BHARWAD VIRA GOVIND v. STATE — 1980 DIGILAW 69 (GUJ)

S. B. MAJMUDAR, J. ( 1 ) THIS second appeal is filed by the original plaintiff whose suit for a declaration that the suit land bearing S. No. 173 Paiki admeasuring 6a 14 which is in his possession lawfully cannot be taken possession of by the respondent State of Gujarat through its servants and agents and for a further declaration that the orders passed by the revenue authorities against him are illegal inoperative void and not binding on him has been dismissed by both the Courts below. ( 2 ) THE facts leading to this second appeal are required to be stated elaborately 80 as to highlight the nature of controversy ranging between the parties. The plaintiff claims to be an occupant of 6a. 14g. out of 40 Acres of land comprised in revenue S. No. 173 located in the sim of village Mangadh Taluka Gariadhar District Bhavnagar. The plaintiff claims to be a Maldhari. His case is that during the regime of Old Saurashtra State he was allotted 6a. 14g. Out of 40a. of land known as Chomal Khancha by the then Saurashtra Government under the order of Special Mahalkari who functioned under the Old Saurashtra State Rehabilitation Scheme for Shephards. The plaintiffs further case is that the Special Mahalkari bad given sanction Vide No. 356/56 dated 31-8-1956 allotting this land to the plaintiff the plaintiff contends that he is in possession of the suit land since that date and he has made improvement upon the land. He claims to be a person belonging to backward class. His further case is that the revenue authorities of the respondent falsely alleged against him that he had committed trespass over the suit land and on the basis of the said allegation was launched an encroachment case No. 283/69-70 by the Mamlatdar Gariadhar and ultimately it was held by hire by his final order dated 2-7-71 that plaintiff had encroached upon the suit land. The plaintiff challenged the said order by filing an appeal to the Deputy Collector but his appeal was dismissed on 15-7-1971. Thereafter his appeal to the Collecter Bhavnagar came to be dismissed on 16-12-1971 and the order of the mamlatdar was upheld. The plaintiff then served a notice under sec. The plaintiff challenged the said order by filing an appeal to the Deputy Collector but his appeal was dismissed on 15-7-1971. Thereafter his appeal to the Collecter Bhavnagar came to be dismissed on 16-12-1971 and the order of the mamlatdar was upheld. The plaintiff then served a notice under sec. 843 C. P. C. to tie respondent on 15-1-1972 and thereafter plaintiff filed regular civil suit No. 172/72 on 104-1972 in the Court of the Civil Judge S. D. Bhavnagar for a declaration that the plaintiff was in possession of 6 14 of land out of S. No. 173 and that orders passed by the revenue authorities to the effect that the plaintiff committed encroach ment upon the suit land were null and void and against the right of the plaintiff. He also prayed for a permanent injunction restraining the respondent from disturbing his possession of the suit land. ( 3 ) THIS suit was contested by the respondent defendant by its written statement at Ex. 15. It was contended by the defendant that the plaintiff had no legal right over the suit land and that the suit was time barred. It was further contended that Special Mahalkari (Maldhari work) were appointed by the Government under the Rehabilitation scheme for Bharvads and the Mahalkaris had only to recommend to allot the land to the Bharvads. In the present case the Mahalkari allotted the land to the plaintiff Bharvad without obtaining any sanction of the higher authorities viz. the Collector. It was further contended that the Special Mahalkari (Maldhari work) had no power of allotment of agricultural land and these power were vested with the Dy. Collector under the provisions of the Land Revenue Code. It was further contended that no land was in fact allotted to the plaintiff by the alleged order dated 31-8-1956 but the order amounted to a recommendation for allotment of land to the plaintiff. It was also contended that no such sanction was given by the Deputy Collector to allot the land to the plaintiff but through mistake and without any authority the possession of the land in question was handed over to the plaintiff by the surveyor on 4-1-1957. It was also contended that no such sanction was given by the Deputy Collector to allot the land to the plaintiff but through mistake and without any authority the possession of the land in question was handed over to the plaintiff by the surveyor on 4-1-1957. The aforesaid unauthorised occupation of the plaintiff came to the notice of the Mahalkari Mahal Gariadhar and an injunction order was issued against the plaintiff on 30 restraining him from taking possession of the land and this order was served upon the plaintiff. The plaintiffs possession of the suit land therefore was unauthorised as no orders of allotment of the land were passed by the competent authority. Legal Proceedings were taken against the plaintiff under the provisions of the Bombay Land Revenue Code to remove the encroachment upon the Government land made by the plaintiff and the competent authorities ultimately ordered the plaintiff to vacate the land immediately. Under these circumstances it was contended that the suit as filed by the plaintiff was misconceived and liable to be dismissed. ( 4 ) THIS would have really seen the end of this appeal. But Mr. Panchal contended that the present suit is barred by limitation and no further orders in favour of the plaintiff need be passed in this case. It is pertinent to note that save and except mentioning by way of a bald recital in the written statement that the present suit is barred by limitation the respondent has not sought any issue on limitation in the trial Court nor any argument was advanced before the appellate Court on the question of limitation and hence I do not think it fit to permit the State to raise their contention for the first time in this appeal Mr. Panchal submits that this is a pure question of law. It is difficult to agree with the said submission of Mr. Panchal. It is necessary to keep in view the fact that the question of limitation is pressed by the respondent for consideration for the first time in second appeal by placing reliance on Article 100 of the Indian Limitation Act which reads as under :-TO alter or set aside any decision or order of a Civil Court in any proceeding other than a suit or any act or order of an officer of Government in his official capacity. The period of limitation is one year from the date of the final decision or order by the Court or the date of the act or order of the officer as the case may be. IN the present case Mr. Panchal submitted that originally the Mamlatdar in encroachment proceedings had taken the view on 16-10-59 that the plaintiff was liable to be evicted. There was a further appeal to the Assistant Collector which resulted in remand. The Mamlatdar passed fresh orders on 11-9-70 for summary eviction of the plaintiff. That order was again set aside by the Deputy Collector on 7-11-70 and there was a further remand. Thereafter the Mamlatdar passed a fresh order and this order was carried in appeal to the Deputy Collector but ultimately the plaintiffs appeal was dismissed and thereafter a second appeal was filed before the Collector and that was dismissed on 10-4-72. Mr. Panchal submitted that the plaintiff ought to have filed the present suit from the date of the Mamlatdars order and he was not entitled to wait till the said order came to be confirmed in the hierarchy of appeals by the Deputy Collector or the Collector. In order to appreciate the aforesaid contention of Mr. Panchal for the respondent it will be necessary to go into the further question of fact as to whether the Mamlatdars order was set aside by Dy. Collector in appeal and/or it was set aside by the Collector in second appeal and whether the said order of the Mamlatdar remained operative during the hierarchy of appeals and whether any stay was granted against the order of the Mamlatdar during the pendency of those appeals. It will also be required to be seen as to when the statutory notice under sec. 80 C. P. C. was served on the respondent and when the period of the notice expired. All these questions of facts will have to be gone into. It will have to be ascertained when the relevant orders were passed. It is true that the plaintiff himself has mentioned in the plaint the date when the Mamlatdar passed the final order and the date when the Collectors final order was passed. But that is not enough. All other questions of fact which have been mentioned earlier will have to be answered before the question of limitation is decided one way or the other. But that is not enough. All other questions of fact which have been mentioned earlier will have to be answered before the question of limitation is decided one way or the other. Thus it is not a pure question of law as is urged by Mr. Panchal. It is a mixed question of law and facts. I cannot allow Mr. Panchal to raise all these questions of facts for the first time in this second appeal. Even otherwise the respondent State did not think it fit to pursue the matter before the appellate Court. This shows that State of Gujarat waived the objection of limitation and chose to join issues on merits before both the Courts below. It is not open to the respondent now to dig up this contention as if from the grave and try to make a capital out of it. In this connection it is pertinent to refer to the decision of the Supreme Court in Madras Port Trust v. Humanshu International A. I. R. 1979 S. C. 1144 where Mr. Justice Bhagwati has observed that the plea of limitation based on sec. 110 of the Madras Port Trust Act was one which Court always looked upon with disfavor and it was unfortunate that a public authority like the Port Trust should resort to it in all morality and justice to defeat a just claim of the citizen. It was further observed as under :- it is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course if a Government or public authority takes up a technical plea the Court has to decide it and if the plea is well founded it has to be upheld by the Court but what we feel is that such a plea should not ordinarily be taken up by a Government or public authority unless of course the claim is not well founded and by reason of delay in filing it the evidence for the purpose of resisting such a claim has become unavailable. Here it is obvious that the claim of the respondent was a just claim supported as it was by the recommendation of the Asstt. Here it is obvious that the claim of the respondent was a just claim supported as it was by the recommendation of the Asstt. Collector of Customs and hence in the exercise of our discretion under Art. 136 of the Constitution we do not see any reason why we should proceed to hear this appeal and adjudicate upon the plea of the appealant based upon sec. 110 of the Madras Port trust Act. IN the present case it appears that the State of Gujarat did not think it fit to press this technical contention of limitation in both the Courts below and seems to have acted in consonance albeit unknowingly with the observations of the Supreme Court in the aforesaid case. Once they have given up this technical contention in both the Courts below it is in fitness of things that they must be pinned down to the same position even before this Court by not permitting there to raise the plea of limitation before this Court for the first time in the second appeal. There is one additional aspect of this question of limitation. The plaintiff in terms has contended in the plaint that the orders of the revenue authorities are null and void unauthorised and ultra vires. It goes without saying that if the plaintiff is in a position to show on merits that Special Mahalkari was the competent authority to grant land to the extent of economic holding as prevalent in 1956 to that extent his possession of the suit land would be obviously authorised and legal Once that conclusion is reached the result would be obvious that the revenue authorities will have no jurisdiction to pass any impugned orders of summarily evicting the plaintiff on the allegation that he was a trespasser qua that extent of the economic holding which could be validly granted to him by the Mahalkari Maldhari. Thus the impugned orders would obviously remain nullities to that extent and in that eventuality the contention on the part of the plaintiff would clearly go out of the clutches of the law of limitation. It is now well settled by a series of judgments of different Courts that the orders which are passed without jurisdiction or which are nullities need not be set aside and challenges to ultra vires orders are never barred by limitation. It is now well settled by a series of judgments of different Courts that the orders which are passed without jurisdiction or which are nullities need not be set aside and challenges to ultra vires orders are never barred by limitation. A Full Bench of the Bombay High Court in the case of Abdulamiy Abdul Rehman v. Government of Bombay 44 B. L. R. 577 held that where an authority which purports to pass an order is acting without jurisdiction the purported order is a mere nullity and it is not necessary for anybody who objects to that order to apply to set it aside. He can rely on its invalidity as and when it is set up against him although he had not taken steps to get it aside. Such an order does not give rise to any right whatever not even to a right of appeal. The aforesaid decision of the Full Bench was later followed by the Division Bench in Huseinbhai v. Chandubhai Desai 55 Bom. L. R. 946 and it was held that merely because a statute provides for a right of appeal the party against whom the order is made is not bound to appeal although the order made is nullity. If the order is a nullity the party is entitled to ignore it and to go to a civil Court for a declaration that the order is a nullity and no action should be taken against a party under that order which would prejudice his rights. It view of the aforesaid settled legal position where the plaintiff alleges that the impugned orders are nullities he is entitled to ignore them till they are sought to be enforced against him. The plaintiff says that it is only when the Talati on 7-4-72 insisted that the plaintiff should handover possession of the suit land pursuant to the impugned orders that the cause of action arose in his favour. That is clearly mentioned in para 7 of the plaint. In that view of the matter it is obvious that the bar of limitation under Art. 100 could never be pressed in service by the respondent even assuming that such a contention is open to the State and I had permitted the respondent to agitate this question for the first time in the second appeal. In that view of the matter it is obvious that the bar of limitation under Art. 100 could never be pressed in service by the respondent even assuming that such a contention is open to the State and I had permitted the respondent to agitate this question for the first time in the second appeal. A decision of the Bombay High Court in Ganesh v. Secretary of State A. I. R. 1920 Bom. 105 was relied upon by Mr. Panchal to bring home his contention about limitation. As I have not permitted Mr. Panchal to agitate the question of limitation it is not necessary for me to refer to the said judgment which appeared to take a view that under old Art. 14 which is pari materia with Art. 100 of the new Limitation Act the period of limitation for setting aside the orders of the revenue authorities would start from the date of the original order and not from the date when such order gets confirmed by the appellate authority. If the point of limitation was permitted by me to be agitated I would have certainly referred this decision for reconsideration by a larger Bench for the simple reason that the view taken by the aforesaid decision of the Division Bench of the Bombay High Court ignores three material aspects; firstly the orders of the revenue authorities once carried in appeal get merged in the order of the higher authorities. The principle of merger is now well settled by the decision of the Supreme Court in the case of Ratilal Nazar C. A. No. 986 of 1971 decided by the Supreme Court on 17-10-69 as followed by this Court in the case of Amratlal Muljibhai Thakkar v. Ambalal 13 G. L. R 756. The second infirmity from which the aforesaid decision of the Bombay High Court suffers in my view is that the provisions of section 11 of the Revenue Jurisdiction Act appear to have been totally misappreciated. It is now well settled that under sec. 11 of the Revenue jurisdiction Act no suit can be entertained by the Civil Court against an order of the revenue authority unless the whole gamut of appeals under the statute has been exhausted. Thus the cause of action for challenging this order would never arise till the entire heirarchy of appeals is effectively gone through. 11 of the Revenue jurisdiction Act no suit can be entertained by the Civil Court against an order of the revenue authority unless the whole gamut of appeals under the statute has been exhausted. Thus the cause of action for challenging this order would never arise till the entire heirarchy of appeals is effectively gone through. Equally missed by the Division Bench is the third aspect viz. that if the operation of the first order was stayed by any stay order granted by the appellate Court whether the first order could remain effectively in force so as to give a cause of action to file a suit against the first order which the plaintiff himself had got stayed by going in appeal before the statutory authority. On all these grounds a reconsideration of the aforesaid decision in an appropriate case may be necessary. T have in the present appeal not permitted the respondent State to agitate the question of limitation and it is also held that the bar of limitation could not be invoked by the respondent on the ground that the impugned orders are challenged as nullities. Consequently there is no need to refer the aforesaid decision of the Bombay High Court for a reconsideration by a larger Bench in the present case. In that view of the matter the contention of Mr. Panchal on the ground of limitation has got to be rejected. ( 5 ) AS a result of the aforesaid discussion this appeal will have to be allowed and is accordingly allowed and the judgments and orders passed by both the Courts below are set aside and the suit is remanded to the trial Court with a direction to restore it to its file in the original number. The trial Court is further directed to decide the suit afresh on the newly framed issues as directed in this Judgment after permitting the parties to lead evidence on these issues and to finally decide the suit in the light of the findings reached by it on the basis of existing evidence as well as the new evidence which may be led by both the parties on these issues. In view of the facts and circumstances of the case there will be no order as to costs. Appeal allowed. .