IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 1092 of 2009 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA ================================================================
================================================================ ARVINDBHAI CHAMPAKLAL GANDHI & 1 Petitioners Versus THE STATE OF GUJARAT & 4 Respondents ================================================================ Appearance:
MR MIHIR H JOSHI, SENIOR ADVOCATE with MR VIMAL PATEL, ADVOCATE and MR HARDIK MODH, ADVOCATE for the Petitioners MS ASMITA PATEL, AGP for the Respondent(s) No. 1 – 3 MR MA KHARADI, ADVOCATE for the Respondent(s) No. 4 – 5 ================================================================ CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 27/12/2012 CAV JUDGEMENT
1. Heard Mr. Mihir H. Joshi, learned Senior Advocate with Mr. Vimal Patel and Mr. Hardik Modh for the petitioners, Ms. Asmita Patel, learned AGP for respondent Nos.1 to 3 and Mr. M.A. Kharadi, learned advocate for the private respondents.
2. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the legality and validity of the order dated 6.12.1996 passed by respondent No.3 – Mamlatdar & ALT, order dated 19.2.1998 passed by respondent No.2 – Deputy Collector, Land Reforms in appeal as well as the order dated 21.8.2008 passed by the Gujarat Revenue Tribunal in revision. It, therefore, transpires from the prayers that the petitioners have challenged the concurrent findings of all the three authorities.
3. The facts which can be culled out from the record of the petition are as under:
3.1 The petitioners purchased the land bearing survey No.233 admeasuring 2 acres and 23 gunthas situated at Village Bhata, Taluka Choryasi, District Surat by a registered sale deed registered on 14.7.1983 from its original owner late Mohanbhai Jogibhai Bhandari. It reveals from the record that the said sale deed came to be registered by the Registrar of Documents, Surat on 15.7.1983. It transpires that pursuant to the aforesaid registered sale deed in favour of the present petitioners, an entry came to be mutated in the revenue records being entry No.3596 dated 2.12.1983 and the same came to be certified by the competent authority on 7.3.1984. It further transpires from the record that petitioner No.2 – Chandulal Chunilal Patel is an agriculturist and at the time of purchase of the land in question, he was owner of revenue survey Nos.103, 267/1, 99 and 296/2 at Village Adajan.
3.2 It appears that about 13 years after the date of the said certification of the said entry, respondent No.2 initiated Suo Motu proceedings for cancellation of entry by issuing a notice dated 2.6.1995 under Rule 108(6) of the Gujarat Land Revenue Rules for cancellation of entry No.3596 on the alleged breach of Section 63 of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as “the Tenancy Act” for sake of brevity). It appears from the record that the said notice was replied by the petitioners individually which culminated into an order dated 20.8.1996 passed by the Collector, Surat, whereby the said entry No.3596 came to be cancelled on the ground that the said transaction in favour of the petitioners is in violation of Section 63 read with Section 2(6) of the Tenancy Act.
3.3 It transpires from the record that the aforesaid order was carried forward by the petitioners by way of filing a revision before the Secretary, Revenue Department (Appeals), which also came to be rejected by order dated 3/23.4.1997. It reveals from the record of the petition that the aforesaid orders of cancellation of entry was subject matter of writ petition being Special Civil Application No.7252 of 1997, wherein this Court had initially granted stay and the thereafter, the said petition was disposed of.
3.4 It is pertinent to note that pursuant to the aforesaid order of cancellation of entry dated 20.8.1996 passed by the Collector, Surat, respondent No.3 issued a show cause notice on 24.9.1996 as provided under Section 84(C) of the Tenancy Act in respect of very said transaction dated 14.7.1983. It is the case of the petitioners that even after issuance of the said notice, before the petitioners could file a reply to the same, respondent No.3 passed an order dated 6.12.1996 holding that the transaction in question is in violation of Section 63 of the Tenancy Act and directed that the lands in question stood vested in the State. It is also pertinent to note that respondent Nos.4 and 5 who were the original owners came with a forged and concocted Kabja receipt dated 27.1.1994 and took a stand before respondent No.3 that the possession has been restored.
3.5 Being aggrieved by the aforesaid order dated 6.12.1996, the petitioners filed an appeal as provided under Section 76 of the Tenancy Act which came to be registered as Tenancy Appeal No.17 of 1997 before the Deputy Collector Land Reforms, Surat–respondent No.2 herein. Similarly, respondent Nos.4 and 5 also challenged the very said order by filing an appeal which came to be registered as Tenancy Appeal No.5 of 1997. Both these appeals were heard and by common judgment and order dated 19.2.1998, respondent No.2 dismissed both the appeals.
3.6 It is the case of the petitioners that in fact the petitioners were not aware about the order dated 19.2.1998 and in fact they came to know about the aforesaid order of rejecting the appeal only when they received a notice from the Gujarat Revenue Tribunal, in a revision, which was preferred by respondent Nos.4 and 5. It is a matter of record that petitioner No.1 herein filed a revision being Revision Application No. TEN/BS/80 of 1998 challenging the order dated 19.2.1998. Petitioner No.2 did not prefer any separate revision, however, filed a detailed reply in the revision filed by respondent Nos.4 and 5. It appears that during pendency of the said Revision Application, the Tribunal vide order dated 7.4.1999 stayed the orders passed by the Mamlatdar & ALT as well as the Deputy Collector Land Reforms. It further transpires from the record that during pendency of the proceedings before the Tribunal, petitioner No.1 released his right over the land in question in favour of petitioner No.2 by executing a registered release deed dated 1.1.2008. The Gujarat Revenue Tribunal vide common order dated 21.8.2008 has dismissed both the Revision Applications. Both the petitioners have challenged the aforesaid order and thereby, have preferred this petition challenging all the three orders by way of filing this writ petition under Articles 226 and 227 of the Constitution of India.
4. This Court (Coram: K.A. Puj, J. as he then was) passed the following order on 11.2.2009: “1. Leave to add Release Deed dated 01.01.2008 at Annexure O.
2. Heard Mr. Mihir Joshi, learned Senior Counsel appearing with Mr. Vimal M. Patel for the petitioners and Mr. Amit Patel, learned Assistant Government Pleader appearing for the respondent No.1 – State.
3. In view of the fact that 84(c) proceedings were initiated by the Mamlatdar after more than 14 years and in view of the decision of this Court in the case of State of Gujarat V/s. Shree Sachin Udyognagar Sahkari Mandli Limited, 2004 (1) GLR 381 as well as the decision of this Court in the case of Friends Land Development Company V/s. State of Gujarat and others, 2007 (1) GLH 497, the matter requires consideration by this Court. Hence, the present petition is admitted and RULE be issued to the respondents. Mr. Amit Patel, learned Assistant Government Pleader waives service of rule on behalf of respondent No.1 – State.
4. Notice as to interim relief returnable on 03.03.2009. Adinterim relief in terms of paragraph 13(B) till then. D.S. Permitted.”
5. It transpires from the record that after filing of the present petition and its admission in the year 2009, the respondents more particularly respondent Nos.1 to 3 have not filed any reply to the averments made in the petition.
6. Mr. Mihir H. Joshi, learned Senior Advocate with Mr. Vimal Patel and Mr. Hardik Modh for the petitioners contended that the very action of the respondents in initiation of proceedings under Section 84(C) of the Tenancy Act after more than 13 years is bad and illegal and is barred by limitation. Mr. Joshi submitted that by no stretch of imagination, it can be said that the proceedings have been initiated within the reasonable period. Mr. Joshi relying upon the decision of this Court in the case of Friends Land Development Co. Vs. State of Gujarat & Ors., reported in 2007 (1) GLH 497 vehemently submitted that in view of the release deed dated 1.1.2008, as the petitioner has relinquished all his rights over the lands in question and as petitioner No.2 has become exclusive owner of the lands in question, even otherwise the provisions of Section 84(C) of the Tenancy Act would not be attracted as petitioner No.2 is admittedly an agriculturist. Mr. Joshi further submitted that the first order passed by the Mamlatdar & ALT also suffers from vice of breach of principles of natural justice as immediately after receipt of the show cause notice, even before the petitioners could file the reply, Mamlatdar & ALT took decision and passed the impugned order dated 6.12.1996. Mr. Joshi also invited attention to the factual matrix of the matter and has relied upon revenue entry No.3596 which came to be mutated on 2.12.1983 and certified on 7.3.1984. It is, therefore, submitted that it is an admitted position that the proceedings under Section 84(C) of the Tenancy Act were initiated by the Mamlatdar after more than 13 years. Mr. Joshi has, therefore, relied upon the judgment of this Court in the case of State of Gujarat Vs. Shree Sachin Udyognagar Sahkari Mandli Ltd. reported in 2004 (1) GLR 381 and submitted that on both the counts, the impugned orders are bad and illegal, as the proceedings have been initiated after unreasonable delay. It is, therefore, submitted that the petition deserves to be allowed on both the counts and the impugned orders deserve to be quashed and set aside.
7. Per contra, Ms. Asmita Patel, learned AGP appearing for the State Government authorities has supported the impugned orders. The learned AGP vehemently submitted that there is no fix period of limitation for initiation of proceedings under Section 84(C) of the Tenancy Act. The learned AGP contended that as it came to the knowledge of the authorities that the invalid transaction has been entered into between the petitioners and respondent No.4, the authorities have rightly initiated the proceedings under Section 84(C) of the Tenancy Act. It is submitted that even the entry being entry No.3596 has been rightly cancelled. The learned AGP submitted that the release deed dated 1.1.2008 is an afterthought and it is only an attempt to come out from the rigors of the provisions of the Tenancy Act and thereby, submitted that the petition is devoid of any merits and the same deserves to be dismissed. The learned AGP relied upon the cases of (i) Ramanlal Bhailal Patel & Ors. Vs. State of Gujarat, reported in (2008) 5 SCC 449, (ii) Pune Municipal Corpn. Vs. State of Maharashtra & Ors., reported in (2007) 5 SCC 211, and (iii) State of Jharkhand & Ors. Vs. Shivam Coke Industries, Dhanbad & Ors., reported in (2011) 8 SCC 656 and submitted that in view of the ratio laid down by the Hon’ble Apex Court in the aforesaid cases, the authorities in the instant case have exercised Suo Motu powers within reasonable time and that it depends upon the facts of each case. In the instant case, the same has been done within the reasonable time and therefore, the impugned orders are legal and proper and that there is no error in the concurrent findings arrived at by all the authorities and the petition deserves to be dismissed.
8. Mr. M.A. Kharadi, learned advocate for the original owners, however, has not made any submissions and has informed the Court that the original owners have sold the lands in question to the petitioners as averred in the petition. Mr. Kharadi has not raised any contention in favour or against the impugned orders before this Court.
9. Considering the submissions made by the learned Counsel appearing for the respective parties and on perusal of the record of the petition as well as the impugned orders, it clearly transpires that the petitioners purchased the lands in question from original respondent No.4 – late Mohanbhai Jogibhai Bhandari by registered sale deed dated 14.7.1983 which came to be registered by the Registrar of Documents on 15.7.1983. It transpires that an entry being entry No.3596 came to be mutated recording the sale in question, wherein it is mentioned that petitioner No.2 is an agriculturist of Adajan Village as well as Rundh Magdalla and the same entry came to be certified on 7.3.1984. The record of the petition reveals that after the entry came to be cancelled in Suo Motu revision by the Collector, Surat vide order dated 20.8.1996, respondent No.3 issued show cause notice on 24.9.1996. It, therefore, transpires that the notice is issued admittedly after 13 years. On perusal of the order dated 6.12.1996 passed by respondent No.3 under Section 84(C) of the Tenancy Act, it transpires that on instructions received from the Collector to take action under Section 84(C) of the Tenancy Act on the entry being cancelled, the proceedings were initiated by issuing a show cause notice dated 10.10.1996, wherein respondent Nos.4 and 5 have been shown as opponent Nos.1 and 2, petitioner No.2 is shown as opponent No.3 and petitioner No.1 has been shown as opponent No.4. It is also recorded in the aforesaid order that the land bearing survey No.223 of Village Bhata, Taluka Choryasi, District Surat was an old tenure land and on the basis that the transaction in question is between a nonagriculturist and in violation of Section 63 of the Tenancy Act, the same is declared to be invalid and the land in question was ordered to be vested in the State Government. On perusal of the order passed by the Deputy Collector, Land Reforms, Surat, it transpires that petitioner No.2 had in fact filed written submissions and brought on record the fact that he owned other agricultural lands bearing revenue survey Nos.103, 267/1, 99 and 296/2 of Village Adajan and had also indicated that by virtue of entry No.812 dated 22.11.1965, petitioner No.2 had become owner and was an agriculturist. It is found from the aforesaid order that while rejecting the appeal, the Deputy Collector has only considered the sale transaction in question and has straightway come to the conclusion that petitioner No.2 is not an agriculturist by birth. On perusal of the order dated 21.8.2008 passed by the Gujarat Revenue Tribunal, it is found that the petitioners had brought on record of the proceedings that petitioner No.2 was an agriculturist and had also brought on record the release deed dated 1.1.2008 having been registered between petitioner Nos.1 and 2, whereby petitioner No.1 has relinquished all his rights from the lands in question. The aforesaid attempt on the part of the petitioners is considered to be a collusion between the parties and even while considering the reasonable period, the Tribunal has confirmed the orders below on the ground that it is an attempt of fraud. From the narration of arguments made by the learned Counsel for the parties before the Gujarat Revenue Tribunal, it is found that what was contended by the learned Counsel for the respective parties was on the aspect of delay, the parties being nonagriculturist and as regards the distance between Village Bhata where the lands in question are situated and Village Rundh Magdalla wherein petitioner No.2 owns other agricultural lands and more particularly it being more than 8 kms. away from the lands in question. It is also contended by the original owners that there is no proof to show that the petitioners have incurred any expenses for development of the land in question. The learned advocate for petitioner No.2 has specifically contended that the petitioner is an agriculturist and has contended that the original owners had no locus standi in the matter. The learned advocate for petitioner No.1 contended that he has already released his rights in favour of petitioner No.2. This Court finds that neither of the parties, nor any Government Counsel has raised any aspect of fraud or collusion. However, the Tribunal has arrived at a conclusion considering it to be a fraudulent transaction while confirming the orders passed by the Mamlatdar & ALT as well as the Deputy Collector Land Reforms.
10. This Court in the case of Friends Land Development Co. (supra) while considering similar provisions of Section 54 of Saurashtra Gharkhed Tenancy Settlement and Agricultural Lands Ordinance, 1949 has observed thus: “4. As such, if the matter is further examined on the ground of delay, the facts and circumstances of passing of 10 years may operate against the State Government, more particularly, in view of the decision of the Division Bench of this Court in the case of Valjibhai Jagjivanbhai Vs. State of Gujarat reported at 2005(2) GLH 34, since the power is exercised after a period of about 10 years. However, I find that it may not be required by this Court to conclude on the aspects of delay in view of the peculiar facts and circumstances of the present case inasmuch as some of the partners of the firm, as contended by the petitioner, are agriculturist. If the transaction has taken place with the firm, comprising of its partners, who are all agriculturist, the transaction may not be hit by the provisions of Section 54 of the Ordinance. The reference may be made to the decision of this Court in the case of Bechar Arjan & Co. Vs. Assistant Collector reported at 1996(3) GLD 705.
5. It does appear from the record that the submissions were made by the learned counsel appearing for the petitioner before the Tribunal that the option may be given for relinquishment of the rights by the partners who are nonagriculturist and the land may continue with the firm of the persons who are agriculturist. It appears that neither the District Collector nor the Tribunal has examined the aspects as to what is the status of the persons who are partners of the firm. The partnership firm is not a legal entity and therefore, the land held by the partnership firm could be said as a land held by its partners. It was required for all the authorities below to examine as to whether the partners of the partnership firm are agriculturist or not. In the present case, there was the contention raised before the lower authority, but it appears that since that aspect is not examined, no opportunity was given to the petitioner to produce the authenticated record for showing that any of the partners of the firm were agriculturist or not. If some of the partners of the firm were agriculturist, instead of cancelling the entry based on the transaction in toto and further order of eviction, the principles of equity may require that the opportunity is given to the partners for relinquishment of the rights in the firm by the partners who were nonagriculturists so that the land may remain with the firm of the agriculturist only. Under such circumstances, no useful purposed would be served in evicting the bonafide purchaser of the genuine transaction creating the situation in favour of the seller of the land, who has already pocketed the consideration and parted with the land. As such, under the ordinance, there is power of eviction in a matter where the land is purchased by nonagriculturist and there is no express power for forfeiture of the land to the Government. Therefore, consequently, if the transaction is set aside or the occupant who has purchased the land by paying consideration is evicted from the land in question, the beneficiary would be the seller who has pocketed the sale consideration. Therefore, I find that in such circumstances, it was required for the lower authorities to examine the aspects as to whether any of the partners of the firm were agriculturist and if yes, the option could have been given for relinquishment of the right in the firm by the nonagriculturist partners and consequently the land can be allowed to be retained with the agriculturist. I am inclined to take such view because the paramount intention of the legislature is to see that the land remains with the agriculturist and if such an option is given, the purpose and intention of the legislature would be substantially fulfilled.
6. As it was declared before the lower authority on behalf of the petitioner that four partners amongst nine partners were the agriculturist at the relevant point of time when the land was purchased by the partnership firm, the inquiry will be required to be undertaken by the authority and if ultimately it is found that some of the partners of the partnership firm were agriculturists at the relevant point of time, the option may be given to the petitioner firm for relinquishment of the rights by the partners who are nonagriculturist and the matter may be considered for retaining of the land by the firm whose all partners are agriculturists, in light of the observations made by this Court in case Behram Arjan & Co. (Supra). In the event the option is not accepted, consequential order may be passed.”
11. As far as the aspect of delay is concerned, it is an admitted position that it is initiated after 13 years and 2 months. At this stage, it would be advantageous to refer to the case of the Hon’ble Apex Court in the case of Pune Municipal Corpn. (supra).
12. Ms. Asmita Patel, learned AGP, however, relying upon the decisions of Pune Municipal Corpn. (supra) and Ramanlal Bhailal Patel (supra) contended that the sale in favour of petitioner No.1 would not be valid only because the coowner is an agriculturist. Similarly, the learned AGP has also relied upon the case of State of Jharkhand & Ors. (supra) and submitted that the determination as to whether the action taken by the State authorities is barred by limitation or not, it depends on facts and circumstances of each case.
13. It would be advantageous to refer to the decision in the case of Pune Municipal Corpn. (supra) which is relied upon by the learned AGP, wherein the Hon’ble Apex Court has observed thus: “27. Now it is true that no period for revision is provided in the Act. It was, therefore, submitted on behalf of the land owners that when the Legislature did not think it fit to prescribe period of limitation, such power can be exercised 'at any time' and no Court by a 'judicial fiat', usurp legislative power and prescribe period of limitation. It is no doubt true that the statute does not fix period of limitation within which revisional power should be exercised under Section 34 of the Act. The Legislature, in its wisdom, has not fixed period of limitation as it had empowered the State Government to exercise revisional power suo motu. In our judgment, however, only in such cases i.e. where the period of limitation is not prescribed that the concept of 'reasonable time' can be invoked and power must be exercised within such period.
28. In this connection, it would be profitable to refer to a leading decision of this Court in State of Gujarat v. Patel Raghav Natha and Ors., (1969) 2 SCC 187. In that case, an application was filed by the landowner under Section 65 of the Bombay Land Revenue Code, 1879 for converting agricultural land to nonagricultural use. The permission was granted. The Municipal Committee, however, objected to such permission and the Commissioner, in purported exercise of revisional power under Section 211 of the Code*, set aside the order passed earlier. When the matter reached this Court, it was contended by the owners, that though Section 211 did not prescribe period of limitation, revisional powers ought to be exercised within a reasonable time.
*The relevant part of Section 211 of the Bombay Land Revenue Code, 1879 reads thus;
"211. The State Government and any revenue officer, not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer, for the purpose of satisfying itself or himself, as the case may be, as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer"
29. Upholding the contention and considering the scheme of Sections 65 and 211 of the Code, this Court stated:
"11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised.
12. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under Section 211. Under Section 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the 'Collector on October 12, 1961, i.e. more than a year after the order, and it seems to us that this order was passed too late".
(Emphasis supplied)
30. The law laid down in Patel Raghav Natha has been reiterated by this Court in several cases. We do not intend to burden our judgment with all those cases. We may only state that broad contention of the land owners that when no period of limitation is prescribed, revisional jurisdiction can be exercised at any time cannot but be rejected. If the law prescribes period of limitation, the action must be taken within such period. But where the law does not prescribe limitation, the Court would import the concept of 'reasonable time'. We may, however, hasten to add that what is the length of the reasonable time would depend upon the facts and circumstances of each case and no rule of universal application can be laid down. [See also Shailesh Jadavji Varia v. SubRegistrar, Vadodara and Ors. (1996) 3 Guj LR 783 (FB)].
31. In the facts and circumstances of the case, in our opinion, the Revisional Authority was duty bound to take into account the length of delay, intervening circumstances and subsequent events from 1977 to 1995 and to consider whether the powers should have been exercised or not. Since no such exercise has been undertaken, the order suffers from legal infirmity and must be quashed.”
14. A similar view has been expressed by the Division Bench of this Court in the case of Bhanji Devshibhai Luhar Vs. State of Gujarat & Ors., reported in 2011
(2) GLR 1676.
15. It would be advantageous at this stage to refer to the judgment of Division Bench of this Court in the case of Rameshbhai Ambalal Shah Vs. State of Gujarat & Anr., reported in 2011 (3) GLH 98, wherein in an identical fact situation, this Court, while examining the aspect of delay in initiating action under Section 84(C) of the Tenancy Act and objections by the sellers of the land in question, has examined the principle of “paridelicto” and observed thus: “16. In the case of Santoshkumar Shivgonda Patil V/s. Balasaheb Tukaram Shevale reported in 2009(9) SCC 352, the Supreme Court in paras 13,14,15 and 16 held as under: “13. A close look at the aforesaid provision would show that there is no time limit fixed for exercise of power of revision by the revisional authority. The question is, could it be exercised at any time. While dealing with the question like the present one, a 3 Judge Bench of this Court in the case of State of Gujarat v. Patil Raghav Natha1, with reference to Sections 65 and 211 of Bombay Land Revenue Act, 1879, held thus :
"11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised.
12. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under Section 211. Under Section 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the Collector on October 12, 1961 i.e more than a year after the order and it seems to us that this order was passed too late."
14. While dealing with the suomotu revisional power under Section 84C of the Bombay Tenency and Agricultural Lands Act, 1976, this Court in Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim [1997(6) SCC 71] held that generally where no timelimit is prescribed for exercise of power under statute, it should be exercised within a reasonable time. This is what this Court said:
"Section 84C of the Act does not prescribe any time for initiation of the proceeding. But in view of the settled position by several judgments of this Court that wherever a power is vested in a statutory authority without prescribing any time limit, such power should be exercised within a reasonable time. In the present case the transfer took place as early as in the year 1972 and suo motu enquiry was started by the Mamlatdar in September 1973. If sale deeds are declared to be invalid the appellant is likely to suffer irreparable injury, because he has made investments after the aforesaid purchase. In this connection, on behalf of the appellant reliance was placed on a judgment of Justice S.B. Majmudar (as he then was in the High Court of Gujarat) in State of Gujarat v. Jethmal Bhagwandas Shah (Spe.WA No. 2770 of 1979) disposed of on 131990, where in connection with Section 84C itself it was said that the power under the aforesaid section should be exercised within a reasonable time. This Court in connection with other statutory provisions, in the case of State of Gujarat v. Patil Raghav Natha (1969) 2 SCC 187) and in the case of Ram Chand v. Union of India (1994) 1 SCC 44) has impressed that where no time limit is prescribed for exercise of a power under a statute it does not mean that it can be exercised at any time; such power has to be exercised within a reasonable time. We are satisfied that in the facts and circumstances of the present case, the suo motu power under Section 84C of the Act was not exercised by the Mamlatdar within a reasonable time."
15. Recently, in the case of State of Punjab and Others v. Bhatinda District Cooperative Milk Producers Union Ltd.[JT 2007 (12) SC 314: 2007(11) SCC 363] while dealing with the power of revision under Section 21 of the Punjab General Sales Tax Act, 1948, it has been held:
"17. A bare reading of Section 21 of the Act would reveal that although no period of limitation has been prescribed therefore, the same would not mean that the suo motu power can be exercised at any time.
18. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors.
19. Revisional jurisdiction, in our opinion, should ordinarily be exercised within a period of three years having regard to the purport in terms of the said Act. In any event, the same should not exceed the period of five years. The view of the High Court, thus, cannot be said to be unreasonable. Reasonable period, keeping in view the discussions made hereinbefore, must be found out from the statutory scheme. As indicated hereinbefore, maximum period of limitation provided for in subsection (6) of Section 11 of the Act is five years."
16. It seems to be fairly settled that if a statue does not prescribe the time limit for exercise of revisional power, it does not mean that such power can be exercised at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is plain that exercise of such power within reasonable time is inherent therein. Ordinarily, the reasonable period within which power of revision may be exercised would be three years under Section 257 of the Maharashtra Land Revenue Code subject, of course, to the exceptional circumstances in a given case, but surely exercise of revisional power after a lapse of 17 years is nota reasonable time.
Invocation of revisional power by the Sub Divisional Officer under Section 257 of the Maharashtra Land Revenue Code is plainly an abuse of process in the facts and circumstances of the case assuming that the order of Tehsildar passed on March 30, 1976 is flawed and legally not correct. Pertinently, Tukaram Sakharam Shevale, during his lifetime never challenged the legality and correctness of the order of Tehsildar, Shirol although it was passed on March 30, 1976 and he was alive upto 1990. It is not even in the case of Respondent Nos.1 to 5 that Tukaram was not aware of the order dated March 30, 1976. There is no finding by the SubDivisional Officer either that order dated March 30, 1976 was obtained fraudulently.”
17. It is clear from the various judgments of the Hon'ble Supreme Court that where a statute provides any suomotu power of revision without prescribing any period of limitation, the power must be exercised within a reasonable time and what is 'reasonable time' has to be determined on the facts of each case. While exercising such power, several factors need to be kept in mind such as effect on rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bonafide transfers, the orders attaining finality under the provisions of other Acts (such as Land Ceiling Act) etc. Even the two judgments of the Supreme Court which have been relied upon by the learned counsel for the appellants explain the same principles of law that a reasonable period would be taken upon the factual circumstances of the concerned case. There cannot be any empirical formula to determine the question. The Court/authority considered the question whether the period is reasonable or not as to take into account surrounding circumstances and the relevant factors to decide that question. In the present case, we find that the original owner i.e. the appellants very consciously entered into a transaction way back in the year 1970 and sold land to respondent No.1. It is not their case that at the relevant point of time they were mislead by respondent No.1 herein in any manner or that any fraud was played upon them by respondent No.1 in entering into the transaction and on their own free will and volition they executed the sale deed in favour of the respondent No.1 and accepted the sale consideration. No steps were taken by them for a period of almost 15 years and it is only when the Mamlatdar and ALT, Gandhinagar thought fit to take transaction in suomotu review that all of a sudden a thought came in the mind of the appellants to say that the transaction was illegal or invalid and now the land should be restored to them as it is.
18. Secondly, apart from the issue of reasonable time or reasonable period, what is that legal right in favour of the appellants herein to claim that the land should be restored in their favour? We have answered this issue quite elaborately in an identical case while deciding Letters Patent Appeal No.433 of 2011 on 28.04.2011 wherein, we have observed as under: “We are of the view that the learned Single Judge has rightly rejected the petition on the ground that the appellants have no locus standi and, therefore, no relief can be granted in favour of a transferor who himself has violated the provisions of law by entering into a transaction.”
We are of the view that the position of law is very clear. Firstly, to maintain a petition under Article 226 or 227 of the Constitution of India, the party aggrieved must show that any of his fundamental rights or any other legal rights have been infringed and thereby the party is aggrieved by such infringement. Who can be said to be “a person aggrieved” ? One of the meanings is that “a person will be held to be aggrieved by a decision”, if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one “a person aggrieved”. Again a person is aggrieved, if a legal burden is imposed upon him. Can it be said that the appellants would fall within the words “persons aggrieved” or “a person who has a genuine grievance because an order has been made which prejudicially affects his interest”. On the contrary, this is an appeal by persons who are trying to take advantage of their own wrong. The maxim: “Nullus commodum capere potest de injuria sua propria” (No man can take advantage of his own wrong) is very much applicable in the facts and circumstances of the present case. The maxim: “Nullus commodum capere potest de injuria sua propria” (No man can take advantage of his own wrong) is one of the salient tenets of equity. The appellants cannot secure the assistance of a court of law for enjoying the fruit of their own wrong.
We may refer the decision of the Supreme Court explaining this principle of law, in the matter of Union of India and others v/s. Major General Madan Lal Yadav [Retd.], reported in (1996)4 SCC 127. In paragraph 28, the Supreme Court observed as under:
“In this behalf, the maxim nullus commodum capere potest de injuria sua propria meaning no man can take advantage of his own wrong squarely stands in the way of avoidance by the respondent and he is estopped to plead bar of limitation contained in Section 123(2). In Broom's Legal Maximum [10th Edn.] at page 191 it is stated:
"...it is a maxim of law, recognized and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognized in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure.”
The reasonableness of the rule being manifest, we proceed at once to show its application by reference to decided cases. It was noted therein that a man shall not take advantage of his own wrong to gain the favourable interpretation of the law. In support thereof, the author has placed reliance on another maxim frustra legis auxilium invocat quaerit qui in legem committit. He relies on Perry v. Fitzhowe [(1846)8 Q.B. 757]. At page 192, it is stated that if a man be bound to appear on a certain day, and before that day the obligee puts him in prison, the bond is void. At page 193, it is stated that "it is moreover a sound principle that he who prevents a thing from being done shall not avail himself of the nonperformance he has occasioned". At page 195, it is further stated that "a wrong doer ought not to be permitted to make a profit out of his own wrong". At page 199 it is observed that "the rule applies to the extent of undoing the advantage gained where that can be done and not to the extent of taking away a right previously possessed.”
23. Even if now, so far as the three classes as explained by the Supreme Court are concerned, the only class which the appellants herein may be able to invoke is that the contract if it is illegal by statute in the interest of a particular class of persons of whom seller of the land is one, then as per this contention, the seller is relieved of the consequences of an illegal contract into which he has entered and the maxim of paridelicto will not apply. We are afraid it is not as easy as contended by the learned counsel for the appellants to accept this because if restoration of possession is to be made at the instance of the seller of the property, then the seller will have to establish before the competent court that when the transaction of sale was entered into, it was disclosed by the seller to the purchaser that the permission of the competent authority before entering into the registered sale deed was required and inspite of the same, the purchaser has at his own risk agreed to purchase the land without permission of the competent authority. If the purchaser establishes that the seller of the property has withheld this information from the purchaser and has made the purchaser to believe that on account of sale transaction, the rights and titles of the seller are fully conveyed and he would become the absolute owner of the property, the court may decline the relief to the seller for declaring the sale as illegal or void. If the seller establishes that the seller himself as well as the purchaser, both were under the bonafide mistake that the permission of the competent authority for sale is not required, then in the given case, the court keeping in view the intent of the legislature may declare the transaction of sale as invalid. But, in those circumstances also the court may decline the equitable relief of restoring the possession back to the seller and even if the court decides to restore the possession back to the seller, the court may also put the seller on condition of repaying the sale consideration and the compensation also if circumstances so demand. All these questions of facts can only be examined in the proceedings of civil suit.
24. In one of the recent pronouncements by Full Bench of this High Court, rendered in Letters Patent Appeal No.1875 of 2007 and analogous appeals, decided on 21.07.2011, the Full Bench in almost an identical fact situation with the only distinguishing feature that it was a case arising from Bombay Prevention of Fragmentation of Consolidation of Holdings Act, 1947, has held as under: “Article 226 of the Constitution is an equitable extraordinary jurisdiction, it should be exercised to prevent perpetration of legal fraud and to promote good faith and honesty. It cannot be exercised in favour of a defaulting party to frustrate legitimate claim of the other party. [AP State Financial Corporation, (1994) 2 SCC 647]”
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. 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 Subsection (3) of Section 9 of the Act. 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 into such illegal transaction. 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. Therefore, even powers conferred upon the Collector under subsections (2) and
(3) of Section 9 are required to be exercised within a reasonable time. [Valjibhai Jagjivanbhai vs. State of Gujarat, 2005 (2) GLH 34].”
16. Similarly, in the case of Bansidhar Jivandas Rathi Vs. State of Gujarat & Ors. passed in Special Civil Application No.8964 of 1998 dated 15.6.2012, this Court observed thus: “8. Having heard the arguments of learned advocates for the parties and having perused the orders passed by all the authorities below, I am of the opinion that the Deputy Collector as also the Collector and the Revisional Authority have committed grave error in ordering to cancel the entry after lapse of 5 years on the ground that the sale transaction was hit by Section 54 of the Ordinance. Notice at page 60, Annexure'C' issued by the Deputy Collector was issued after a period of 5 years and there is no explanation coming forth from the State authorities as to why the Deputy Collector decided to exercise the revisional power after a period of 5 years. The ground on which the revisional powers were initiated for cancellation of entry was to the effect that the petitioners who were not agriculturists in the State of Gujarat, were not entitled to purchase agricultural land and since there was no permission taken for purchase of such land, the sale transaction was in breach of the provisions of the Ordinance. It is pertinent to note that the revenue authorities while deciding the validity or otherwise of the entry, have also gone into the validity of the sale transaction itself. It is a settled position of law that the revenue authorities while deciding the correctness of entry, under one Act, cannot simultaneously decide validity or otherwise of the original sale transaction for which proceedings are required to be taken under the other Act and by the competent authority. In the present case, entries which were taken into revision were under the provisions of the Bombay Land Revenue Code. The main submission, however, about the exercise of the powers by the revenue authorities after unreasonable long period of time is covered by various decisions in favour of the petitioners in the facts of the case. In the case of Santoshkumar Shivgonda Patil (supra) in the context of the provisions Maharashtra Land Revenue Code, it is held that the Statute does not prescribe time limit for exercise of the revisional power, it does not mean that such power can be exercised at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. In the case of Mohamad Kavi Mohamad Amin (supra), the Hon'ble Supreme Court in the context of the Bombay Tenancy and Agricultural Lands Act has held that suo motu powers should be initiated within a reasonable time where no time is prescribed for exercise of such power under the Statute. In the case of Govindji Chhabaji (supra), learned Single Judge of this Court in the context of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 has held that revenue authorities while exercising the powers under Rule 108 of the Rules cannot pass orders of cancelling the entries on an assumption that the transactions recorded in the entries are against the provisions of particular enactment. Whether transaction is valid or not, has to be examined by the competent authorities under a particular enactment by following the prescribed procedure and by giving opportunity of hearing to the concerned parties. In the case of Amrutlal Hansrajbhai (supra), learned Single Judge has considered the issue of sale of land taken place in breach of these very provisions of law with which we are concerned and the learned Single Judge has confirmed the order of the Tribunal, which held that the Deputy Collector has exercised the powers of suo motu revision after long and unexpected delay and therefore, even if transaction was found to be contrary to Section 54 of the Ordinance, because of the suo motu exercise of the powers by the Deputy Collector after long unreasonable time, learned Single Judge did not interfere with the order passed by the Tribunal, which quashed and set aside the order passed by the Deputy Collector as the Deputy Collector has exercised suo motu power after long unreasonable time. In fact, the said judgment would cover the issue of exercise of suo motu powers after long period of time by the revenue authorities. As stated above, the entry was effected in the year 1981 and the Deputy Collector decided to initiate proceedings in 1987, i.e. after unreasonable long period of 5 years. Without any repetition, relying on various decisions, cited by learned advocate Mr. Desai on the point that the revenue authorities cannot initiate suo motu revisional powers after unreasonable long period, I am of the opinion that the Deputy Collector has committed grave error in taking the entry in revision after unreasonable long period of 5 years and therefore, such order of the Deputy Collector could not stand scrutiny of law. Since the order passed by the Deputy Collector is bad in law, the Collector and the Revisional Authority have committed grave error in confirming the order passed by the Deputy Collector. In the result, the petition is required to be accepted and the orders passed by all the authorities below are required to be quashed and set aside.”
17. However, considering the admitted facts which arise in this petition, it clearly transpires that Suo Motu exercise of powers have been initiated by Mamlatdar & ALT under Section 84(C) of the Tenancy Act after lapse of more than 13 years, which by no stretch of imagination can be termed as reasonable. Moreover, considering the fact that petitioner No.1 has relinquished his rights/share in the land in question in favour of petitioner No.2 who is an agriculturist, considering the ratio laid down in the case of Friends Land Development Co. (supra), the transaction by respondent No.4 in favour of petitioner No.2 cannot be said to be invalid even on merits. As far as the stand taken by respondent Nos.4 and 5 before the authorities below is concerned, though the same is not taken by Mr. Kharadi, learned advocate for the private respondents, it does not require any consideration. Respondent Nos.4 and 5 have in fact entered into the transaction and have received sale consideration from the petitioners and therefore, cannot be permitted to now take any advantage from the same.
18. Considering the aforesaid aspects and taking into consideration the ratio laid down by the Hon’ble Apex Court in the judgments referred to hereinabove as well as the judgments of this Court, the impugned orders dated 6.12.1996 passed by respondent No.3, order dated 19.2.1998 passed by respondent No.2 and the order dated 21.8.2008 passed by the Gujarat Revenue Tribunal are hereby quashed and set aside.
19. For the foregoing reasons, this petition is allowed in the above terms. Rule is made absolute to the aforesaid extent. Adinterim relief, if any, stands vacated forthwith.
mrpandya (R.M.CHHAYA, J.)