined the record of the case, which reveals that on an earlier occasion, Revision Applications No.115 and 116 of 1994 had been preferred before the Tribunal and such revision applications came to be dismissed for non-appearance in terms of the order dated 10.12.1996 annexed at page-305 of the record of this case. Thus, once the petitioners have already availed of the remedy of revision before the Tribunal against the order of the Deputy Collector, they are barred from once again challenging the very same order of the Deputy Collector. Thus, no infirmity can be found in the impugned order of the Tribunal, in rejecting the revision application filed by the petitioners.
19) At the cost of repetition, it may be noted that, if at all, the respondent No.5 was not an agriculturist as is sought to be contended on behalf of the petitioners, it was for the respondent-State, which would be the aggrieved party, to initiate necessary action at the relevant time. Insofar as the petitioners are concerned, their father having sold the land in favour of the respondent No.5, they ceased to have any right, title or interest in the same. In case there was any breach of the provisions of section 63 of the Act, the petitioners cannot be aggrieved inasmuch as they have received the consideration towards such transaction.
20) As regards the contention that the Tribunal has not dealt with the application filed by the petitioners under section 340 read with section 195 of the Code of Criminal Procedure, as can be seen from the facts noted hereinabove, the petitioners have only alleged that the sale-deed executed in the year 1980 as well as the Revision Applications No.115 and 116 of 1994 were forged and fabricated. Merely on the basis of such allegations, the Tribunal was not required to initiate proceedings under section 340 read with section 195 of the Code of Criminal Procedure. It is only if such allegations came to be proved and it was found that forged and fabricated documents had been placed on record before the Tribunal that the Tribunal could, if it so deemed fit, initiate any such proceedings. Under the circumstances, the said submission is also misconceived.
21) Apart from the fact that the petition is devoid of any merit, the same also deserves to be dismissed on the ground of delay and laches, inasmuch as, the order of the Tribunal which is subject matter of challenge in the present petition is dated 28th March, 2007 whereas the petition has been filed sometime on 3rd September, 2011, that is after a period of more than three years from the date of passing of the impugned order. The sole reason stated in the petition for such delay is that the Tribunal had heard the matter in the year 2007 and no order was passed and the petitioners advocate had inquired time and again and on 11.5.2011 the petitioner came to know that the order had been passed by the Tribunal on 28.3.2007 after which the petitioner has made an application for a certified copy and filed the present petition. Considering the fact that the impugned order has been passed as early as in March, 2007 it is difficult to believe the say of the petitioner that despite the fact that the learned advocate was time and again inquiring about the status of such appeal, they were not aware of the passing of the impugned order.
22) As can be seen from the impugned order, the Tribunal has considered all the submissions advanced on behalf of the petitioners and has given sufficient, cogent and convincing reasons in support of the findings recorded by it. In the light of the above discussion, this court does not find any infirmity in the impugned order so as to warrant interference. In the result, the petition fails and is, accordingly, dismissed. Notice is discharged.
(HARSHA DEVANI, J.) Vahid Page 31 of 31