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2013 DIGILAW 501 (GUJ)

RAMSINGBHAI BAVLABHAI KOLI v. STATE OF GUJARAT

2013-08-14

JAYANT PATEL

body2013
JUDGMENT : 1. The petitioners by this petition have challenged the order passed by the State Government in exercise of the revisional jurisdiction dated 30.10.1996 (Annexure-E) whereby the order of the Dy. Collector dated 10.5.1995 was set aside and it was declared that the transaction of sale is hit by provisions of Section 7 of the Bombay Prevention of Fragmentation and Consolidation Act, 1947 (hereinafter referred to as ‘the Act’) and the same is declared as void under Section 9 of the Act. 2. The short facts of the case are that the petitioners purchased the land bearing Survey No.392/2 at Village : Suskal, Taluka : Jetpur Pavi, Dist. Baroda. Based on the transaction of sale revenue entry was mutated vide No.437 dated 20.10.1960. The position continued for about 27 years and for the first time in the year 1987 the respondent No.2 initiated the proceedings under the Act calling upon the purchaser as to why the transaction should not be declared as void under the Act as hit by provision of Section 7 of the Act. On 4.9.1987, the order was passed by the respondent No.2 whereby the transaction was declared void against which the matter was carried before the higher forum and the State Government in revisional jurisdiction vide order dated 29.8.1988 remanded the matter to the respondent No.2 thereby further litigation and ultimately by order dated 10.5.1995 the Dy. Collector after remand in view of the decision of this Court in the case of Nanji Muljibhai Vs. State of Gujarat, reported in 1988 (1) GLH (UJ.) 20 ultimately found that the notice deserves to be withdrawn and he withdrew the notice for declaring the transaction as void. The respondent No.3 herein approached before the State Government in revisional jurisdiction and in the said revision the State Government at the instance of the original seller of the property set aside the order of the Dy. Collector and declared the transaction as void under Section 9 of the Act. Under the circumstances the present petition before this Court. 3. The only aspect deserves to be considered in the present petition is as to whether the exercise of the power for initiation of the proceedings under Act could be said as within the reasonable period or not. If the exercise of power is found to be beyond reasonable period, everything would fall to ground. 4. 3. The only aspect deserves to be considered in the present petition is as to whether the exercise of the power for initiation of the proceedings under Act could be said as within the reasonable period or not. If the exercise of power is found to be beyond reasonable period, everything would fall to ground. 4. It is admitted position that after the transaction came on record in the year 1960 the initiation of the proceeding is for the first time in the year 1997 after about 27 years. As such apparently the period of 27 years cannot be said to be reasonable period for initiation of the action under the Act. At this stage we may refer to the decision of this Court in the case of Vitthalbhai M. Patel & Ors Vs. Deputy Collector, Kaira & Anr., reported in 2011(1) GLR 610 and more particularly the observations made in the said decision at paras 4, 5 and 6 which are as under : “As such on the aspect of delay the law is well settled. We may record that, as there were two different views of learned Single Judges of this Court, one, in case of KOLI NAGJIBHAI VARJAN Vs. STATE OF GUJARAT & ORS., reported in 1992 (1) GLR, Pg. 14 (Coram: Abichandani, J); and another in case of RANCHHODBHAI LALLUBHAI PATEL Vs. STATE OF GUJARAT & ORS, reported in 1984 (2) GLR, pg. 1225 (Coram: S.B. Majumdar, J), the matter was referred to the Division Bench of this Court. The matter was ultimately considered by the Division Bench of this Court in case of VALJIBHAI JAGJIVANBHAI Vs. STATE OF GUJARAT, reported in 2005(2) GLH, pg. 34. The view taken and conclusion recorded by the Division Bench at para23 is as under: “23. Looking to the aforesaid different situations, there is no doubt in our mind that even the void transaction under Section 9(1) if allowed to remain effective for considerably long period, the authority named therein will be precluded from initiating proceedings to annul it. The ratio laid down by the Apex Court in the decisions cited by Mr. Patel clearly states that even the void transaction cannot be said to be nonexistent in all cases and in all situations. It can remain effective and in existence till it is invalidated and set aside. The ratio laid down by the Apex Court in the decisions cited by Mr. Patel clearly states that even the void transaction cannot be said to be nonexistent in all cases and in all situations. It can remain effective and in existence till it is invalidated and set aside. If its existence is allowed to remain for a considerable period and with the passage of time it brings about several changes, creating valuable rights in favour of considerable section of people, it is difficult to accept the proposition that despite the change the Collector would be entitled to exercise power under sub-section (3) of Section 9 of he Act. Similar observations can also be made with regard to the land wherein no change is brought about, but number of years have passed after the transfer against the provisions of the Act has taken place. In our opinion when the things have been allowed to remain as such for years together, the purchaser cannot be deprived of his possession so as to render indirect benefit to the seller who was equally responsible for entering not such illegal transaction. Thus, in our view, when the authority had considerable opportunities to know about the transaction and despite that, has not taken any action thereon for years together, such authority cannot be allowed to exercise powers conferred upon it at a belated stage. The concept of reasonableness of time will equally apply in such cases.” 5. We may also refer to the decision of the Apex Court in case of PUNE MUNICIPAL CORPORATION Vs. STATE OF MAHARASHTRA & ORS, reported in 2007 (3) GLR, pg. 2610, on the aspect of concept of null & void order and applicability of Article 113 of the Limitation Act. The Apex Court in the said decision at para no.36 & 41 have observed thus: “36. It is well settled that no order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law. As prof. Wade states (See Administrative Law by H.W.R. Wade, 6th Edn. The Apex Court in the said decision at para no.36 & 41 have observed thus: “36. It is well settled that no order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law. As prof. Wade states (See Administrative Law by H.W.R. Wade, 6th Edn. Page 352): “The principle must be equally true even where the 'brand of invalidity' is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the Court.” He further states Ibid., pages 35253: “The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case, the 'void' order remains effective, and is in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person, but valid against another.” “41. In the present case, no period of limitation is prescribed for preferring revision under Sec. 34 of the Act. The principle laid down in State of Gujarat V. Patel Raghav Natha, 1969 (2) SCC 187 , hence, applies. If, therefore, the revisional authority was inclined to exercise jurisdiction, it ought to have been satisfied that such power was invoked by the petitioner within reasonable time. Merely on the ground that the order passed in 1977 was unlawful was not sufficient to ignore length of delay and other attenuating circumstances.” 6. If the facts of the present case is examined in light of the aforesaid, it is an admitted position that after a period of 12 years from the entry mutated in the revenue record based on the alleged transaction, the action is initiated. Under these circumstances, as such the action could be said as after an unreasonable period and the delay would operate against as a bar to the authority in initiating action for annulment or setting aside the alleged sale on the alleged ground of breach of provisions of the Act.” 5. Under these circumstances, as such the action could be said as after an unreasonable period and the delay would operate against as a bar to the authority in initiating action for annulment or setting aside the alleged sale on the alleged ground of breach of provisions of the Act.” 5. Be it recorded that the aforesaid was also a case where the proceedings were initiated under the Act and in the said case delay for exercise of the power was after 12 years; whereas in the present case the exercise of power is after 27 years so the delay would operate with more vigour as against the initiation of the action under the Act. 6. However, Mr. Patel, learned counsel appearing for the private respondent, who is petitioner before the State Government in revision petition as well as the learned AGP submitted that the State Government has relied upon another decision of the Apex Court in the case of State of Orissa & Ors Vs. Brundaban Sharma & Anr., reported in 1995 Supp (3) Supreme Court Cases, 249 and contended that irrespective of the delay in period which was 27 years in that case the Apex Court observed that, “if it is non est or void order the validity can be questioned at any stage”. It was submitted that the aforesaid decision was not brought to the notice of this Court at the time when this Court decided the matter in the case of Vitthalbhai M. Patel & Ors (Supra). In the submission of learned counsel appearing for the private party as well as learned AGP merely because 27 years delay is there in exercise of power in initiation of action would not render the order passed by the State Government as illegal which may be set aside by this Court. 7. In my view the reliance upon the decision of the Apex Court in the case of State of Orissa (Supra) is ill-founded inasmuch as it was the case where the quasi-judicial authority has to exercise the power with the prior confirmation of the Board of revenue. Since no confirmation of the Board was obtained before passing the order by Tehshildar the Apex Court found that it was the non est order and, therefore, the validity could be questioned at any stage. Since no confirmation of the Board was obtained before passing the order by Tehshildar the Apex Court found that it was the non est order and, therefore, the validity could be questioned at any stage. Such are not the facts situation in the present case and non est order passed by any statutory authority or quasi-judicial authority cannot be equated with the transaction of sale which is by way of volition between two parties. Further there is no absolute bar operating against the transaction but the Act provides permission to be obtained for entering into the transaction. In any case such transaction or transfer cannot be equated with the exercise of power of any quasi-judicial authority. Under the circumstances, the decision is of no help to the learned counsel for the private party as well as to the learned AGP. 8. In view of the aforesaid observations and discussion, the impugned order passed by the State Government (Annexure-E) in the revisional jurisdiction cannot be sustained. Hence, the same is quashed and set aside. The petition is allowed to the aforesaid extent. Considering the facts and circumstances no order as to costs. Petition allowed.