Judgment:
A.N. Divecha, J.
1. All these petitions involve identical questions of law and fact. They are directed against the action taken against the petitioners in each case under Section 84-C of the Bombay Tenancy and Agricultural Lands Act, 1948 ('the Act' for brief). The impugned order passed by the first authority, as affirmed in appeal by the appellate authority, is practically in a cyclostyled form. The impugned decision of the Gujarat Revenue Tribunal in revision is common in all revisional applications. I have, therefore, thought it fit to dispose of all these petitions by this common judgment of mine.
2. The facts giving rise to this petition move in a narrow compass. The petitioners in each case have purchased certain parcels of agricultural lands from the respondents other than respondents Nos. 1 and 2 some time in 1981. The necessary entries in the Record of Rights were mutated soon thereafter and they were also certified some time in June 1981 in each case. It appears that the Mamlatdar (Record of Rights) at Gandhinagar made report on 31st March 1983 that the purchasers had their agricultural lands beyond the distance of 8 Kms. from the lands purchased by them and were residing beyond 15 Kms. therefrom. They were, therefore, not agriculturists within the meaning of Sections 2(2) and 2(6) of the Act and the sale in each case was, therefore, to a non-agriculturist, and as such in contravention of Section 63 thereof. He, therefore, recommended initiation of the proceedings under Section 84-C thereof. Thereupon the Mamlatdar and Agricultural Lands Tribunal at Gandhinagar the 'first authority' for convenience) issued a show-cause notice under Section 84-C of the Act calling upon both the petitioners and the respondents other than respondents Nos. 1 and 2 in each petition (that is, both the vendor and the vendee) why the sale transaction in each case should not be invalidated and why further action according to law should not be taken. The date of the aforesaid show-cause notice is not found mentioned anywhere in the record. It, however, transpires from the proceedings that hearing pursuant to the show-cause notice first took place on 24th August 1983. It is an admitted position on record that show-cause notice was issued pursuant to the aforesaid report of 31st March 1983 made by the Mamlatdar (Record of Rights) at Gandhinagar. It can, therefore, reasonably be inferred that the show-cause notice under Section 84-C of the Act might have been issued some time in or about May or June 1983, that is, nearly 2 years after the sale transaction and also nearly 2 years after the entries with respect to their sale were mutated and certified in the relevant revenue records. It appears that the petitioners in each case submitted their reply to the show-cause notice and resisted the proceedings including the initiation of the proceedings on various grounds. After hearing the parties, by his order passed on 8th February 1984 in each case, the first authority declared the sale transaction in each case to be invalid and directed the lands in question to be restored to original position and to give intimation of restoration of the original position of the lands to the first authority within 90 days therefrom. A copy of the order passed by the first authority is at Annexure B to each petition. The aggrieved petitioners in each case unsuccessfully carried the matter in appeal before the Deputy Collector at Gandhinagar. By his order passed on 9th August 1984 in each appeal, the Deputy Collector at Gandhinagar dismissed each appeal of the petitioners. A copy of the appellate order in each case is at Annexure A to each petition. The petitioners thereupon unsuccessfully invoked the revisional jurisdiction of the Gujarat Revenue Tribunal at Ahmedabad by means of their separate revisional applications. The revisional applications came to be registered as Revision Applications Nos. TEN.B.A. 1332 to 1345 of 1984. By its common decision rendered on 4th June 1986 in the aforesaid revisional applications, the Gujarat Revenue Tribunal at Ahmedabad rejected all the revisional applications. Its copy is at Annexure 'C' to each petition. The aggrieved petitioners have thereupon invoked the extra-ordinary jurisdiction of this Court under Article 227 of the Constitution of India for questioning the correctness of the impugned order passed by the first authority at Annexure B to each petition as affirmed in appeal by the appellate order at Annexure A to each petition and in revision by the decision at Annexure 'C to each petition.
3. It would be quite proper to take stock of certain undisputed facts. The petitioners admittedly own agricultural lands beyond 8 Kms. from the lands involved in the case and are residing beyond 15 Kms. from the lands in question. The sale transaction in each case was entered into some time in 1981 and the necessary entry in the revenue records was effected soon thereafter and was certified some time in June, 1981 in each case. The show-cause notice under Section 84-C of the Act was presumably issued some time in May or June, 1983. The proceedings under Section 84-C could thus be said to have been initiated with the issue of the show-cause notice nearly 2 years after the entry in the revenue records with respect to the sale transaction in question was certified some time in June, 1981.
4. Shri A.J. Patel for the petitioners has urged that the power under Section 84-C of the Act has been exercised beyond reasonable time and without taking into consideration the fact that the petitioners made huge investment for development of the lands purchased by them under the sale transactions in question. According to Shri A.J. Patel for the petitioners, such powers under Section 84-C of the Act could not have been exercised beyond one year from the date of the transaction or in any case beyond one year from the date the entry in the revenue records was certified in the instant case. As against this, Shri D.N. Patel for the contesting respondents has urged that the transaction involved in each case is in clear contravention of Sections 63 and 64 of the Act, and as such invalid and void. According to Shri D.N. Patel for the contesting respondents, an invalid or void order is no order in the eyes of law and in order to set at naught an invalid or void transaction powers under Section 84-C of the Act can be exercised at any time. Shri D.N. Patel for the contesting respondents has further urged that it would be irrelevant to note whether or not the executants of an invalid transaction have made huge investment in the subject-matter of the transaction when it is invalid or void,
5. Shri A.J. Patel for the petitioners has brought to my notice a bunch of unreported rulings of this Court in various proceedings interfering with the action taken under Section 84-C of the Act on the ground that such action was taken beyond reasonable time. All these rulings have practically been based on the ruling of the Supreme Court in the case of State of Gujarat v. Patel Raghav Natha & Ors., reported in (1969) X GLR 992. In that case, the Supreme Court was concerned with the exercise of revisional powers under Section 211 of the Bombay Land Revenue Code, 1879 ('the Code' for brief). Section 211 of the Code prescribes no period of limitation for exercise of powers thereunder. In that context, in its aforesaid ruling in the case of Raghav Natha (supra), the Supreme Court has held that such powers under Section 211 of the Code have to be exercised within reasonable time and what would be the reasonable time would depend upon the facts of each case and the nature of the impugned order.
6. Following the aforesaid ruling of the Supreme Court in the case of Raghav Natha (supra), the Division Bench of this Court in its ruling in the case of Bhagwanji Bawanji Patel v. State of Gujarat & Ors., reported in (1971) XII GLR 156 has held that such powers under Section 211 of the Code will have to be exercised within reasonable time and that reasonable time could be a period of one year.
7. The concept of reasonable time qua Section 211 of the Code has been applied to the powers exercised by the authorities inter alia under Section 84-C of the Act in several rulings of this Court in various matters. In Special Civil Application No. 2770 of 1979 and other allied matters decided on 1st March, 1990, this Court (Coram: S.B. Majmudar, J.) held that powers under Section 84-C of the Act have to be exercised within reasonable time. In that case, the sale transaction took place some time in November, 1973. The proceedings under Section 84-C of the Act were initiated on 8th May, 1975. It was the case of the petitioners in that case that they had spent huge amounts on improvement of the lands in question. Since the proceedings under Section 84 of the Act were found to have been initiated more than one year from the date of the transactions, this Court in its aforesaid unreported ruling in Special Civil Application No. 2770 of 1979 and other allied matters decided on 1st March, 1990 came to the conclusion that powers thereunder were exercised beyond reasonable time or were exercised after unreasonable time. The impugned orders were thereupon quashed by this Court.
8. The same view is taken by this Court in Special Civil Application No. 1317 of 1980 decided on 17th August, 1990 (Coram: R.K. Abichandani, J.), in Special Civil Application No. 1529 of 1980 decided on 5th November, 1990 (Coram: G.T. Nanavati, J.) and in Special Civil Application No. 3148 of 1980 decided on 11th January, 1991 (Coram: B.C. Patel, J.). In each case, the powers under Section 84-C of the Act were found to have been exercised beyond reasonable time. Shri D.N. Patel for the contesting respondents has, however, invited my attention to the ruling of this Court in the case of Govindbhai Somabhai Nai & Ors. v. State of Gujarat & Ors., reported in : AIR1987Guj273 in support of his submission to the effect that the concept of reasonable time need not be invoked when the transaction in question is void ah initio. In that case, permission for non-agricultural use of the land involved therein was found to hare been granted by the Taluka Development Officer at Kalol. It was found in that case that the said authority did not possess any power to grant such permission for non-agricultural use of the agricultural land in question. In exercise of his powers under Section 21 lot the Code, the Secretary (Revenue Department) to the Government of Gujarat set aside the aforesaid order of the Taluka Development Officer at Kalol granting permission for non-agricultural use of the land in question. The order of the Taluka Development Officer at Kalol was of 19/20th April, 1982 and the show-cause notice under Section 211 of the Code for setting aside the order was issued on 31st March, 1983. In that context, it has been held:
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 Section 211 of the Code.
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Even if the Secretary (Appeals) were not to cancel the orders passed by the Taluka Development Officer granting permission under Section 65 of the Code, it would not have made any difference for the simple reason that such orders would be nonexistent and unenforceable. No question of limitation or reasnableness of time for setting aside such an order can really arise.
9. To the same effect, though in a different context, is the ruling of this Court in the case of Koli Nagjibhai Varjan v. State of Gujarat & Ors., reported in 1992 (1) XXXIII (1) GLR 14 relied on by Shri D.N. Patel for the contesting respondents. In that case, the sale transaction was entered into between the parties some time in 1964. It was found to be in contravention of the relevant provisions contained in the Bombay Prevention of Fragmentation and Consolidation of the Holdings Act, 1947 and hence void under Section 9(1) thereof. That sale transaction was sought to be set at naught by initiating the proceedings about 10 years later. Ultimately, the sale transaction came to be invalidated in that case. A challenge to that action on the ground that the powers for annulling the sale transaction in question were exercised beyond reasonable time was not accepted on the ground that the transaction was void and the concept of reasonable time would not be applicable to any void transaction.
10. It may be mentioned at this stage that any transaction in contravention of Section 63 or 64 of the Act is made invalid and not void. This becomes clear from the language of Section 63 and the provisions contained in Section 64(8) thereof. Shri D.N. Patel for the contesting respondents has, however, urged that there is no much distinction between the terms 'invalid' and 'void'.
11. In support of his submission, he has invited my attention to the Division Bench ruling of the Nagpur High Court in the case of Mohammad Ibrahim Khan Ikramkhan v. Sugrabi Abdul & Ors., reported in AIR 1955 Nagpur 272. In the context of the C.P. and Berar Relief of Indebtedness Act, 1939, the Nagpur High Court has held:
It is contended that there is a difference in the phraseology of Sub-section (1) and Sub-section (2) of Section 15. Whereas Sub-section (2) mentions the word 'void' the first sub-section uses the words 'No tiansfer shall be valid'. There is no real difference between the two. The transaction entered into by a person whose petition for the settlement of debts was pending before a Debt Relief Court is to be regarded as invalid, that is to say, of no effect in the eye of the law.
12. Ordinarily, I would have accepted the aforesaid submission canvassed by Shri D.N. Patel for the contesting respondents to the effect that there is practically no difference between the two terms 'invalid' and 'void' in the light of the aforesaid ruling of the Nagpur High Court in the case of Mohammad Ibrahim Khan Ikramkhan (supra). The scheme of the Act, however, makes a clear distinction between void transactions on the one hand and invalid transactions on the other. It is not open to me to say that the Legislature did not understand the distinction between the two terms 'void' and 'invalid'. In fact, as transpiring from the various provisions of the Act, the Legislature was fully aware of the distinction between the two aforesaid terms. In Section 17(5) of the Act it has been provided, 'Any sale of a site held in contravention of this section (that is, Section 17 thereof) shall be null and void.' As against this, Section 64(8) has provided 'any sale made in contravention of this section (that is, Section 64 thereof) shall be invalid.' The language of Section 63 thereof also makes it clear that the transaction in contravention thereof would be invalid and not void.
13. The material provision, however, occurs in Section 83A of the Act. It reads:
(1) No person shall acquire land by transfer where such transfer or acquisition is invalid under any of the provisions of this Act.
(2) Any person who acquires land in contravention of Sub-section (1) shall, in the event of the transfer or acquisition being decided or declared invalid, be liable to suffer, the consequences under Section 84 or 84-C as the case may be.
It becomes clear from the language of the aforesaid statutory provision that any invalid transaction will have to be decided or declared invalid. It would thus mean that an invalid transaction per se may be invalid but it will not be invalid unless it is decided or declared to be so. It has to be invalidated. It thus becomes clear that an invalid transaction is made equivalent to a voidable transaction and not a void transaction. It is a trite principle of law to say that a voidable transaction remains valid till it is avoided, annulled or invalidated. Even at the cost of repetition, I reiterate that the language of Section 83A of the Act has likened an invalid transaction to a voidable transaction.
14. In order to annul, avoid or invalidate a voidable transaction, powers for the purpose will have to be exercised within reasonable time. The aforesaid rulings of this Court in the case of Govindbhai Somabhai Nai (supra) and in the case of Koli Nagjibhai Varjan (supra) will not be applicable in the instant case as they were dealing with void transactions and not voidable transactions.
15. In view of my aforesaid discussion, I am of the opinion that powers under Section 84-C of the Act will have to be exercised within reasonable time. The question then would arise what would be the reasonable time for exercise of such powers and what would be its starting point. As held by the Supreme Court in its ruling in the case of Patel Raghav Natha (supra), what would be the reasonable time would depend upon the facts in each case and the nature of the impugned order in each case.
16. It cannot be gainsaid that the power under Section 84-C of the Act is exercisable only when a transaction is found to be invalid under the Act. A transaction under the Act would naturally involve acquisition or transfer of a piece of agricultural land. Any such acquisition or transfer will have to be mutated in the revenue records pertaining to the property involved therein in view of the relevant provisions contained in Chapter XA of the Code. Such mutation entry will have to be certified by the competent revenue officer as provided in Section 135D (6) thereof. It cannot be gainsaid that the date of certification entry will bring the transaction in question in the knowledge of the concerned revenue officer. If the transaction is found to be invalid, the revenue officer concerned can himself initiate the proceedings under Section 84-C of the Act if he is competent to do so. Else, he would report the matter to the competent authority for initiating an appropriate action for annulment or invalidation of such transaction. Ordinarily, such action should be initiated within one year from the date such entry in the revenue records is certified by the revenue officer in accordance with Section 135D (6) of the Code. I think the period of one year can be said to be a reasonable time by any stretch of imagination for the purpose of initiation of the proceedings for its annulment or invalidation if the transaction in question is found to be invalid.
17. The aforesaid discussion would not mean that no powers under Section 84-C of the Act can be exercised beyond a period of one year from the date the mutation entry in the revenue records with respect to the said transaction is certified in accordance with Section 135D(6) of the Code. If the power under Section 84-C of the Act is exercised beyond the period of one year, the affected party will be justified in showing to the authority that the initiation of the proceedings for the purpose would materially prejudice his case. The affected party, for instance, might have made huge investment after expiry of one year from the date the entry in the revenue records in his favour is certified. If the proceedings for annulment of such transaction is initiated after one year from its certification in the revenue records, the affected party might suffer huge loss on account of his having changed his position vis-a-vis his holding. In that case, if the authority initiating the proceedings under Section 84-C of the Act is satisfied that the action thereunder would prejudicially and materially effect the recipient of the notice, he need not exercise his powers thereunder. If powers under Section 84-C of the Act are sought to be exercised beyond highly unreasonable time, say about 5 years after the entry pertaining to the so-called invalid transaction in the revenue records is certified, the authority exercising such powers will have to justify his belated action. It could be that a fraud might have been committed with the authority and such fraud might have come to light after expiry of more than 5 years from the date the entry in the revenue records was certified with respect to the sale transaction. In such a case, the exercise of powers under Section 84-C of the Act might be found justifiable. But in that case it would be for the authority initiating the proceedings under Section 84-C of the Act to justify exercise of such powers after lapse of such a long period.
18. In each of the present case, the sale transaction was certified in the revenue records some time in June 1981 and the proceedings under Section 84-C of the Act were initiated with respect to such sale transactions some time in May or June 1983, that is, nearly 2 years after the mutation entry in the revenue records with respect to the sale transaction in question was certified. The proceedings in question would certainly be beyond the reasonable period of one year. In that case, it will be open to the petitioners as recipients of the notice under Section 84-C of the Act to show to the authority that they would be prejudicially affected by such action after a period of one year by pointing out huge investment they might have made for improvement of the lands in question. In fact, as transpiring from the order at Annexure 'B' to this petition, the petitioners have in fact contended, in answer to the show-cause notice, that they have made huge investment after purchase of the lands in question. The first authority has not at all dealt with that contention urged before it by the petitioners. It appears that neither the appellate authority nor the Gujarat Revenue Tribunal at Ahmedabad has directed itself to this aspect of the case. Non-consideration of this case coupled with exercise of powers under Section 84-C of the Act beyond a period of one year from the date the entry in respect of the sale transaction in question was certified in the revenue records, would certainly vitiate exercise of such powers. It would, therefore, be in the fitness of things to direct a fresh inquiry in the matter.
19. In the result, all these petitions are accepted. The impugned order passed by the first authority at Annexure 'B' to each petition as affirmed in appeal by the appellate order at Annexure 'A' to each petition and in revision by the decision at Annexure 'C to each petition is quashed and set aside. The matters are, however, remanded to the first authority for his fresh decision according to law by examining the merits of the contention taken up in the reply to the show-cause notice to the effect that the petitioners have made huge investment for improvement of the lands in question and other such contentions as raised in their reply.
20. It would be open to the petitioners to bring on record the necessary and relevant materials in that regard. It would be open to the authority initiating the proceedings under Section 84-C of the Act to justify its action beyond the period of one year from the concerned date. Rule is accordingly made absolute to the aforesaid extent in each petition however with no order as to costs.