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2016 DIGILAW 525 (GUJ)

Doshi Kantilal Chhaganlal v. State of Gujarat

2016-03-03

N.V.ANJARIA

body2016
JUDGMENT : N.V. Anjaria, J. 1. Heard learned advocate Mr. Shital R. Patel for the petitioner, learned Assistant Government Pleader Mr. Tirthraj Pandya for respondent Nos. 1 and 2, whereas learned advocate Mr. B.J. Patel for respondent No. 3. 2. Petitioners have challenged order dated 31st December, 1999 declared on 22nd February, 2000 by the Principal Secretary (Appeals), Revenue Department in Revision Application No. 04 of 1997, dismissing the same, in turn confirming order of Collector, Sabarkantha dated 15th January, 1997. The petitioners have prayed for setting aside of said order of Collector as well. 2.1 In the context of the impugned orders and from the facts involved, two issues surface-firstly, whether the powers for setting aside revenue entries were exercised by the Assistant Collector were exercised within reasonable period; whether the authorities acting in revenue jurisdiction could have considered the issue under the Bombay Tenancy and Agricultural Lands Act, 1948, and whether the very premise that the petitioners were not agriculturist and the finding in respect of breach of Section 63 of the Tenancy Act was permissible to be reopened so as to pass the impugned order. 3. Revenue Entry No. 94 in respect of land bearing Survey No. 143 situated at Village Ranodara, Idar and Entry No. 388 in respect of survey No. 328 at Mudeti, Taluka Idar mutated on 28th November, 1966, Entry No. 380 in respect of survey No. 162/2 for the land of Village Revas, Taluka Idar mutated on 13th January, 1971 in favour of the petitioners, were taken along with other Entries standing in the name of the petitioners, into the wrap of revisional powers. The other Entries concerned survey No. 318/44, 318/42, 444/3, etc. as well as in respect of land bearing survey No. 382 which were reflected in the Entry Nos. 515, 511, 517, 1136, 380 and 388 which were also taken into Revision. Those lands were purchased by the petitioner by way of registered sale deed. The proceedings under Rule 108(6) came to be initiated by the Assistant Collector at the instance of respondent No. 3 who made an application dated 08th August, 1994 and prayed for cancellation of Entry No. 388 in respect of survey No. 328 which was mutated on 25th November, 1966. Entry No. 515 was mutated on 22nd August, 1970. The proceedings under Rule 108(6) came to be initiated by the Assistant Collector at the instance of respondent No. 3 who made an application dated 08th August, 1994 and prayed for cancellation of Entry No. 388 in respect of survey No. 328 which was mutated on 25th November, 1966. Entry No. 515 was mutated on 22nd August, 1970. Regarding survey No. 318/44 and Entry No. 517 in respect of survey No. 444/Part were all mutated on 22nd August, 1970. Similarly, Entry No. 1136 and Entry No. 380 were dated 18th August, 1980 and 17th June, 1976. Respondent No. 3-original owner applied for cancellation of the said Entries standing on the name of the petitioners on the ground that they were made in contravention of Section 63 of the Bombay Tenancy and Agricultural Lands Act. Thus, the Entries in question were mutated between 1966 and 1971. 3.1 As per the assertion of the petitioners, they have been cultivating the lands since early 1960. The land survey No. 143 of Ranodara was mutated in their name in view of their one-fourth share therein which they had been cultivating. Entry was mutated and certified. For the other lands, the petitioners became owners by purchasing the same under the registered Deed. 3.2 By order dated 15th February, 1985, the Deputy Collector reviewed the said Entries and set aside the same on the ground that the petitioners were not agriculturists. Against the said order, appeal was preferred under Rule 108(6) of Bombay Land Revenue Rules which was dismissed by order dated 15th January, 1997. Against the said orders, petitioners moved Revision Application before the revisional authority, culminating into order impugned in this petition. 4. Learned advocate for the petitioner inter alia contended on the basis of Resolution dated 22nd July, 1992 that the Deputy Collector would not have exercised the revisional powers under Rule 108(6) of the BLR Rules as he was not vested with such powers and the instructions issued in the said Resolutions clearly provided stated that the Deputy Collector had no such jurisdiction. 5. In addition to the aforesaid contention, the aspect clearly emerges that the revenue Entries which were entered in the record between the period 1966 and 1971 were set aside in the year 1985 which was after a gap of almost 18 years. 5. In addition to the aforesaid contention, the aspect clearly emerges that the revenue Entries which were entered in the record between the period 1966 and 1971 were set aside in the year 1985 which was after a gap of almost 18 years. Right from the decision of the Apex Court in State of Gujarat vs. Patel Raghav Natha, [10 GLR 992] and other decisions, the principle is well settled that a statutory power, even though no time limit is prescribed by the legislature for exercise of such power, has to be exercised within a reasonable time. Any unreasonable delay would seriously prejudice the person against whom the adverse action is taken. 5.1 Decision of the Supreme Court in Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim, (1997) 6 SCC 71 which addressed the question of suo motu inquiry by the Mamlatdar under Section 84-C of the Bombay Tenancy and Agricultural Lands Act, 1976, a period little beyond one year was held to be amounting to unreasonable delay. This Court in Parshottam Ramji Rathod vs. Dhirajlal Dharamshi Mistry, 1999 (2) GLH 310 and in Shree Ravidarshan Cooperative Housing Society vs. Praffulkumar Thakar, 2000 (2) GLR 1693 reiterated the exercise of power within reasonable time. 5.2 In Rameshbhai Ambalal Shah vs. State of Gujarat 2011 (3) GLH 98 , in the context of Sections 63 and 64-C of the Bombay Tenancy and Agricultural Lands Act, this Court considered the validity of the suo motu powers exercised by the authority to review its decision in respect of transaction which was entered into in the year 1970. The powers were exercised suo motu by the Mamlatdar & ALT seeking to set aside the transaction as late as in the year 1985. It was on the ground that the purchaser was holding land in the State of Rajasthan and not in the State of Gujarat, therefore the transaction was treated to be in breach of Section 63 of the Act. This Court held that the powers of suo motu review was exercised beyond reasonable time. It was further held that the original owner of the land being seller cannot say that the transaction of 1970 to be declared as invalid and the possession of the property to be restored in his favour. The facts of the said case are akin to the facts obtained in the present case. The principle laid down therein apply. It was further held that the original owner of the land being seller cannot say that the transaction of 1970 to be declared as invalid and the possession of the property to be restored in his favour. The facts of the said case are akin to the facts obtained in the present case. The principle laid down therein apply. 5.3 The contention raised by learned Assistant Government Pleader that when the order itself was illegal from beginning, the aspect of delay would pale into insignificance. He submitted that whether the powers are exercised within a reasonable time or not and the extent of delay in that context has to be measured from case-to-case. According to him, transaction was in breach of Section 63, therefore when the powers are exercised to set aside such illegal transaction, the exercise may not be invalidated only on the ground of delay. This submission is answered straightway by decision of this Court in Mavjibhai Dharsibhai vs. State of Gujarat, 1994 (2) GLR 1168 in which the Court drew distinction between an invalid transaction and a transaction which is 'void'. Both stand on different footing. Paragraphs 10, 12 and 13 explained in following words in order to annual invalid and voidable transaction the powers has to be exercised within a reasonable time. "It may be mentioned at this stage that any transaction in contravention of Section 63 or 64 of the Act is made invalid and not void. This becomes clear from the language of Section 63 and the provisions contained in Section 64(8) thereof." "The scheme of the Act however makes a clear distinction between void transaction on the one hand and invalid transaction on the other. It is not open to me to say that the Legislature did not understand the distinction between the two terms "void" and "invalid". In fact, as transpiring from the various provisions of the Act, the Legislature was fully aware of the distinction between the two aforesaid terms. In Section 17(5) of the Act it has been provided, "Any sale of a site held in contravention of this section (that is, Section 17 thereof) shall be null and void." As against this, Section 64(8) has provided "any sale made in contravention of this section (that is, Section 64 thereof) shall be invalid". In Section 17(5) of the Act it has been provided, "Any sale of a site held in contravention of this section (that is, Section 17 thereof) shall be null and void." As against this, Section 64(8) has provided "any sale made in contravention of this section (that is, Section 64 thereof) shall be invalid". The language of Section 63 thereof also makes it clear that the transaction in contravention thereof would be invalid and not void." "It would thus mean that an invalid transaction per se may be invalid but it will not be invalid unless it is decided or declared to be so. It has to be invalidated. It thus becomes clear that an invalid transaction is made equivalent to a voidable transaction and not a void transaction. It is a trite principle of law to say that a voidable transaction remains valid till it is avoided, annulled or invalidated. Even at the cost of repetition, I reiterate that the language of Section 83-A of the Act has likened an invalid transaction to a voidable transaction." 5.4 In view of the above highlighted position of law, initiation of proceedings by the Deputy Collector in the year 1985 after unreasonable period of 18 years to took into revision the Entries and canceling the same, stood clearly vitiated. The initiation and the cancellation both were rendered illegal as the powers were sought to be exercised after unreasonable delay. Delay of 18 years has to be treated as unreasonable delay by any standard. 6. The second aspect whereby the impugned action and the order stands infirm in law is that the Collector, while exercising its revenue jurisdiction and the subsequent authorities exercising appellate powers under Rule 108(6) of Bombay Land Revenue Rules was functioning and exercising his revenue powers. The Entries were cancelled by him in exercise of such powers by holding that Section 63 of the Bombay Tenancy and Agricultural Lands Act was breached. The Entries were cancelled by him in exercise of such powers by holding that Section 63 of the Bombay Tenancy and Agricultural Lands Act was breached. The decisions of this Court in Evergreen Apartment Cooperative Society vs. Special Secretary, Revenue Department, 1991 (1) GLR 113 followed by other decision in Janardan M. Patel vs. State of Gujarat, 1997 (1) GLR 50 and several other decisions has held that the same authority may be holding different capacity under the different statutes, however when such authority exercising his powers under one particular enactment, it does not derive power and jurisdiction to deal with, determine or decide in respect of issue or question falling under different law. In the present case, the respondent authorities while acting under their revenue jurisdiction, cancelled the Entries by holding that provision of Tenancy law was breached-a ground under the different statute. This very facet of the matter vitiated the decision to be not sustainable in law. 6.1 The matter does not rest only on aforesaid legal principles. From the facts available on record, it transpired that the issue of breach of Section 63 and the question whether the petitioners were agriculturists, were concluded by the Tenancy Authorities. In respect of some of the Entries mentioned above, inquiry under Section 84C of the Bombay Tenancy Act was earlier initiated by the Mamlatdar and Agricultural Lands Tribunal, who by his order dated 10th November, 1975 had closed the proceedings holding that the petitioners were agriculturists; therefore the question of breach of Section 63 did not arise. As noted above, petitioners had purchased land bearing survey No. 162/2 of Village Revas, Idar. In respect of this transaction entered into by registered sale deed dated 01st September, 1971, respondent No. 3 had appealed before the appellate authority. Thereafter the Deputy Collector held that the petitioners were agriculturists, against which Revision Application No. 87 of 1998 before the Gujarat Revenue Tribunal. The said Revision was ultimately withdrawn. Thus the dispute about the status of agriculturists of petitioners was once raised in the competent proceedings and the said proceedings rested finally in favour of the petitioners who were held to be the agriculturists. The said issue could not have been re-opened and re-agitated by the Deputy Collector which he did by initiating and passing orders in the year 1995 by canceling the Entries mutated during 1966 to 1971. 7. The said issue could not have been re-opened and re-agitated by the Deputy Collector which he did by initiating and passing orders in the year 1995 by canceling the Entries mutated during 1966 to 1971. 7. For all the aforesaid reasons and discussion, the impugned order dated 22nd February, 2000 by the Principal Secretary (Appeals), Revenue Department in Revision Application No. 04 of 1997, dismissing the same, in turn confirming order of Collector, Sabarkantha dated 15th January, 1997 cannot sustain. They are hereby set aside. The petition stands allowed. Rule is made absolute with no orders as to costs.