ORDER
1. The petitioners challenge the order of Secretary (Appeals), Government of Gujarat, dated 29th August 1983 whereby he cancelled the order of the Taluka Development Officer dated 19/20th April 1982 granting permission to the owners/occupants of certain lands situate in Kalol Taluka of Mehsana District for making non-agricultural use of the said lands. The facts leading to this group of petitions, briefly stated, are as under.
2. The lands which are the subject matter of these petitions were admittedly agricultural in character. The owners/occupants of the said lands preferred applications dated 13/14th April 1982 under S. 65, Bombay Land Revenue Code ('the Code' for short) for permission to make non-agricultural use of their lands to the Taluka Panchayat. The Taluka Development Officer, Kalol, granted the permission by his order dated 19/20th April 1982. On the Secretary (Appeals), Government of Gujarat, coming to know about the same, he issued show cause notices dated 31st March 1983 purporting to act under S. 211 of the Code calling upon the owners/occupants to show cause why the order of the Taluka Development Officer, Kalol, granting permission to make nonagricultural use of the lands should not be revised. After taking into consideration the objections filed by the owner/occupants of the lands in question, the Secretary (Appeals) passed the impugned order on 29th August 1983 cancelling the permission granted by the Taluka Development Officer, Kalol, and remanding the matter back to the District Panchayat, Mahsana, for passing appropriate orders on merits in accordance with the law, and the relevant rules in that behalf. The Secretary (Appeals), cancelled the order of the Taluka Development Officer principally on the ground that there was a total lack of jurisdiction and consequently the order passed. The Taluka Development Officer was ab initio void. He came to the conclusion that the power to grant permission under S. 65 of the Code vested in the District Panchayat and not the Taluka Panchayat and, therefore, the Taluka Development Officer, Kalol, had no jurisdiction whatsoever to exercise power under that provision. In this view that he took, he cancelled the permission granted by the Taluka Development Officer and remanded the matter to the District Panchayat for disposal on merits in accordance with law. It is this order of remand made by the Secretary (Appeals) which is questioned by the petitioners in this group of petitions brought under Art. 226 of the Constitution.
3. Since the lands were agricultural in character, they could not be used for any other purpose except with the permission of the Collector under S. 65 of the Code. That section insofar as it is relevant for our purpose reads as under : -
'65. Any occupant of land assessed or held for the purpose of agriculture is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm-buildings, construct wells or tanks or make any other improvements thereon for the better cultivation of the land, or its mere convenient use for the purpose aforesaid.
But, if any occupant wishes to use his holding or any part thereof for any other purpose, the Collector's permission shall in the first place be applied for by the occupant.
The Collector, on receipt of such application,
(a) shall send to the applicant a written acknowledgment of its receipt, and
(b) may, after due inquiry, either grant or refuse the permission applied for;
Provided that, where the Collector fails to 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 ........
It will be seen on a plain reading of this section that power is conferred on the Collector to grant permission to the owner/occupant of the land for making nonagricultural use of land which is agricultural in character.
4. The Gujarat Panchayat Act, 1961 (hereinafter called 'the Panchayats Act') was enacted by the State Legislature on 24th February 1962. Section 157 of the said statute which is relevant for our purpose runs as under : -
'157. (1) Notwithstanding anything contained in any law for the time being in force, the State Government may, subject to such conditions as it may think fit to impose transfer by an order published in the Official Gazette to a district panchayat any such powers, functions and duties relating to any matter as are exercised or performed by the State Government or any officer of Government under any enactment which the State Legislature is competent to enact, or otherwise in the executive power of the State, and appear to relate to matters arising within a district and to be of an administrative character and shall on such transfer, allot to the district panchayat such fund and personnel as may be necessary to enable the district panchayat to exercise the powers and discharge the functions and duties so transferred.
(2) Without prejudice to the generality of the provisions of sub-s. (1) the State Government may transfer to the district panchayats such powers, functions and duties as are exercised or performed by the following departments of the State, namely:-
(1) Agriculture:
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(6) Land Department;
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(3) On the transfer of any powers, f unct ions and duties under sub-ss. (1) and (2) the district panchayat shall, if the State Government so directs and with the previous approval of the State Government may delegate to any panchayat subordinate to it any of the functions, powers and duties so transferred and allot to such panchayat such fund and staff as may be necessary, to enable the panchayat to exercise the powers and discharge the functions and duties so delegated.'
In exercise of this power the State Government issued an order dated 25th March 1963 transferring to the District Panchayat the powers, functions and duties of the State Government and its officers as specified in the Schedule thereto. All the powers, functions and duties conferred on the Collector under Ss. 59, 65 and 66 of the Code were transferred to the District Panchayats. By another resolution of even date, the State Government directed that out of the powers, functions and duties transferred to the District Panchayats under the aforesaid resolutions, the District Panchayats shall delegate to the subordinate panchayats the powers, functions and duties as specified in the statement appended thereto. It is the case of the petitioners that by the said resolution the State Government was pleased to direct that out of the powers, functions and duties transferred to the District Panchayats the latter should delegate to the Taluka Panchayats the powers, functions and duties insofar as Class II villages as per the classification made by R. 81, Land Revenue Rules, 1921 were concerned. Since the villages in which the lands which are the subject matter of these petitions were situate were Class II villages, the petitioners contend that the District Panchayats were under an obligation to delegate the powers regarding the grant of permission under S. 65 of the Code to Taluka Panchayats.
5. The Gujarat Land Revenue Rules, 1972 which were brought into force with effect on and from 1st September 1976 as amended by the Amendment Rules, 1977, made provision for determination of rates of non-agricultural assessment. Under that Rule 31 villages, towns and cities were divided into Classes A, B, C, D and E and are as adjoining such villages, towns and cities were classified as Classes 1, 11 and 111. Villages with a population up to 5,000 were placed in Class E. There is no dispute that the villages in which the lands in question are situate belonged to Class E under this Rule. By a resolution dated 25th September 1978, in partial modification of the Government order dated 25th March 1963, the State Government, in exercise of powers conferred upon it by sub-s. (3) of S. 157 of the Panchayat Act directed that out of the powers, functions and duties transferred to the District Panchayats under Government Notification dated 16th July, 1971 and 8th February, 1977, the District Panchayats shall delegate to the subordinate panchayats the powers, functions and duties specified in the statement thereunder. By this resolution, the State Government desired that the powers, functions and duties under S. 65 of the Code transferred to District Panchayats under subs. (1) of S. 137 of the Panchayats Act should be transferred to Taluka Panchayats so far as Classes D and E villages and towns as per classification under Rule 81 of the Gujarat Land Revenue Rules, 1972 are concerned. It is, however, an admitted fact that notwithstanding this and earlier resolution, the District Panchayat, Mehsana, did not delegate the powers, functions and duties under S. 65 of the Code, to the Taluka Panchayat, Kalol. The Taluka Development Officer, Kalol, exercised power under S. 65 of the Code by his order dated 19/20th April, 1982 whereby he granted permission for making non-agricultural use of agricultural lands which are the subject matter of these petitions. The Secretary (Appeals), therefore, came to the conclusion that the Taluka Development Officer, Kalol, had no jurisdiction to exercise power under S. 65 of the Code since the District Panchayat, Mehsana, had not delegated the powers, functions and duties under that provision to the Taluka Panchayat, the resolutions dated 25th March, 1963 and 25th September, 1978 notwithstanding. The short question, therefore, is whether the Secretary (Appeals) was right in exercising power under S. 211 of the Code in setting at naught the order passed by the Taluka Development Officer under S. 65 of the Code.
6. It is clear from the above discussion that the power to grant permission for making non-agricultural use of agricultural lands vests in the Collector by virtue of S. 65 of the Code. However, sub-s. (1) of S. 157, Panchayats Act, which begins with a non obstante clause empowers the State Government, subject to such conditions as it may think fit to impose to transfer by an order published in the Official Gazette to a District Panchayat any such powers, functions and duties relating to any matter as are exercised or performed by the State Government or any officer of Government under any enactment which the State Legislature is competent to enact, or otherwise in the executive power of the State, which appear to relate to matters arising within a district and are administrative in character. In exercise of this power the State Government transferred the powers of the Collector under S. 65 to District Panchayats by virtue of the order dated 25thMarch 1963. By another order of even date it also directed in exercise of power under sub-s. (3) of S. 157 of the Panchayats Act that out of the powers, functions and duties transferred to the District Panchayats under the aforesaid order, the District Panchayats shall delegate to the subordinate panchayats mentioned in column 4 of the statement all the powers, functions and duties under S. 65 insofar as Class 11 villages were concerned. On the basis of the amended Rule 81 of the Gujarat Land Revenue Rules, 1972, the State Government by an order dated 25th September 1978 further directed that the powers, functions and duties under S. 65 of the Code should be delegated to the Taluka Panchayats insofar as Classes D and E villages were concerned. Thus, the District Panchayats were by the aforesaid resolutions of the State Government empowered to delegate the powers, functions and duties of the Collector under S. 65 of the Code to the subordinate Taluka Panchayats but admittedly the Mehsana District Panchayat failed to delegate this power to the Kalol Taluka Panchayat. In the absence of a valid delegation order by the District Panchayat, Mehsana, it is obvious that the Taluka Panchayat, Kalol, could not exercise power under S. 65 of the Code. The Taluka Development Officer, Kalol, therefore, had no jurisdiction to entertain the applications of the petitioners dated 13/14th April 1982 for grant of permission under S. 65 of the Code. The order passed by the Taluka Development Officer dated 19/2Dth April 1982 granting permission to the petitioners for making non-agricultural use of their lands was, therefore, without authority and wholly void. The Secretary (Appeals) was, therefore, right in concluding that the order passed by the Taluka Development Officer, Kalol, granting permission to make non-agricultural use of the lands in question was ab initio void and, therefore, a nullity.
7. The learned advocate for the petitioners, however, invoked the 'de facto doctrine' and contended that since under the aforementioned Government Resolutions the District Panchayat, Mehsana was under an obligation to delegate the powers, functions and, duties under S. 65 of the Code to the TalukaPanchayats, the'l'alukaDevelopmenf Officer, Kalol, was a de facto officer and hence his order must be held to be valid and binding as if passed by a de jure officer. Since the order granting permission under S. 65 of the Code was in the interest of third persons, namely, owners/occupants of the lands in question and not in the interest of the de facto officer, it ought to be upheld to prevent mischief and protect the interest of the members of the public who have on the basis of the permission sold their lands to third parties. I am unable to agree with the submissions made by the learned advocates for the petitioners in this behalf for the obvious reason that the Taluka. Development Officer, Kalol, was neither a de jure holder nor a de facto holder of office to, which powers, functions and duties under S. 65 of the Code were delegated.
8. It is now well settled that the de facto doctrine can apply provided two requisites exist, namely, (i) and the performance of the duties attached to it; and (ii) colour of title that is, apparent right to the office and acquiescence in the possession of it by the public. The doctrine that the acts of officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third parties and not for their own benefit, are generally as valid and binding as if they were the acts of officers de jure dates back to the case of Abbe de Fountaine decided in 1431 as pointed out by Sir Asutosh Mookerjee J., in the leading case of Pulin Behari Das v. King Emperor, (191112) 16 Cal WN 1105, 1120. That was a case in which Pulin and 34 others were convicted under S. 121-A, Penal Code. In appeal before the Calcutta High Court, it was contended that the proceedings were bad because they were not initiated upon a complaint made by order of or under authority from the Local Government within the meaning of S. 196 Criminal P.C. In support of this ground it was argued that before a Court can take cognizance of any offence punishable under S. 121-A, Penal Code, the essential prerequisite is a complaint made by the order of or under authority from the Governor General in Council, the Local Government or some officer empowered by the Governor General in Council in that behalf. In that case the complaint was not made under authority from, or by an officer empowered by, the Governor-General in Council; it was made by and under the order of the Local Government. It was argued that the Lieutenant Governor of Eastern Bengal and Assam, by whose order the complaint was made, was not the person authorised by law to administer executive Government in that part of British India, because the Province of Eastern Bengal and Assam was irregularly constituted and the Lieutenant Governor himself was as such irregularly appointed. The argument by necessary implication meant that the Court of Session too was irregularly constituted because the Lieutenant Governor of Eastern Bengal and Assam who acted in this behalf was not the Local Government within the nation, pointed out that the complaint was made under authority from and by order of the de facto Local Government and that was sufficient so far as the validity of the proceedings was concerned On the same line of reasoning it was held that the Court of Session, assuming it was not the holder of a de jure office was actually in possession of it under the colour of title and under such conditions as indicated the acquiescence of the public in its actions and hence its authority could not be collaterally impeached in the proceedings arising from the conviction of Pulin and his co-accused.
9. In Immedisetti Ramkrishnaiah Sons v. State of Andra Pradesh, AIR 1976 Andh Pra 193, the Government of Andhra Pradesh in exercise of power conferred by statute nominated nine persons to represent the growers of agricultural produce and owners of livestock on the Agricultural Market Committee of Anakapalli. The nomination of those nine persons was set aside by the High Court on the ground that there was no consultation with the Director of Marketing as contemplated by the statute. Before the judgment of the High Court was pronounced, the Market Committee had functioned as if it had been properly constituted. Several acts had been done, notifications issued and proceedings taken by the Committee in the interregnum, that is, between the date of its constitution and the date of the judgment of the High Court. One such act was the issuance of a notification by the Government declaring the notified market area following a declaration of the market area by the Market Committee. It was argued that the declaration of the Market area having been made by a Market Committee which was not properly constituted was no declaration in law and hence the notification of the State Government declaring the notified market area was illegal. The High Court held that on the date when the declaration was made, the High Court had not yet declared the appointment of the members of the Committee invalid and since the Committee was functioning as if it was legally constituted there was in existence on the date of the declaration the de facto Market Committee. Dealing with the question whether the acts of the de facto Market Committee could be upheld as valid in law, Chinnappa Reddy, J. (as he then was) reiterated the observations of Mookerjee J., in Pulin's case ((1911-12) 16 Cal WN 1105) as under:
'... it is now a well-established doctrine that 'the acts of the officers de facto per formed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit are generally as valid and binding as if they were the acts of officers de jure' '
Enunciating the de facto doctrine, the learned Judge observed that an illegal appointment may be set aside and a proper appointment may be made, but the acts of those who held office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone. After tracing the origin of the de facto doctrine to the case of Abbey de Fontaine decided in (1431-YB, 9 H6 Fol 32), the learned Judge referred to the development of the case law and concluded that the de facto doctrine was recognised by Indian Courts also. It was invoked by the Allahabad High Court in Jai Kumar v. State, 1968 All IJ 877 (FB) to uphold the judgments of the District Judges whose appointments had been struck down by the Supreme Court as invalid. At the same time the learned Judge made the following observations in para 10 of the judgment -
'No one is under obligation to recognise or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure, or except, when the person himself attempts to build up some rights, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valid and effectual. While he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. There is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally.'
This principle was invoked in the case of Gokaraju Rangaraju v, State of A. P., AIR 1981 SC 1473. In that case the question which arose for decision was 'what is the effect of the declaration by the Supreme Court that the appointment of an Additional Sessions Judge was invalid on judgment pronounced by the judge prior to such declaration?' Invoking the de facto doctrine as enunciated by Mookerjee J., in Pulin's Case (supra), their Lordships pointed out
'the doctrine is founded on good sense, sound policy and practical experience. It is aimed at the prevention of public and private mischief and. the protection of public and private interest. It avoids endless confusion and needless chaos.'
Once again Chinnappa Reddy J., after tracing the history of the de facto doctrine observed that a Judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be de facto. Judgments pronounced by him when he was clothed with the powers and functions of the office held by him, must have the same efficacy as judgment pronounced and acts done by a Judge de jure. On this principle the judgments pronounced by the Additional Sessions Judge whose appointments was later found to be defective were upheld.
10. It seems clear to me that the de facto doctrine can be invoked in cases where there is a de facto appointment which may be defective and unsustainable in law. The defect to the title of the office notwithstanding, the decisions taken by such a de facto officer clothed with the powers and functions of office would have the same efficacy as those of a de jure officer. The same would, however, not be true of a total intruder or usurper, as in the present case. The facts of this case reveal that the District Panchayat, Mehsan had not delegated its powers, functions and duties under S. 65 to the Taluka Panchayat and, therefore, the Taluka Development Officer was a usurper when he exercised powers under S. 65 of the Code and granted permission for non-agricultural use of agricultural lands, belonging to the owners/occupants. This was not a case of a defective appointment, there was no appointment at all, since the powers had not been delegated to the Taluka Panchayat and, therefore, the Taluka Development Office Kalol was not an officer de facto insofar as the exercise of power under S. 65 of the Code was concerned. He was total stranger, a usurper, who was not clothed with the powers and functions under S. 65 of the Code even unlawfully and, therefore, the exercise of power by him was ab initio void and a nullity. Acts, orders and decisions done, passed and rendered by such an officer cannot be protected or saved by invoking the de facto doctrine. The Taluka Development Officer, Kalol, was neither a de facto nor a de jure officer insofar as the conferment of power under S. 65 of the Code was concerned and, therefore, his decisions can only be held to be a nullity. I am, therefore, of the opinion that the Secretary (Appeals) was quite right in concluding that the permission granted by the Taluka Development Officer, Kalol, by his order dated 19/20th April 1982 for making non-agricultural use of lands which are the subject matter of those petitioners was a nullity.
11. It was contended on behalf of the appellants that as the Taluka Development Officer was not a subordinate revenue officer, the Secretary (Appeals) could not have exercised revisional jurisdiction under S. 211 of the Code. S. 211 of the Code reads as under : -
'211. The State Government and any revenue officer, not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer for the purpose of satisfying itself or himself, as the case may be, as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer.
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The Secretary (Appeals), it was argued, could have called for and examined the record of any proceedings of any 'subordinate revenue officer' for the purpose of satisfying himself as to the legality or propriety of any decision or order passed by such officer. We have already noticed that the Taluka Development Officer passed the orders dated 19/20the April 1982 in purported exercise of power under S. 65 of the Code. S. 65 of the Code empowers the Collector to grant permission for making non-agricultural use of agricultural land. Therefore, when the Taluka Development Officer passed the orders granting permission under S. 65 of the Code, he purported to exercise the powers conferred on the Collector by the statute. Chapter VI of the Panchayats Act is entitled 'Provisions as to transfer of certain functions under any enactment to Panchayats'. This Chapter is divided under three heads, namely, (A) Transfer of functions relating to recovery of land revenue and cesses under the Land Revenue Code and the law relating to collection of cesses : (B) Transfer of the functions of the District School Boards to Panchayats; and (C) Delegation of the functions under the Bombay Co-operative Societies Act, 1925 or any other corresponding enactment in force in the State. The first head is covered by Ss. 149 to 154. S. 149 provides that the State Government shall, notwithstanding anything contained in the Code, or any law relating to collection of any cess for the time being in force in the State, by notification in the Official Gazette, entrust to every gram panchayat and every nagar panchayat any or all of the functions and duties of a village accountant or Patel or other similar functions of any other person, by whatever name called, in relation to the collection of land revenue (including cesses) and dues recoverable as arrears of land revenue which is levied and assessed by or under the Code, or law relating to the collection of any cess for the time being in force in the State, and all other functions and duties of a village accountant under that Code. The next relevant provision is S. 152(l) which says that notwithstanding anything contained in the Panchayats Act and the Code, a District Development Officer, a Taluka Development Officer and such Revenue Officers not below the rank of a Deputy Collector as may be posted under a district panchayat and designated by the State Government in this behalf shall be deemed for the purposes of Chapter VI to be revenue officers within the meaning of the Code. We have already noticed S. 157 which provides for the transfer of functions of State Government panchayats. In exercise of the power conferred by S. 157, the State Government issued an order dated 25th March 1963 transferring to the District Panchayats the powers, functions and duties of the State Government under Ss. 59, 65 and 65 of the Code. By another resolution of even date the State Government directed that out of the powers, functions and duties transferred to the District Panchayats under the aforesaid resolution, the District Panchayats should delegate to the subordinate panchayats the powers, functions and duties conferred by S. 65 of the Code. In partial modification of the order dated 25th March 1963, the State Government by resolution dated 25th September 1978 directed that out of the powers, functions and duties transferred to the District Panchayats, the District Panchayats shall delegate to the subordinate panchayats the powers, functions and duties under S. 65 of the Code insofar as classes D and E villages were concerned. It will be seen from the above statutory provisions and G6vernment orders that the power conferred on the Collector by S. 65 of the Code was transferred to the District Panchayat by virtue of S. 157 of the Panchayats Act read with the relevant Government orders. The District Panchayat, Mehsana, in turn failed to delegate the powers to the Taluka Panchayat, Kalol, and therefore, the Taluka Development Officer, Kalol, was in law not entitled to exercise power by virtue of S. 123 of the Panchayats Act. However, the Taluka Development Officer purporting to act under S. 65 of the Act (Code?), granted permission to make non-agricultural use of the lands in question to the owners/occupants by his orders dated 19/20th April, 1982. It is, therefore, clear that the Taluka Development Officer, Kalol, exercised the powers of the Collecter under S. 65 of the Code, may be under an erroneous belief that the power had been delegated to the Taluka Panchayat, Kalol, by the District Panchayat, Mehsana. Under S. 157 of the Panchayats Act, the Taluka Development Officer was to be deemed to be a revenue officer for the purposes of Chapter VI of the Panchayats Act which provides for the transfer of certain functions to the panchayat. Therefore, when the Taluka Development Officer, Kalol, purported exercise the Collector's powers under S. 65 of the Code he did so as a revenue officer by virtue of the fiction of S. 152(l) of the Panchayats Act. It is, therefore, not correct to say that the Taluka Development Officer was not acting as a subordinate revenue officer while assuming jurisdiction under S. 65 of the Code. I, therefore, do not find any substance in the contention that Secretary (Appeals), was not entitled to invoke the revisional jurisdiction conferred on him by S. 211 of the Code.
12. It was next contended that the power conferred by S. 211 of the Code was not exercised within a reasonable time and hence the order passed by the Secretary (Appeals) cannot be sustained. In support of this contention strong reliance was placed on the decision of the Supreme Court in State of Gujarat v. Raghav Natha, (1969) 10 Guj LR 992 : (AIR 1969 SC 1297). In that case also the Supreme Court was concerned with the exercise of revisional jurisdiction under S. 211 of the Code in regard to an order passed under S. 65 of the Code. Dealing with the question regarding the time factor within which the revisional jurisdiction ought to be invoked, the Supreme Court made the following observations in paras 12 and 13 of the judgment : -
'12. The question arises whether the Commissioner can revise an order made under S. 65 at any time. It is true that there is no period of limitation prescribed under S. 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 S. 65 itself indicates the length of the reasonable time within which the Commissioner act under S. 211. Under S. 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 Ss. 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 at least within a few months from the date of the permission.'
In the present case the Taluka Development Officer passed orders granting permission on 19/20th April 1982. The Secretary (Appeals) issued a show cause notice on 31st March 1983 and cancelled the orders of the Taluka Development Officer on 29th August 1983. It was submitted that even if the period is calculated between the dates of the orders of the Taluka Development Officer and the show cause notice issued by the Secretary (Appeals), the said period being just a few days short of one year cannot be said to be a reasonable period. Now in the first place it must be realised that the length of reasonable period must be determined on the facts and circumstances of each case. The Supreme Court also observed that the revisional powers must be exercised within a few months of the order made under S. 65 of the Code. But that apart, the facts in the present petitions are peculiar in that an officer who was not competent to exercise power under S. 65 of the Code had granted permission sought for by the petitioners. As pointed out earlier, the orders passed by the Taluka Development Officer were ab initio void and, therefore, had no efficacy in the eye of law. Such an order is non-existent and even if not set aside, it has no legal validity or existence. It is not worth the paper on which it is written and no rights flow and no obligations arise therefrom. An order which is a nullity in the eye of law has, therefore, to be ignored but since the same came to the attention of the Secretary (Appeals), he thought it wise to put an end to it by exercising jurisdiction under S. 211 of the Code.
13. In a recent decision, Pandurang v. State of Maharashtra, AIR 1987 SC 535, Thakkar J., speaking for the Supreme Court observed as under : -
'When a matter required to be decided by a Division Bench of the High Court is decided by a learned single Judge, the judgment would be a nullity; the matter having been heard by a court which had no competence to hear the matter, it being a matter of total lack of jurisdiction ... What can be done only by at least two learned Judges cannot be done by one learned Judge. Even if the decision is right on merits, it is by a forum which is lacking in competence with regard to the subject matter. Even a 'right' decision by a wrong forum is no decision. It is non-existent in the eye of law. And hence a nullity. The judgment under appeal is therefore no judgment in the eye of law. This Court in (1982) 3 SCR 81 : AIR 1982 SC 800 (State of Madhya Pradesh v. Dewadas) has taken a view which reinforces our view.'
It would appear from the above observations that once it is found that an authority which is not competent to exercise power, exercises power and passes an order, such an order' would be a nullity in the eye of law on account of total absence of jurisdiction and even if not set aside would have no efficacy in law. That being so, even if the Secretary (Appeals) were not to cancel the orders passed by the Taluka Development Officer granting permission under S. 65 of the Code. It would not have made any difference for the simple reason that such orders would be non-existent and unenforceable. No question of limitation or reasonableness of time for setting aside such as order can really arise. I am, therefore, of the opinion that in the peculiar circumstances stated above, the decision of the Supreme Court on which considerable reliance was placed cannot be pressed into service.
14. It was next submitted that even if the Court comes to the conclusion that the order passed by the Taluka Development Officer granting permission was a nullity, the proper course for the Secretary (Appeals) was to regularise the grant of permission to avoid unnecessary hardship to third parties, namely, those who had purchased the lands after the grant of permission. It was submitted that no litigant can be permitted to suffer for the fault of Government authority more particularly because the purchasers must be taken to have purchased the lands in question on the strength of the permission granted under S. 65 of the Code. It was submitted that if the permission granted by the Taluka Development Officer is cancelled it would result in upsetting several trasactions causing avoidable hardship and anxiety to the purchasers. It must be realised that it is the duty of those who enter into transactions for the purchase of land to ascertain that the title offered by the vendor is clear and marketable. On the ground of avoidance of hardship, a null and void order cannot be regularised. There can be question of regularising that which does not exist in the eye of law. Irregularities can be regularised but an order which is out and out a nullity cannot be regularised in the name of avoidance of hardship to subsequent purchasers. It was the duty of the purchasers to ascertain whether permission to make non-agricultural use of the land proposed to be purchased was by an officer competent to grant such permission. I am, therefore, of the opinion that an order passed by an officer who lacked inherent jurisdiction and was, therefore, a nullity out and out cannot be regularised for the simple reason that such an order has no existence in law.
15. Reliance was placed on the decision of this Court in Raghav Natha v. G. F. Mankedi, (1965) 6 Guj LR 34. In that case the petitioner was granted a Sanad which included the terms of the agreement between the Government and the petitioner on the basis where of the latter was allowed to make nonagricultural use of the land. This sanad was issued in the prescribed form and was executed by the Collector on behalf of the Governor of the State. Condition No. 6 thereof read: 'Code Provisions applicable - Save as herein provided the grant shall be subject to the provisions of this Code.' The question which arose was, whether it was open to the Government to revise the agreement under S. 211 of the Code. This Court held that since the Sanad was granted under an agreement pursuant to which nonagricultural use was permitted, the Government could not exercise revisional jurisdiction under S. 211 of the Code in regard to the agreement. This decision, in my view has no application since the Sanad granted to the petitioner was not by an authority which lacked jurisdiction to grant the same.
16. In support of the contention that this Court should issue directions to regularise the permission for making non-agricultural use of the lands in question, my attention was invited to two cases : (i) Nanji Pancha v. Daulal, (1970) 11 Guj LIZ 285 and (ii) Surya Narain Yadev v. B. S. E. Board, AIR 1985 SC 941. In my opinion, neither of these two decisions has any relevance since they turn on their own facts. In the first case there was a dispute as to standard rent and the tenant had failed to pay or tender the standard rent on the first date of hearing. Eviction was sought on the ground that the tenant had not complied with the relevant provisions which required him to pay or tender the standard rent on the first date of hearing. The Court had, however, not fixed the standard rent and, therefore, the tenant contended that there he was not in a position to pay or tender the standard rent on the first date of hearing. The Court fixed the standard rent at the end of the trial and hence it was contended that it was mandatory on the part of the Court to exercise its power suo motu so that the benefit of S. 12(3)(b) of the Bombay Rent Act is not rendered illusory. This Court observed that in such circumstances the Court must act suo motu to regularise payments or fix some date by which the tenant would pay or tender the standard rent fixed by the Court in Court. This decision which turns on its own facts can have no application to the facts of the present case.
16A. In the Supreme Court case on which reliance is placed, the Electricity Board held out certain representations to certain Trainee Engineers that they would be absorbed in regular employment after the training period was completed. Some of the trainees who had left since they were getting age barred for Government employment were recalled under the temptation of permanent employment and when the Electricity Board was reeling under a strike of its employees, these Trainee Engineers had shown loyalty to the Board and the Board had decided to absorb them on permanent basis but had granted initial appointments on probation for two years. It was in those circumstances and because of the promise held out to the Trainee Engineers that the Supreme Court felt that a special treatment to this special class of employees was called for. It is, therefore clear that the equitable doctrine was applied in the case of the Trainee Engineers because of the representations and promises made earlier by the Electricity Board. In the present case no such representation or promise was made out power was exercised by the Taluka Development Officers who was not competent to do so and, therefore, the petitioners, in my view, are not entitled to invoke the equitable doctrine on the ratio of the Supreme Court decision.
17. Lastly it was argued that the District Panchayat was clothed with the power to grant permission under S. 65 of the Code by the State Government. At the same time the District Panchayat was also under an obligation to delegate those powers to the Taluka Panchayats. The District Panchayat's failure to do so notwithstanding the Government fiat ought not to weigh against the petitioners. It is indeed true that the State Government had while transferring power under S. 65 of the Code to District Panchayats desired that the District Panchayats should in turn delegate the powers to the Taluka Panchayats. It is, however, a fact that the District Panchayat, Mehsana, did not delegate the power to the Taluka Panchayat, Kalol, and therefore, the Taluka Development Officer, Kalol had no jurisdiction to grant permission under S. 65 of the Code. The submission was that it was the failure of the Government machinery which was responsible for the absence of delegation of power to the Taluka Panchayat for which the petitioners cannot and should not be penalised and since by a subsequent resolution the powers have in fact been delegated to the Taluka Panchayat, the Taluka Development Officer, Kalol is now clothed with power under S. 65 of the Code. It was, therefore, contended that no useful purpose will be served by remanding the matter to the Taluka Development Officer, Kalol. I see no merit in this line of reasoning. In matters which pertain to conferment of jurisdiction either the officer has jurisdiction or he lacks jurisdiction. The important step of delegating the powers to the Taluka Panchayat was indisputably not taken by the District Panchayat. It may even be conceded for the sake of argument that the District Panchayat was under an obligation to delegate the powers to the Taluka Development Panchayat but the fact remains that the former did not do so for whatever reason. The failure on the part of the District Panchayat to delegate the powers to the Taluka. Panchayat resulted in the latter not being clothed with power under S. 65 of the Code. That being so, the Taluka Development Officer, Kalol, had no jurisdiction to grant permission to the petitioners to make nonagricultural use of their lands. The failure on the part of the District Panchayat was not merely in regard to a procedural matter which could be cured or regularised but it was one of substance which went to the root of the matter. It is also not possible to agree that the power must be deemed to have been delegated as the District Panchayat was under an obligation to do so. By such deeming fiction jurisdiction cannot be assumed where none existed. An order which is a nullity for want of inherent jurisdiction cannot be upheld or regularised merely because subsequently power came to be delegated to the very same authority. I, therefore, do not see any force in the above line of reasoning.
18. Before parting with the matter, one submission which was faintly made may also be answered. It was said that some of the purchasers were not served with a notice before exercise of power under S. 211 of the Code and hence the matter should be remitted to the Secretary (Appeals). Since after hearing the said parties I have come to the conclusion that the orders passed by the Taluka Development Officer, Kalol, were a nullity, no useful purpose will be served by remitting the matter, assuming without deciding that some of the purchasers were not informed of the proceedings.
19. These were the only submissions made by the learned advocates for the petitioners in this group of petitions. As I do not find any merit in any of, the submissions urged before me, these petitions fail and are dismissed. The rule in each petition is discharged with, costs.
20. Petitions dismissed.