IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 2117 of 2011 In SPECIAL CIVIL APPLICATION No. 17803 of 2011 With CIVIL APPLICATION No. 9699 of 2012 In LETTERS PATENT APPEAL No. 2117 of 2011 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= CHANDULAL GORDHANDAS RANODRIYA & 2 - Appellant(s) Versus STATE OF GUJARAT THRO SECRETARY & 3 - Respondent(s) ========================================================= Appearance :
MR SANJAY D SUTHAR for Appellant(s) : 1 - 3.
MRS KRINA CALLA, LD.ASST.GOVERNMENT PLEADER for Respondent(s):1-4.
========================================================= CORAM :
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 8/11/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. This appeal under Clause 15 of the Letters Patent is at the instance of unsuccessful writ petitioners of a writapplication under Article 226 of the Constitution of India and is directed against an order passed by the learned Single Judge dated December 08, 2011, by which His Lordship rejected the writapplication holding that the concept of exercise of powers within a reasonable period of time under Section 84(C) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act'), would not be applicable to a case in which the land in question is a new tenure land as explained under Section 43 of the Act and Article 226 of the Constitution of India being a discretionary remedy was not useful to the writpetitioners.
2. The facts shortly stated be thus :
2.1 The writpetitioners had purchased the land bearing Block No.540 situated at Mauje Masma, Taluka Olpad, District Surat, which is the subject matter of this appeal, by a registered sale deed dated October 06, 2005 from one Shri Mahendrabhai Prajapati. Shri Mahendrabhai Prajapati had purchased the said land from one Urvashiben Hirenkumar Jariwala and Naliniben Hemantkumar Lalwala on June 09, 2005. Urvashiben Hirenkumar Jariwala and Naliniben Hemantkumar Lalwala had purchased the land on January 01, 2000 from one Shri Sunilbhai Manchhubhai Patel, who had purchased the land from the original owner, namely, Babarbhai Haribhai. Thus, it is clear that the writ petitioners are the fourth buyers of the land in question. Record reveals that the original owner one Babarbhai had applied for Non Agricultural permission with the Taluka Development Officer for putting up residential construction and such permission was granted to the original owner Shri Babarbhai on certain terms and conditions. For better adjudication of the controversy in question, it would be profitable to reproduce the conditions on which the NonAgricultural permission was granted to Babarbhai on September 04, 1982, which are as under :
(1) “No construction should have been carried out except in the plot shown by colour admeasuring 1673 sq.mtrs. of the land other than agricultural total 5969 sq.mtrs. shown in the map dated 23.07.1982 vide MarkA,B, C,D of S.E., Olpad.
(2) That except the prior written permission of Taluka Development Officer, the approved construction or in the plot other than agricultural not to carry out any kind of increase or other modification. And should not have to carry out the additional construction.
(3) That under section484 of the Land Revenue Code, without obtaining the written permission of Taluka Development Officer, the restriction is hereby ordered for its use for the purposes other than construction of residential purposes.
(4) That within 6 months from the date of the said order, the act other than the agricultural should have been carried out and if fails to do so than, the date from which the permission other than the agricultural granted, from such date the special cess and fine should have been paid whichever is fixed.
(5) That within one month from the date of committing the act other than agricultural, the occupier shall have to give written intimation regarding initiation of such act through Village Officer to Taluka Development Officer. If fails to do so then liable to pay cess other than agricultural and fine.
(6) The occupier shall have to carry out the measurement of the plot other than the agriculture through Land Record Office at his own cost. As per the measurement carried out by the Department, whatever the changes happened in the area and akar according to it the Sanad is liable to modification. And the applicant shall have to pay measurement fee within six “6” months from the date of order.
(7) That from the date of the said order within the tenure of six “6” months, the sanad is required to be issued as per the conditions mentioned in the order in FormM and regarding information by the occupier and this permission shall be on the basis of all the conditions mentioned in the sanad.
(8) The arrangement should have been made for regular cleaning of the cesspool and not to construct if not there.
(9) The cesspools are not be constructed within 100 feet nearer to the well and also not to make use of cesspool.
(10) That if any question arises to construct wall surrounding the compound of the land of the plot other than agricultural land, then the construct of not more than three and half feet height be carriedout. If the wall is to be constructed on the road side, then without obtaining prior written permission of the Taluka Development Officer, not to construct the same.
(11) The cesspool and drainage edge should not be used for collection.
(12) The said permission is hereby granted on the basis of the provisions of the Mumbai Tenancy and Agricultural Land Petroleum Act.
(13) The construction work shall have to be completed within three years from the date of this order.
(14) The easily available material equipment should not be used in the construction work.
(15) That after receiving permission from here, the permission of local body like Gam Nagar Panchayat shall have to be obtained under section93 of the Gujarat Panchayat Law, before commencing the construction work.
(16) If any of the above conditions is being breached, the said permission, as a whole or some portion of the said permission, shall be liable to be cancelled.
(17) As the plot of the said land given approval is more than 1000 meter, the provisions of the Land Independence Restriction Act, 1972 of the Gujarat Town area should have been implemented.
(18) On taking possession of the land by Coop. Society, after three years, or the time of nonagricultural use whichever is later, from that period the special cess to be paid, within as per the Government Notification dated 24.01.78, shall be payable on receipt of permission or from the said order.
(19) That under the scheme “Grow more trees as much as possible”, the maximum possible trees shall have to be planted. .. ..”
1. It appears that although adequate conditions were imposed by the Taluka Development Officer in its order dated September 04, 1982, the said Babarbhai transferred the entire land in favour of Shri Sunilbhai Manchhubhai Patel on March 05, 1992. As stated above, thereafter on December 14, 2005 the said land was purchased by the appellants being the fourth purchasers.
2. The appellants were desirous of converting the user of the land for the purpose of permitting it to be used for a petrol pump. The appellants applied for NonAgricultural permission under their application dated May 17, 2011.
3. Record also reveals that prior to applying for NonAgricultural permission, the land in question was leased to one Shri Gautamkumar B. Jain, who intended to put up a petrol pump for which he requested for a “No Objection Certificate” from the Collector, Surat. At that stage, the Collector realised that the land bearing Block No.540 was a new tenure land to which the provisions of Section 43 of the Act were applicable and, therefore, such land could not have been transferred without the permission of the Competent Authority. In such circumstances, the Deputy Collector, Surat, vide order dated July 19, 2011, asked the Mamlatdar, Olpad, to initiate proceedings under Section 84(C) of the Act for breach of the provisions of Section 43 of the Act.
4. The Mamlatdar, Olpad, accordingly, issued a notice under Section 84(C)(2) of the Act calling upon the appellants to show cause as to why the land in question should not be vested in the Government on account of breach as narrated therein. The appellants replied to the show cause notice on November 12, 2011 and before any final decision could be taken in the matter, they preferred a writpetition being Special Civil Application No.17803 of 2011.
5. It was mainly contended before the learned Single Judge that the appellants were the fourth purchasers of the land in question. It was also contended before the learned Single Judge that it is a settled position of law that the powers under Section 84(C) of the Act are to be exercised within a reasonable period of time and in the present case, the original owner in whose favour the NonAgricultural permission was granted in the year 1982 was a protected tenant and he, in turn, had transferred the property for the first time on March, 1992. It was also brought to the notice of the learned Single Judge that thereafter the land was transferred in the year 2000 and for the third time in the year 2003, before it was transferred in favour of the appellants herein in the year 2005 for the fourth time.
6. It appears that the principal contention on behalf of the appellants that the authorities could not have issued a show cause notice under Section 84(C) of the Act after a period of 28 years as the powers under Section 84(C) of the Act are to be exercised within a reasonable period of time did not find favour with the learned Single Judge and the learned Single Judge rejected the writapplication mainly on the ground that the land in question, indisputably, is a restricted tenure land and the original owner in whose favour the Non Agricultural permission was granted in the year 1982, was holding the land as a protected tenant and such a protected tenant could not have transferred the land in breach of Section 43 of the Act. The learned Single Judge also took the view that the concept of exercise of powers under Section 84(C) of the Act within a reasonable period of time would not apply in a case in which the land in question is a new tenure land as the new tenure land which is being given to the tenant is not being given for earning profit but is being given as a national policy to help the agriculturist. The learned Single Judge, accordingly, rejected the petition holding that the Article 226 of the Constitution of India being a discretionary remedy was not useful to the writpetitioners.
7. Being aggrieved by the order passed by the learned Single Judge, the appellants have come up with the present appeal.
8. Mr.Nirav K. Majmudar, the learned counsel appearing on behalf of the appellants vehemently submitted that the learned Single Judge committed a serious error in coming to the conclusion that the land being a new tenure land, the authorities are empowered to take action under Section 84(C) of the Act at any point of time. According to Mr.Majmudar, by a catena of decisions, it has now been well settled that that the powers under Section 84(C) of the Act are to be exercised within a reasonable period of time.
9. Mr.Majmudar also submitted that without prejudice to the rights and contentions of the appellants, they are, as on today, ready and willing to pay the amount of premium which the competent authority may determine as per the Jantri value of the property as on today for the purpose of getting the land converted from new tenure to old tenure. Mr.Majmudar submitted that once the land is converted from new tenure to old tenure on making the payment of amount of premium, thereafter the restrictions under Section 43 of the Act would not be applicable.
10. On the other hand, Mrs.Krina Calla, the learned Assistant Government Pleader appearing on behalf of the respondentState vehemently opposed the appeal and submitted that no error much less any error of law could be said to have been committed by the learned Single Judge in dismissing the petition. Mrs.Calla submitted that this is a case of clear breach of the conditions which were imposed in the order of NonAgricultural Permission passed in the year 1982. The land in question could not have been transferred without first getting the new tenure land converted to old tenure land on payment of requisite amount of premium and it was only thereafter that the person could apply for putting the land to NonAgricultural Use. Mrs.Calla submitted that in the year 1982, when the NonAgricultural permission was granted, at that point of time, the authorities concerned had overlooked the fact that land was a new tenure land. Mrs.Calla, therefore, urged that there being no merit in the present appeal, the same be dismissed.
11. Having heard the learned counsel for the respective parties and having gone through the materials on record, the only question that falls for our consideration in this appeal is as to whether the authorities concerned are justified in initiating the proceedings under Section 84(C) of the Act for the alleged breach or violation of the provisions of Section 43 of the Act after a period of almost 28 years.
12. Indisputably, the land in question is a new tenure land, to which the provisions of Section 43 of the Act are applicable. It is also well settled that if a person wants to get the land converted from new tenure to old tenure, then as per the Government Resolutions passed from time to time and other provisions of the Act, the Collector has to determine the amount of premium due and payable by the person who seeks conversion and as per the guidelines laid down such amount determined by the Collector if is paid, then necessary orders are being passed by the authorities converting the land from new tenure to old tenure, thereby lifting the restrictions as imposed under Section 43 of the Act. It is also well settled that question is if the land is transferred in violation of the provisions of Section 43 of the Act, then such transactions could definitely be termed as void transactions. However, the question is whether such void transactions could be annulled at any point of time and whether the authorities could be justified in taking over the possession of the land for the purpose of vesting in the Government at any point of time.
13. In our opinion, it is well settled that even though void transaction if is allowed to remain effective for considerable long period, the authority named therein will be precluded from initiating proceedings to annul it. It can remain effective and in existence till it is invalidated and set aside. If its existence is allowed for a considerable period and by a passage creating valuable rights in favour of a considerable section of people, like the appellants in the present case, it is difficult to accept the proposition that despite the change the competent authority under the Act would be entitled to exercise powers under Section 84(C) of the Act at any point of time.
14. It will be profitable to quote Section 84(C)(1) of the Act as under :
“84C. Disposal of land, transfer or acquisition of which is invalid.
(1) Where in respect of the transfer of acquisition of any land made on or after the commencement of the Amending Act, 1955, the Mamlatdar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is or becomes invalid under any of the provisions of this Act, the Mamlatdar shall issue a notice and hold an inquiry as provided for in Section 84B and decide whether the transfer or acquisition is or is not invalid.”
15. On plain reading of Section 84(C)(1) of the Act, it is apparent that if the Mamlatdar suo motu or on the application of any person interested in such land, has reason to believe that such transfer or acquisition of land has become invalid under any of the provisions of this Act, then under such circumstances, the Mamlatdar is empowered to issue a notice and hold an inquiry as provided for in the Act and decide whether the transfer or acquisition is or is not invalid. Section 84(C) does not draw any distinction so far as the provisions of Section 43 of the Act is concerned. The words used in Section 84(C) of the Act are “any of the provisions of this Act”. Such being the position, we are not impressed with the submission of Mrs.Calla that if there is a breach of Section 43 of the Act, then in such cases, the concept of exercise of powers within reasonable period of time would not be applicable.
16. In the case of Employees State Insurance Corporation v. C.C. Santhakumar reported in 2007(1) SCC 584, the Supreme Court has elaborately explained this principle of action to be taken within a reasonable period of time. It would be appropriate for us to quote paragraph Nos.35, 36, 37, 38, 39 and 40.
“35. A "reasonable period" would depend upon the factual circumstances of the case concerned. There cannot be any empirical formula to determine that question. The court/authority considering the question whether the period is reasonable or not has to take into account the surrounding circumstances and relevant factors to decide that question.
36. In State of Gujarat v. Patel Raghav Natha (1969 (2) SCC 187) it was observed that when even no period of limitation was prescribed, the power is to be exercised within a reasonable time and the limit of the reasonable time must be determined by the facts of the case and the nature of the order which was sought to be varied. This aspect does not appear to have been specifically kept in view by the Division Bench. Additionally, the points relating to applicability of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977, and even if it is held that the Act was applicable, the reasonableness of the time during which action should have been initiated were also not considered. It would be hard to give an exact definition of the word "reasonable". Reason varies in its conclusions according to the idiosyncrasy of the individual and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic stands now like the jingling of a child's toy. But mankind must be satisfied with the reasonableness within reach; and in cases not covered by authority, the decision of the Judge usually determines what is "reasonable" in each particular case; but frequently reasonableness "belongs to the knowledge of the law, and therefore to be decided by the courts". It was illuminatingly stated by a learned author that an attempt to give a specific meaning to the word "reasonable" is trying to count what is not a number and measure what is not space. It means prima facie in law reasonable in regard to those circumstances of which the actor, called upon to act reasonably, knows or ought to know. (See: Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar (1987 (4) SCC 497) and Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. (1989 (1) SCC 532). As observed by Lord Romilly, M.R. in Labouchere v. Dawson (41 LJ Ch 472) it is impossible a priori to state what is reasonable as such in all cases. You must have the particular facts of each case established before you can ascertain what is reasonable under the circumstances. Reasonable, being a relative term is essentially what is rational according to the dictates of reason and not excessive or immoderate on the facts and circumstances of the particular case.
37. These aspects were highlighted in Collector and Others v. P.Mangamma and Others (2003 (4) SCC 488).
38. As observed in Veerayee Ammal v. Seeni Ammal (2002 (1) SCC 134), it is "looking at all the circumstances of the case; a "reasonable time" under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than 'directly'; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea".
39. According to Advanced law Lexicon by P. Ramanatha Aiyar 3rd Edition, 2005 reasonable time means as follows:
"That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer.
"Reasonable Time" is defined to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case.
If it is proper to attempt any definition of the words "reasonable time", as applied to completion of a contract, the distinction given by Chief Baron Pollock may be suggested, namely, that a "reasonable time" means as soon as circumstances will permit.
In determining what is a reasonable time or an unreasonable time, regard is to be had to the nature of the instrument, the usage or trade or business, if any, with respect to such instrument, and the fact of the particular case.
The reasonable time which a passenger is entitled to alighting from a train is such time as is usually required by passengers in getting off and on the train in safety at the particular station in question.
A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than "directly" such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea.
Reasonable time always depends on the circumstances of the case. (Kinney) It is unreasonable for a person who has borrowed ornaments for use in a ceremony to detain them after the ceremony has been completed and the owner has demanded their return. (AIR 1930 Oudh 395).
The expression "reasonable time" means so much time as is necessary under the circumstances to do conveniently what the contract or duty requires should be done in a particular case". [See: Joseph Severance v. Benny Mathew (2005(7) SCC 667)]
40. In all these cases at hand the factual aspects have not been examined, because the grievance appears to have been focused on the applicability of Section 77 (1A)(b).”
17. While dealing with suo motu revisional power under Section 84(C) of the Act, 1976 the Supreme Court in Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim, reported in (1997) 6 SCC 71, held that generally where no time limit is prescribed for exercise of powers under statute, it should be exercised within a reasonable time. This is what the Supreme 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."
18. 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."
19. It must be fairly said that if the statute does not prescribe time limit for exercise of revisional powers, it does not mean that such powers can be exercised at any point of time even if there is a breach of Section 43 of the Act, which is a provision which relates to a new tenure land, rather it should be exercised within a reasonable period of time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. It is clear from various judgments of the Supreme Court that where a statutory provision for exercise of any suo motu powers of revision does not prescribe any limitation, the powers must be exercised within a reasonable period of time even in the case of transaction which would be termed as void transaction.
20. Thus, so far as the first aspect of the matter is concerned, we hold that the learned Single Judge was not justified in taking the view that as the breach complained of is as regards Section 43 of the Act and as the land is a new tenure land, the powers to initiate action could be exercised at any point of time.
21. Having taken the view that in the present case the authorities could not have initiated proceedings under Section 84(C) of the Act, after a period of almost 28 years, the only benefit that could accrue in favour of the appellants is that the land in question would not vest with the Government. However, the nature and character of the land being a new tenure land will remain as it is and, therefore, the appellants will not be in a position to make use of the land for any other purpose.
22. At this stage, we may now consider the second part of Mr.Majmudar's submissions that his clients i.e. the appellants, are ready and willing to deposit the amount of premium which the authorities may fix for the purpose of getting the land converted from new tenure to old tenure. If the appellants want to put the land in question to a NonAgricultural Use, then it is mandatory for them to get the land converted from new tenure to old tenure and for that purpose ordinarily the original owner has to prefer such an application i.e. in the present case Babarbhai, who was the protected tenant holding the land in question. However, almost 28 years have elapsed and we do not know whether as on date Shri Babarbhai is alive or not and what is the position so far as his legal heirs are concerned. In such circumstances, we permit the appellants to prefer an appropriate application before the competent authority with a prayer that the new tenure land be converted to old tenure land by fixing the amount of premium payable as on today. If such an application is preferred by the appellants in accordance with law within a period of four weeks from today, then the competent authority shall determine the amount of premium due and payable as on today and inform about the same to the appellants. The appellants on being informed about the amount of premium to be paid shall immediately deposit the requisite amount with the competent authority. On such amount of premium being deposited by the appellants, the competent authority shall thereafter proceed to consider the application of the appellants for putting the land for NonAgricultural use.
23. In the result, this appeal is allowed to the aforesaid extent. The judgment and order passed by the learned Single Judge dated December 08, 2011 in Special Civil Application No.17803 of 2011 is hereby set aside. The appeal is, accordingly, disposed of in above terms. In view of the order passed in the main matter, the connected Civil Application has become infructuous and the same stands disposed of.
(Bhaskar Bhattacharya, Chief Justice)
(J.B. Pardiwala, J.)
Aakar