1 By way of the present petition under Articles 14, 16, 21 and 226 of the Constitution of India, the petitioners have challenged the Notice issued on 21.1.1997 and Order dated 30.5.1997 passed by the Respondent No.1 Secretary, Revenue Department, State of Gujarat.
2 The brief facts arising from the case are as under:
2.1 The proceedings under Section 73AA of the Bombay Land Revenue Code, 1879 were undertaken against the petitioner No.3 for the breach of the said provision alleging that though the petitioner was tribal, he was not permitted to sell the said land to a non-tribal person who is respondent No.5. In that case, after hearing the relevant parties and petitioner No.3 and respondent No.5, while passing an order dated 27th June, 1986, the Deputy Collector observed that since the respondent No.5 was in possession of the land due to mortgage of the property by petitioner No.3 and the land owner i.e. petitioner No. 3 was not interested in the land, it would be in the interest of the parties to regularize the sale under the provisions of Section 73AA of the Code and accordingly the transaction was regularized by him. Pursuant to this order, an Entry was made in the revenue records on 20.7.1988, particularly in Village Form No.6. Entry No.861 was posted and it was certified that the land is transferred in the name of Rameshchandra Bansilal Agrawal who is respondent No.5 in this petition.
2.2 Respondent No. 5 continued to be the owner of the disputed land till 1995. On 27.11.1995 respondent No. 5 sold the land to the present petitioners No. 1 and 2 for a consideration of Rs.70,000/- by a sale deed (Annexure-C to the petition). Pursuant to the sale deed, an entry was posted in the revenue records of the village on 23rd March, 1996. Entry No.1221 in Form No.6 shows that petitioners No.1 and 2 have purchased the said land from Rameshchandra Bansilal Agrawal who is present respondent No.5 and accordingly the name of the petitioners No.1 and 2 were mutated as the owners of the said land.
2.3 After 10 years and 5 months of the sale deed between petitioner No. 3 and respondent No.5, they were called in Revision by the Secretary, Revenue, Ahmedabad, by issuing notice dated 27.11.1995 under Section- 211 of the Code. After hearing the petitioner No.3 and respondent No. 5, the Revisional Authority i.e. the Secretary, Revenue, passed an order dated 30th May, 1997, declaring that the order dated 27.6.1986 passed by the Deputy Collector, Himatnagar, was contrary to the provisions of Section 73-AA of the Code. It was further held that the land shall vest in Government of Gujarat.
2.4 The Notice dated 21.1.1997 and the order dated 30.5.1997 are under challenge by way of the present petition.
3 The first submission of Mr Bhatt is with regard to breach of principle of natural justice since petitioners No. 1 and 2 are not heard by the Revisional Authority before passing the order. Even notice was not issued to them. As far as the petitioners No. 1 and 2 are concerned, though, the sale which took place on 27.11.1995 by a sale deed and an entry which was mutated on 23.3.1996, the Secretary was bound to issue notice before passing any adverse order with regard to the disputed land. He has submitted that the affected party is not heard at all, the authorities have violated the principle of natural justice and, therefore, the order is required to be quashed.
4. Next contention raised by Mr. Bhatt that the sale which was regularized on 27.6.1986 could not have been taken in review after a period of more than 10 years which is against the principle laid down by various judgments of the Hon'ble Apex Court as well as this Court. In support of his submissions, he has relied upon a few judgments, namely, (i) in the case of State of Punjab & Ors. vs. Gurudev Singh and Ashok Kumar, as reported in AIR 1992 SC 111; (ii) in the case of Pune Municipal Corporation vs. State of Maharashtra & Ors., as reported in 2007 (3) GLR, 2610;
(iii) in the case of Shri Devilal Goljibhai Shah Vs. (Shri) K.C. Sagar or his successor Secretary (Appeals), Revenue Department, State of Gujarat, as reported in 1996 (1) GLH 718 and in the case of Mohmad Kavi Mohmad Amin vs. Fatmabai Ibrahim, as reported in (1997) 6 SCC,
71. 5 On the other hand, learned AGP Ms. Reeta Chandarana, appearing for the respondents No. 1 to 4 has submitted that the authorities were not aware about the sale transaction which took place in the year 1995 between petitioners No. 1 and 2 and respondent No.5 and, therefore, the authorities had not issued the notice to the present petitioners No.1 and 2 and, therefore, there is no question of hearing petitioners No. 1 and 2 and authorities have committed no breach of principle of natural justice when the first order of the Deputy Collector dated 27.6.1986 was an illegal order and was passed by the Deputy Collector having no authority, is rightly taken in revision and has rightly quashed and set aside the order. She has further submitted that if an illegality is committed by the authority, the same remains permanently illegal, and in such situation, the court cannot interfere with the reasoning assigned by the Secretary, Revenue, while deciding the Revision Application under Section 211 of the Land Revenue Code.
6. She has further submitted that if a void order is passed by the authority, it confers no title and its validity can be questioned at any stage. In support of her submission, she has relied upon various decisions. She has relied upon the cases of Koli Nagjibhai Varjan vs. State of Gujarat & Ors., as reported at 1992 (1) GLR, 14; Patel Jividas Trikamdas & Ors. vs. District Collector, Mehsana & Ors., as reported at 1996 (2) GLR, 688; State of Orissa and Ors. vs. Brundaban Sharma & Anr., as reported at 1995 Supp (3) SCC 249 and Saburbhai Hemabhai Chauhan vs. State of Gujarat & Ors., as reported at 2000 (1) GLH 580.
7 Heard Mr. Bhatt and Ms. Reeta Chandarana for the parties.
8 I have gone through the Notice dated 21.1.1997 and order dated 30.5.1997 passed by the respondent No.1 - Secretary, Revenue Department, the sale deed, revenue records i.e. Revenue Entry No. 1221, mutated at village Iqbalgadh by Talati-cum-mantri on 23.3.1996 which reflects the sale transaction between respondent No.5 and petitioners No. 1 and 2. I have perused the affidavit-in-reply filed on behalf of the respondents authorities and the affidavit-in-rejoinder filed by the petitioner No.1. It reveals from the pleadings that it is an admitted position that the petitioners No.1 and 2 are bona fide purchasers of land who purchased the disputed property from respondent No.5 on 27th November, 1995 for a consideration of Rs.70,000/-. The sale deed was executed between the petitioners No.1 and 2 and respondent No.5 on a stamp paper of Rs. 5,000/-. As per the said transaction, Entry No.1221 was mutated by the Talati-cum-mantri of village Iqbalgadh on 23.3.1996. The Notice under Section-211 of the Code was issued by the authority on 21.1.1997 i.e. almost after one year of the said entry which was mutated on 23.3.1996. It is presumed that before issuing notice, that too, taking a matter in revision suo moto, the authority ought to have perused all relevant documents as well as revenue entries with regard to the disputed property. In the present case, it appears that the revenue authorities have only read the order dated 27th June, 1986 while issuing notice under Section 211 of the Code. From 1986 to 1995, the ownership of the disputed property has been changed twice and the authority has issued the notice to only respondent No. 5 who has purchased the property from petitioner No.3 in 1988. It is true that if the respondent No. 5 had brought to the notice of the authority about the sale transaction which took place in 1995 between him and petitioners No.1 and 2, the authorities might have heard the petitioners. But, one can safely presume that when the land was sold to some third party, the person who was called for to reply, would not be interested in the matter. When a person has received consideration for his property, he looses interest in any legal proceedings which is not going to affect him in any manner. In the present case, it was the duty of the revenue authority, and that too, at Secretary level, to issue notice and pass orders after verifying all the documents as well as revenue entries of the disputed property.
9 It has been held in the case of Mohanbhai Vithhalbhai Patel vs. Ravidarshan Cooperative Housing Society Limited, as reported in [2003] G.H.J., 1041 that "
it is a settled proposition of law that any party who is to be visited with civil or evil consequences must be heard, as the doctrine of audi alteran partem is not a relic of the past but the living force of the day." In the present case when the Secretary, Revenue Department has considered the case in suo moto revision initiated under Section - 211 of the Bombay Land Revenue Code, he should have given an opportunity of hearing to all the parties concerned who will be entitled to raise all available and permissible pleas and submissions for effective and efficient adjudication of the controversy between the parties. In the present case, the Secretary, Revenue Department, could have gathered all information with regard to the disputed land from his subordinate officers like Deputy Collector or Collector and thereafter ought to have passed the order after hearing the concerned parties.
10. In the present case, it is not in dispute that the notice dated 21.1.1997 was not served upon the petitioners No. 1 and 2 and they were not heard by the Secretary before passing the order dated 30.5.1997. On this ground alone, the order deserves to be quashed and set aside.
11 As far as delay of more than 10 years in issuing the notice is concerned, I have not dealt with the same in the present petition since the petition is disposed of on the ground which I have decided here-in-above 12 In the result, the present petition is allowed. The Notice dated 21.1.1997 as well as the order dated 30.5.1997 passed under Section 211 of the Bombay Land Revenue Code by the respondent No.1 - Secretary, Revenue Department are hereby quashed and set aside. Rule is made absolute accordingly. There shall be no order as to costs.
(A.J.
DESAI, J.) pnnair Top