1. The petitioner has challenged an order dated 18.02.2000 passed by the Special Secretary (Appeals), Revenue Department, Government of Gujarat.
2. Brief facts may be noted at the outset:
2.1 With respect to a land bearing Block No. 306 of Vilalge Morthana, Taluka: Kamrej, Dist. Surat, the original owner, respondent No.3 had unpaid dues of the Irrigation Department. For not being able to pay such dues, the land was put to auction. The petitioner herein participated in such action which took-place in March,1976 and offered the highest price. From the receipt at page 22 issued by the Mamlatdar dated 19.03.1976, it emerges that the petitioner paid the full purchase price of such land. The receipt was given in token of having received Rs. 14,250.75 which comprised of ¾th of the sale price. On 25/26.03.1976, Talati- Cum-Mantri of Village Morthana gave a certificate to the effect that the petitioner had purchased the land in question through public auction. The petitioner was also put in actual possession of the land. Many years passed without any further development. Suddenly in the year 1994, the Collector, Surat, in the proceedings under Rule 108(6) of the Land Revenue Rules, pertaining to revenue entries with respect to such land, initiated suo motu action. Prima facie believing that the auction sale in favour of the petitioner was in breach of Section 63 of the Bombay Tenancy and Agricultural Lands Act,1948, he issued notices to the petitioner as well as to the respondent No.3. By his order dated 10.08.1994, the Collector set aside Revenue Entry No. 982 dated 28.03.1996 by which, the name of the petitioner was entered in to the revenue record pertaining to said Block No. 306 of Morthana Village. He was prompted to pass such order principally on the ground that on the date of purchase of the land, the petitioner was not an agriculturist qua the said land in terms of Section 2(2) of the Bombay Tenancy and Agricultural Lands Act. Significantly, in the order he noted that the petitioner did own agricultural land in Village:Kharsi, Tal. Songadh prior to purchase of the land in question. However, since the land bearing Block No. 306 of Morthana Village was situated at a distance beyond 8 kilometers from the petitioner's agriculture land of village Kharsi, Tal. Songadh, he cannot be treated as an agriculturist qua the land purchased by him through auction.
2.2 Aggrieved by such order of the Collector, petitioner filed a revision application before the Revenue Secretary. The Secretary, by his order dated 16.10.1996, allowed the revision. He was of the opinion that enquiry whether the land was purchased in breach of Section 2(6) of the Bombay Tenancy and Agricultural Lands Act had to be initiated by the Mamlatdar. The Collector, therefore, could not have cancelled the entry on the premise that the sale was hit by Section 63 of the Bombay Tenancy and Agricultural Lands Act. Such order of the Secretary became final. It was not challenged either by the Government or by the respondent No.3.
2.3 The Special Secretary, however, issued a notice in the year 1999 and indicated his desire to exercise revisional power under Section 211 of the Bombay Land Revenue Code with respect to the legality of the auction sale itself. After hearing the concerned parties, he passed impugned order dated 18.03.2000 and set aside the action of sale in its entirety on the ground that the land was a new and restricted tenure land; without permission of the Government the same could not have been put to auction. Further, that no premium was paid to the Government before the petitioner acquired such land through auction and lastly that the petitioner was not an agriculturist on the date of purchase of the land. Such transaction, therefore, was hit by Section 63 of the Bombay Tenancy and Agricultural Lands Act.
2.4 It is this order which the petitioner has challenged in this present petition.
3. Learned counsel, Mr. Bhairaviya, for the petitioner contended that the action of the Special Secretary was grossly belated. The petitioner purchased the land through public auction in March 1976. Impugned action was taken more than 20 years thereafter. Counsel submitted that in view of the Government dues of the original owner, the Mamlatdar could auction the land without the permission of the Government as has been held by learned Single Judge in case of Parsottambhai Motiram Vs.. Devchandbhaii Parbhubhai reported in 1998 (3) GLR 2219. Counsel further submitted that the petitioner owned agricultural land even before the date of auction of course beyond a radius of 8 kilo meters from the purchased land. However, by virtue of the amendment in the year 1999 in the Bombay Tenancy and Agricultural Lands Act, such requirement of ownership of agricultural land within 8 kilometers has been amended and such amendment is made applicable to all pending proceedings. He lastly submitted that in any case, whether there was any breach of Section 63 readwith Section 2(6) of the Bombay Tenancy and Agricultural Lands Act has to be examined by the Mamlatdar and such powers did not vest in the Special Secretary while examining the validity of the auction.
4. On the other hand, learned AGP Ms. Pathak and learned advocate, Mr. Majmudar for the respective respondents opposed the petition contending that the order passed by the Special Secretary suffered from no infirmity. It was contended that the question of status of a person as agriculturist would go to the root of the matter. If the sale transaction was hit by section 63 of the Act the same would be nulity. They relied on certain decisions of this Court to contend that the order of the Special Secretary may not be quashed in view of the ground of delay.
5. Having thus heard the learned counsel for the parties and having perused documents on record, I am of the opinion that Special Secretary committed an error in passing the impugned order. This is so because of the following reasons:
(i) Firstly the auction sale had taken place in March, 1976. For nearly 20 years the revenue authorities found no defect in such auction. It was for the first time that the Collector in the entry proceedings tried to examine the legality of the auction itself. Since such approach of the Collector was apparently impermissible, the Special Secretary rightly quashed Collector's order deleting the revenue entry in favour of the petitioner with respect to such land. This was done in the year 1996. Three more years passed before the Special Secretary took further action, by issuing a notice proposing to take the order of the Mamlatdar selling the land through auction in suo motu revision. Such order ultimately came to be passed in the year 2000. Thus, more than 24 years after the land was sold to the petitioner through public auction, validity of such action came to be examined by the Special Secretary. Such action was initiated more than three years after he himself had, after fullfledged hearing, quashed the order of the Collector, disturbing the revenue entry made in favour of the petitioner on the basis of such auction sale. The entire action was thus, grossly belated. It is true that previously the transactions which could be categorized as ab initio void, judicial trend permitted considerable latitude to the Government machinery to rectify such mistakes. However, the later trend suggests major shift and even such ab initio void and nonest orders are required to be set aside through proper procedure within reasonable time. It is ofcourse true that what would be reasonable time when the statute does not provide for any fixed period of limitation, is invariably a question of fact to be judged on the basis of material on record and relevant facts and circumstances.
(ii) In case of Valjibhai Jagjivanbhai Vs. State of Gujarat reported in 2005 (3) GLR 1852 the Division Bench of this Court, after referring to large number of decisions of this Court as well as the Apex Court in context of the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act,1947 held and observed as under:
“17.1. The aforesaid discussion shows that there is sufficient scope for the revenue authorities of the State to know about illegal transaction which can be termed void under section 9 (1) of the Act, inspite of that, if such void transaction is allowed to exist for years together, it is difficult to hold that the competent authority, even then would be within its bounds to initiate proceedings to declare such transaction void and annul it. It is also difficult to envisage that when two routes are available for reaching the ultimate destination under section 9(2) and (3) of the Act, on the route prescribed under section 35, the authority named therein will not be permitted to travel and the shutters will be drawn at the point where reasonableness ends. Whereas the other route i.e. under section 9 of the Act will remain open for all time to come. To lay down proposition of law, in relation to section 9 of the Act, that the Collector can exercise power thereunder even after inordinate delay, irrespective of the fact that there is scope for him to know about illegality committed cannot only be dangerous because it can give ample opportunity to some crafty seller to exploit the situation to his advantage, as we will presently discuss, but it can also be against the principle that one cannot sleep over his right for unreasonable period. It has to be pursued vigilantly.
18. It may also be kept in view that even after exercise of power under section 9 sub-section (3) the Collector will not be able to pass any other order except restoring the possession of the land back to the original owner. In the case of Govindsingh v/s. G Subbarao [supra] the Division Bench of this Court has taken the following view :
"The power given to the Collector to summarily evict a person when it is found that by reason of the transfer being void, he is unauthorisedly in occupation or wrongfully in possession of the land and to restore possession of the land to the original owner is obviously conferred upon the Collector to secure enforcement of the salutary and beneficent provisions of the Act. The Collector cannot, in the absence of specific provision to that effect, retain possession as against the owner of the land."
In such circumstances, one can easily visualize the situation wherein some unscrupulous seller with his eyes open, enters into transaction of sale of a fragment and ultimately completes that transaction and puts bonafide purchaser in possession of the land and after inordinate delay when he realises that the prices of the land have gone up considerably, he may just whisper into the ears of the Collector regarding illegal transaction as it has happened in the present case, and the Collector having found the transaction to be such, would only penalize the owner by imposing nominal fine. However, he will at the same time almost ruin the bonafide purchaser by taking back his possession of the land and restoring it to the seller. This can be dangerous and it is difficult to reconcile to such situation. Such situation does not appeal to the common-sense and legislature also would not have intended to encourage such dishonesty. On this aspect our Court has taken very strict view.”
(iii) Such decision was followed by a later Division Bench in case of Rameshbhai Ambalal Shah Vs. State of Gujarat reported in 2011 (3) G.L.H. 98 wherein in the context of Section 63 breach and the power of the Mamlatdar under Section 84-C of the Act it was held that:
“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 suo-motu revisional power under Section 84-C 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 time-limit is prescribed for exercise of power under statute, it should be exercised within a reasonable time. This is what this Court said:
"Section 84-C 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 1-3-1990, where in connection with Section 84-C 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 84-C 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 sub-section (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 Sub-Divisional Officer either that order dated March 30, 1976 was obtained fraudulently.”
(iv) In yet another recent decision in case of Shambhu Videshiram Morya Vs. State of Gujarat Through Secretary (Appeals) & Ors. reported in 2012 (1) GLR page 665 relying on the decision of this Court in case of Valjibhai Jagjivanbhai Vs. State of Gujarat (supra) action in context of the breach of Section 63 of the Act and powers of the Mamlatdar under Section 84-C thereof, the Division Bench held that such exercise of powers after fifteen years suffered from delay and the action was quashed.
(v) In case of Bhanji Devshibhai Luhar Vs. State of Gujarat and ors. reported in 2011 (2) GLR 1676 the Division Bench in the context of Saurastra Gharkhed, Tenancy, Settlement and Agricultural Lands Ordinance, 1949 which made similar provisions with respect to the cultivation and personal cultivation as in the Bombay Tenancy and Agricultural Lands Act held that the action taken by the authorities to question the transaction of sale of land after 17 years was not permissible. In such judgement, the contention that the transaction was void and therefore, no period of limitation would apply, the Division Bench observed as under:
“22.2 We may also refer to a recent decision in the case between Krishnadevi Malchand Kamathia vs. Bombay Environmental Action Group (2011 {3} SCC 363), the Apex Court, has, with regard to void order, observed in paragraph No.16 that:-
“16. It is a settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In Sate of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil, Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd., M. Meenakshi v. Metadin Agarwal and Sneh Gupta v. Devi Sarup, this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum.
While referring to the earlier decisions in the case State of Punjab (supra) as well as in the case of Sultan Sadik v. Sanjay Raj Sabba (2004 [2] SCC 377) the Apex Court has observed:-
“19.Thus, from the above it emerges that even if the order / notification is void / voidable, the party aggrieved by the same cannot decide that the said order / notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person”
23. Under the circumstances, upon considering the overall facts and circumstances of the present case and in light of the foregoing discussion and having regard to the fact that at the time of transaction the petitioner was agricultural labourer and he purchased the land for agriculture use and since then he has maintained the status of the land and continues to put the land to agricultural use, the decision to compulsorily evict the petitioner after lapse of 17 years (by now almost 30 years) deserves to be set aside.”
(vi) I am not unmindful of the decision of Division Bench dated 02.02.2000 passed in Letters Patent Appeal No. 2155 of 2007 in case of Abdulbhai Daoodbhai Muman Vs. Dy. Collector and anr., wherein the Division Bench had, on facts, distinguished the case of Valjibhai Jagjivanbhai Vs. State of Gujarat (supra). There being material factual differences, the decision in case of Abdulbhai Daoodbhai Muman Vs. Dy. Collector and anr. cannot be stated to have laid down any proposition of law contrary to the case of Valjibhai Jagjivanbhai Vs. State of Gujarat (supra).
(vii) In the present case, delay of more than 20 years in initiating the proceedings to examine validity of the Mamlatdar's auction proceedings by no stretch of imagination can be stated to be within reasonable time. There is absolutely no explanation why such action was not initiated earlier, why the authority was prevented from entering into the action of the Mamlatdar. More importantly, the Special Secretary was well aware of the entire issue when any revision petition filed by the present petitioner challenging the order of the Collector in context of the revenue entries he had full view of the necessary facts. For three years thereafter no action was taken.
6. There are additional reasons why I am inclined to set aside the order of the Special Secretary. His view, that the sale being without permission of the Government and therefore, invalid, seems to run counter to the decision of this Court in case of Parsottambhai Motiram Vs. Devchandbhai Parbhubhai (supra). His conclusion that the sale was hit by Section 63 of the Act overlooks the fact that the definition of personal cultivation contained in Section 2(6) of the Act came to be materially altered. That the agricultural land should be held by the purchaser within 8 kilo meters of the land being purchased was done away with by the amendment in the Bombay Tenancy and Agricultural Land Act by the amending Act of 1995. By subsequent amending Act of 2001, it was provided that such amendments shall be and shall be deemed to always have been deleted. In Section 3 of the Amendment Act,2001, it was further provided that all proceedings relating to any order made or purported to be made under Section 84-C of the Bombay Tenancy and Agricultural Lands Act for contravention of provisions of Section 63, so far it relates to the breach of Clause (6) of Section 2, pending before any court, tribunal or other authority or any such proceedings initiated by any such authority on or after the commencement of the amending Act shall stand abated notwithstanding anything contained in Section 84-C of the Act. Section 4, however, provided that such amendment shall not affect the validity of any such order as referred to in Section 3 which has become final.
7. The facts that the petitioner did hold agriculture land at the time of auction sale though beyond 8 kilo meters from such land is not seriously in dispute. As noted, the Collector, in his order dated 10.08.1994, had recorded such facts. Respondents do not dispute such position. In that view of the matter, the Special Secretary was also not justified in holding that the sale was hit by Section 63 of the Act.
8. Alternatively, as held by the Special Secretary such sale was opposed to Section 63 of the Act, it was the Mamlatdar, who was competent authority to examine legality of such sale and pass order as may be found appropriate under Section 84-C of the Act. In any case, this is only an additional and not the principal ground on which I find that the order cannot be sustained.
9. In the result, petition is allowed. Impugned order of the Special Secretary is quashed. Rule is made absolute.
[AKIL KURESHI, J.]
JYOTI