Gujarat High Court
Mithalal Mukunchand vs State Of Gujarat on 31 January, 2013
Author: Jayant Patel
Bench: Jayant Patel
MITHALAL MUKUNCHAND....Petitioner(s)V/SSTATE OF GUJARAT C/SCA/10952/2000 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 10952 of 2000 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 ? ============================================================== 1 - MITHALAL MUKUNCHAND Petitioner(s) VERSUS 1 - STATE OF GUJARAT 2 - PRANT OFFICER 3 - RAMAJI RANCHHODJI 5 - SHIVAJI GOKAJI 7 - BAPUJI GOKAJI 6 - RAMTUJI GOKAJI 4 - PUNJAJI RANCHHODJI Respondent(s) ============================================================== Appearance: MR JAYESH M PATEL, ADVOCATE for the Petitioner(s) No. 1 MR DHAWAN JAYSWAL, AGP for the Respondent(s) No. 1 - 2 MR JV VAGHELA, ADVOCATE for the Respondent(s) No. 4 MR MA PAREKH, ADVOCATE for the Respondent(s) No. 3 , 5 - 7 MR RJ GOSWAMI, ADVOCATE for the Respondent(s) No. 4 ============================================================== CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL Date : 31/01/2013 ORAL JUDGMENT
The petitioner by this petition has challenged the order passed by the Prant Officer and the confirmation thereof by the State Government whereby the transaction of the sale in question is held to be illegal as found to be in breach of the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holding Act, 1947 (hereinafter referred to as the Act ).
The short facts of the case are that on 23.08.1990, the petitioner purchased the land out of Block No.514 of Kudasan from respondents 3 to 7 by registered sale deed. On 14.11.1990, the revenue entry came to be mutated in the revenue record and the said entry was also certified. On 24.01.1994, the petitioner purchased the remaining land of block no.514 from the holder of the land by registered sale deed. On 17.05.1994, the mutation entry came to be recorded in the revenue record and the same was certified on 06.09.1994. On 09.12.1997, the Prant Officer issued show cause notice against the petitioner for the alleged violation of the provisions of section 31 of the Act. Thereafter, the Prant Officer vide order dated 03.04.1999, found that the transaction was in violation of the provisions of the Act and declared the sale as void. It appears that thereafter, on 22.02.2000, the private respondents sold the land to one Patel Gopalbhai Chaturbhai by registered sale deed and the revenue entry came to be mutated based on the said sale deed in spite of the objection filed by the petitioner and consequently, the Mamlatdar cancelled the entry which was a disputed entry. It appears that in the meantime, the petitioner preferred revision before the State Government against the order of the Prant Officer and the State Government for the reasons recorded in the impugned order at Annexure-J dismissed the revision. Under the circumstances, the present petition before this Court.
I have heard Mr. AJ Patel, learned counsel appearing for the petitioner, Mr. Jaywsal, learned AGP for the State Authorities and Mr.Vaghela for respondent no.4. Mr.Parekh has filed his appearance for respondents no.3, 5 and 7.
As such, on the aspects of date on which the petitioner purchased the land by registered sale deed, i.e., on 23.08.1990 as well as on 24.01.1994, there is no dispute. It is also not in dispute that the revenue entry based on such sale deed came to be mutated and the same was certified on 14.11.1990 as well as on 17.05.1994 respectively. It is also not in dispute that the notice came to be issued by the Prant Officer for the first time on 09.12.1997. Therefore, if the first date is considered of the sale deed dated 23.08.1990, the period of about more than 7 years have expired and if the second date is considered, the period of about more than 3 ¿ years have expired. The case of the petitioner is that after having purchased the land, huge investment has been made by the petitioner towards development of the land and the said aspect was contended before the lower authority.
The learned counsel appearing for the petitioner submitted that there was delay beyond reasonable period for initiation of action.
Whereas, learned counsel for the private respondent no.4 submitted that once the transaction was barred by the provisions of the Act, it is void for all purposes and the delay should not operate as a bar for initiation of action by the competent authority.
In my view, the issue could be said as covered by the decision of this Court in the case of Vitthalbhai M. Patel vs. Deputy Collector, Kaira and others reported at 2011(1) GLR 610. In the said matter, this Court observed at paras 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.
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.
It is true that in the said case the delay was of 12 years but the relevant aspect is that in the above referred decision, the Court had taken note of the fact that the revenue entry was mutated in the revenue record and it was made known to the revenue authority and no action whatsoever was taken immediately. Further, the additional circumstance in the present case as stated by the petitioner is there is huge investment made and therefore, if delay is leniently viewed, it would seriously prejudice the rights of the party, more particularly, the petitioner who has to face the proceeding. By no stretch of imagination the period of 9 years or even more than 3 ¿ years could be said as reasonable more particularly when the petitioner after purchase of the land has made huge investment towards development of the land.
The aforesaid aspect of delay is not at all taken into consideration by the State Government while exercising the revisional power in spite of the fact that in the contention, it has been recorded that as per the petitioner, after the purchase of the land, has been developed and about Rs.10 lakhs have been invested.
In view of the aforesaid, I find that the same view as was taken by this Court in the above referred decision in case of delay, deserves to be taken and consequently, the action by the lower authority could be said as barred since they were initiated after a reasonable period.
There is on additional circumstance, which has come on record by the affidavit filed by the petitioner wherein it has been stated that the area of the land in question is included in the town planning scheme of Gandhinagar Urban Development Authority and the State Government has also issued notification dated 05.09.2008, copy whereof is produced at Annexure-III, whereby the area which is included in the town planning scheme has been excluded from the local area as to be considered for the purpose of bar operating under section 8 and/or 8AA of the Act. It is true that at the relevant point of time, such notification was not existence but by subsequent circumstances, the land is included in the town planning scheme and has been excluded from the local area and therefore, as on today, it cannot be said that the breach would remain nor it can be said that the land could be used for agricultural purpose when as per the town planning scheme, the area is reserved for commercial purpose.
In view of the aforesaid observations and discussions, the impugned order of the Prant Officer as well as its confirmation thereof by the State Government are quashed and set aside. Petition is allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and circumstances, no order as to costs.
(JAYANT PATEL, J.) bjoy Page 12 of 12