IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 12167 of 2000 with CIVIL APPLICATION NO. 11927 OF 2001 IN SPECIAL CIVIL APPLICATION NO 12167 of 2000 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 -------------------------------------------------------------- LEGAL HEIRS OF DHANPAL JAYAN- TILAL SHAH & SUKETU J SHAH Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 12167 of 2000 MR MIHIR H JOSHI for Petitioners No. 1-1/4 Ms. Sen, AGP for Respondents No. 1-3 .......... for Respondent No. 4 RULE SERVED for Respondents No. 4/1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 05/11/2001 ORAL JUDGEMENT Heard learned advocate Mr. Joshi for the petitioners and Ms. Pandit, the learned AGP for the respondent authorities. Respondent no.4 has been served with a notice of rule but no appearance has been filed on his behalf. In this petition, rule was issued by this Court and interim relief in terms of para 18 (C) of the petition was granted on 23.1.2001 on a condition that the petitioner shall not transfer, alienate or part with the possession of the land in question or any part thereof in any manner whatsoever and shall not use the said land for any purpose other than the agricultural purpose. In this matter, on behalf of the respondent authorities, affidavit in reply has been filed by One D.A. Shah, prant Officer, Gandhinagar. In this matter, the petitioner has filed the civil application no. 11927 of 2001 for modification of the interim order dated 23.1.2001 and the said civil application was notified for hearing. However, considering the facts and circumstances of the case and request of the learned advocate for the petitioner, the main petition was taken up for hearing today itself. By way of this petition, the petitioners have challenged the order dated 28th October, 1997 passed by respondent No. 3 as well as the order passed by the respondent No. 2 dated 29th September, 2000. The petitioners entered into sale deed with respondent no.4 for sale of the land bearing survey no. 74/2/A admeasuring 214 sq. mtrs. situated at village Bhat, taluka district Gandhinagar on 24th June, 1974. According to the petitioner, said sale deed was registered in the office of the Sub Registrar, Gandhinagar at Registration No. 617 and accordingly, entries were made in the revenue record vide entry no. 1261 dated 14.6.1978. That the petitioners were put in possession of the land in question by the respondent No.4 pursuant to the said sale deed and even on the date of filing of the petition also, the petitioners were holding the possession of the said land and are also paying the taxes of the said land. According to the petitioners, due to the death of Shri Suketu J. Shah on 5th February, 1982, names of petitioners no. 2/1 to 2/4 were also entered in the village form no.6 and entries were made accordingly. Thereafter, in the year 1997, the petitioners received notice dated 30.6.1997 calling upon the petitioners personally on 22nd July, 1997 to explain as to why the proceedings under section 9 of the Prevention of Fragmentation and Consolidation of holdings Act, 1947 should not be initiated against them as well as respondent No.4. The petitioners have also pointed out that the petitioners as well as respondent no.4 also were called upon by respondent no.3 to face the proceedings under sec. 9 of the Fragmentation Act for sale agreement entered into in the year 1974 after a period of about 23 years or so, on 12th august, 1997. Detailed reply was submitted by petitioner no.2/1 to the said show cause notice mentioning the fact that because of the land acquisition proceedings, the disputed land has remained with the petitioners as well as respondent no.4. It was also mentioned that in view of the circular dated 18th July, 1990, disputed land was exempted from the provisions of the Act and also that as the notice was issued after these many years, notice was bad and illegal and the same was required to be set aside. According to the petitioners, inspite of such a detailed reply submitted by the petitioners, the respondent No.3 has, by order dated 20th October, 1997, without considering the facts and circumstances of the case and also in total disregard to the fact that the provisions of the Act would not apply to the disputed land in view of the proceedings under the Land Acquisition Act as well as under the Urban Land (Ceiling and Regulation) Act, 1976. Against the said order, the petitioners approached the respondent No.2 Additional Secretary (Appeals), Revenue department, Gandhinagar by filing revision application no. 42 of 1997 wherein all the details were given with necessary facts and record. However, the revisional authority has, without considering the facts and details given by the petitioners in their revision application, rejected the revision application and confirmed the order dated 20th October, 1997 by order dated 29th September, 2000 and, therefore, the petitioners have approached this Court by way of this petition challenging both the orders dated 20th October, 1997 as well as the order dated 29th September, 2000 passed by the revisional authority. During the course of hearing, learned advocate Mr. Joshi 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 three 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 law laid down by this Court as well as the apex court in series of decisions. He has also submitted the transaction of the land in question was entered into by executing registered sale deed as stated earlier and pursuant thereto, names of the purchasers were mutated and were certified long before the issuance of the first show cause notice and on the basis of the said sale deed, the possession has also been handed over to the petitioners by respondent No.4. Therefore, he has submitted that there was no any breach of the provisions of the Fragmentation Act as alleged. He has also submitted that the Circle Inspector and the Deputy Collector, respondent No.3 herein has not considered these facts while passing the order dated 20th October, 1997. According to him, the revisional authority has also not considered the contentions raised by the petitioners in revision and has mechanically confirmed the order passed by the Circle Inspector & Deputy collector. 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 there was no breach of section 9(2) of the Fragmentation Act as alleged. 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 circle inspector and the Deputy Collector, was right in initiating action under section 9 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 three 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 petitioners entered into sale deed with respondent no.4 for sale of the land bearing survey no. 74/2/A admeasuring 214 sq. mtrs. situated at village Bhat, taluka district Gandhinagar on 24th June, 1974. According to the petitioner, said sale deed was registered in the office of the Sub Registrar, Gandhinagar at Registration No. 617 and accordingly, entries were made in the revenue record vide entry no. 1261 dated 14.6.1978. That the petitioners were put in possession of the land in question by the respondent No.4 pursuant to the said sale deed and even on the date of filing of the petition also, the petitioners were holding the possession of the said land and are also paying the taxes of the said land. According to the petitioners, due to the death of Shri Suketu J. Shah on 5th February, 1982, names of petitioners no. 2/1 to 2/4 were also entered in the village form no.6 and entries were made accordingly. Thereafter, in the year 1997, the petitioners received notice dated 30.6.1997 calling upon the petitioners personally on 22nd July, 1997 to explain as to why the proceedings under section 9 of the Prevention of Fragmentation and Consolidation of holdings Act, 1947 should not be initiated against them as well as respondent No.4. The petitioners have also pointed out that the petitioners as well as respondent no.4 also were called upon by respondent no.3 to face the proceedings under sec. 9 of the Fragmentation Act for sale agreement entered into int he year 1974 after a period of about 23 years or so, on 22nd July, 1997. Detailed reply was submitted by petitioner no.2/1 to the said show cause notice mentioning the fact that because of the land acquisition proceedings, the disputed land has remained with the petitioners as well as respondent no.4. It was also mentioned that in view of the circular dated 18th July, 1990, disputed land was exempted from the provisions of the Act and also that as the notice was issued after these many years, notice was bad and illegal and the same was required to be set aside. According to the petitioners, inspite of such a detailed reply submitted by the petitioners, the respondent No.3 has, by order dated 20th October, 1997, without considering the facts and circumstances of the case and also in total disregard to the fact that the provisions of the Act would not apply to the disputed land in view of the proceedings under the Land Acquisition Act as well as under the Urban Land (Ceiling and Regulation) Act, 1976. Against the said order, the petitioners approached the respondent No.2 Additional Secretary (Appeals), Revenue department, Gandhinagar by filing revision application no. 42 of 1997 wherein all the details were given with necessary facts and record. However, the revisional authority has, without considering the facts and details given by the petitioners in their revision application, rejected the revision application and confirmed the order dated 20th October, 1997 by order dated 29th September, 2000. Considering the record, the Circle Inspector and Deputy Collector, respondent no. 2 has come to the conclusion that the notice under section 6 of the Fragmentation Act was served upon the respondents no.4 and he has also come to the conclusion that the transaction was in breach of the provisions of the Fragmentation Act and on the basis of such consideration, he has passed the order dated 20th October, 1997 and imposed fine and also directed to remove the unauthorized occupation from the land in question under section 9(3) of the Act. In the proceedings before the revisional authority against the said order dated 20.10.1997, over and above the other contentions on merits, it was specifically pointed out that there was delay in initiating the proceedings under the Fragmentation Act. However, the revisional authority has, without considering the aspect of delay and also without considering the law laid down by this Court and the apex court in series of decisions, has rejected the revision application while confirming the order passed by the Dy. Collector by order dated 28th September, 2000. 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 registered sale deed for transaction of the land in question between the vendor respondent No. 4 and the vendi petitioners which was entered into between the said parties in the year 1974 on 24.6.1974 which was registered before the sub Registrar, Gandhinagar on 14.6.1978. It is also not in dispute that the the first notice was issued by the deputy collector Gandhinagar on 22.7.1997 for the alleged breach of the provisions of the Fragmentation Act Thus, in respect of the transaction which has taken place in the year 1974 and registered on 14.6.1978, the proceedings were initiated by the concerned authority by issuing show cause notice dated 22.7.1997 i.e. after about 23 years from 4.6.1974 to respondent no.4. Thus, it is clear that the powers were exercised by the concerned authority after more than twenty three years' period under the Fragmentation Act. Therefore, the matter is required to be examined in light of these undisputed facts. In respect of the contention about exercise of the powers by the authority after unreasonable period, the view of this court in case of Ranchhodbhai Laljibhai Patel versus State of Gujarat reported in 1984 (2) GLR 1225 is relevant. In para 4 of the said decision, this court has observed as under: "4. Now, it is obvious that the authorities under the Act have been enjoined to pass proper orders under sec. 9 for declaring the transaction contrary to the said act to be null and void and also to pass consequential orders of fine as well as summary eviction. But the said statutory powers like any other statutory powers have to be exercised within reasonable time. If that concept is kept out, any statutory powers would be exercised after a number of years or decades. In the meantime, the affected parties would have materially altered their position and irreparable injury would be caused to them and it would be impossible to put the clock back. If such powers can be exercised after unduly long delay. On the peculiar facts of this case, it has got to be held that the power exercised by the concerned authorities under sec. 9 was at grossly belated stage and as there was unreasonable delay in exercise of that power, the the exercise would be ex facie unreasonable, unjust and illegal. It may be recalled that the petitioner purchased a part of the block on 2.1.1967 by a registered sale deed. It is true that ignorance of law is no excuse and merely because the petitioner pleaded that he was ignorant of the legal requirement of obtaining prior permission of the collector, the same cannot stand in good stead to him. Consequently, if the authorities would have been vigilant enough for enforcement of the provisions of the Act and had initiated proceedings under sec. 9 at the earliest, the petitioner would have no defence in such proceedings. But on the facts of the case, the situation is entirely different. The authorities acting under the act did not initiate any proceedings against the petitioner and opponent No.3 for 7 long no of years. In the meantime, the petitioner who had purchased the land for the purpose of putting up a residential house, spent a large amount of Rs.25,000.00 and constructed a residential house with facilities of latrine, bathroom and a store room. It is obvious that when no proceedings were initiated against them for a long time, there could arise a reasonable belief for the petitioner that there was nothing wrong with the sale deed under which he had purchased the land and he had become full owner of the land. He could never have dreamt that after 7 years, he would be presented with a show cause notice under sec. 9. During that time, the petitioner had irretrievably changed his position to his detriment. such an inaction on the part of the authorities exercising powers under the Act for a number of years and waking up ne fine morning after 7 years by issuing notice to the concerned parties for showing cause why the transaction entered into by them should not be declared as null and void, has got to be held, on the facts of this case, to be quite unreasonable. It is also to be appreciated that the Deputy Collector passed the order of summary eviction against the petitioner in 1974 almost 10 years after the date of the original transaction of 1967. Hence, the exercise of such power would be unjust on the facts of this case. If any authority were needed in support of my conclusion to which I have reached on the facts of the case, it is supplied by the decision of the Supreme Court in Mansaram v. S.P. Pathak and Others (Civil appeal No. 1262 (N) of 1978, decided by D.A. Desai and R.B. Misra, JJ. on 29.9.19830. D.A. Desai, J. speaking for the Supreme Court has made the following pertinent observations; 'Where the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercise of power inheres its exercise within a reasonable time. This is too well established to need buttressing by a precedent. However, one is really available in State of Gujarat v. Patel Raghav Natha and Others (1970) 1 SCR 335.' It is true that no period of limitation is laid down by the said Act indicating as to within what period, the concerned authorities can initiate proceedings under sec.9. It is also true that power given to the authorities is coupled with duty to act as per the provisions of sec.9 if power under sec.9 can be validly invoked. But that does not mean that power can be exercised at any time may be after years or decades. Exercise of power has to be justified on the facts of each case and if on the facts of a given case, it is found that exercise of power after lapse of sufficiently long period between the impugned transaction and the date of exercise of that power would be arbitrary and unreasonable due to the fact that in the meanwhile parties had changed their position irretrievably obvious of any possibility of future action by the authorities functioning under the act on account of prolonged inaction on the part of these authorities and any attempt to put back the clock would result in irreparable injury to the concerned parties, then such exercise has to be treated to be unjust and illegal. In that view of the matter, as seen above, on the facts of this case, the exercise of the power under sec.9 against the petitioner would be unreasonable and arbitrary. Only on this short ground and without going into other contentions which are sought to be canvassed by Mr. Sanjanwala in support of the petition, this petition will have to be allowed." Said question has been examined by this Court on various occasions. In case of Devshibhai Bhimabhai Rabari versus State of Gujarat and others reported in 2001 (2) GLR 1097, this Court has observed that while exercising the powers under section 211 of the Code by the Collector, much delay has been caused in taking the order into revision and, therefore, the order in question has been set aside by this court. Similarly, in case of Ravasinh Ranubha versus V.S. Sinha or his successors and others reported in 2001 GLR 1679, this Court has observed that the limitation of exercise of revisional powers in such a matters is one year which can be considered to be reasonable period for exercise of the revisional powers. Then, in case of Shri Ravindra Darshan Co-op. Housing Society Ltd. versus Prafulkumar Thakar, Secretary, Revenue Department and another reported in 2000(2) GLR 1639, this Court has observed that the powers under section 211 of the Bombay Land Revenue Code was exercised after unreasonable period. It was held that though no period of limitation has been prescribed under section 211 of the Code, this power must be exercised in reasonable time and the length of reasonable time must be determined by the facts of the case and the nature of the order which is being revised, the State cannot keep sword hanging in respect of the property by chosing to act and revise the order at its sweet will which may be after seven years as it was sought to be done in the instant case after more than twenty five years. Similarly, this court has considered the same question in case of Lavjibhai Motiram Prajapati versus State of Gujarat reported in 2000(3) GLH 551 and has observed that when no period of limitation has been prescribed under the Statute, then, the powers must be exercised within reasonable time. The Division Bench of this Court has also considered the question in case of State of Gujarat versus Pravinbhai Bhailalbhai Gor reported in 2000(3) GLR page 2168. In para 5 of the judgment, this Court has observed as under : "5. We have heard the learned Advocates appearing for the parties. We have examined the facts and circumstances emerging form the record of the present case. One thing is quite certain and obvious that though the Collector is competent to exercise revisional powers invoking the aids of the provisions of Rule 108(6) of the Gujarat Land Revenue Rules, if he finds that the authority below has committed some