Gujarat High Court
Sureshbhai Ramabhai Hegde vs State Of Gujarat on 22 March, 2021
Bench: Bhargav D. Karia
C/SCA/12131/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12131 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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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 or any
order made thereunder ?
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SURESHBHAI RAMABHAI HEGDE & 1 other(s)
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR TATTVAM K PATEL(5455) for the Petitioner(s) No. 1,2
MS SHRUTI PATHAK, AGP (1) for the Respondent(s) No. 1,2,3,4
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 22/03/2021
ORAL JUDGMENT
1. Rule returnable forthwith. Learned Assistant Government
Pleader Ms. Shruti Pathak waives service of notice of rule on
behalf of the respondents. With the consent of the learned
advocates for the respective parties, the matter is taken up for
hearing as the controversy involved in this petition is in
narrow compass.
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2. The facts stated in brief are that the petitioners purchased the
land admeasuring 1012 sq.mtrs situated at Survey No. 366P at
Village- Ankleshwar, Taluka-Ankleshwar, District-Bharuch,
after the original owner, who was a tribal, was granted
permission by the Deputy Collector and Prant Officer on
16.01.1981 permitting him to alienate the land in question for
non-agricultural use on condition of paying 50% of the market
value as premium.
3. While passing the order dated 18.06.1981, the Collector,
Bharuch determined the market value at Rs. 5000/- and
granted permission to sale the land to the original owner
subject to conditions prescribed therein which comprising of
the sale value to be Rs. 5000/- and the registered sale deed to
be executed within six months and the land to be put to use
within one year. Condition No. 4 also provided that the land in
question was of restricted tenure under section 73AA of the
Gujarat Land Revenue Code,1879 ['the Code' for short]
permission from a competent authority was required to be
obtained.
4. The sale deed was executed in favour of the petitioners on
20.06.1981 after the petitioners made a payment of premium
of Rs. 2500/- and the petitioners thereafter made an application
for mutating the sale deed in revenue records and Entry
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No. 4011 dated 30.07.1981 was posted in the village Form
No. 6. However, the said entry was not certified as the
petitioners did not have the previous sanction as prescribed
under section 73AA of the Code.
5. It appears that the original owner made an application on
15.03.1982 for permission under section 73AA of the Code.
Thereafter, the Collector, by letter dated 05.07.1984, informed
the original owner that the Government has granted permission
under section 73AA of the Code after recovery of the premium
and accordingly, it was ordered that considering the market
price of Rs. 8000/- stated in the agreement to sale, the
remaining further premium amount of Rs. 5500/- is required to
be deposited out of which Rs. 500/- was deposited on
17.04.184 and remaining amount of Rs. 5000/- was directed to
be deposited within fifteen days.
6. It appears that thereafter, the original owner made an
application in the year 1984 to grant permission under section
73AA of the Code on the ground that as per the order dated
18.06.1981 premium of Rs. 2500/- was deposited and sale
deed was executed on 20.06.1981 and the N.A. permission
was grante and therefore, no further premium is required to be
paid under section 43 of the The Gujarat Tenancy and
Agricultural Lands Act,1948 and there is no question of
payment of premium under section 73AA of the Code as the
said section does not provide for payment of premium.
C/SCA/12131/2015 JUDGMENT
7. It is the case of the petitioners that the land purchased by the
petitioners was subjected to the Town Planning Scheme No.1
of Ankleshwar and according to the Town Planning Scheme,
the petitioners were allotted Final Plot No. 6 and petitioners
submitted the plans for approval of construction in the year
1998 which was granted by the Town Planning Officer vide
order dated 18.05.1998 on various terms and conditions stated
therein.
8. It appears that the petitioners again made an attempt in the
year 2007 for mutation of the sale deed executed on
20.06.1981 in the revenue records. However, application of the
petitioners was not considered on the ground that the
petitioners were not having the permission under section
73AA of the Code. The petitioners, therefore, preferred an
appeal before the Deputy Collector who remanded the matter
back to the Mamlatdar vide order dated 08.08.2008. The
Mamlatdar, Ankleshwar vide order dated 12.08.2010, rejected
the application of the petitioners. Being aggrieved by the order
dated 12.08.2010 the petitioners preferred an appeal before the
Deputy Collector. The Deputy Collector by order dated
31.03.2011 rejected the appeal on the ground that the
petitioners were not having the permission under section
73AA of the Code. The petitioners therefore, preferred appeal
before the Collector under section 203 of the Code. The
Collector vide order dated 29.12.2011, confirmed the order
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passed by the Deputy Collector and further directed the
Deputy Collector to initiate the proceedings for breach of
condition of permission granted on 18.06.1981 as the restricted
tenure land was purchased by the petitioners without previous
sanction of the competent authority as provided under section
73AA of the Code. It appears that the petitioners approached
the Secretary Department (Appeals) challenging the order of
the Collector and also prayed for the stay which was rejected
and thereafter the petitioners filed Special Civil Application
No. 9206 of 2013 which was disposed of by this Court vide
order dated 26.06.2013 observing as under:
"3. Having regard to the aforesaid, it appears that the request
made by the learned counsel for the petitioners is quite
reasonable. Under the circumstances, it is clarified that in the
proceedings which have been initiated under section 73AA of
the Bombay Land Revenue Code pursuant to the direction
issued by the Collector, Bharuch vide order dated 29.12.2011,
it would be open for the petitioners to raise all contentions in
respect thereof, including the validity of initiation of such
proceedings. The competent authority shall decide the matter
after considering all the submissions advanced by the
petitioners without in any manner being influenced by the fact
that the proceedings have been initiated pursuant to the
directions issued by the Collector.
4. Subject to the aforesaid observations, the petition is
disposed of as not pressed."
9. It appears the Deputy Collector initiated the proceedings for
breach of section 73AA of the Code after the order passed by
the Collector on 29.12.2011 and issued notice upon the
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petitioners. The petitioners participated in the proceedings.
The Deputy Collector after considering the submissions made
by the petitioners held that there is a breach of provision of
section 73AA of the Code and as the petitioners did not get the
previous sanction of the Collector before the occupancy rights
are transferred as it is evident from the record that the sale
deed was executed on 20.06.1981 after the Collector granted
the permission on 18.06.1981. The Deputy Collector under
section 73AA (4)(b) of the Code passed an order dated
30.09.2013 holding that the transaction entered into by the
petitioners was void and the land in question would vest in
State Government free from all encumbrances and further
levied penalty of Rs. 12,80,880/- under section 73AA(7) of the
Code.
10. The petitioners challenged the order dated 30.09.2013
passed by the Deputy Collector before the Collector. The
Collector vide order dated 30.05.2014 rejected the appeal
reiterating that there is a breach of provisions of section 73AA
of the Code. The petitioners thereafter preferred revision
application before the Special Secretary, Revenue Department
(Appeals) [for short 'SSRD']. The SSRD also by order dated
16.05.2015 confirmed the order passed by the Deputy
Collector and Collector as there was no previous permission
obtained by the petitioners or the original owners under
section 73AA of the Code.
C/SCA/12131/2015 JUDGMENT
11. Learned advocate Mr. Tattvam Patel appearing for the
petitioners submitted that after the sale deed was executed in
favour of the petitioners on 20.06.1981 as recorded in the
order dated 05.07.1984 passed by the Collector with regard to
the permission under section 73AA of the Code, a conditional
permission was granted on payment of premium. It was
submitted that the petitioners had already deposited the
premium as per the order dated 18.06.1981 by depositing
Rs. 2500/- and as such there was no question of payment of
premium and accordingly, it was prayed that the permission
was duly granted to the transaction of sale of land in question
under section 73AA of the Code.
12. Learned advocate Mr. Patel would submit that notice for
breach of condition was issued by the Deputy Collector on
16.04.2012 pursuant to the direction issued by the Collector in
the order dated 29.12.2011 in the entry proceedings.
Accordingly, action taken for breach of section 73AA of the
Code is beyond reasonable period as such action is taken
almost after 31 years.
13. Learned advocate Mr. Patel therefore submitted that
after purchase of the land in question in the year 1981 the said
land was also part of the Town Planning Scheme and Final
Plot No.6 was alloted against the land in question. The
petitioners have also surrendered the portion of the land which
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was originally purchased pursuant to the sanctioned Town
Planning Scheme. Learned advocate Mr. Patel also relied upon
the undertaking signed by the petitioners in 1986 for handing
over the possession of the land which was deducted pursuant
to the Town Planning Scheme. Learned advocate Mr. Patel
also invited the attention of the Court to notice dated
31.03.1986 issued under section 67 of the Gujarat Town
Planning and Urban Development Act, 1976. It is also
mentioned in the undertaking that physical possession was
handed over on 01.04.1986 of the land which was deducted in
the Town Planning Scheme.
14. Learned advocate Mr. Patel further submitted that the
petitioners have thereafter submitted an application alongwith
lay out plan before the Town Planning Officer in the year 1998
which was sanctioned by the order dated 18.05.1998 on
various terms and conditions. It was therefore, submitted that
the land in question has already been used for the non-
agricultural purpose as per the permission granted in the year
1981 and therefore the initiation of proceedings in the year
2012 for breach of the condition of section 73AA of the Code
is not tenable in law.
15. Learned advocate Mr. Patel in support of his submissions
relied upon the decision in case of Sonkiben Mankabhai
Vasava vs. Ishwarbhai Nagjibhai Talpadakoli (Deed)
Through Heirs reported in AIR 2014 CC 1501 and submitted
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that the proceedings under section 73AA of the Code could not
be initiated after long period of time. Reliance was also placed
in case of Chandulal Gordhandas Ranodriya and ors vs.
State of Gujarat reported in 2013 (2) GLR 1788 wherein, the
Division Bench of this Court has analyzed what is reasonable
period and whether such reasonable period would apply and
whether the transaction in violation of section 43 of the
Gujarat Tenancy and Agricultural Lands Act,1948 would be
covered by the concept of reasonable period of time. It was
submitted that the Court held that the law does not expect a
settled thing to be unsettled after a long lapse of time. Learned
advocate Mr. Patel therefore, submitted that a statutory
provision for exercise of any suo motu power or revision does
not prescribe any limitation but the powers must be exercised
within reasonable period of time even in the case of
transaction which would be termed as void transaction.
16. Learned advocate Mr. Patel therefore submitted that the
authority was not justified in taking belated action, more
particularly when the respondent-authorities were aware about
the breach of provision of section 73AA of the Code since
1981 when the Entry No. 4011 which was mutated on
31.07.1981 was not certified for want of permission under
section 73AA of the Code. It was therefore submitted that such
a belated action after a period of almost 31 years cannot be
permitted to unsettle the equity which has been created in
favour of the petitioners.
C/SCA/12131/2015 JUDGMENT
17. He also relied, in addition to above decisions, on the
following decisions to submit that the action under the Code is
required to be initiated within reasonable time:
(i) In case of Mohamad Kavi Mohamad Amin vs.
Fatmabai Ibrahim reported in 1997 6 SCC 71;
(ii) In case of Rajeshbhai Vithalbhai Patel vs. State of
Gujarat reported in 2016 (4) GLR 3499.
18. On the other hand, learned Assistant Government
Pleader Ms. Pathak submitted that on bare perusal of section
73AA of the Code and taking into consideration the
undisputed fact that the sale deed executed on 20.06.1981 was
admittedly without getting previous sanction from the
Collector under section 73AA of the Code and as such, there is
a breach of provision of section 73AA (1) of the Code and
there is concurrent findings of fact arrived at by all the three
authorities that the transaction entered into by the petitioners is
a void transaction and consequential action is taken by the
authority to vest the land in question in the State Government
free from all encumbrances and also the penalty was levied
upon the petitioners under section 73AA (7) of the Code.
Learned AGP Ms. Pathak therefore, submitted that no
intervention of this Court may be made while exercising
jurisdiction under Article 227 of the Constitution of India.
C/SCA/12131/2015 JUDGMENT
19. With regard to the contention raised by the petitioners that the
authorities have initiated the proceedings under section 73AA
of the Code after a lapse of 31 years is concerned, it was
submitted that the proceedings with regard to the revenue
entries were continuing upto 2011. The Revenue Authorities
never certified the entry of sale document executed in favour
of the petitioners for want of permission under section 73AA
of the Code and as such the contention raised on behalf of the
petitioners, with regard to delay in initiation of the proceedings
on the ground that the same were not taken up within
reasonable period of time, is not tenable in law. In support of
such submission, reliance was placed on the decision of the
Apex Court in case of State of Orissa and other vs.
Brundaban Sharma and anr reported in 1995 Supp (3) SCC
249 wherein the Apex Court held that when a revisional power
was conferred to effectuate a purpose, it is to be exercised in
a reasonable manner which inheres the concept of its exercise
within reasonable time. However, length of time depends on
the factual scenario in a given case and absence of limitation is
assurance to exercise the power when the caution or
circumspection to effectuate the purpose of the Act, or to
prevent miscarriage of justice or violation of the provisions of
the Act, misuse or abuse of the power by the lower authorities
for fraud or suppression. It was therefore submitted that here
there is a case of violation of the provisions of the Act and
such concept of reasonable time would not be applicable as
there is no limitation prescribed in section 73AA(4) of the
C/SCA/12131/2015 JUDGMENT
Code as Collector can initiate suo motu proceedings at any
time for breach of section 73AA(1) of the Code. It was
therefore, submitted by the learned AGP Ms. Pathak that the
contention of the petitioners that proceedings were not
initiated within reasonable time is liable to be rejected.
20. Learned AGP Ms. Pathak further submitted that the purport of
section 73AA of the Code which is brought on statute by the
Gujarat Act No. 37 of 1880 is very clear to protect the Tribals
so that the land holding by the tribal is not given away to non-
tribals. It was pointed out that the transaction of sale in the
facts of the case which has taken place in the year 1981 is
admittedly after the amendment of 1980 by which section
73AA of the Code is brought on the Statute. It was therefore
submitted that the decision of Division Bench of this Court in
case of Sonkiben Mankabhai Vasava vs. Ishwarbhai Nagjibhai
Talpadakoli (Deed) Through Heirs (supra) would not be
applicable as in the facts of the said case the transaction was
entered into in the year 1967 which was prior to the date on
which the section 73AA of the Code was made applicable.
21. It was submitted that the Division Bench of this Court
therefore primarily relied upon the transaction prior to the date
of amendment of section 73AA of the Code and in that context
the unexplained delay of 30 years was considered. It was
reiterated that in the facts of the case there is no delay as the
Revenue Authorities have never mutated the entry of sale in
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the revenue records and as such the transaction which was
void ab initio can be taken into suo motu revision by the
Collector at any point of time.
22. Learned AGP Ms. Pathak further submitted that the
Chapter VI of the Code provides for the provisions of the
grant, use and relinquishment of un-alienated land comprising
of sections 61 and 65 a reference was made to section 61
which provides for penalties for unauthorized occupation of
land. Section 65 provides for uses to which occupant of land
for purposes of agricultural may put his land for which,
permission of Collector is required for converting the
agriculture land into non-agriculture. Further reference was
made to the provisions of sections 73 and 73A to point out that
occupancy to be transferable and inheritable and power to
restrict the right of transfer and thereafter, section 73AA which
is brought on statute in the year 1980 which prescribes for
restriction on transfer of occupancies of tribal to tribals or non-
tribals and it was submitted that the objects of Chapter-VI read
with various provisions is to see that a new tenure land is not
used or transfered by the occupant without the previous
sanction or permission of the State Government.
23. With regard to the contention of the petitioners that in view of
the Town Planning Scheme No.1 of Ankleshwar being
implemented under the provisions of the Town Planning
Act,1976, no proceedings can be initiated under section 73AA
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of the Code, it was submitted that the division Bench of this
Court has held in case of Kanaiyalal Dhansukhlal
Sopariwala vs. State of Gujarat and anr reported in 2009 (1)
GLH 185 that N.A. permission pertains to removal of
restriction attached to the land and has no bearing with the
development permission under section 117 of the Town
Planning Act and as such non- agriculture use permission is
required to be obtained separately. Reliance was also placed
on unreported decision in case of State of Gujarat and anr vs.
Kiritkumar Amrutlal Desai and anr in Letters Patent Appeal
No. 2420 of 2009 dated 13.05.2010 and in case of Alarakha
Haji Shekh vs. Collector and ors in Letters Patent Appeal No.
2702 of 2010 rendered on 09.03.2012 to point out that this
Court has consistently held that even if the land is subjected to
Town Planning Scheme, the provisions of the Code would
continue to apply.
24. Learned AGP Ms. Pathak therefore, submitted that as
there is a clear breach of provisions of section 73AA of the
Code the authorities below have rightly passed the order of
declaring the transaction entered into by the petitioners for the
land in question as void and directing the land to be vested in
State Government free from all encumbrances and also levy of
penalty under section 73AA (7) of the Code.
C/SCA/12131/2015 JUDGMENT
25. In rejoinder learned advocate Mr. Patel submitted that the
decision of the Apex Court in case of State of Orissa and
other vs. Brundaban Sharma and anr (supra) would not be
applicable as in the said case a land was obtained fraudulently
in collusion with the officers and therefore in such cases when
there is fraud, concept of reasonable time would not be
applicable. It was submitted that in the facts of the case, no
fraud is alleged moreover, this is not a case of non est order
and at the best it may be a case of non-est transaction. It was
submitted that the revenue entry does not conferred any title
and therefore by not certifying such entry, would not extend
the reasonable time to take action for alleged breach of section
73AA of the Code. It was submitted that the Collector in the
order dated 05.07.1984 has already held that the permission
under section 73AA of the Code is granted by the State
Government and therefore it cannot be said that the transaction
was without any permission. It was also pointed out that it was
never the case of the petitioners that no action can be taken
under the provisions of the Code when the land is subjected to
the Town Planning Scheme but it was in the facts of the case
as it emerges from the record that the Town Planning Scheme
was already implemented and therefore such fact was
contended before the authority to point out that there was
enormous delay in initiating the proceedings beyond
reasonable period of time and therefore, such proceedings
cannot be permitted to be taken after lapse of almost more than
31 years. It was therefore submitted that the petition may be
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allowed as prayed for.
26. Having considered the rival submissions of learned
advocates of the respective parties and having gone through
the material on record it emerges that admittedly, the
petitioners did not have previous sanction of the Collector
under section 73AA of the Code when the sale deed in
question was executed on 20.06.1981.
27. Sub-section (1) of section 73AA of the Code provides that
notwithstanding anything contained in section 73, an
occupancy of a person belonging to any of the Scheduled
Tribes shall not be transferred to any person without the
previous sanction of the Collector. Sub-section (4) prescribes
that where any tribal transfer such land without any breach of
sub-section (1), the Collector shall notwithstanding anything
contained in law for the time being in force either suo motu at
any time or on an application made by such tribal or his
successor in case within a period of three years from the date
of such transfer or application after giving an opportunity of
hearing to the transferee or his successor as the case may be to
show cause why the transfer should not be declared void and
after making such inquiry, declare the transfer of such
occupancy to be void and thereupon the occupancy together
with the standing crops thereon if any, to vest in State
Government free from all the encumbrances.
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28. Thus, there is admittedly breach of section 73AA(1) of the
Code as such the impugned orders passed by the Deputy
Collector confirmed by the Collector and SSRD under sub-
section (4) and sub-section (7) of section 73AA of the Code
are in accordance with law. However, the only question arises
for considering is, whether the authorities below could have
initiated proceedings after 31 years more particularly, when it
was within the knowledge of the revenue authorities that the
transaction in question is void since 1981 as Entry No. 4011
which was recorded in the village Form No. 6 on 30.07.1981
was not certified only on the ground that there is no previous
sanction under section 73AA of the Code. In order to consider
such question, it would be germane to refer to the decision of
the Supreme Court in case of State of Orissa and other vs.
Brundaban Sharma and anr (supra) wherein the Apex Court
was considering section 38-B whereby the Board of Revenue
was empowered to exercise revisional powers with reference
to the orders, decisions for proceedings taken under the Act
earlier to the date on which section 30-B was brought on
statute. In such context, the Apex Court has held as under:
"16. It is, therefore, settled law that when the revisional
power was conferred to effectuate a purpose, it is to be
exercised in a reasonable manner which inheres the concept of
its exercise within a reasonable time. Absence of limitation is
an assurance to exercise the power with caution or
circumspection to effectuate the purpose of the Act, or to
prevent miscarriage of justice or violation of the provisions of
the Act or misuse or abuse of the power by the lower
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authorities or fraud or suppression. Length of time depends on
the factual scenario in a given case. Take a case that patta was
obtained fraudulently in collusion with the officers and it
comes to the notice of the authorities after a long lapse of time.
Does it lie in the mouth of the party to the fraud to plead
limitation to get away with the order? Does lapse of time an
excuse to refrain from exercising the revisional power to
unravel fraud and to set it right? The answers would be no.
17. It is already seen that the proceedings for settlement of
the tenure is a quasi-judicial order and it should be guided by
authentic and genuine documentary evidence preceding the
cut-off date and the date of vesting of the lands under the Act.
Since the Act creates a right and interest in the holder of the
land as tenant, pursuant to an order making the settlement by
the competent authority, the Tehsildar is enjoined to conduct
an inquiry in that behalf. It is seen that under first proviso to
Section 5(1), if the Collector concludes that the lease, transfer
or settlement is not to be set aside, he should obtain prior
confirmation from the Board of Revenue. No such approval
was, in fact, obtained by the Tehsildar. Though in the first
instance, when the respondent had brought it to the notice of
the Government of his claim, in 1967 proceedings initiated
were got dropped by the Government obviously at the instance
of the respondent. Later on the instructions of the Government
itself, inquiry was got done; and on receipt of the report from
the Additional District Collector on 4-10-1982, proceedings
were initiated by the Board and the respondent was given
reasonable opportunity of hearing. The order was passed
within a reasonable time thereafter.
18. Under these circumstances, it cannot be said that the
Board of Revenue exercised the power under Section 38-B
after an unreasonable lapse of time, though from the date of
the grant of patta by the Tehsildar is of 27 years. It is true that
from the date of the alleged grant of patta 27 years did pass.
But its authenticity and correctness was shrouded with
suspicious features. The records of the Tehsildar were
destroyed. Who is to get the benefit? Who was responsible for
it? The reasons are not far to seek. They are self-evident. So
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we hold that the exercise of revisional power under Section
38-B by the Board of Revenue was legal and valid and it
brooked no delay, after it had come to the Board's knowledge.
That apart as held by the Board of Revenue, the order passed
by the Tehsildar without confirmation by the Board is non est.
A non est order is a void order and it confers no title and its
validity can be questioned or invalidity be set up in any
proceeding or at any stage.
19. So, we hold that the High Court is not right or justified
in opining that the exercise of the power under Section 38-B is
not warranted. It committed illegality in quashing the order of
the Board of Revenue. The order of the High Court is set
aside. The order of the Board of Revenue is restored.
Consequently we hold that the Government, being the owner,
need not acquire its own land and need not pay compensation
to an illegal or wrongful occupant of the Government land.
The direction or mandamus to acquire the land and to pay the
compensation to the respondent is set aside."
29. In above decision the Apex Court has therefore held that
exercise of suo motu power without limitation is an assurance
to exercise the power with caution or circumspection to
effectuate the purpose of the Act for violation of the provision
of the Act. In the facts of the case, section 73AA of the Code
clearly provides that without previous sanction of the
Collector, the occupancy rights by tribal cannot be transferred
in any manner. Section 73AA of the Code starts with non-
obstante clause and therefore, when the transfer is void for
want of previous sanction without there being any provision in
the Act to regularize or validate such transaction, then the
consequence as provided under sub-section (4) of section
73AA of the Code would follow.
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30. In the facts of the case there is no breach of any principle
of natural justice as the show-cause notice was issued to the
petitioners and after hearing the petitioners, the Deputy
Collector held that the transaction was void as there was no
previous sanction for the Collector as provided under section
73AA of the Code. The contention raised on behalf of the
petitioners that in the year 1984 the Collector informed the
original owners that the State Government has granted
permission under section 73AA of the Code on the condition
of payment of premium is also not tenable in law because no
such permission could have been granted by the State
Government contrary to the section 73AA of the Code which
clearly prescribes for previous sanction of the Collector and
admittedly there is no previous sanction granted by the
Collector before the Sale deed in question was executed in
favour of the petitioners by the original owner on 20.06.1981.
Therefore as held by the Apex Court the length of time
depends of the factual scenario in the case would be applicable
in the facts of the case and more particularly, when the land in
question is transfered in favour of the petitioners may be in the
year 1981 would not make any difference as the transaction in
question is void and not an invalid transaction.
31. The reliance placed by the petitioners on the decision of the
Division Bench of this Court in case of Chandulal
Gordhandas Ranodriya and ors vs. State of Gujarat (supra) is
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concerned, in the said case the Court has dealt with the
provision of section 43 of the Gujarat Tenancy and
Agricultural Land Ceiling Act, 1948. Sub- section (2) of
section 43 of the said Act provides that the transaction in
breach of sub-section (1) of section 43 of the Act, 1948 would
be invalid and in that context the Court has applied the concept
of reasonable time. Section 84C of the Act, 1948 provides to
declare the transaction in contravention of the provisions of
the Act as invalid. Further there is nothing in the provisions of
the Act 1948 which provides for a transaction to be a void
transaction and in such circumstances, when the transaction is
void transaction, the concept of reasonable time cannot be
applied. In case of Chandulal Gordhandas Ranodriya and ors
vs. State of Gujarat, the Division Bench of this Court held as
under:
" 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.
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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
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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
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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
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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.
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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."
32. Similarly, the other decisions relied on by the petitioners with
regard to the taking action within reasonable time is
concerned, it is pertinent to note that all the three decisions are
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given with respect to the provisions of section 84C and section
79A of the Code. With regard to the decision of the Division
Bench in case of Sonkiben Mankabhai Vasava vs. Ishwarbhai
Nagjibhai Talpadakoli (Deed) Through Heirs (supra), it is
pertinent to note that in the facts of the said case, the
transaction took place in the year 1967 when the section 73AA
was not on statute. In that context, the Division bench held that
there was a gross delay on the part of the authorities in
exercising suo motu powers almost after 30 years after 73AA
of the Code. When the provisions of section 73AA of the Code
are not applicable, the question of delay considered by the
Court would not be applicable in the facts of the case.
Moreover, in the facts of the said case, the appellant Sonkiben
Mankabhai Vasava vs. Ishwarbhai Nagjibhai Talpadakoli
(Deed) Through Heirs (supra) was a widow of the original
owner in whose lifetime the transaction was never questioned.
Whereas, in the facts of the case, the petitioners were aware
that they were required to obtain the permission under section
73AA of the Code, as per the condition No. 4 stipulated by the
Collector in the order dated 18.06.1981 granting permission to
sale the sale the land under the Bombay Tenancy and
Agricultural Lands Act, 1948 by levy of premium of 50% of
the market value determined at Rs. 5000/- at the relevant time
which was paid by the petitioners, however, no permission
under section 73AA of Code was obtained prior to execution
of the sale deed. It appears that the petitioners as well as the
original owners were under the impression that once the
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permission of non-agriculture is granted by the Collector, they
can obtain permission under section 73AA afterwards as per
the stipulated condition No. 4 in the order granting permission.
However, such belief of the petitioners cannot be considered in
view of the provisions of the Act which provides for previous
sanction of the Collector under section 73AA of the Code prior
to transfer of occupancy rights. As the petitioners have not
raised any contention with regard to non applicability of
section 73AA of the Code in view of the applicability of the
Town Planning Scheme is concerned, the decision relied upon
by the learned AGP Ms. Pathak are not dealt with in detail as
there is no dispute on the proposition laid down by the
Division Bench of this Court that the provisions of the Code
would be applicable even when the Town Planning Scheme is
in force or sanctioned.
33. However, the Deputy Collector while passing the order
dated 30.09.2013 declaring the transaction in question as void
has levied penalty of Rs. 12,80,880/- under sub-section (7) of
section 73AA of the Code which provides for determination of
the penalty not exceeding three times the value of occupancy
where any occupancy is transferred to a non-tribal in
contravention of sub-section (1). But, in the impugned order
dated 30.09.2013, there is no determination of the value by the
authority and straightaway penalty of 12,80,880/- is levied by
referring to sub-section (7) of section 73AA of the Code. In
absence of any determination of value by the Deputy Collector
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for levy of penalty, the order of the Deputy Collector to that
extent is required to be quashed and set aside and the matter is
required to be remanded back to the Deputy Collector to
determine the value so as to levy the penalty after giving
opportunity of hearing to the petitioners for such levy, if any
required to be levied in the facts of the case.
34. In view of the foregoing reasons, the petition is partly allowed.
The impugned orders passed by the Deputy Collector,
Collector and SSRD are quashed and set aside so far as levy of
penalty of Rs. 12,80,880/- under sub-section (7) of section
73AA of the Code and matter is remanded back to the Deputy
Collector to take fresh de novo decision for levy of penalty, if
any after giving opportunity of hearing to the petitioners.
Petition is accordingly disposed of. Such exercise shall be
completed within three months from the date of receipt of this
order. Rule is made absolute to the aforesaid extent.
(BHARGAV D. KARIA, J)
JYOTI V. JANI
