Heir of Deceased Babhania Rana Puja vs Principle Secretary and Others

Rajesh H. Shukla, J.—The present petition has been filed by the petitioner under Articles 226 & 227 of the Constitution of India as well as under the Bombay Land Revenue Code, 1879 read with Gujarat Revenue Rules, 1972 and also under the provisions of Saurashtra Gharkhed Tenancy Settlement and Agricultural Lands Ordinance, 1949 (hereinafter referred to as ''the Ordinance'') for the prayer, inter alia, that the impugned order passed by the Collector, Junagadh, respondent No. 2, dated 18.12.2001 and also the order passed in Revision Application No. MVV/JAMAN/JANADH/12/2006 by the Secretary (Appeals) dated 30.8.2011 may be quashed and set aside on the grounds stated in the memo of petition. Heard Ms. Sneha Joshi, learned advocate for the petitioner, and learned AGP Shri Bharat Vyas for respondents Nos. 1-2.

Learned advocate Ms. Joshi referred to the papers and pointed out that though, in fact, the petitioner, who is the heir of deceased Babhania Rana Puja who was an agricultural labourer, and who has been accepted as an agriculturist/farmer as per Entry No. 514 in the year 1976 is now sought to be questioned in the year 2000 in purported exercise of power under the Land Revenue Code as well as on the ground that there is a breach and violation of sec. 54 of the Ordinance. She submitted that there have been different transactions by registered sale deeds and entries have also been recorded as stated in the impugned order passed by the Secretary (Appeals) dated 8.9.2011 and still the scrutiny and the proceedings are initiated which has been confirmed on the ground that at the relevant time there was a breach of sec. 54 of the Ordinance by the Mamlatdar while making the entries and therefore the present petition has been filed.

Learned advocate Ms. Joshi has referred to and relied upon the judgment of the Hon''ble Division Bench of this High Court in the case of Bhanji Devshibhai Luhar Vs. State of Gujarat and Others, and submitted that as observed in this judgment, the action of holding that the transaction was bad as it was with the non-agriculturist cannot be questioned after a long period of time. She therefore submitted that the present petition may be allowed. She submitted that in fact the father of the petitioner was an agriculturist as stated above and in any case it could not be questioned after such a long lapse of time of about 25 years.

Learned AGP Shri Bharat Vyas referred to the papers as well as the provisions of the Ordinance and the revenue record and made a feeble attempt to resist the petition.

As it transpires from the record, it is evident that the father of the petitioner, Babhania Rana Puja, had purchased the land by registered sale deed on 1.8.1973 for which the entry is certified as No. 514. He was also an agriculturist as per Entry No. 514. Thereafter, he also purchased another land for which entries were made in 1976. Thus, it is claimed that the father was already an agriculturist and the purported exercise of power under sec. 54 of the Ordinance would not be attracted. In any case, all these entries and the record were very much available and no steps have been taken till 2000 when the proceedings were first initiated. Further, there are subsequent transactions also as reflected in the impugned order of the Secretary (Appeals) in revision and all those transactions are brushed aside or declared void only on the ground that the original petitioner, Babhania Rana Puja, and others were not agriculturists as per the Ordinance and there was a violation of sec. 54.

A close look at the provision would clearly suggest that Chapter VII of the Gharkhed Ordinance refers to the restriction on transfer. In any case, as it is provided, permission is required to be taken and the power of such scrutiny could be exercised within a reasonable period as observed by the Hon''ble Division Bench in the judgment reported in Bhanji Devshibhai Luhar Vs. State of Gujarat and Others, in similar circumstances. In that case also the very issue referring to the same Ordinance and the same provisions of sec. 54 & 75 were addressed and it has been observed that such power could not be exercised at any time. It is well accepted that the land reform laws provide for restriction on transfer of the lands or subject to some procedure and permission. However, if there is any breach, the same could be scrutinized or examined or could be cured within a reasonable period. At the same time, what would be the reasonable period has to be considered with reference to the specific provision in the statute laying down some time-limit. If there is no time-limit prescribed by the relevant statute, still, it has to be exercised within a reasonable period as observed in catena of judicial pronouncements.

Therefore, again, the moot question is what would be the reasonable period has to be considered with reference to the factual background. In the facts of the present case, the proceedings are initiated in purported exercise of power after a period of 20-25 years which cannot be sustained. The observations have been made referring to this concept of reasonable time in a judgment reported in Koli Nagjibhai Varjan Vs. State of Gujarat and Others, in the case of Koli Nagjibhai Varjan v. State of Gujarat, wherein it has been observed,

There can be no quarrel against the proposition that when no period of limitation is statutorily provided for, the revisional power prescribed under the statutes should be exercised within a reasonable time. This is necessary with a view to give finality to the orders passed by various authorities which may be subject to revisions and no revisional power is exercised for a considerable time giving rise to equities and promoting the parties to proceed on the footing that the orders passed by the authorities will not be disturbed in exercise of revisional jurisdiction after a lapse of reasonable time. However, same position may not obtain when an authority exercises his powers consequent upon a transaction which is statutorily void.

Again, on this very aspect, the Hon''ble Apex Court has in a judgment in the case of Dhurandhar Prasad Singh Vs. Jai Prakash University and Others, has observed,

...The expression void has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend.... Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated.... There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable.

Therefore, assuming that this aspect of the issue, where the transaction is void could be examined, but still it has to be examined within a reasonable period which has been considered by the Hon''ble Division Bench of this High Court in a judgment reported in Chandulal Gordhandas Ranodriya and Others Vs. State of Gujarat and Others, in the case of Chandulal Gordhandas Ranodriya and Ors. v. State of Gujarat & Ors. and referring to the aspect of reasonable time it is considered in detail as to what could be the reasonable time with reference to Law Lexicon as well as the earlier judgments. Further, the judgment of the Hon''ble Apex Court in the case of Shri Santoshkumar Shivgonda Patil and Others Vs. Shri Balasaheb Tukaram Shevale and Others, has clearly made the observation that things which have been settled cannot be permitted to be unsettled after long lapse of time. The impugned orders passed by the respondents therefore cannot be sustained. Therefore, having regard to the facts and circumstances, the present petition deserves to be allowed and accordingly stands allowed. Prayer in terms of para 16(B) is granted. The order passed by the Collector, Junagadh, dated 18.12.2001 and also the order passed in Revision Application No. MVV/JAMAN/JANADH/12/2006 by the Secretary (Appeals) dated 30.8.2011 are hereby quashed and set aside. Rule is made absolute. No order as to costs. D.S. permitted.