IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3545 of 1986 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- RAMALABHAI JAHALABHAI GANAVA SINCE DECEASED Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR JT TRIVEDI for Petitioners No. 1-1/3 Ms. Pandit, AGP for Respondents No. 1-2 Respondents No. 3 to 5 served. -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 23/10/2001 ORAL JUDGEMENT Heard learned advocate Mr. Trivedi for the petitioners and Ms. Pandit, the learned AGP for the respondent authorities. Respondents No. 3 to 5 have been served but no one has appeared on their behalf and nobody has remained present on their behalf when the matter was taken up for final hearing. In this petition, rule was issued by this Court and ad interim relief in terms of para 7(B) of the petition was granted on 15.7.1986. No reply thereto has been filed either by the respondent State Authorities or by the respondent No. 3 to 5. The present petition was filed by Ramalabhai Jahalabhai Ganava challenging the orders passed by the Assistant Collector, Dahod dated 15.9.1984 as confirmed by the revisional authority in revision application no. 11 of 1985 by order dated 10.6.1986. Said petitioner Ramalabhai J. Ganava died during the pendency of the present petition and thereafter, pursuant to the orders dated 19.4.2001 passed by this Court in Civil Application (Stamp) No. 9010 of 1988, his heirs and legal representatives have been brought on record. Brief facts of the present petition are to the effect that the original petitioner had purchased land admeasuring H.0.49.57 Are bearing Survey No. 22/5 of Mouje Sahada of Dahod Taluka in the year 1958-59 and the said petitioner was in in occupation thereof since then and has been cultivating it by putting in hard work, manure, fertilizer, seeds etc. His name was shown as occupier in the village form no. 7/12. According to the petitioners, a notice was issued by the Assistant Collector, Dahod to the respondents no. 3 to 6 on 15.9.1984 under section 6(2) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 ("the Fragmentation Act" for short) alleging breach of section 7 of the Fragmentation Act in connection with the land in question and a case under the said Act being Case No. Land/Fagmentation/Case No. 46 of 1984 was filed before the Assistant Collector, Dahod which came to be decided by the Assistant Collector, Dahod on 21.11.1984. Under the said order, the Assistant collector has held that the said transaction was illegal and was violative of section 9(1) of the Fragmentation Act and fine of Rs.250.00 was imposed and unauthorized occupation was directed to be removed. Said order dated 21.11.1984 passed by the Assistant Collector, Dahod was challenged by the petitioner before the revisional authority namely Deputy Secretary (Appeals) Revenue Department State of Gujarat by filing the revision application no. 11 of 1985 which came to be rejected by the revisional authority on 10.6.1986 while confirming the order passed by the Assistant Collector, Dahod dated 21.11.1985. The original petitioner has, therefore, challenged the said two orders dated 21.11.1985 and 10.6.1986 before this Court by way of this petition. During the course of hearing, learned advocate Mr. Trivedi appearing for the petitioners has submitted that both the authorities have not considered important aspect of the matter that the proceedings under section 9(1) of the fragmentation Act were initiated after a period of more than twenty five years and, therefore, there was delay in exercising the powers. According to him, the authorities below have not considered that there was unreasonable delay in exercise of the suo motu powers by the authority. He has submitted that the revisional authority has not considered the decision of this court which has been referred in the order and relied upon by the petitioner. He has also submitted that the transaction in respect of the land in question between the deceased petitioner and respondents nos. 3 to 5 was not based upon any registered document of sale but it was an oral transaction of alleged mortgage without registration thereof and there was no need to take prior permission of any authority. Therefore, he has submitted that there was no any breach of section 7 as well as section 9 of the Fragmentation Act as alleged. He has also submitted that the Assistant Collector, Dahod has not considered these facts while passing the order dated 21.11.1985. He has also submitted that since there was no any registration of the document for the transaction of the land in question, prior permission also was not required to be obtained. He has relied upon the decision of this court in case of Ranchhodbhai Lallubhai Patel versus State of Gujarat and others reported in 1984 (2) GLR 1225. He has also relied upon the another decision in case of Punabhai Dhedubhai Baraiya versus Patel Chhaganbhai Parshottamdas and another reported in 1983 (2) GLR page 1165 as well as the decision in case of Patel Chhotabhai Shankerbhai v. Patel Shantabhai Narsibhai reported in 1975 GLR 247. He has also relied upon the decision of this court in case of Mohamad Kavi Mohamad Kavi versus Fatmabai Ibrahim reported in (1997) 6 Supreme Court Cases 71. He has also relied upon the decision of the Full Bench of this Court in case of Jadav Prabhatbhai Jethabhai v. Parmar Karsanbhai Dhulabhai reported in 2001(1) GLR 16. Relying upon the aforesaid decisions, he has submitted that since the transaction of the lands in question was an oral transaction and since it was not registered transaction, therefore, there was no breach of section 9(2) of the Fragmentation Act. According to him, however, this aspect of the matter was not considered by the authorities below while considering the matter. He has submitted that the aspect of delay also has not been taken into consideration by the authorities and, therefore, orders passed by the authorities below are illegal and required to be quashed and set aside. Learned Asstt. G.P. Ms. Pandit appearing for respondent No. 1 and 2 has submitted that the Assistant Collector, Dahod was right in initiating action under section 9(1), (2) and (3) of the Fragmentation Act for the breach of section 7 thereof since no prior permission was obtained by the petitioner before completing the said transaction and, therefore, according to her submission, such transaction between the parties was nullity and the authority was justified in exercising the suo motu powers under the provisions of the Fragmentation Act and since the transaction was nullity, then, the authority can initiate such proceedings at any time and at any stage by exercising suo motu powers. In support of her contentions, she has relied upon the following decisions; (1) Saburbhai Hemabhai Chauhan versus State of Gujarat and Others reported in 2000(1) GLH 580. (2) State of Orissa and others versus Brundaban Sharma and another reported in 1995 Supp (3) Supreme Court Cases 249. Relying upon the aforesaid decisions, she has submitted that when no period of limitation is prescribed under the Act itself, revisional powers should be exercised by the revisional authority within reasonable period and when the transaction is non-est or nullity, then, the authority is justified in initiating such proceedings even after the period of twenty five years and thus, since the transaction of the land in question was nullity and void ab-initio, the question of delay in initiation would not come in the way of the authorities for initiating the proceedings. She has submitted that the void transaction cannot confer any right upon the petitioners and, therefore, validity of such orders can be examined and considered by the authorities at any stage and at any time while exercising the suo motu powers. She has submitted that the question of 27 years' delay was examined by the apex court in the aforesaid decision. I have considered the submissions made by the learned advocates for the respective parties. As per the averments made in the memo of petition, the original petitioner had purchased land admeasuring H.0.49.57 Are bearing Survey No. 22/5 of Mouje Sahada of Dahod Taluka in the year 1958-59 and the said petitioner was in occupation thereof since then and has been cultivating it by putting in hard work, manure, fertilizer, seeds etc. His name was shown as occupier in the village form no. 7/12. According to the petitioners, a notice was issued by the Assistant Collector, Dahod to the respondents no. 3 to 6 on 15.9.1984 under section 6(2) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 ("the Fragmentation Act" for short) alleging breach of section 7 of the Fragmentation Act in connection with the land in question and a case under the said Act being Case No. Land/Fagmentation/Case No. 46 of 1984 was filed before the Assistant Collector, Dahod which came to be decided by the Assistant Collector, Dahod on 21.11.1984. Under the said order, the Assistant Collector has held that the said transaction was illegal and was violative of section 9(1) of the Fragmentation Act and fine of Rs.250.00 was imposed and unauthorized occupation was directed to be removed. Said order dated 21.11.1984 passed by the Assistant Collector, Dahod was challenged by the petitioner before the revisional authority namely Deputy Secretary (Appeals) Revenue Department State of Gujarat by filing the revision application no. 11 of 1985 which came to be rejected by the revisional authority on 10.6.1986 while confirming the order passed by the Assistant Collector, Dahod dated 21.11.1985 and, therefore, the original petitioner has challenged the said two orders by way of this petition. Before the Assistant Collector, it was submitted by the original petitioner that the land in question was in his possession since 1965 and are cultivating the same and,therefore, it was prayed that the land in question must be taken in the name of the petitioner. It was submitted by the respondent no.3 to 5 before the Assistant Collector that though the petitioner is in possession of the land in question, since the transaction in respect of the land in question is illegal, therefore, possession of the petitioner cannot be considered to be legal and, the respondents are prepared to pay the fine for the breach of section 7 of the Fragmentation Act. Considering the record, the Assistant Collector, Dahod has come to the conclusion that the notice under section 6 of the Fragmentation Act was served upon the respondents no.3 to 5 and the Assistant Collector has come to the conclusion that the transaction has been arrived at between the respondents NO.3 to 5 and the petitioner without obtaining prior permission of the authority and, therefore, there was breach of section 7 of the Act and, therefore, he held that such transaction is contrary to the provisions of the Act and fine of Rs.250.00 was imposed and also directed to remove the unauthorized occupation from the land in question under section 9(3) of the Act. He has also directed the Mamlatdar to remove the unauthorized occupation while exercising the powers under section 79 of the Bombay Land Revenue Code. In the proceedings before the revisional authority against the said order passed by the Assistant Collector, Dahod, it was pointed out that though the land has been registered as fragment, inspite of that fact, without obtaining prior permission from the authority, the land has been given to the petitioner by way of alleged mortgage and, therefore, there was breach of section 7 of the Fragmentation Act. Before the revisional authority, on behalf of the petitioners, reliance has been placed upon the decision of this Court rendered in special civil application no. 1583 of 1977 dated 21.6.1984 wherein it was pointed out that the powers were exercised after a period of seven years and the exercise of the powers after seven years has been considered to be unreasonable and therefore, the action has been declared to be illegal. It has also been submitted before the revisional authority that in the instant case, the transaction has taken place in the year 1958-59 and the proceedings were initiated in the year 1984 by issuing notice and, therefore, the action was not initiated within reasonable period and, therefore, in view of such unreasonable delay in initiation of the proceedings, the order of the Assistant Collector is required to be set aside. Before the revisional authority, objections were raised on behalf of the respondents no.3 to 5 that once the appeal has been filed by the petitioner under section 34, then, the revision would not lie; reliance has also been placed upon the decision of the Madras High Court as well as the apex court and it has been submitted that the authority was right in exercising the powers since the transaction was illegal and contrary to the provisions of the Fragmentation Act and, therefore, in such circumstances, question of limitation would not come in the way. The revisional authority has, after considering the papers and the contentions raised in the revision application as well as the arguments advanced for and on behalf of the respective parties, observed that the land in question has been entered as a fragment vide entry no. 287; since the original occupants of the land in question have been served with a notice under section 6(2) of the Act, present applicant is not required to be served with such a notice under section 6(2) of the Act. The revisional authority has observed that the land in question has not been purchased by the applicant petitioner but it was found to have been obtained by way of an agreement of alleged mortgage; there is no entry of mortgage on the village record. The revisional authority has also considered that that neither the applicant nor the respondents have initiated proceedings for exemption as per the provisions of the circular of the Government dated 21.6.1979 even if the land in question is an irrigated land. As regards the decision of the High Court cited on behalf of the petitioner before the revisional authority, the revisional authority was of the view that if it is proved that any proceedings were contrary to law, then, the same can be taken into revision at any time and, therefore, there would be no bar of limitation for taking such proceedings into revision. On such consideration, the revisional authority has not accepted the submissions made by the petitioner as regards delay in initiation of the proceedings and has rejected the revision application preferred by the petitioner while confirming the order dated 21.11.1984 passed by the Assistant Collector, Dahod, vide order dated 10th June, 1986. In the facts of the present case, one aspect is quite clear and undisputed between the parties. From the record, it is clear that there was no any registered document for the transaction of alleged mortgage between the respondent No. 3 to 5 and the petitioner. The another aspect is that the lands in question were alleged to have been mortgaged in the year 1958-59 whereas it is the case of the petitioner that the lands in question were purchased by oral transaction of sale in the year 1958-59 and the names were recorded in the village form from the year 1965-66 to 1984-85 and that record has been produced by the petitioner. Thus, in respect of the transaction which has taken place in the year 1958-59, the proceedings were initiated by the concerned authority by issuing show cause notice dated 15.9.1984 to respondent no.3 to 5. Thus, it is clear that the suo motu powers were exercised by the concerned authority after more than twenty five years' period under the Fragmentation Act. Therefore, in view of these undisputed facts, the transaction is not based upon any written or registered document between the parties and the powers were exercised after a period of more than 25 years. IN view of these facts, the view taken by this Court in the case of Patel Chhotabhai SHankerbhai v. Patel Shantabhai Narsibhai reported in 1975 GLR 247 is relevant. In paragraph 9 and 10 of the decision, it has been held by this Court as under: "9. The trial court decreed the suit holding that Phoolchand committed breach of contract in that, he had failed to pay the balance due by him on or before the due date. In appeal, the High Court of Madhya Pradesh reversed the decree. In the appeal preferred by Nathulal, the Supreme Court observed; 'Under the terms of the agreement, Nathulal had undertaken to get the name of his brother Chittarmal removed from the revenue records and to get his own name entered, but the lands continued to stand recorded in the name of Chittarmal till October 6, 1952 and before that date Nathulal rescinded the contract. Again by virtue of sec. 70(4) of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950, Phoolchand not being an agriculturist the land could not be sold to him without the sanction of the State Government. In the absence of any specific clause dealing with this matter, a condition that Nathual will secure the sanction under section 70(4) after paying the appropriate fee must be implied for it is well settled that where by statute property is not transferable without the permission of the authority, an agreement to transfer the property must be deemed subject to implied condition that the transferor will obtain the sanction of the authority concerned. ' The argument raised by the counsel for Nathulal that, by virtue of sec. 70(8) of the Madhya Bharat land Revenue and Tenancy Act, the plea of part performance is not available to a person put in possession of the property under a contract of sale was found to be without force. The relevant observations on the point are; 'sec. 70(8) provides; no sale under this section shall be deemed to be valid until the sale deed effecting such a sale has been registered in accordance with the law of registration in force for the time being. But this clause only requires that not only the conditions prescribed by sec. 70, but registration of sale deed in accordance with the law of registration for the time being in force is a condition required to be complied with before a sale is deemed valid. There is no sale in the present case and Phoolchand is not relying upon any sale. He is relying upon a contract of sale and equity which he may set up to defend his possession against the claim made by Nathubhai. To the making of such a claim, relying upon the doctrine of part performance in section 53A of the Transfer of Property Act, there is nothing in section 70(8) of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950 which may operate as a bar.' 10. According to the provisions of sec. 70(4) of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950, the land could not be sold to a person who is not an agriculturist without the sanction of the State Government. The above provisions seem to a certain extent similar to those of section 43(1) of the Tenancy Act so far as the question of sanction for sale is concerned. It was open to deceased SHantabhai to obtain permission of the Collector even after he had executed the agreement of sale in favour of Chhotabhai. There is thus nothing in section 43(1) of the Tenancy Act to show that agreement of sale cannot be entered into before obtaining a sanction of the Collector. This shows that, the agreement of sale in question is legal and valid. It is, therefore, open to Chhotabhai to raise the defence of part performance under section 53A of the Transfer of Property Act. " In case of Punabhai Dhedubhai Baraiya versus Patel Chhaganbhai Parshottamdas and Another reported in 1983 (2) GLR page 1165, this Court has observed as under in para 6 of the decision : "6. I shall deal with the submissions raised by Mr. Mehta in support of the petition in the same sequence in which they were raised before me. SO far as the first contention of Mr. Mehta is concerned, it must be appreciated that by the agreement dated 14.3.1970, the petitioner, who was a deemed purchaser handed over possession of the land to respondent No.1 who had advanced him loan for making payment of instalment and had agreed to get a pucca mortgage deed executed after obtaining permission of the Collector. The aforesaid agreement is an unregistered agreement. The petitioner's contention is that in substance, the agreement operates as a usufructuary mortgage as the petitioner had parted with possession of the land in favour of respondent no.1 with a view to securing his dues and to get himself paid off from the usufruct of the land. It is not possible to agree with the aforesaid contention of Mr. Mehta for the simple reason that before the transaction can operate as a usufructuary mortgage, it has to comply with the legal requirement of sec. 59 of the Transfer of Property Act. Under the said provision, it has been clearly laid down that where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. In the present case, it is an admitted position between the parties that the petitioner had borrowed Rs.15,000.00 in cash from respondent No. 1 in order to pay up the instalment of purchase price. Thus, the principal money secured were more than Rs.100.00 If for that purpose, the land was handed over in possession of respondent No.1, the transaction cannot be treated a usufructuary mortgage unless the document was registered as per the requirement of section 59. The agreement in question is admittedly an unregistered document. Thus, it cannot operate as completed mortgage transaction. Sec. 43 of the Tenancy Act as applicable at the relevant time in 1970 when the impugned transaction took place provided as under: '(1) No land or any interest therein purchased by a tenant under sec. 17B 32, 32F, 32I, 32U or 43D or sold to any person under sec. 32P or 64 shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest therein shall be partitioned without the previous sanction of the Collector.' A mere look at the said provisions shows that transactions which are hit by sec. 43(1) if they are not entered into after obtaining previous sanction of the Collector, are all completed transactions like sale, gift, exchange, mortgage etc.which by themselves will operate as fully completed and legally operative transfers. in the present case, the alleged transaction is a transaction under which the petitioner is said to have created a usufructuary mortgage on the land in question in favour of respondent no. 1. As I have already shown above the agreement dated 14.3.1970 by itself cannot operate as a completed usufructuary mortgage transaction as it is unregistered. If that is so, it cannot be said that the petitioner had mortgaged the land in favour of respondent No.1 on 14.3.1970 as envisaged by section 43 (1). Consequently, the said transaction cannot be said to have been hit by section 43 as previous sanction of the