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2017 DIGILAW 859 (GUJ)

Vaghari Laxmanbhai Ramjibhai v. State of Gujarat

2017-04-24

K.M.THAKER

body2017
JUDGMENT K.M. Thaker, J. 1. Heard Mr. Mangukiya, learned advocate for the petitioner and Mr. Mehta, learned AGP for respondents No. 1 to 3. 2. In present petition, the petitioner has prayed, inter alia, that: "15(B) Be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus, and to quash and set aside the impugned judgment and order dated 15.09.2011/26.09.2011, Annexure-F to this petition, passed by the respondent No. 2 herein, in Revision Application No. MVV/HKP/Bhavan/23/2006, confirming the order passed by the respondent No. 3 herein, dated 10.11.2006, Annexure-D to this petition, in Case No. RO/Gharkhed/Case No. 63/2004-05;" 3. So far as the factual background is concerned, the petitioner has averred and stated that: "4. The petitioner states that the petitioner is residing at the address mentioned in the cause title. The petitioner states that the father of the petitioner owns agricultural lands at village Zariya. The father of the petitioner named Ramjibhai @ Ramabhai Nanjibhai Vaghri had purchased a land bearing survey No. 2 admeasuring 08 Acres and 00 gunthas of village Zariya, Tal. Shihor, Dist. Bhavnagar, for a consideration of Rs. 2000/- from its original owners Rabari Maher Rama and two others and entry No. 450 was posted in the revenue records on 10.11.1971, reflecting the said transaction. The said entry was certified on 03.03.1972. 5. The petitioner states that the petitioner has purchased land bearing revenue survey No. 100 situated at village Zariya, Tal. Shihor, Dist. Bhavnagar, admeasuring 02 Acres 00 gunthas from its original owner respondent No. 4 herein, by way of a registered sale deed. The entry reflecting the said transaction was posted in the revenue records being entry 110.533 on 17.07.1976. The said entry was certified. The petitioner had purchased said land bearing revenue survey No. 100 for a consideration of Rs. 1000/by way of a registered sale deed. 6. The petitioner states that the respondent No. 3 Collector, Bhavnagar, issued show cause notice in purported exercise of powers conferred upon him under Section 54 of the Ordinance, holding that the petitioner has committed breach of the provisions of Section 54 of the Ordinance and therefore, the land bearing revenue survey No. 100 admeasuring 02 acres and 00 gunthas is required to be forfeited as per the provisions of Section 75 of the Ordinance. It is alleged in the said show cause notice that the land bearing revenue survey No. 100 situated at village Zariya, Taluka Shihor, admeasuring 02 acres and 00 gunthas. It is further alleged that the entry No. 533 has been posted on 17.07.1976, reflecting the fact that the petitioner has purchased the said disputed piece of land from its original owner - respondent No. 4 by way of a registered sale deed. It is further alleged that on verifying the records, it was found that though the petitioner was not an agriculturist at the time of purchasing the land bearing revenue survey No. 100, the said transaction was entered into. It is further alleged that the said facts are reflected from the report submitted by the Circle Officer, Hakpatrak, Shihor, dated 09.07.2003. It is further alleged that as per Section 54 of the Ordinance, an Agriculturist cannot transfer the land to a non-agriculturist. Though there is a specific bar laid down by the Legislature, the respondent No. 4 has transferred the disputed piece of land being revenue survey No. 100 in favour of the present petitioner and, therefore, said transfer is an illegal 'transfer. It is also alleged that the petitioner is not an agriculturist as per the provisions of Section 54 of the Ordinance and there is no evidence on record to show that the petitioner is an agriculturist and has purchased the land bearing revenue survey No. 100 from the respondent No. 4 as an agriculturist. It is also alleged that the petitioner has not obtained any prior permission from the competent authority for purchasing the agricultural land, though he is non-agriculturist. It is also alleged that though the respondent No. 4 was well aware of the fact that the petitioner is not an agriculturist, without taking prior permission from the competent authority, has transferred the land to the present petitioner and, therefore, the transaction is illegal. It is further alleged that since transaction entered into by and between the petitioner and respondent No. 4 is an illegal transfer and in breach of provisions of Section 54 of the Ordinance, the petitioner was called upon to remain present before the respondent No. 3 to show cause as to why the land be not forfeited as per the provisions of Section 75 of the Ordinance. The petitioner was called upon to remain present before the respondent No. 3 on 01.09.2004. 7. The petitioner states that the petitioner remained present before the respondent No. 3 Collector through his Advocate. It was submitted on behalf of the petitioner that the show cause notice suffers from delay and latches. It was also submitted that as per the catena of judgments rendered by this Hon'ble Court and the Hon'ble Apex Court, the revisional authorities cannot exercise suo motu power at their own sweet will but the power is to be exercised within a reasonable period and, therefore, the show cause notice be withdrawn. It was also submitted that the father of the petitioner is an agriculturist and owns agricultural land bearing revenue survey No. 2 at village Zariya and, therefore, it cannot be said that the petitioner has committed any illegality and has committed breach of provisions of Section 54 of the Ordinance while entering into transactions between the respondent No. 4. 8. The petitioner states that the respondent No. 3 vide order dated 10.11.2006 in case No. R.O./Gharkhed/Case No. 63/2004-05 passed the order, holding that the petitioner has committed breach of the provisions of Section 54 of the Ordinance and, therefore, the transactions entered into by and between the petitioner and the respondent No. 4 in respect of a land bearing survey No. 100 admeasuring 02 acres and 00 gunthas is in breach of provisions of Section 54 of the Ordinance and, therefore, the land be forfeited as per the provisions of Section 75 of the Ordinance. It is also further directed that the Mamlatdar, Shihor, shall take over possession of the land in question within a period of 30 days and vest the same with the State Government. 9. The petitioner states that the petitioner being aggrieved and dissatisfied with the aforesaid order dated 10.11.2006 passed by the respondent No. 3, preferred a revision application before the respondent No. 2 herein being revision application No. MVV/HKP/Bhavan/23/06. The petitioner had also preferred an application for interim order along with the main revision application. The respondent No. 2 vide order dated 12.12.2006 directed the parties to maintain status-qua in respect of the land in question. 10. The petitioner had also preferred an application for interim order along with the main revision application. The respondent No. 2 vide order dated 12.12.2006 directed the parties to maintain status-qua in respect of the land in question. 10. The petitioner states that the respondent No. 2 vide impugned order dated 15.09.2011/26.09.2011 rejected the said revision application preferred by the petitioner and confirmed the order passed by the respondent No. 3 dated 10.11.2006." 4. It comes out from above mentioned facts that somewhere in 1976, the petitioner purchased parcel of agricultural land bearing Revenue Survey No. 100 at Village: Zariya, District: Bhavnagar. 4.1 The transaction came to be entered into the revenue records at Entry No. 533 dated 17.7.1976. 4.2 Subsequently, i.e. somewhere in August 2004, the Collector issued notice and called upon the petitioner to show cause as to why the entry should not be cancelled and the transaction should not be declared illegal in view of violation of Section 54 and why the land should not be forfeited and why should it not vest in the State Government. 4.3 The Collector thereafter proceeded to adjudicate the said notice and the Collector passed order dated 10.11.2006 under Section 75 of the Saurashtra Gharkhed Tenancy Settlement and Agricultural Lands Ordinance, 1949 ('the Ordinance' for short) holding, inter alia, that the transaction was effected in breach of Section 54 and that, therefore, the transaction/transfer of land was illegal. The Collector also directed that the petitioner should be evacuated from the land in question and the land shall vest in the State Government. 4.4 Feeling aggrieved by the said order passed by the Collector, the petitioner filed revision application which was registered as Revision Application No. 23 of 2006. 4.5 The Secretary, i.e. respondent No. 1 herein heard the revision application and vide its order dated 15.9.2011, the Secretary rejected the revision application and confirmed the order passed by the Collector. 4.6 Feeling aggrieved by the said order, the petitioner has taken out present petition. 5. The petition is opposed by the respondent State. The Deputy Collector, Shihor has filed reply affidavit dated 30.7.2012. In the said affidavit, the Deputy Collector has stated, inter alia, that: "4. 4.6 Feeling aggrieved by the said order, the petitioner has taken out present petition. 5. The petition is opposed by the respondent State. The Deputy Collector, Shihor has filed reply affidavit dated 30.7.2012. In the said affidavit, the Deputy Collector has stated, inter alia, that: "4. At the outset, I say and submit that the present petition at the instance of the petitioner is required to be rejected since no legal right much less any fundamental right of the petitioner has been violated by the respondents. I further say and submit that the present petition is also required to be rejected only on the ground of concurrent findings of facts. I say and submit that a transaction which is void is non eat and cannot get life merely because the powers of summary eviction were not exercised immediately. The delay in exercise of powers by the officers cannot validate a transaction which is void ab initio and the Hon'ble Court ought not to recognize a void transaction even in an indirect way by preventing the authority to exercise its powers consequent upon a void transaction on the ground that the power should have been exercised within reasonable time from the date of transaction. In fact no question of delay in exercise of power can ever arise from the date of transaction which is void because such transaction is non est and cannot be recognized for any purpose. Therefore also, this Hon'ble Court may be pleased to dismiss present petition. I say and submit that the disputed transaction is, undisputedly, contrary to the provision of the Ordinance which prohibits sale, transfer etc. of agricultural land in favour of non-agriculturists. I say and submit that it is an undisputed position that either before or even at the time of transaction the petitioner was not an agriculturist and his late father Ramji Nanji also not an agriculturist any permission was not requested for and was not granted and that therefore, in view of statutory prohibition, the transaction in favour of non-agriculturist was void, the authorities have rightly set aside the transaction. Carrying said submission, I say and submit that in case of void transaction period of limitation and/or concept of reasonable time would not be applicable. I say and submit that by virtue of Section 75, the Ordinance provides that any person unauthorizedly occupying the land may be summarily evicted by the Collector. Carrying said submission, I say and submit that in case of void transaction period of limitation and/or concept of reasonable time would not be applicable. I say and submit that by virtue of Section 75, the Ordinance provides that any person unauthorizedly occupying the land may be summarily evicted by the Collector. The said Section 75 does not prescribe any period of limitation within which the proceedings-action for summary eviction should be initiated. Thus, in case where the transaction is void limitation would not be applicable. 5. I say and submit that the sale transaction which was executed between the erstwhile owner and the original owner itself was invalid since the erstwhile owner was not an agriculturist within State of Gujarat and therefore, he was not entitled to purchase agricultural land in the State of Gujarat. I say and submit that the authorities below have not committed any error in ordering to cancel the entry and also declaring the sale transaction as invalid. I say and submit that if the original sale transaction is invalid from beginning, delay in initiating the proceedings for cancellation of entry and for declaring the sale transaction as invalid would never come' in the way of the authority because invalid transaction remains as invalid and void for all time to come and there is no bar of limitation to the authorities to cancel the entry and declare such transaction as invalid. I say and submit that if the revenue authorities are not permitted to exercise their powers, on the ground of delay on the face of it, such sale transaction was invalid and void, though the very purpose and intent of the provisions of the Ordinance would be rendered nugatory. It is, therefore, submitted that the authorities below have not committed any error in ordering cancellation of entry on the ground that the sale transaction itself was invalid and void and any transaction made on the basis of such invalid and void transaction has no value in the eyes of law. Therefore also, present petition is required to be dismissed. 7. I say and submit that considering Section 54 Gharkhed Ordinance Act, 1949 the transaction/sale in favour of the petitioner is a nullity and void ab-initio and therefore, had no efficacy in the eye of law. Such an order is non-existent and even if not set aside, it has no legal validity or existence. 7. I say and submit that considering Section 54 Gharkhed Ordinance Act, 1949 the transaction/sale in favour of the petitioner is a nullity and void ab-initio and therefore, had no efficacy in the eye of law. Such an order is non-existent and even if not set aside, it has no legal validity or existence. A transaction which is a nullity in the eye of law has, therefore, to be ignored but since the same came to the attention of the authority, he thought it wise to put an end it. Even if the authorities helm: were not to pass the impugned orders and canceling the transfer] sale in favour of the petitioner, it would not have made any difference for the simple reason that such transaction would be non-existent and unenforceable. No question of limitation or reasonableness of time for setting aside such a transaction can really arise. I say and submit that this Hon'ble Court in the case of Govindbhai Somabhai Nai & Ors. vs. State of Gujarat reported in 1987 (2) GLR, 760 (para 13) has also taken the similar view." 6. Learned advocate for the petitioner assailed the impugned orders on the ground that the authorities failed to appreciate that the petitioner and his father have been agriculturists for long time and that the authority proceeded on wrong premise viz. the petitioner not being an agriculturist could not have purchased the land. He further submitted that the impugned orders are unsustainable in law also because the proceedings came to be initiated after abnormal delay inasmuch as the land in question was purchased in July 1976, whereas the show cause notice came to be issued in August 2004, i.e. after more than 25 years and that, therefore also the orders passed in such proceedings should not be sustained and the said orders deserve to be set aside. 7. Mr. Mehta, learned AGP opposed the petition and the submissions by learned advocate for the petitioner. Learned AGP heavily relied on the affidavit filed by the Deputy Collector and submitted that the disputed transaction is in breach of Section 54 and therefore void and the authorities have not committed any error in declaring that the said transaction is illegal and that the entry should be cancelled. According to learned AGP, the order is in consonance with the provisions of the Ordinance and therefore, the order may not be interfered with. According to learned AGP, the order is in consonance with the provisions of the Ordinance and therefore, the order may not be interfered with. As regards the contention on the ground of delay, learned AGP could not refute the contention, however, he submitted that since the order is void, delay would not vitiate the order. He also submitted that any provision prescribing limitation for instituting the proceedings is not prescribed under the Act. In view of the said submission learned AGP submitted that the petition may not be entertained and it may be rejected. 8. I have considered the submissions by learned advocate for the petitioner and learned AGP and also considered the material available on record including the impugned orders, reply affidavit filed by the respondent State and the rejoinder affidavit. 9. After hearing the parties, the Court admitted the petition vide order dated 8.10.2012. In paragraph No. 2 of the said order, the Court observed, inter alia, that: "1. Heard Mr. B.M. Mangukiya, learned advocate for the petitioner and Ms. Asmita Patel, learned Assistant Government Pleader, for respondent Nos. 1 - 3. 2. Considering the ratio of judgment of the Apex Court in case of Pune Municipal Corporation Vs. State of Maharashtra and others reported in 2007 (3) GLR Page No. 2610 as well as judgment reported at 2011 (2) GLR Page No. 1676 as the suo-moto powers have been exercised after a period of 27 years, matter requires consideration. Hence RULE. status-quo to be maintained by both the sides. 10. So far as the issue: whether the petitioner was agriculturist at the time when the petitioner purchased the land in question, is concerned, below quoted averments in the petition are relevant: "The petitioner states that the petitioner is residing at the address mentioned in the cause title. The petitioner states that the father of the petitioner owns agricultural lands at village Zariya. The father of the petitioner named Ramjibhai @ Ramabhai Nanjibhai Vaghri had purchased a land bearing survey No. 2 admeasuring 08 Acres and 00 gunthas of village Zariya, Tal. Shihor, Dist. Bhavnagar, for a consideration of Rs. 2000/- from its original owners Rabari Maher Rama and two others and entry No. 450 was posted in the revenue records on 10.11.1971, reflecting the said transaction. Shihor, Dist. Bhavnagar, for a consideration of Rs. 2000/- from its original owners Rabari Maher Rama and two others and entry No. 450 was posted in the revenue records on 10.11.1971, reflecting the said transaction. The said entry was certified on 03.03.1972." 10.1 In paragraph No. 11C also, the petitioner has averred and stated that: "The original owner i.e. respondent No. 4 has also not challenged the posting of the said entry at any point of time, even the petitioner has used said land for the agricultural purposes only. The petitioner has not used said piece of land for any other use and has not changed the status of the land and has also incurred huge expenditure to improve the quality of soil. The petitioner has also invested huge sum of money for developing said piece of land. Moreover, the petitioner was working as an agricultural labourer prior to the purchase of the said piece of land and the disputed piece of land was purchased from his earnings which he had earned from working as an agricultural labourer. The respondent authorities have also not explained and justified the long gap of 27 years in initiating the action." 10.2 Even in his affidavit, the petitioner has averred and stated that: "I deny that the transaction is against the provisions of the Ordinance, and is in favour of non-agriculturist. I say that the answering deponent is an agriculturist. I say that the father of the answering deponent also holds agricultural lands. Therefore, it cannot be said that the answering deponent is not an agriculturist. I deny that the father of the answering deponent is not an agriculturist. I deny that the father of the answering deponent holds an agricultural land at village Zariya. I say that no actions were initiated against late father of the answering deponent." 11. Above quoted assertions in the petition and the affidavit of the petitioner bring out that the petitioner has claimed and alleged that at the relevant time he was agriculturist/agriculture labourer and that therefore, the ground on which the transaction is cancelled, is unjustified. The petitioner has also assailed the order on ground of unreasonable delay in initiating the proceedings. Above quoted assertions in the petition and the affidavit of the petitioner bring out that the petitioner has claimed and alleged that at the relevant time he was agriculturist/agriculture labourer and that therefore, the ground on which the transaction is cancelled, is unjustified. The petitioner has also assailed the order on ground of unreasonable delay in initiating the proceedings. 11.1 In view of the fact that the respondents have not been able to refute the contention on the ground of delay, it appears that instead of entering into and examining the issue as to whether the petitioner can be considered agriculturist at the relevant time the petition can be decided and disposed of on the ground of delay in initiating proceedings. 12. In this view of the matter, when the decision and observations by Hon'ble Apex Court in the decision in case of The State of Gujarat v. Patil Raghav Natha & Ors. 1969 (2) SCC 187 ], in case of Bhaniben Makanbhai Tandel v. State of Gujarat & Anr. [AIR 1991 Gujarat 184], in case of Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim [ (1997) 6 SCC 71 ], in case of Pune Municipal Corpn. v. State of Maharashtra & Ors. [ (2007) 5 SCC 211 ] and the decision of this Court in case of Patel somabhai Devidas v. Dahyaji Somaji Thakor & Ors. [2010 (5) GLR 4152] and in case of Rameshbhai Ambalal Shah v. State of Gujarat & Anr. [2011 (3) GLR 98] are taken into account, it becomes clear that the proceedings and impugned order are hit by unreasonable and inordinate delay. 13. Consequently, impugned order cannot be sustained. On the said ground and for said reason the order deserves to be set aside and it is hereby set aside. Accordingly, the petition is partly allowed on aforesaid limited ground of delay. Rule is made absolute to the aforesaid extent. Petition Partly Allowed