Research › Search › Judgment

Gujarat High Court · body

2010 DIGILAW 533 (GUJ)

Mahadevbhai Dhanabhai Chavda v. State of Gujarat

2010-10-28

K.M.THAKER, S.J.MUKHOPADHAYA

body2010
JUDGMENT : K.M. Thaker, J. The captioned two appeals under Clause 15 of the Letters Patent arise from common judgment dated 24.4.2009 passed by the learned Single Judge rejecting the two Writ Petitions one of which was preferred by original landowners and the second one by the purchasers of the land in question. 1.1 The purchaser, upon being aggrieved by the order dated 24.4.1990/20.6.1990, confirming the order made by the Collector, preferred the Writ Petition being SCA No. 8846 of 1990. So far as the original landowner is concerned, he, upon being aggrieved by some of the observations in the same order dated 24.4.1990/20.6.1990 preferred the Writ Petition being SCA No. 740 of 1991. Since the order under challenge in both the petitions was common and involved common facts the learned Single Judge heard and decided the two petitions by the common judgment against which the purchaser-has preferred the two appeals. 2. The facts involved in and relevant for the purpose of considering and deciding present appeals can be summarised as follows:- 2.1 The original landowners owned lands bearing Survey No. 67/1, 67/2, 68 and 70/4 comprising Block No. 218. Out of the said parcels of land, the land bearing Survey No. 68 admeasuring 16 Acres and 21 Gunthas was purchased by the appellant in June 1983 vide registered sale deed dated 21.6.1983. After execution of the said transaction, entry No. 3075 dated 15.12.1987 was made in the revenue record and subsequently the said entry was certified on 21.1.1988 by the Mamlatdar, Viramgar. 2.2 The Collector, Ahmedabad noticed and scrutinised the aforesaid transaction, and formed the opinion that the transaction was in violation of the provision of Bombay Prevention of Fragmentation and Consolidation of Holdings Act 1947 ("the Act" for short). Hence, the proceedings under the Act were initiated through the Deputy Collector, Viramgam. 2.3 The Deputy Collector, Viramgam conducted the proceedings registered as Consolidation Case No. 13 of 1989. During the proceedings, the appellants filed their reply raising various contentions. Upon hearing the appellants and after examination of the record, the Competent Authority came to the conclusion that though the consolidation scheme was in force in the village, prior permission of the Collector was not obtained before entering into and executing the said transaction and that therefore there was breach of provision under Section 31 (1)(b) of the Act. Upon hearing the appellants and after examination of the record, the Competent Authority came to the conclusion that though the consolidation scheme was in force in the village, prior permission of the Collector was not obtained before entering into and executing the said transaction and that therefore there was breach of provision under Section 31 (1)(b) of the Act. The Competent Officer, therefore, passed order dated 29.11.1989 under Section 9 of the Act recording the aforesaid conclusion and thereupon directing that the entry No. 3075 be cancelled. The Competent Officer also issued other consequential directions. 2.4 Aggrieved by the said order the appellants preferred Revision Application No. 1 of 1990 before the Additional Chief Secretary (Appeals) Revenue. The Revisional Authority heard the purchasers-present appellants. After hearing the aggrieved party, the Revisional Authority passed the order dated 24.4.1990/20.6.1990 whereby the Revisional Authority rejected the Revision Application and confirmed the order of the Competent Officer. The Revisional Authority further directed that the transaction in question being in violation of Section 31 read with Section 9 of the Act, the land shall vest in Government. As a consequential direction, the Revisional Authority also directed that the purchasers (i.e. present appellants) be removed from the occupation of land in question. 2.5 Aggrieved by the said order dated 24.4.1990/20.6.1990 the purchasers appellant filed the Writ Petition being SCA No. 8846 of 1990. 2.6 Upon being aggrieved by the later portion of the same order and consequential direction viz the direction vesting the land in question in Government, the original landowners also preferred Writ Petition being SCA No. 740 of 1991 claiming that the land in question should revert to them, (i.e. to the original landowners). 2.7 After considering the rival contentions, the learned Single Judge rejected the objection raised on the ground of allotment and held that the contention that since there was no "allotment" of holding it would follow that any scheme for consolidation was not in force and that therefore Section 31 of the Act would not be applicable, cannot be accepted. The learned Single Judge also held that in light of the provision under Act it cannot be said that in view of the facts of the case the provision under section 31 are not attracted. 3. Mr. The learned Single Judge also held that in light of the provision under Act it cannot be said that in view of the facts of the case the provision under section 31 are not attracted. 3. Mr. Shah, learned advocate for the purchasers-appellants has assailed the order passed by the authority mainly on the ground that at the relevant time any scheme of consolidation, as contemplated under Sections 19, 20 and 21 of the Act was not prepared, declared and published and was not brought in force and since there was no entry describing the land in question as "fragment land" in the Record of Rights, the transaction cannot be faulted and cannot be declared as in breach of Section 31 read with section 9 of the Act. He has also contended that in case of consolidation of holding a scheme had to be framed and allotment of land was necessary i.e allotment is pre-condition and in absence of any order of allotment no action under Section 31 could be initiated. It is also contended that since any scheme was not framed there was no allotment of land to the original owners and therefore, there was no justification to hold the transaction as in breach of provision of the Act, particularly section 31 read with section 9 of the Act. He has also submitted that the proceedings were initiated after almost 6 years and that such belated action could not have been initiated and therefore the orders must fail. 3.1 Per contra Ms. Krina Calla learned AGP has, while opposing the appeals, submitted that the appellants are not right in claiming that any consolidation scheme was not framed and was not in operation. She submitted that the entry had been mutated in the revenue records at the relevant point of time which fact indicates the implementation of the scheme. In response to the querry by the Court about the scheme, the learned AGP produced on record a copy of the Gazette dated 18.5.1950 and submitted that in the village Vani, Taluka Viramgam, the Settlement Commissioner, in exercise of power under Section 20(1) of the Act, had confirmed-approved the consolidation scheme and a notification to that effect was issued on 22.11.1974. In light of the said notification learned AGP has submitted that the contention of the appellants-purchasers that for want of consolidation scheme the impugned order of the authority is erroneous and transaction could not have been invalidated, would fail. She has further submitted that even otherwise, the parcels of land owned by original landowners fell within different certified numbers but they formed contiguous block while framing the scheme. As regards the contention raised on the ground of limitation, learned AGP submitted that it has been consistently held that the action should be and can be initiated within reasonable time and that considering the facts of the case it cannot be said that the action was not initiated within reasonable time. She also submitted that in view of the provisions under Section 9 read with Section 8 the transaction was void and once the transaction was found to be void, the only requirement was of declaration by competent authority. She submitted that the order of the competent officer which has been confirmed by the revisional authority vide the order impugned in the petition, is just and legal and there is no ground or justification to set aside the judgment dated 24.4.2009 or said original or revisional orders, as prayed for by the appellants. 3.2 So far as the original landowners are concerned they did not raise any dispute against the revenue authority's order and about its correctness so far as it holds that the transaction was invalid in eye of law, but the direction by the revenue authority that the land shall vest in the State Government, was assailed before the learned Single Judge on the ground that Section 9 of the Act does not provide for, or even contemplate, vesting of the land in the State if the transaction is found to be invalid and that the learned Single Judge has rightly directed that the possession should be restored in their favour (i.e. the original landowners). 3.3 Mr. 3.3 Mr. Shah, learned advocate for the appellants in his rejoinder submitted that in the event the orders are not set aside as prayed for by the appellants and the Court confirms the impugned orders then in that event the order of the restitution of the payment made by the appellants be passed inasmuch as the appellants ought not be made to lose the land as well as the payment and the original owners cannot stand to benefit on both counts i.e. to retain the payment and to also retrieve the land in question. 4. Having regard to the contentions raised before us by the appellants-purchasers and the facts of the case as well as material obtaining on record and in light of the provisions under the Act, so far as the contention on the ground that any consolidation scheme was not in force hence the transaction could not have been voided is concerned, it must fail in view of the notification dated 22.11.1974 (much before the date of disputed transaction) produced on record by learned AGP. 4.1 In view of the said notification the appellant's contention that any consolidation scheme was not in force does not hold good and that in light of the said notification the foundation of all contentions viz. the allegation that any scheme of consolidation was not framed or implemented would fall to the ground. 4.2 Before us it is contended that at the relevant time any consolidation scheme as contemplated under the Act was not in force and that therefore the provisions treating the land in question as fragment will not be applicable. It has also been submitted that in absence of any order of allotment no action could have been initiated under Section 31 read with Section 9 of the Act. 5. As per the scheme of the Act Section 15 of the Act permits the Government to declare its intention to make scheme for consolidation and Section 15A provides the procedure for preparing the scheme. The said Sections, inter alia, provide that the consolidation officer will prepare the scheme for consolidation after giving notice to the landowners. Rules 10 and 11 of the Rules of 1959 framed under the Act inter alia, provide the procedure for grouping of lands. The said Sections, inter alia, provide that the consolidation officer will prepare the scheme for consolidation after giving notice to the landowners. Rules 10 and 11 of the Rules of 1959 framed under the Act inter alia, provide the procedure for grouping of lands. 5.1 In present case, it transpires from the record and the submissions that at the time of implementation of the scheme, the holding of the original landowners obtained in such a manner that though it fell within different survey numbers, it still formed a contiguous block and that therefore any need of redistribution in case of holdings of the landowners did not arise. Consequently, the occasion or question of exchange and/or allotment did not arise. The respondent No. 1 State also has maintained that though the lands held by the original landowners were within different survey numbers, they formed a contiguous block hence the necessity to exchange and consequently the question of allotment of new land also did not arise. The landowner has not disputed the said submission about the positioning of the lands (owned by him) at the relevant time. Obviously, therefore, the consolidation officer did not take recourse to exchange and allotment. In this view of the matter, the view of the learned Single Judge that the purchaser's contention that since there was no allotment it would, as a corollary, follow that there was no scheme and therefore it would also follow that the provisions of the Act were not implemented in the area in question is not sustainable, cannot be faulted. We are of the view that learned Single Judge has not committed any error in holding that if the lands in question are contiguous lands and fall within one block and form a homogeneous group considering the quality of soil, irrigation facility, etc., it would not always be necessary, in the process of grouping, that a fresh allotment should invariably be made even if the holdings are not disturbed. 5.2 The process of allotment of new plot of land to any owner in lieu of any plot taken away from him would arise if the original plot is taken away for the purpose of grouping and consolidation but if in a given case, in view of the existing position (at the time of consolidation process) of the plots, such necessity does not arise and grouping may not be required, then the occasion to take away the plot would not arise and resultantly if original plot is not taken away then the question of allotting new plot would also not arise. 5.3 In this context reference may be made to Rule 11 (b) & 11(c) of the Rules. Rule 11(c) refers to the allotment of new plot of land to the owner in lieu of any plot taken away from while Rule 11 (b) provides that the owner may be allotted land in the blocks where he holds largest and principal part of his holding. 5.4 Thus, the eventuality of allotment of new plot would arise if any existing plot is, for any of the reasons contemplated under the Act, taken away during the consolidation process, however if the need of taking away the existing plot does not arise (considering the land's position and/or other relevant prescribed factors) and if in fact the plot is not taken away, then the occasion for allotment of new plot would not arise. 5.5 In such cases, merely because new plot is not allotted to any land owner, it cannot be claimed that the consolidation scheme has not been implemented. 5.6 In present case, the petitioners have sought to support his contention that consolidation scheme was not implemented in the concerned village on the premise that new allotment was not made. However, as noted earlier in a given case new allotment may not become necessary and the sole criterion of non-allotment would not always and/or necessarily lead to the conclusion that the scheme has not been framed and/or implemented. The answer to the issue whether the scheme has been framed and implemented or not, cannot be always dependent on and cannot be searched only in light of the event of exchange and allotment. For the aforesaid reasons the said contention cannot be accepted and has been rightly not accepted by the learned Single Judge. 6. The answer to the issue whether the scheme has been framed and implemented or not, cannot be always dependent on and cannot be searched only in light of the event of exchange and allotment. For the aforesaid reasons the said contention cannot be accepted and has been rightly not accepted by the learned Single Judge. 6. So far as the contention on the ground of delay/limitation is concerned, the learned Single Judge did not accept the said contention and held that in the facts of the case the proceedings can be said to have been initiated within reasonable time. In our view, in the facts of present case the said decision of the learned Single Judge is justified and cannot be set aside. 6.1 It is true that the statutory power must be exercised within the prescribed time limit and where the statute does not prescribe any time limit, then the power should be exercised within reasonable time. However, in any given case the reply to the question as to whether action was initiated within reasonable time or not would depend upon the facts of the case and in the facts of the case the date of knowledge-notice to the concerned authority, may be the relevant criterion. In this context reference needs to be made to the judgment of the Hon'ble Apex Court in case between State of Orissa v. Brundaban Sharma & Anr., [1995 Supp (3) SCC 249]. In the said case in para 14 of the said judgment, while referring to the judgment in case of State of Maharashtra v. Rattanlal [ 1993 (3) SCC 326 ] the Hon'ble Apex Court observed thus: 14...... It was contended therein that the Act provides a period of 3 years' limitation to exercise review jurisdiction under Section 38-A at the instance of the aggrieved parties. For the exercise of the suo motu power also the same limitation should be construed. The exercise of the power after a long lapse of time thereafter would be illegal. While negating the contention this Court held that it would be open to the State Government to correct any illegality in the proceedings. The obvious intendment in conferring suo motu power was to prevent suppression of the agricultural land, liable to be included, or held by the declarant and he cannot plead in his defence his own fraud or suppression and seek shelter thereunder. The obvious intendment in conferring suo motu power was to prevent suppression of the agricultural land, liable to be included, or held by the declarant and he cannot plead in his defence his own fraud or suppression and seek shelter thereunder. When the original order was vitiated by illegality or impropriety committed by officer or authority or was passed due to suppression of the material facts or fraud, it was open to the tribunal to reopen the same. The limitation would start running from the date of the discovery of the fraud or suppression of material or relevant fact or omission thereof and an order under Section 17 in that Act was not a bar to exercise suo motu revisional power. Accordingly the appeal was allowed. The order of the High court was set aside and that of the Additional commissioner initiating suo motu proceedings and its order was held to be valid." In para 16 Apex Court has observed thus:- "16. It is therefore, settled law that when the revisional power was conferred to effectuate a purpose, it is to be exercised in a reasonable manner which inheres the concept of its exercise within a reasonable time. Absence of limitation is an assurance to exercise the power with caution or circumspection to effectuate the purpose of the Act, or to prevent miscarriage of justice or violation of the provisions of the Act misuse or abuse of the power by the scenario in a given case. Take a case that patta was obtained fraudulently in collusion with the officers and it comes to the notice of the authorities after a long lapse of time. Does it lie in the mouth of the party to the fraud to plead limitation to get away with the order? Does lapse of time an excuse to refrain from exercising the revisional power to unravel fraud and to set it right? The answer would be no. 18. Under these circumstances, it cannot be said that the Board of Revenue exercised the power under Section 38-B after an unreasonable lapse of time, though from the date of the grant of patta by the Tehsildar is of 27 years. It is true that from the date of the alleged grant of patta 27 years did pass. But its authenticity and correctness was shrouded with suspicious features. The records of the Tehsildar were destroyed. It is true that from the date of the alleged grant of patta 27 years did pass. But its authenticity and correctness was shrouded with suspicious features. The records of the Tehsildar were destroyed. Who is to get the benefit? Who was responsible for it? The reasons are not far to seek. They are self-evident. So we hold that the exercise of revisional power under Section 38-B by the Board of Revenue was legal and valid and it brooked no delay, after it had come to the Board's knowledge. That apart as held by the Board of Revenue, the order passed by the Tehsildar without confirmation by the Board is non est. A non est order is a void order and it confers no title and its validity can be questioned or invalidity be set up in any proceedings or at any stage." 7. Now, turning to the facts of present case, it is noticed that there is no dispute about the fact that the entry No. 3075 was made for the first time on 15.12.1987 and it was certified on 21.1.1988. The Notice for initiating the impugned proceedings was issued on 16.9.1989. However by ignoring the fact that the entry was made on 15.12.1987 and was certified on 21.1.1988 the petitioners contended that the action was initiated belatedly because the authority issued the Notice on 16th September 1989 and on that basis the allegation and claim about delay of six years (from 21.6.1983 to 16.9.1989) is made to contend that the action was initiated belatedly. However we cannot overlook the fact that the transaction would, ordinarily, come to the notice-knowledge of the authority when entry is duly made in the revenue record. Otherwise, the knowledge through other source has to be proved certified. In absence of the entry reflecting the transaction, the knowledge about the transaction cannot be attributed to the authority and it cannot be presumed, unless proved otherwise, that even in absence of entry about the transaction the authority would have knowledge about the transaction. The petitioner in present case has failed to establish that the concerned authority was informed about, or was aware about and had knowledge about the transaction prior to 21.1.1988 or 15.12.1987. The petitioner in present case has failed to establish that the concerned authority was informed about, or was aware about and had knowledge about the transaction prior to 21.1.1988 or 15.12.1987. Hence, in present case the reasonable time cannot be said to have commenced before 21.1.1988 (the date when entry was certified) being the date of knowledge-notice to the authority and since the notice was issued on 16.9.1989 the total gap was not of more than about 1½ years, hence it cannot be said that the impugned action was unreasonably delayed and/or that it is vitiated by delay. In our view the said contention fails and the learned Single Judge has rightly rejected the said contention. 8. The aforesaid discussion takes us to the next or alternative contention of the appellant. The appellant has contended that even if the conclusion by the learned Single Judge with regard to the implementation of the scheme and other aspects were to be accepted as correct, then also the direction by the learned Single Judge to the respondent authorities to restore the land to the original owners, is unsustainable. Of course, the original land owners have opposed the appellant's/purchaser's said submission. 8.1 In our view, the appellant purchaser is justified in raising the objection. The scheme of the Act does not provide that in the cases where the transfer of land is found invalid and in breach of the restriction imposed by the Act, the land, as a corollary, would vest in the Government. 8.2 In view of the provision under Section 9 of the Act, even after declaring the transfer invalid and illegal the authority could not have passed the direction vesting the land in question, in the Government. 8.3 Even if the transaction is held to be invalid, such illegal transaction would not entail, as a consequence, vesting of the land in Government. The scheme of the Act does not contemplate or provide for such result. The consequence which would ensue is imposition of fine in accordance with and within pecuniary limits prescribed by the Act. 8.4 The impugned direction, being without authority of law, cannot be sustained. The order and direction of the learned Single Judge to the extent the learned Single Judge has set aside the order of the authority holding that the land vests in Government is, therefore, justified and cannot be faulted. 8.4 The impugned direction, being without authority of law, cannot be sustained. The order and direction of the learned Single Judge to the extent the learned Single Judge has set aside the order of the authority holding that the land vests in Government is, therefore, justified and cannot be faulted. 8.5 The learned Single Judge has rightly set aside the authority's order directing vesting of the land in Government. 9. However the direction, in respect of SCA No. 740 of 1991 to restore the land to the original owner could not have been passed. 9.1 Such a consequence or such a course of action is also not contemplated under the scheme of the Act. The Act does not provide for or contemplate automatic or consequential restoration of the title and/or of possession and/or of ownership and other rights in favour of the original land owner after the transaction is declared invalid under the Act. 9.2 The only authority which the Government has is to impose fine and thereafter the matter has to be left to the parties to the transaction who may, as may be permissible in law, take-out and defend the action in accordance with law raising the contentions as may be available in law. 9.3 Therefore, the impugned order to the said limited extent is not sustainable and deserves to be set aside. 9.4 Hence, to the said limited extent, i.e. to the extent by which the learned Single Judge directed restoration of the land to the original land owner, the impugned order is hereby set aside. Except to the aforesaid extent, both the appeals by the purchaser-appellants fail and deserve to be rejected. 10. The appeals, except to the aforesaid extent-in respect of SCA No. 740 of 1991 - are, hereby rejected. In the facts of the case, there shall be no order as to costs. Appeals partly allowed.