NARANBHAI CHHOTABHAI PATEL v. STATE — 1994 DIGILAW 32 (GUJ)

A. N. DIVECHA, J. ( 1 ) HOW title non-application of mind causes injustice to a party is very much demonstrated and reflected in the orders under challenge in this petition under Articles 226 and 227 of the Constitution of India. ( 2 ) THE factual backdrop behind the present petition may be summarised thus. The predecessor-in-title (the deceased for convenience) of the present petitioners was a tenant of one piece of land bearing survey No. 180 admeasuring 6 acres 20 gunthas situated at village Ganeshpura taluka Vaghodia district Vadodara (the disputed land for convenience) as on 1st April 1957 that is the Tillers Day for the purposes of the Bombay Tenancy and Agriclutural Lands Act 1948 (the Act for brief ). He became its deined Purchaser thereunder. He appears to have incurred some debt. Thereupon the Shylock-like lender initiated a proceeding in the competent Civil Court for recovery of his found of flesh from the deceased. That ended in a money-decree in favour of the lender. In execution of that decree the disputed land was attached and sold to the money-lender himself. It appears that the deceased being a poor person walked for some time in fond hope that the disputed land would be returned to him on payment of decretal dues Unfortunatly that hope did not materialise. The deceased was thereupon obliged to move the authority for restoration of possession of the disputed land on the ground that it was in unauthorised occupation of the money-lender. It appears that under some misconception that application was addressed to the Mamlatdar and Agricultural Lands Tribunal at Dabhoi (respondent No. 4 herein ). It may not be out of place to mention at this stage that the record of the case culminating into the orders under challenge in this petition were called for and on perusal of the record it transpires that the original application was of 11th May 1981 addressed to respondent No. 4 herein with a copy endorsed to the Collector at Vadodara 11 transpires therefrom that the deceased wanted the proceeding to be initiated under Section 84 of the Act. However since it was addressed to respondent No. 4 herein he initiated the proceeding under section 84c of the Act. However since it was addressed to respondent No. 4 herein he initiated the proceeding under section 84c of the Act. It came to be registered as Tenancy Case No. 2515 of 1981 By his order passed on 25th June 1981 therein respondent No. 4 came to the conclusion that the sale of the disputed land though through Court was violative of Section 43 of the Act and thereupon its possession by the purchaser was unauthorised Since respondent No. 4 was proceeding under Section 84c of the Act he directed the parties to restore the position of the disputed land as it was originally prior to the sale transaction in question failing which it would be resumed by the government. Its copy is at Annexure-A to this petition. That aggrieved the deceased. He carried the matter in appeal before the Deputy Collector at Dabhoi (the Appellate Authority for convenience) who is respondent No. 3 herein. His appeal came to be registered as Appeal No. 6 of 1983. The purchaser appeared to have adopted the doginmanger attitude by not allowing the deceased to be in possession of the disputed land and as such the former did not carry the matter in appeal By his order passed on 14th March 1984 in the aforesaid appeal respondent No. 3 dismissed it. Its copy is at Annexure-B to this petition. The aggrieved deceased thereupon unsuccessfully invoked the revisional jurisdiction of the Gujarat Revenue Tribunal at Ahmedabad (the Tribunal for convenience) by means of his Revision Application No. TEN. B. A. 594 of 1984 By its decision rendered on 23rd October 1985 in the aforesaid revisional application the Tribunal rejected it. Its copy is at Annexure-C to this petition. The deceased petitioner thereupon knocked the doors of this Court by means of this petition under Articles 226 and 227 of the Constitution of India for questioning the correctness of the impugned order at Annexure-A to this petition as affirmed in appeal by the appellate order at Annexure-B to this petition as further affirmed in revision by the impugned decision at Annexure-C to this petition. He breathed his last during the pendency of this petition and his heirs and legal representatives have come on record in his place. He breathed his last during the pendency of this petition and his heirs and legal representatives have come on record in his place. ( 3 ) AS pointed out hereinabove the application made by the deceased to respondent No. 4 has been perused by me from the record of the case called for by this Court pursuant to the order passed on 7 October 1993. The tenor thereof leaves no room for doubt that it was an application under Section 84 and (c) of the Act and not under Section 84c thereof. It is not in dispute that the application under Section 84 has to be entertained by the authority named therein or his delegate. I am told at the Bar that the powers to take action under Section 84 of the Act have been delegated to respondent No 3 or other officers equal in his rank Respondent No. 4 has not been delegated with powers to deal with an application under Section 84 of the Act. He has been invested with powers to deal with applications under Section 84c thereof but certainly not with applications under Section 84 thereof. On reading the tenor of the application made by the deceased respondent No. 4 ought to have immediately realised that the deceased prayer was for the reliefs under Section 84 and (c) of the Act and not for the reliefs under Section 84c thereof As pointed out hereinabove respondent No. 4 had no power to deal with the application of the deceased as transpiring from its tenor and as such the former was supposed to return the said application to the deceased for approaching the proper authority for the desired reliefs Respondent No. 4 in the alternative ought to have rejected that application on the ground that it was not within his competence or jurisdiction to entertain it and to grant the desired reliefs. The deceased would then have known what further course of action he had to take in the alternative respondent No. 4 could have forwarded that application to respondent No. 3 or the authority competent or empowered to deal with applications under Section 84 of the Act Instead respondent No. 4 proceeded to deal with the aforesaid application made by the deceased on its own merits It is a sealed principle of law that an authority invested with limited jurisdiction or powers cannot expand its own authority or powers. Since respondent No. 4 had no power to deal with any application under Section 84 of the Act he had no business to deal with any such application on merits. His action of dealing with the said application of the deceased on merits is therefore without competence or jurisdiction. The resultant order at Annexure-A to this petition cannot therefore be sustained in law for a moment on the ground that it was null and void. The appellate order at Annexure-B to this petition and the impugned decision at Annexure-C to this petition have merely affirmed the non est order at Annexure-A to this petition and as such they have to be quashed an set aside on that ground alone. ( 4 ) ORDINARILY after upsetting the impugned order at Annexure-A to this petition as affirmed in appeal and in revision by the appellate order at Annexure-B and the impugned decision at Annexure-C-respectively to this petition the matter has to be remanded to respondent No. 3 for deciding the fate of the aforesaid application of the deceased according to law in the light of Section 84 of the Act. This exercise might prove an empty and idle formality for the simple reason that the purchaser (money-lender) though affected by the impugned order at Annexure-A to this petition as affirmed in appeal and in revision has not chosen to challenge the said order in any manner. He was made a party-respondent to this petition as respondent No. 5. He could not be served. Thereupon he has come to be deleted from record. The fact however remains that he has never challenged the impugned order at Annexure-A to this petition at any stage. II would mean that- he has accepted the transaction under which he was inducted on the land to be invalid. He could not be served. Thereupon he has come to be deleted from record. The fact however remains that he has never challenged the impugned order at Annexure-A to this petition at any stage. II would mean that- he has accepted the transaction under which he was inducted on the land to be invalid. As rightly submitted by Smt. Yagnik for the petitioners he would now be estopped from contending to the contrary. Even if the matter is remanded to respondent No. 3. it would not be open to the purchaser to contend to the contrary that he was holding the disputed land under a valid transaction in view of the fact that he has never challenged the order at Annexure-A to this petition at any stage. In this view of the matter respondent No. 3 would be left with no alternative but to grant the desired reliefs to the present petitioners even if the matter is remanded to him. ( 5 ) FORTUNATELY for the petitioners this Court has come to their rescue by passing the following interim order on 4th September 1987 while issuing Rule on this petition. Rule. Heard the parties with regard to interim relief. In the facts and circumstances of the case it is directed that the proceedings initiated for eviction of respondent No. 5 shall proceed further. It is further directed that these proceedings shall be completed within a period of three months from today i. e. on or before November 30 1987 As soon as respondent No. 5 is evicted it shall be immediately notified to this Court. At that stage suitable further directions will be given after hearing the parties. S. O. to December 2 1987 it is not in dispute that the disputed land is now with the Government. Its possession can be restored to the petitioners without subjecting them to undergo the formality of appearing before respondent No. 3 with respect to the application made by the deceased. In exercise of its extraordinary powers under Article 226 of the Constitution of India the possession of the disputed land can be restored to the petitioner in order to do substantial justice between the parties. The dominant consideration behind use of the extraordinary powers under Article 226 of the Constitution of India is the plight of the deceased petitioner. In exercise of its extraordinary powers under Article 226 of the Constitution of India the possession of the disputed land can be restored to the petitioner in order to do substantial justice between the parties. The dominant consideration behind use of the extraordinary powers under Article 226 of the Constitution of India is the plight of the deceased petitioner. By its aforequoted interim order what was contemplated was early restoration of possession of the disputed land to the deceased. It is not in dispute that the purchaser (who was impleaded as respondent No. 5 in this petition) was evicted from the disputed land before the time limit set down in the aforesaid interim order. It was unfortunate for the deceased that the matter was placed in a cold storage thereafter. It was no fault of his that this matter remained pending even thereafter for more than six years. It is unfortunate that he breathed his last as a disgruntled soul as he could not see the fruits of his labour in causing to institute this petition before this Court. It would therefore be in the fitness of things to order restoration of possession of the disputed land to the petitioner straightaway without subjecting them to undergo any empty and idle formality or exercise in futility as that would enable the soul of the deceased to rest in eternal peace. ( 6 ) IN the result this petition is accepted. The impugned order passed by the Mamlatdar and Agricultural Lands Tribunal at Dabhoi on 25th June 1981 in Tenancy Case No. 2515 of 1981 to the extent it orders resumption of the disputed land by the State Government at Annexure-A to this petition as affirmed in appeal by the appellate order passed by the Deputy Collector at Dabhoi on 14 March 1984 in Appeal No. 6 of 1983 at Annexure-B to this petition as further affirmed in revision by the decision rendered by the Gujarat Revenue Tribunal at Ahmedabad on 23rd October 1985 in Revision Application No. TEN. B. A. 594 of 1984 at Annexure-C to this petition is quashed and set aside. Respondent No. 1 is directed to restore or to cause to possession of the disputed land to the petitioners as expeditiously as possible preferably by 31st March 1994. B. A. 594 of 1984 at Annexure-C to this petition is quashed and set aside. Respondent No. 1 is directed to restore or to cause to possession of the disputed land to the petitioners as expeditiously as possible preferably by 31st March 1994. The Registry is directed to send the writ in this case as expeditiously as possible but in any case latest by 28th February 1994. It would be open to the petitioner to produce a certified copy of this judgment of mine before the concerned authority for obtaining possession of the disputed land as expeditiously as possible. Rule is accordingly made absolute to the aforesaid extent with no order as to costs. The record of the case may be sent back to the concerned authority. Rule Made Absolute. .