IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION Nos 686, 9598, 9599 and 9600 of 1994 For Approval and Signature: Hon'ble CHIEF JUSTICE MR.K.G.BALAKRISHNAN and MR.JUSTICE M.S.SHAH ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? Yes s s s s s s s s s s s s s s s s s s s s s s s s s s s s s 2. To be referred to the Reporter or not? Yes 3. Whether Their Lordships wish to see the fair copy of the judgement? No 4. Whether this case involves a substantial question 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? -------------------------------------------------------------- GUJARAT KHET KAMDAR UNION Versus THE STATE OF GUJARAT & OTHERS -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 686 of 1994 MR H.M.MEHTA SR.COUNSEL FOR KETAN A DAVE for Petitioner GOVERNMENT PLEADER for Respondent No. 1 MR SB VAKIL for Respondent No. 2 MR AJ PATEL for Respondent No. 3, 4, 5, 6, 7 2. Special Civil ApplicationNo 9598 of 1994 GOVERNMENT PLEADER for Petitioner MR AS VAKIL for Respondent No. 1 MR SB VAKIL for Respondent No. 2 MR AJ PATEL for Respondent No. 3, 4, 5, 6, 7 -------------------------------------------------------------- CORAM : CHIEF JUSTICE MR.K.G.BALAKRISHNAN and MR.JUSTICE M.S.SHAH Date of decision: /12/98 C.A.V.JUDGEMENT (Per Shah, J.) These petitions under Article 226 of the Constitution are directed against the common judgment and order dated 13-4-1992 of the Gujarat Revenue Tribunal, Ahmedabad (hereinafter referred to as "the Tribunal") in Revision Application nos.45,46 and 47 of 1989 under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Act"). 2. Special Civil Application No.686 of 1994 is filed as a public interest petition by the Gujarat Khet Kamdar Union challenging the interpretation placed by the Tribunal on certain provisions of the Act which had a bearing on the prohibition against the absentee landlords and for a writ of mandamus to direct the State Government to take appropriate action under Section 84C of the Act against the absentee landlords and to take possession of such lands and to distribute the same to the landless labourers. The petitioner - union claims to represent agricultural labourers, most of whom are landless, including small and marginal farmers, who on account of small size of holding have to toil as labourers elsewhere. The petitioner - union also claims to be working for the protection of socio-economic rights of the agricultural labourers in Gujarat including allotment of surplus land to the landless labourers. The Union has, therefore, taken up the cause of implementation of the legislation for agrarian reforms. Special Civil Applications Nos. 9598, 9599 and 9600 of 1994 are filed by the State of Gujarat against the aforesaid common judgment and order of the Tribunal in the three respective revision applications. 3. Since all these petitions are directed against the common judgment and order of the Tribunal and raise identical contentions, at the request of the learned counsel for the parties, the petitions have been heard together and are being disposed of by this common judgment. 4. The facts leading to filing of these petitions, briefly stated, are as under :- Respondents nos. 2 to 5 (hereinafter referred to as the purchasers) purchased certain agricultural lands of various survey numbers, in all admeasuring 34 acres 35 gunthas, in village Sughad, taluka Gandhinagar, by three different sale deeds dated 17-7-1981 executed by respondents 6 and 7. The relevant mutation entries in village revenue record were posted by the Talati-cum-mantri of the village in August/September 1981 and all the said entries were certified on 20-10-1981. The Mamlatdar & Agricultural Land Tribunal (hereinafter referred to as the ALT) initiated proceedings under Section 84C of the Act by issuing three separate notices dated 1-1-1983 in Tenancy Case Nos. 2815, 2834 and 2835 of 1982 respectively and passed orders dated 16-10-1984 holding that the transfers were invalid on the ground that the purchasers, though having agricultural lands prior to the date of the aforesaid transactions of 17-7-1981, were not agriculturists within the meaning of Section 2(2) read with Sec. 2(6) of the Act, as the agricultural lands held by them prior to the impugned transactions were in Bharuch District and were at a distance of more than 5 miles from the agricultural lands purchased under the impugned transactions. The Mamlatdar & ALT accordingly ordered forfeiture of the lands unless the parties restored the lands to their original position within a period of 90 days. Appeal Nos. 260, 261 and 262 filed by the purchasers were dismissed by the Deputy Collector by his common order dated 5-11-1988. The purchasers, therefore, carried the matter further and filed the above numbered revision applications before the Tribunal. After hearing the parties, the Tribunal by its common judgment and order dated 13-4-1992 allowed the Revision Applications and set aside the aforesaid orders of the Mamlatdar & ALT as well as the common order of the Deputy Collector as unlawful and unjust and the proceedings were ordered to be closed. The present group of petitions is filed against the aforesaid common judgment and order of the Tribunal. 5. The broad facts narrated hereinabove are not at all in dispute and, therefore, this Court has thought it fit not to cluster the judgment with details about the survey numbers and exact areas of different survey numbers purchased under the three different sale-deeds of the same date and so also the details about the mutation entries. In fact, the learned Counsel for the petitioners i.e. Gujarat Khet Kamdar Union and the learned Government Pleader for the State Government have made it clear that what has grieved the petitioner-Union as well as the State Government is not mere setting aside of the orders of the Mamlatdar and the Deputy Collector in relation to the three transactions in question as such but the general approach of the Tribunal towards the problem of the implementation of the legislation for agrarian reforms and the principles expounded by the Tribunal are being followed by the Tribunal as well settled and are also being required to be followed by the Mamlatdars & ALT and the Deputy Collectors discharging their administrative and quasi-judicial functions under the Act. 6. The learned Counsel for the petitioners have, therefore,, raised the following contentions at the time of hearing of these petitions :- (1) The Tribunal has committed an error of law apparent on the face of the record in holding that initiation of the suo motu proceedings under Section 84C of the Act by the Mamlatdar & ALT on 1-1-1993 was after an unreasonable long period, even though as a matter of fact the proceedings were initiated after a period of merely one year and two or three months from the date of certification of the entries by the revenue authority. The one year test laid down by the Tribunal as a cast iron formula of limitation militates against the statutory provisions of Section 84C of the Act which do not provide for any period of limitation and, therefore, a pronouncement from this Court is necessary to remove the misconception. (2). The provisions of Sections 2(2), 2(6), 63 and 84C as applicable at the relevant time could not have been whittled down by the Tribunal on the basis of the Government Resolution dated 29-4-1980 as the said Government Resolution did not purport to do away with the restriction imposed by Section 2(6) of the Act that the purchaser must be having another agricultural land within a radius of 5 miles ( 8 Kms.) from the agricultural land intended to be purchased. Even otherwise the Resolution was issued in a different context altogether and merely provided that the purchaser must have his existing agricultural holding in the State of Gujarat and not in another State. (3). The Tribunal ought to have appreciated that the wrong interpretation placed on the Government Resolution dated 29-4-1980 was already clarified by the Government itself by issuance of a subsequent resolution dated 20-5-1982 and that apart the Tribunal erred in holding that the Government was bound by Circulars even when such circulars were ultra vires the Act. 7. On the other hand, learned Counsel Mr.S.B. Vakil for respondent no.2 and Mr.A.J.Patel for respondents nos. 3,4 and 5 i.e. purchasers of the lands in question, contested the petitions and made the following broad submissions: (1). Initiation of proceedings by the Mamlatdar & ALT under Section 84-C of the Act was beyond reasonable period. In the first place the proceedings were initiated after about 16 months and secondly, the purchasers had made heavy investments after purchase of the land and certification of the entries on the one hand and prior to the initiation of the proceedings on the other hand. Strong reliance is placed on the various decisions of the Apex Court and this Court and particularly on the decisions of the Apex Court in Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim, (1997) 6 SCC 71 and in Dajibhai Kanjibhai Tandal Vs. The Mamlatdar & Agricultural Lands Tribunal, Pardi & anr. Civil Appeal No. 4917 of 1984 decided on 27-8-1996. (2). The provision pertaining to the restriction of five miles for the purpose of valid purchase of agricultural lands occurring in Section 2(6) of the Act has been deleted by Gujarat Act No.4 of 1995 on the ground that continuation of the restriction of 5 miles (8 kms.) distance is not only anachronistic and causing irritation to the Farmers, but is also hindrance to the development of occupation of agriculture and also in order to bring about uniformity of laws in the entire State. The said deletion has retroactive operation and therefore, at the time of deciding the present group of petitions, the Court is required to look at the provisions after the said deletion. (3). Even prior to the deletion of the aforesaid provision by Gujarat Act No.4 of 1995, the prohibition in respect of radius of 5 miles (8 kms.) applied only to those persons who cultivated the land through their supervisors and therefore, the judgment rendered by a learned Single Judge of this Court in the case of Devji Meghji Gangar vs. Lalmiya Mosammiya, 18 GLR 515 does not lay down correct law and the correct law was laid down in the decision of the Bombay High Court in Abdul Karim v. Laxman Bapu, AIR 1981 Bombay 168. (4) The present four petitions filed before this Court are also barred by delay, laches and acquiescence, - (i) After the judgment of the Tribunal in April 1992 the consequential mutation entries were also made in the revenue record in August 1992 and thus the State Government had acquiesced in the judgment. On the basis of such Entry No.3093 dated 10-8-1992 indicating acquiescence of the State Government, the purchasers had purchased other agricultural lands also. It was, therefore, not open to the State Government to challenge the judgment of the Tribunal. (ii) Even though the judgment of the Tribunal was delivered on 13-4-1992, Special Civil Application No.686 of 1993 was filed in October 1993 and moved for admission in January 1994. The State Government filed petitions on 27-7-1994 i.e. nearly two years and three months from the date of judgment of the Tribunal. Apart from the unexplained delay in filing the petitions, this Court may decline to interfere, as the purchasers had not only purchased other agricultural lands within 5 mile radius of the lands in question but had also made heavy investments in the lands in question in the intervening period-running into Rs.1.25 Crores. 7A. Mr AS Vakil for respondent Nos. 6 and 7 (original vendors) supported the purchasers and stated that if required, the original vendors were prepared to execute fresh sale deeds in favour of respondent Nos. 2 to 5, as the 5 mile restriction is no longer in force now. 8. In order to appreciate the rival submissions it is necessary to set out the relevant provisions of the Act. The Act is applicable only to the Bombay area of the State of Gujarat. Section 2(2) defines "agriculturist" as under: 2(2) "agriculturist" means a person who cultivates land personally; Section 2(5) of the Act defines "to cultivate" as under: 2(5) "to cultivate" with its grammatical variations and cognate expressions means to till or husband the land for the purpose of raising or improving agricultural produce, whether by manual labour or by means of cattle or machinery, or to carry on any agricultural operation thereon; and the expression " uncultivate" shall be construed correspondingly. Explanation: A person who takes up a contract to cut grass or together the fruits or other produce of trees on any land, shall not on that account only be deemed to cultivate such land; Section 2(6) defines the phrase " to cultivate personally" as under: 2(6). "to cultivate personally " means to cultivate land on one's own account- (i) by one's own labour, or (ii) by the labour of any member of one's family, or (iii) under the personal supervision of oneself or any member of one's family by hired labour or by servants on wages payable in cash or kind but not in crop share, being land, the entire area of which - (a) is situate within the limits of a single village, or (b) is so situated that no piece of land is separated from another by distance of more than five miles, or (c) forms one compact block." Section 2(8) defines "land" as under: 2(8) "land" means - (a) land which is used for agricultural purposes or which is so used but is left fallow and includes the sites of farm buildings appurtenant to such land; and (b) ....." Section 63(1) of the Act provides that save as provided in this Act, no sale, gift, exchange or lease of any land or interest therein, no possessory mortgage, nor any agreement in writing for sale (etc.) of any land or interest therein - "shall be valid in favour of a person who is not an agriculturist or who being an agriculturist cultivates personally land not less than the ceiling area whether as an owner or tenant or partly as owner and partly as tenant or who is not an agricultural labourer. Provided that the Collector or an officer authorized by the State Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, or for such agreement on such conditions as may be prescribed: Provided further that no such permission shall be granted, where land is being sold to a person who is not an agriculturist for agricultural purpose, if the annual income of such person from other sources exceeds five thousand rupees." Section 84C, in so far as the same is relevant for the present purposes, reads as under: 84C(1). Where in respect of the transfer or acquisition of any land made on or after the commencement of the Amending Act, 1955 the Mamlatdar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is or becomes invalid under any of the provisions of this Act, the Mamlatdar shall issue a notice and hold an inquiry as provided for in Section 84 B and decide whether the transfer or acquisition is or is not invalid. (2). If after holding such inquiry, the Mamlatdar comes to a conclusion that the transfer or acquisition of land to be invalid, he shall make an order declaring the transfer or acquisition to be invalid unless the parties to such transfer or acquisition give an undertaking in writing that within a period of three months from such date as the Mamlatdar may fix, they shall restore the land alongwith the rights and interest therein to the position in which it was immediately before the transfer or acquisition and the land is so restored within that period: Provided that ....... (3). On the declaration made by the Mamlatdar under sub-section (2) - (a) the land shall be deemed to vest in the State Government, free from all encumbrances lawfully, subsisting thereon on the date of such vesting, and shall be disposed of in the manner provided in sub-section (4); ............. (b) the amount which was received by the transferor as the price of the land shall be deemed to have been forfeited to the State Government and it shall be recoverable as an arrears of land revenue; and (c). the Mamlatdar shall, in accordance with the provisions of Section 63-A determine the reasonable price of the land. (4). ......." Sub-section (4) of Section 84C provides that the land which vests in the State Government under sub-section (3) shall be granted by the Collector as new and impartible tenure on payment of occupancy price in the following order of priority: (i). the tenant in actual possession of the land; (ii). the persons or bodies in the order given in the priority list: CONTROVERSY ABOUT THE PERIOD DURING WHICH THE PROCEEDINGS UNDER SECTION 84C OF THE ACT MAY BE INITIATED: 9. The learned Counsel for all the parties have addressed the Court at length on this particular question as the Tribunal has categorically held that initiation of the proceedings by the Mamlatdar & ALT under Section 84C of the Act was beyond reasonable time as explained in the various decisions of the Apex Court and this Court. There is no dispute that the Statute itself does not stipulate any time limit for initiation of the proceedings under Section 84C of the Act. The learned counsel for the parties also agree that in view of the absence of any such statutory period of limitation the initiation of proceedings under Section 84 C of the Act has to be done within reasonable period. The real controversy is the scope of the expression "reasonable period" and whether the Tribunal had committed any error of law apparent on the face of the record in holding that initiation of the proceedings under section 84C of the Act after one year from the date of purchase of the lands in question would ipso facto render the proceedings null and void ab initio. Since that was the contention urged by the purchasers before the Tribunal and the same had commended to the Tribunal, we will first take up the arguments advanced by the learned Counsel for the purchasers in support of the said contention. 10. Mr.Vakil and Mr.Patel for the purchasers submitted that since the principle that reasonable exercise of power inheres the principle that statutory power must be exercised within reasonable time, even if the concerned statutory provision itself does not provide for any period of limitation for exercise of such power, the Court must look at the other relevant provisions of the same Act to find out the legislative intent as to what period the legislature considered to be reasonable for the purpose of initiation of the proceedings. In support of the said proposition the learned Counsel relied on the decisions of the Supreme Court in State of Gujarat vs. Raghav Natha, AIR 1969 SC 1297 = 10 GLR 992. That was a case under Section 211 of the Bombay Land Revenue Code. Under Section 65 of the Code, the authority had granted permission to make nonagricultural use of the agricultural land on 2-7-1960. Thereafter, on 12-10-1961 the Commissioner in exercise of revisional power under Sec. 211 of the Code set aside the order dated 2-7-1960. While negativing the contention of the authority that in absence of any period of limitation for exercise of the powers under Section 211 of the Bombay Land Revenue Code, the power could be exercised at any time, Their Lordships of the Supreme Court made the following observations: "12. The question arises whether the Commissioner can revise an order made under sec. 65 at any time. It is true that there is no period of limitation prescribed under Sec. 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised. 13. It seems to us that sec. 65 itself indicates the length of the reasonable time within which the Commissioner act under Sec. 211. Under sec. 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading secs. 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations atleast within a few months from the date of the permission. In this case the Commissioner set aside the order of the Collector on October 12, 1961, i.e. more than a year after the order, and it seems to us that this order was passed too late." The learned Counsel for the purchasers have placed heavy reliance on the aforesaid observations and submitted that Section 76A conferring revisional power on the Collector gives a clue to the legislative intent :- 76A. Where no appeal has been filed within the period provided for it, the Collector may, suo motu or on a reference made in this behalf by the State Government at any time - (a) call for the record of any inquiry or the proceeding of any Mamlatdar or Tribunal for the purpose of satisfying himself as to the legality or propriety of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal, as the case may be, and (b) pass such order thereon as he deems fit Provided that no such record shall be called for after the expiry of one year from the date of such order and no order of such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard." It is, therefore, submitted that when the legislature has provided for the aforesaid time limit of one year for exercising revisional powers under Section 76A of the Act by the Collector in respect of an inquiry by or order of the Mamlatdar, there is no reason why the same time limit may not be applied for initiation of the proceedings under Section 84C of the Act when the purpose of initiating the proceedings is the same - whether under Section 76A or under Sec.84C of the Act. The learned Counsel for the petitioners have further relied on the decision of the Apex Court in Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim, 1997 (6) SCC 71 approving the decision of this Court in State of Gujarat vs. Jethmal Bhagwandas (SCA No. 2770 of 1979 decided on 1-3-1990) and also on the decisions of this Court in Maniben Oriabhan vs. State of Gujarat (SCA No. 2835 of 1997 decided on 14-10-1998), 1994(1) GLH 20 and 1998 (2) GLH 556. 11. On the other hand, Mr.H.M.Mehta learned Counsel for the petitioner-Union and Mr.P.G.Desai, learned Government Pleader have submitted that when the same Legislature enacting the same Act, while providing limitation period of one year for initiation of the revisional proceedings under section 76A of the Act, did not provide for any time limit for initiation of the proceedings under Section 84C of the Act - the clear legislative intent is