Gujarat High Court
Rasiklal Lallubhai Doshi vs State Of Gujarat & on 1 March, 2013
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
RASIKLAL LALLUBHAI DOSHI....Petitioner(s)V/SSTATE OF GUJARAT C/SCA/16079/2003 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 16079 of 2003 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 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 ? No 5 Whether it is to be circulated to the civil judge ? No ================================================================ RASIKLAL LALLUBHAI DOSHI....Petitioner(s) Versus STATE OF GUJARAT & 2....Respondent(s) ================================================================ Appearance: MR UI VYAS, ADVOCATE for the Petitioner(s) No. 1 MS VACHA DESAI ASSTT. GOVERNMENT PLEADER for the Respondent(s) No. 1 - 2 MR RM PARMAR, ADVOCATE for the Respondent(s) No. 3.1 - 3.2 ================================================================ CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 01/03/2013 ORAL JUDGMENT
By this petition under Articles 226 and 227 of the Constitution of India , the petitioner seeks to challenge the order dated September 20, 2003/October 8, 2003 passed by respondent No.1 - Joint Secretary, Revenue Department (Appeals) as well as the order passed by the Deputy Collector, Mahuva District Bhavnagar in Fragmentation Case No.10/96-97.
The facts, shortly stated, may be summed up thus:-
The petitioner bought a parcel of land bearing Survey No.50 situated in Moje Malia, Taluka Mahuva, District Bhavnagar from respondent No.3 by a sale deed executed and registered at Sr. No.60 dated January 8, 1985. The record also reveals that the petitioner also bought land bearing Survey No.50 on November 29, 1980 by way of a sale deed executed by respondent No.3 and registered at Sr. No.682. The entries with regard to the said two transactions were mutated in the record of rights in the year 1985, to be precise on January 8, 1985. The record also reveals that in the year 1988, respondent No.3 as the original owner of the two parcels of land, filed a Civil suit No.72 of 1988 in the Court of Civil Judge, (JD), Mahuva for cancellation of the two sale deeds and permanent injunction with respect to the land in questions. Be that as it may, the authorities for the first time on March 14, 1997 took the two entries mutated in the record of rights in suo motu review on the premise that the transactions of 1978 and 1980 were hit by the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. The Deputy Collector vide order dated January 12, 1998 declared that the sale by respondent No.3 in favour of the petitioner was in breach of the provisions of the Fragmentation Act and, accordingly, ordered cancellation of the entires which were mutated in the record of rights.
Being dissatisfied by the order of the Deputy Collector, the petitioner preferred revision application before respondent No.1, Joint Secretary, Revenue (Appeals). Respondent No.1 vide order dated September 28, 2003 confirmed the order passed by the Deputy Collector and, accordingly, rejected the application.
Being dissatisfied with the order passed by respondent No.1, the petitioner has come up with this petition.
Mr UI Vyas, the learned advocate appearing for the petitioner submitted that the authorities below failed to consider an important question going to the root of the matter that there has been a gross and inordinate delay in taking the entries in suo motu review on the ground of breach of the provisions of the Fragmentation Act. Mr Vyas submitted that by now it is well settled position of law that suo motu power has got to be exercised within a reasonable period of time. Mr Vyas, therefore, prays to set aside the two orders and allow this petition.
Ms Vacha Desai, the learned AGP vehemently submitted that no error, not to speak of any error of law, could be said to have been committed by the two authorities below. Ms Desai laid much stress on the fact that any transaction in violation of the provisions of the Fragmentation Act are void as compared to invalid transactions. Ms Desai submitted that an invalid transaction would remain valid until it is set aside, whereas a void transaction remains void ab initio right from the inception.
Having heard the learned counsel for the respective parties and having gone through the materials on record, the only question that falls for my consideration is, whether the authorities committed any error in passing the order impugned.
Indisputably, the first sale is dated May 9, 1978. The second sale is dated November 29, 1980. The entries with respect to the two transactions were mutated in the record of rights on January 8, 1985. For the first time, after a period of almost 12 years, the authorities below took the two entries in suo motu review on the premise that the sale was in violation of the provisions of the Fragmentation Act. By now, it is well settled that even if a transaction 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 transaction is void. The suo motu powers have got to be exercised within a reasonable period of time even with respect to a void transaction. In the present case, there is a gross delay of 12 years which remains unexplained.
It is also brought to my notice that the civil suit, which was filed by respondent No.3 in 1988 against the petitioner for cancellation of the sale deed and permanent injunction, has also been decided finally by the Civil Judge, Mahuva by dismissing the suit and I am also informed that Regular Appeal No.302 of 2003 which was preferred against the said decision has also been dismissed thereby confirming the order passed by the Civil Court dismissing the suit.
In the circumstances, I am left with no other option but to quash and set aside the orders passed by the authorities below. Consequently, the order passed by respondent No.1 dated September 20, 2003/October 8, 2003 Annexure-A to this petition as well as the order passed by the Deputy Collector, Mahuva, Dist. Bhavnagar dated January 12, 1998 in Fragmentation Case No.10/96-97 are hereby quashed and set aside.
The petition is allowed. Rule is made absolute with no order as to costs.
(J.B.PARDIWALA, J.) zgs Page 6 of 6