1. The petitioners have challenged the order dated 1.12.1998 of Deputy Secretary (Appeals) of the Revenue Department of the State Government whereby the petitioners' Revision Application was rejected and original order dated 29.12.1993 of Deputy Collector, Patan and order dated 1.9.1995 of the Collector, Mehsana were not set aside as urged by the petitioners.
2. The simple facts of the case are that, by virtue of order dated 18.1.1986, 30 applicants were granted plots of land by Taluka Development Officer, Siddhpur after holding an auction pursuant to the Notification issued on 30.11.1985. Those plots were granted subject to the condition, inter alia, that they would construct residential accommodation on the land by constructing a house within two years of getting possession of the land. Thereafter, the decision was made in the year 1988 to cancel the grant of land in view of several serious irregularities committed in the process of holding auction and granting plots. Ultimately, in the year 1993, the Deputy Collector initiated proceedings in the form of Review Case No.2 of 1993 under the provisions of Section 211 of the Bombay Land Revenue Code ("the Code", for short). After affording to the petitioners an opportunity of being heard and recording the irregularities, the orders dated 18.1.1986 and the auction held on 17.12.1986 were set aside by order dated 29.12.1993 of the Deputy Collector, Patan. Thereafter, the matter was carried in appeal to the Collector, Mehsana, who rejected the applications of 13 applicants by his order dated 1.9.1995 and then a Revision Application by 12 applicants were made to the Deputy Secretary, who by the impugned order confirmed as aforesaid the previous orders dated 29.12.1993 and 1.9.1995. It is specifically observed in the later impugned order of the Deputy Secretary (Appeals) that the initiation of proceedings for taking the auction proceedings into revision were initiated on 2.4.1988, but the Prant Officer, Patan had made the order on 24.2.1993 which was apparently barred by limitation. However, in view of the gross irregularities committed in the proceedings, the original orders were held to be nullity and hence, taking such orders into revision was not held to be not time-barred.
3. It was argued by learned counsel Mr.Memon appearing for the petitioners that all the irregularities were attributed to the officers of Taluka Panchayat while the petitioners had duly participated in the auction, paid price for the plots and have put up constructions to comply with the conditions of grant of the land. He further submitted that the action of the respondents was ex-facie illegal and time barred in view of the unexplained delay in taking the matter into suo-motu revision. He relied upon a three Judge Bench decision of the Apex Court in State of Gujarat v. Patel Raghav Natha and Ors., [AIR 1969 SC 1297] to submit that although there is no period of limitation prescribed under Section 211 of the Code, the power of the Commissioner to review under Section 65 was held to be exercisable within a reasonable time. It is held that reading Section 211 and 65 together, it was clear that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This was held to be reasonable time because, after the grant of the permission for building purpose, the occupant was likely to spend money on starting building operations.
4. Learned counsel for the petitioners also relied upon judgment of the Apex Court in Delhi Cloth & General Mills Ltd. v. Union of India, [AIR 1987 SC 2414] to submit that when a party had acted upon the assurance and changed or altered his position, doctrine of promissory estoppel could be invoked and the respondents were required to be compelled to adhere to the representations and promises made to the petitioner.
5. Another three Judge Bench decision of the Apex Court in State of Punjab and others v. Gurdev Singh and Ashok Kumar [AIR 1992 SC 111] was also relied upon for the proposition that the party aggrieved by invalidity of an order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him; and he must approach the Court within prescribed period of limitation. After the statutory time limit expires, the Court cannot give the declaration sought.
6. The respondents herein have not filed any affidavit-in-reply to controvert any of the averments made in the petition and in view of the above issue raised by the petitioner, the central issue is related to the period of implied limitation. Section 211 of the Code confers upon the State Government and certain revenue officers the power to call for and examine record and proceedings of subordinate officers and that power having been expressly exercised in the initial order of Deputy Collector, the aforesaid decision of the Apex Court in Raghav Natha (supra) squarely applies in the facts of the case. However, learned AGP submitted on the basis of the judgment of this Court in Saburbhai Hemabhai Chauhan v. State of Gujarat & Ors.
[2000 (1) GLH 580]that if the sale deed or the order upon auction were void ab initio they cannot be legalized simply because delayed action was taken. In the facts of that case, it could not be said that the authorities were aware of the legal transaction wherein a fraud was played upon the authorities. It was only when the records of right team had gone to the village for inspection that the owner had made representation before the Deputy Mamlatdar and sale deed had come into light. In the facts of the present case, as discussed hereinabove and in the impugned order, the proposal to review the orders of 1986 was prepared and forwarded on 2.4.1988 and the delay of five years thereafter was nowhere explained. Learned AGP also relied upon Full Bench decision of the Rajasthan High Court in Chimanlal v. State of Rajasthan [AIR 2000 Raj. 206], wherein it was opined that it is not the function of the Court to prescribe limitation where legislature in its wisdom had thought it fit not to prescribe any period. It is held by the Full Bench that where no period of limitation is provided, then the revisional power has to be exercised within reasonable time and that will depend upon the facts and circumstances of each case like (i) when there is fraud played by the parties, (ii) the orders are obtained by misrepresentation or collusion with public officers by private parties (iii) orders are against the public interest (iv) the orders are passed by the authorities who have no jurisdiction (v) the orders are passed in clear violation of the rules/provisions of the Act by the authorities and (vi) void orders or the orders are void ab initio being against the public policy or otherwise. However, it is recently held by the Apex Court in Krishnadevi Malchand Kamathia & Ors. v. Bombay Environmental Action & Ors., [2011 (3) SCC 363] that even if an order is void, it requires to be so declared by a competent forum. The power to so declare an order to be void must be exercised within a reasonable time if no period of limitation is prescribed by law.
7. Reverting to the facts of the present case, right from the first order dated 29.12.1993 of the Deputy Collector, Patan, most of the major irregularities in holding the auction and issuing order dated 18.1.1986 are attributed to the officers of the Taluka Panchayat. The impugned order dated 1.12.1998 of the Deputy Secretary further emphasizes that the irregularities appear to have been committed by the officers of the Taluka Panchayat and the Taluka Development Officer had not even attended the proceeding before him. There is nowhere a finding about the petitioners having committed or participated in any irregularity amounting to fraud for nullifying the original order dated 18.1.1986. It is under such circumstances that the Deputy Secretary has also ordered initiation of appropriate action against the officers who may be found to be responsible for the irregularities.
8. In view of the facts and for the reasons stated hereinabove, the delayed action of the authorities in setting aside order dated 18.1.1986 in favour of the petitioners and initiation of suo motu action by way of revision do not appear to be justified or within reasonable time, while the petitioners were required to put up construction of residential accommodation on the plots allotted to them. Even as the present petition was filed in the year 2001 and it was admitted on 27th June 2001 with notice as to interim relief, the respondents have not filed any affidavit-in-reply till date, while by interim order dated 23.8.2001, the Court has recorded that the petitioners were in possession of the plots of land in question. Therefore, the petition is allowed and Rule is made absolute with the direction that the impugned order dated 1.12.1998 of the Deputy Secretary, the order dated 1.9.1995 of the Collector, Mehsana, in MV No.5, 19, and 22 of 1994 and order dated 29.12.1993 of Deputy Collector, Patan, in Review Case No.2 of 1993 are set aside with no order as to costs.
(D.
H. WAGHELA, J.) (vipul) Top