IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 2126 of 2011 In SPECIAL CIVIL APPLICATION No. 13406 of 2010 With CIVIL APPLICATION No. 13618 of 2011 In LETTERS PATENT APPEAL No. 2126 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE V. M. SAHAI HONOURABLE MR.JUSTICE A.J. DESAI =========================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the judgment ? NO Whether this case involves a substantial
4 question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?NO
5 Whether it is to be circulated to the civil judge ?NO ========================================= SUNDERLAL BHANABHAI BHAGAT & ORS Versus STATE OF GUJARAT & ORS ========================================= Appearance :
MR SP MAJMUDAR AND MR.VIMAL A PUROHIT for Appellants MR N.J.SHAH AGP for Respondents 1 and 2 MR AMIT V THAKKAR for Respondent No. 4 MR R.S. SANJANWALA SR. ADVOCATE with MR. DILIP KANOJIYA for Respondents No. 5 & 6 ========================================= CORAM : HONOURABLE MR.JUSTICE V. M. SAHAI and HONOURABLE MR.JUSTICE A.J. DESAI Date : 09/01/2012 ORAL ORDER (Per : HONOURABLE MR.JUSTICE V. M. SAHAI)
1 Heard learned Advocate Mr. S.P. Majmudar for the appellants, learned AGP Mr. N.J. Shah for respondents No. 1 and 2 and Mr. R.S. Sanjanwala, learned Senior Advocate with Mr. Dilip Kanojiya, learned Advocate for respondents No. 5 and 6.
2 The present appeal has been filed challenging the order dated 11.10.2010 passed by the learned Single Judge in Special Civil Application No. 13406 of 2010, by which the learned Single Judge has confirmed the order dated 20.7.2007 passed by the Secretary, Revenue Department, in Revision Application No. 4 of 2006, affirming the order dated 18.9.2003 passed by the Deputy Collector in Tenancy Case No. 23 of 2002.
3 Mr. Majmudar, learned counsel for the appellants has vehemently urged that by sale deed dated 26.12.1990 the appellants had sold fragmentation of land in favour of the respondents No. 3 and 4, which was not permissible in law and, therefore, the said sale deed was void. It is further submitted that the sale deed executed by him in favour of the said respondents was illegal and void and, therefore, the same was liable to be set aside, but, the Secretary, Revenue Department has illegally dismissed the Revision on the ground of delay of about 3 years and 2 months as there was no application filed along with the Revision Application for condonation of delay. He has placed reliance on a decision of this Court in the case of Saburbhai Hemabhai Chauhan vs. State of Gujarat & Ors., as reported in 2000 (1) GLH 580 wherein it has been held that if the sale deed is found void ab initio, it can be questioned at any stage by anybody and submitted that the ratio laid down in the aforesaid decision would squarely apply to the facts of the present case. Secondly, he has also placed reliance on the decision of the Apex Court in the case of State of Orissa & Ors. vs. Brundaban Sharma & Anr., as reported in 1995 Supp (3) SCC 249 wherein it is held that where the order is void or non est, in such a situation, it would confer no title and its validity can be questioned in any proceeding at any stage. It is further submitted that the learned Single Judge has also failed to appreciate the said fact and has rejected the writ petition. He, therefore, submitted that the appeal deserves to be allowed.
4 On the other hand Mr. Sanjanwala, learned Senior Counsel appearing for the respondents No. 5 and 6 has vehemently opposed the present appeal. He has placed reliance in the case of Patel Ratilal Maganbhai & Ors. vs. State of Gujarat & Ors., as reported in 2003 (1) GLR 562, wherein the Division Bench of this Court has held in para-13 as under:
“13. It will also be fruitful to refer to the decision of the Full Bench of this Court in the matter of Jadav Prabhatbhai Jethabhai v. Parmar Karsanbhai Dhulabhai, reported in 2001 (1) GLR 16 (FB) wherein the Full Bench had an occasion to consider as to whether the alienation of minor's property by de facto guardian of a minor is always void and whether it is obligatory for the minor to get it quashed by the legal process and whether the minor is also obliged to resort to such legal process within the period of three years from the date of attaining majority or not. In paras 24 and 25 of the said decision it has been observed by the Full Bench that “the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him.” The Full Bench further observed that “he must approach the Court within the period of limitation. If the statutory time-limit expired, the Court cannot give a declaration sought for.” It is pertinent to note that in the said decision the Full Bench had also considered the principles of Administrative Law that “the order may be hypothetically a nullity, bu the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason”. The Full Bench also considered the principles of Administrative Law that “ in such a case the `void' order remains effective, and is in reality, valid and the order may be void for one purpose and valid for another and that it may be void against one person but valid against another”. Thus, in the circumstances, we have to see as to whether the appellants herein have chosen to initiate any proceedings for declaring the sale as void or not. A bare perusal of the record shows that until 1997-98 that is for a period of 16/17 years, the transferor and the legal heirs of the transferor who are appellants herein also continued to accept the legality and validity of the sale. However, when they came to know about the order dated 30th July, 1996 of the Deputy Collector of withdrawing the show-cause notice, they have raised the dispute, for the first time, for challenging the said order of the Deputy Collector. It does not come on record as to what were the prayers made in the revision before the State Government. However, it appears from Para 3 of the order of the State Government that a prayer was made before the State Government by the applicants therein who are appellants herein to set aside the order of the Deputy Collector on the ground that no hearing was given to them. It is for the first time in the writ petition in the year 1998 the appellants herein have made a prayer for declaring the sale as ab initio void and to restore the possession to them. In the matter of voluntary sale between the parties, the purchaser as well as the seller have the right as well as obligation under law. It is the duty of the seller of the property to see that the lawful rights are conveyed in favour of the purchaser and the titles which are held by the sellor are completely transferred to the purchaser and it is upon the said legal obligation on the part of the seller, the purchaser enters into the transaction of purchasing the property by paying consideration thereof. It is true that it is also the duty of the purchaser of the immovable property to verify the title of the seller. However, in a case where the permission to sell is required to be obtained of any competent authority, it is obligatory on the part of the seller to disclose to the purchaser that the permission of the competent authority is required to be obtained, and thereafter, the sale should be effected. When such information are withheld by the seller from the purchaser and subsequently on account non-availability of permission, the sale is declared illegal or void and the purchaser is visited with the consequences of depriving of the property or otherwise, the purchaser can legitimately sue the seller for recovery of damages permissible under law. Therefore, in such circumstances, when any voluntary sale is required to be declared void on account of breach of any of the provisions of law, the Court will have to examine as to whether the seller had disclosed all the material facts before the purchaser regarding the requirement of obtaining permission of the competent authority or not. However, when the sale deed of any immovable property is once registered, it goes on the public record and it is known to public at large. The competent authorities under law can take up the stand that the transaction is without obtaining prior permission and, therefore, is void and no limitation would come in the way of the competent authority for declaring that the transaction is void. However, same is not the case when the transaction is to be declared void and the restoration of possession is to be made at the instance of the seller of the property because 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 in spite 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 bona fide 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 void. 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 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. Therefore, in the circumstances, it cannot be said that no independent proceedings are required to be initiated by the transferor, who is seeking declaration that the sale is void. In our view, the seller of such transaction, in a case of voluntary sale, is required to file suit before the appropriate Court for declaration that the sale is void, even if he is seeking a declaration that the transaction of sale is void on account of non-availability of permission of the competent authority. Since it is a question of voluntary sale, seeking the declaration of such voluntary sale is void at the instance of seller of land, we are of the view that in view of the decision of the Full Bench in the case of Jadav Prabhatbhai Jethabhai (supra), such seller must approach the Court within the period of limitation for declaration that the sale is invalid or void and the period of limitation as provided under law is three years from the date of sale which has expired on 9.4.1983. Further, as observed by the Full Bench in the aforesaid case, if the statutory limit is expired, the Court cannot give a declaration sought for. In the instant case, the appellants have chosen not to prefer suit for a period of 16 years and a prayer for declaration of sale as void is made, for the first time, in the writ petition, in the month of June, 1998, i.e. after a period of about 18 years. It is well settled principle of law that the thing which cannot be done directly cannot be allowed to be done indirectly and the High Court while exercising powers under Art. 226 of the Constitution would not grant relief, which is otherwise not permissible under the law. Therefore, there is no substance in the contention of Mr. Shelat that no limitation would come in the way of appellants for getting the declaration that the sale as void and, therefore, same deserves to be rejected. Further, as stated above, as a normal period of limitation for filing suit for declaration that the sale is void has expired long back i.e. in the year 1983, we cannot allow the appellants to get the declaration that the sale is void. It may be stated that Mr. Shelat has relied upon the judgment of the Supreme Court in the case of State of Maharashtra v. Pravin Jethalal Kamdar, reported in 2000 (3) SCC 460 in support of his contention that the Limitation Act would not be applicable to the instant case. However, in the case before the Supreme Court, the State had exercised the right of pre- preemption and had rejected the application for grant of permission to sale and had opted for purchasing the said land from the owner, and therefore, the original owner was compelled to file suit for declaration. In Para-6 of its judgment, the Court had specifically recorded that “it is not a case of voluntary sale. In the aforesaid case, the plaintiff had to execute the sale deed on account of an order not only illegal but without jurisdiction order made under Sec. 27(1) of the Urban Land (Ceiling & Regulation) Act and the plaintiff on his own did not want to sell the property to the appellants, and therefore, the Court held that the period of limitation would not apply and observed that there are no equitable considerations against the plaintiff to deny the relief of possession. The instant case is a clear case of voluntary sale and the transferor on his own and voluntarily entered into sale with the transferee and for a period of more than 16 years, no grievance, whatsoever, is raised. Therefore, we are of the view that the aforesaid judgment of the Apex Court upon which reliance is placed by Mr. Shelat would be of no help to him.”
5 He has further placed reliance in the case of Valjibhai Jagjivanbhai vs. State of Gujarat, as reported in 2005 (2) GLH 34, wherein the Division Bench of this Court has held in paragraphs 23 as under:
“23 Looking to the aforesaid different situations, there is no doubt in our mind that 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. The ratio laid down by the Apex Court in the decisions cited by Mr. Patel clearly states that even the void transaction cannot be said to be non-existent 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 sub-section (3) of Section 9 of the Act. Similar observations can also be made with regard to the land wherein no change is brought about, but number of years have passed after the transfer against the provisions of the Act has taken place. In our opinion 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. Thus, in our view, 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. We, therefore, hold that even powers conferred upon the Collector under sub-sections (2) and (3) of Section 9 are required to be exercised within a reasonable time.”
6 Learned Advocate for the respondents has also placed reliance in the case of Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim, as reported in (1997) 6 SCC 71, wherein it is held by the Supreme Court that where the sale deed has been made and there is no limitation prescribed, then for declaring the sale deed invalid, the procedure should be taken within a reasonable time and also held that even for exercising suo motu powers by the Mamlatdar,the proceedings has to be initiated within a reasonable time. In the present case, the sale deed was executed on 26.12.1990 and the proceedings for its cancellation were initiated in 2002 and that too in suo motu proceedings.
7 Learned Advocate for the respondents, therefore, submitted that in view of the aforesaid settled legal position, no discretion has to be exercised in favour of the appellants and the appeal deserves to be dismissed.
8 We have considered the submissions advanced by the learned Advocates appearing for the respective parties. Firstly, Article 137 of the Limitation Act would apply in the facts of the present case, which provides for the maximum period of three years for filing revision and, therefore, it cannot be said that the void order can be challenged at any point of time because delay confers no title and it's validity can be questioned at any stage, but the moot question would be who can challenge a void order. In our opinion, a person who has misrepresented the other person and has persuaded him to purchase the land for consideration and sold the land to him can challenge the said void order, but it is not open for him to challenge the sale deed executed by him to be void as it would amount to taking the benefit of his own fraudulent act in executing the sale deed knowing fully well that the said sale deed could not be executed by him. It is well settled principle of law that a party cannot be allowed to take any benefit of his own wrong.
The reliance placed by the learned counsel for the appellants in the case of “Saburbhai Hemabhai Chauhan (supra) would not apply in the facts of the present case. It is not open for the appellants to challenge the sale deed executed by them to be void so as to take the benefit of their own wrong or to rightly put up their own fraud. Therefore, the ratio laid down in the aforesaid judgment would not apply to the facts of the present case. Similarly, the reliance placed by the learned counsel for the appellants in the case of “State of Orissa & Ors. (supra) also would not apply in the facts of the present case. In that case the record was destroyed and the order was challenged after a period of 27 years after receiving a report from Additional District Collector which was submitted after prior inquiry. In such a situation, the Apex Court observed that sufficient time had elapsed but the proceedings should be challenged after 27 years of the order. There is one more factor which goes against the appellants is that after the revision was dismissed as time barred, the writ petition being Special Civil Application No. 13618 of 2011 was preferred by the appellants after a lapse of two years, which shows that the appellants was guilty of laches. However, we are not entering into the question of laches as the writ petition was dismissed by the learned Single Judge summarily.
9. In view of the aforesaid , we do not find any merit in the Appeal and the same stands dismissed accordingly.
10. Consequently, the Civil Application No.13618 of 2011 does not survive and the same also stands disposed of as dismissed.
(V.M. SAHAI, J.) (A.J. DESAI, J.) pnnair