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1993 DIGILAW 469 (GUJ)

Namishbhai Yadukant Patel v. STATE

1993-09-30

A.N.DIVECHA

body1993
A. N. DIVECHA, J. ( 1 ) THE decision rendered by the Gujarat Revenue Tribunal at ahmedabad (the Tribunal for convenience) on 23rd July 1985 in Revision Application no. TEN. B. A. 1628 of 1983 is under challenge in this petition under Art. 227 of the constitution of India. Thereby the Tribunal upset the order passed by the Deputy collector of Viramgam Prant at Ahmedabad on 28th April 1981 granting permission to respondent No. 2 herein to sell one parcel of land bearing Block No. 217 admeasuring 4 acres 11 gunthas situated in village Bhadaj taluka Dascroi district Ahmedabad (the disputed land for convenience) in favour of the present petitioners under sec. 43 of the bombay Tenancy and Agricultural Lands Act, 1948 (the Act for brief ). ( 2 ) THE facts giving rise to this petition move in a narrow compass. The disputed land originally belonged to respondent No. 2 herein. It appears that he became its deemed purchaser under the Act. He applied to the Deputy Collector of Viramgam Prant at ahmedabad for permission under Sec. 43 of the Act for sale of the disputed land in favour of the present petitioners. By his order passed on 28th April 1981, the Deputy Collector granted such permission. Its copy is at Annexure A to this petition. It appears that, about 2 1/2 yers thereafter, respondent No. 1 invoked the revisional jurisdiction of the Tribunal for questioning the correctness of the order at Annexure A to this petition. It came to be registered as Revisional Application No. TEN. B. A. 1628 of 1983. Respondent No. 1 and the present petitioners were shown as the opponents therein. On behalf of the petitioners, the revisional procedings were resisted inter alia by pressing into service the bar of limitation contained in Sec. 79 of the Act. By its decision rendered on 23rd July 1985 in the aforesaid revisional application, the Tribunal accepted it and set aside the order at annexure A to this petition. A copy of its decision is at Annexure B to this petition. The aggrieved petitioners have thereupon invoked the extra-ordinary jurisdiction of this Court under Art. 227 of the Constitution of India for questioning the correctness of the decision at Annexure B to this petition. A copy of its decision is at Annexure B to this petition. The aggrieved petitioners have thereupon invoked the extra-ordinary jurisdiction of this Court under Art. 227 of the Constitution of India for questioning the correctness of the decision at Annexure B to this petition. ( 3 ) IT is an admitted postion on record that the revisional application in question was made by respondent No. 1 about 2 1/2 years after the date of the order at Annexure A to this petition. Section 79 of the Act prescribes the period of limitation to be 60 days inter alia for preferring an application for revision against the order passed by the Collector. The order at Annexure A is admittedly under Sec. 43 of the Act and it is said to have been passed by the Deputy Collector in exercise of his powers as Collector. His order could have been challenged in revision within 60 days from its date in view of Sec. 79 of the act. It has also been provided therein that the provisions of Sections 4,5,12 and 14 of the indian Limitation Act, 1908 would apply inter alia for filling of such application for revision. It is an admitted position on record that no application for condonation of the delay in preferring the revisional application before the Tribunal was made by or on behalf of respondent No. 1. ( 4 ) ON the basis of the aforesaid factual data, Shri Vakil for the petitioners has urged before me that the Tribunal could not have accepted the revisional application as it was hopelessly time barred. Shri Vakil for the petitioners has urged that even a null or void order is also required to be set aside within the period of limitation prescribed under the act. In absence of any delay condonation application, runs the submission of Shri Vakil for the petitioners, the Tribunal ought not to have entertained and accepted the revisional application filed by and on behalf of respondent No. 1 herein. As against this, Shri Patel for respondent No. 1 has urged that no law of limitation would be applicable to a null and void order. According to Shri Patel for respondent No. 1, a null and void order has no existence in the eyes of law and it has to be treated as such whether it is set aside or not. According to Shri Patel for respondent No. 1, a null and void order has no existence in the eyes of law and it has to be treated as such whether it is set aside or not. ( 5 ) IN this connection a reference deserves to be made to the binding ruling of the supreme Court in the case of State of Punjab and others vs. Gurdev Singh and Ashok kumar reported in AIR 1992 Supreme Court 111 as relied on by Shri Vakil for the petitioners in support of his aforesaid submission. In that case; an order of termination of the concerned employee from service was challenged by way of a suit inter alia on the ground that it was a null and void order as violative of principles of natural justice. In that context, it has been held:"if an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declared the existing state of affairs and does not quash so as to produce a new state of affairs. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or court. "after examining principles in that regard, it has further been held:"it will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the court within the prescribed period of limitation. If the staturory time limit expires the Court cannot give the declaration sought for. "it becomes clear from the aforesaid ruling of the Supreme Court in the case of gurdev Singh (Supra) that even a null and void order is required to be declared so by means of an appropriate proceedings and the law of limitation applicable to such proceedings will have to be taken into consideration. By analogy, the aforesaid ruling of the Supreme Court in the Case of Gurdev Singh (Supra) is applicable in the present case. By analogy, the aforesaid ruling of the Supreme Court in the Case of Gurdev Singh (Supra) is applicable in the present case. ( 6 ) AS aforesaid, the limitation prescribed for challenging an order passed by the collector under Sec. 43 of the Act is 60 days as provided in Sec. 79 thereof. The revisional application before the Tribunal by and on behalf of respondent No. 1 herein was admittedly filed 2 1/2 years after the date of the order at Annexure A to this petition. It is an admitted position on record that no application for condonation of the delay in preferring the revisional application was made by or on behalf of respondent No. 1 in that proceeding. In that view of the matter, the Tribunal could not have accepted the revisional application unless the delay in preferring it was condoned. Simply because the revisional application was accepted is no ground for taking it for granted that the delay in that case was condoned. In fact, the Tribunal has brushed aside the submission based on the bar of limitation on the ground that the impugned order was a nullity and no law of limitation would be applicable for setting aside such a null and void order. That view taken by the tribunal runs counter to the aforesaid ruling of the Supreme Court in the case of Gurdev singh (supra ). ( 7 ) IN view of my aforesaid discussion, I am of the opinion that the impugned decision at Annexure B to this petition cannot be sustained in law. It has to be quashed and set aside. ( 8 ) IN the result, this petition is accepted. The decision rendered by the Gujarat revenue Tribunal at Ahmedabad on 23rd July 1985 in Revision Application No. TEN. B. A. 1628 of 1983 at Annexure B to this petition is quashed and set aside. Rule is accordingly made absolute with no order as to costs. .