Hansaben W/O. Bhagwanbhai Ratnabhai and Legal Guardian of Minor Sanjay and ors. Vs. State of Gujarat and ors. - Court Judgment

K.A. Puj, J.

1. Since, all these matters are inter-connected with each other and they are heard together, the same are being disposed of by this common judgment.

2. Special Civil Application No. 14179 of 2007 is filed by the petitioners challenging the order dated 28-5-2007 passed by the Special Secretary, Revenue Department (Appeals) in stay application preferred by the private respondents in Revision Application No. 19 of 2006.

3. This Court has issued rule on 15-6-2007 and ad interim relief was granted in terms of Para 27(B) of the petition whereby the impugned order dated 28-5-2007 was stayed by this Court.

4. During the pendency of this petition, respondent Nos. 2.1 to 2.6 have filed Civil Application No. 13999 of 2008 for vacation of the interim relief granted by this Court on 15-6-2007 and continued thereafter till this date.

5. Similarly, Special Civil Application No. 14181 of 2007 is filed by the petitioners challenging the order passed by the Special Secretary, Revenue Department (Appeals) in Revision Application No. 19 of 2006 whereby the said revision application was admitted after condoning the delay of more than 17 years. This Court has admitted the petition vide its order dated 15-6-2007 and ad interim relief was granted in terms of Paragraph 26(B) of the petition whereby the impugned order was stayed.

6. During the pendency of this petition, respondent Nos. 2.1 to 2.6 have filed Civil Application No. 14000 of 2008 for vacation of the ad interim relief granted by this Court on 15-6-2007, and thereafter, continued till this date.

7. Heard Mr. A. J. Patel with Mr. S. P. Majmudar, learned Advocates appearing for the petitioners and Mr. J. S. Yadav, learned Advocate appearing for the private respondents and Ms. Trusha Patel, learned Assistant Government Pleader appearing for the State Government and authorities.

8. It is the case of the petitioners in both these petitions that land bearing Block No. 342-B admeasuring Hectares 01.17.00 of village Adalaj, Tal. and Dist. Gandhinagar is of the ownership of the father of the petitioners. The said land was then sold to the respondent No. 2 i.e. Kantibhai Babaldas Prajapati by way of registered sale-deed dated 4-4-1979 for a consideration of Rs. 12,000/-. The entry of the same was posted in the revenue records vide Entry No. 6696 dated 24-12-1981. The said sale transaction was taken into suo motu proceedings by the learned Deputy Collector under the Bombay Prevention of Fragmentation and Consolidation of Holding Act, and thereby, case was registered being Case No. 288 of 1982 holding therein that the said transaction was in violation of the Section 9(1) of the Fragmentation Act, and therefore, the said transaction was void. The Deputy Collector vide his order dated 26-8-1987 passed in Fragmentation Case No. 288 of 1982 has further directed to restore the original position i.e. it was directed to hand over the possession of the land in question to the original landlord i.e. present petitioners. A fine of Rs. 50/- was also imposed upon the transferors of the said land. Pursuant to the said order, original position was restored, and thereby, Entry No. 3350 was passed on 29-2-1988 cancelling Entry No. 6696 dated 14-12-1981 by the Competent Authority. A public notice was also issued to this effect before issuing Title Clearance Certificate by the Advocate in favour of the petitioners on 2-2-2006.

9. It is also the case of the petitioners that after obtaining the title clearance certificate, the petitioners applied for N.A. permission from the competent authority and the same was granted by the competent authority vide order dated 22-11-2006. The entry in relation to the said N.A. permission was also posted in the revenue records vide Entry No. 10703 dated 3-1-2007. On the basis of N.A. permission, the proposed development plan was submitted before Gandhinagar Urban Development Authority (G.U.D.A.) for its approval and the said plans were sanctioned on 27-11-2006. On the basis of this sanctioned development plan, the respondent No. 4 started construction work on the land in question. After such development and after crystallisation of their rights as well as after the construction work was started by respondent No. 4, the present respondent No. 2 preferred revision application in November, 2006 challenging the veracity of the order passed by the Deputy Collector on 6-8-1987 in Fragmentation Case No. 288 of 1982. It is alleged by the petitioners that the said revision application was filed only with a view to pressurise the petitioners and to extort money from the petitioners as well as the respondent No. 4.

10. Mr. A.J. Patel, learned Advocate appearing with Mr. S. P. Majmudar for the petitioners has submitted that the revision application was preferred by the respondent No. 2 after a delay of about 19 years before the Special Secretary, Revenue department (Appeals) under Section 35 of the Fragmentation Act being Revision Application No. 19 of 2006. Along with the revision application, separate application for condonation of delay was also preferred whereby the reason for inordinate delay was given that the order passed by the Deputy Collector was nullity and nullity order can be challenged at any point of time. Along with the delay condonation application, the respondent No. 2 has also preferred an application for stay. He has further submitted that the learned Special Secretary, revenue department has not only condoned the delay of more than 19 years and admitted the revision application, but also granted stay against the order passed by the Deputy Collector on 6-8-1987. The petitioners have, therefore, filed two separate petitions before this Court, challenging the admission of the revision application after condonation of delay as well as granting stay against the order passed by the Deputy Collector on 6-8-1987. He has further submitted that on the date of hearing i.e. 23-5-2007, the learned Advocate appearing for the respondent No. 2 was not present before the revisional authority and the matter was kept back till 2-30 p.m. The matter was thereafter heard. However, no specific date was given and on inquiry being made by the petitioners on 5-6-2007, it was learn that an order was passed on 28-5-2007 in favour of the respondent No. 2 granting stay against the order of the Deputy Collector. The impugned orders were passed by the revisional authority without dealing with the arguments, written submissions and documentary evidences produced on record and various citations were relied upon by the petitioners in support of their arguments and submissions. Mr. Patel has further submitted that the respondent No. 2 had filed Regular Civil Suit No. 118 of 2006 wherein the stay application was rejected on merits by the competent Civil Court vide its order dated 31-5-2007. Misc. Civil Application No. 69 of 2007 preferred by the respondent Nos. 2.1 to 2.6 against this order was dismissed by the learned Fast Track Court Judge, Gandhinagar vide his order dated 28-11-2007.

11. Mr. Patel has further submitted that the impugned orders are non-speaking and unreasoned orders, and hence, they are nullity in the eyes of law. The Courts have held that the revisional authorities are required to give reasons in support of their orders. The revisional authority should not have entertained the revisions merely on the ground that the order challenged before him is a nullity as even a so-called void order does not cease to be binding order and must be challenged within the reasonable period. The impugned orders suffer from the vice of error since no contentions or arguments, written submissions, citations, documentary evidences etc. tendered by the petitioners were dealt with or even mentioned in the impugned orders. The impugned orders are clearly in contravention and violation of the binding precedents. The revisional authority has grossly erred in appreciating that the respondent No. 2 had never knowledge of passing of the order dated 26-8-1987, and hence, even after the knowledge of the same, the said order was not challenged and had slept over the rights for 19 long years. The petitioners had brought to the knowledge of the authority that with respect to the disputed land in question, already third party rights have been crystallized, and hence, no order ought to have been passed curtailing the legitimate rights of the bona fide purchasers and entertaining the applications grossly and belatedly filed by them. The only reason given by the revisional authority in entertaining the revision petition was that the sale-deed was not cancelled from competent Civil Court by getting the decree. The civil suit is still pending and simply because the Civil Court has not granted any stay, that would not give any rise to the respondent No. 2 to approach the revisional authority challenging the order passed by the Deputy Collector in 1987.

12. In support of his various contentions and submissions, Mr. Patel relied on the following judgments of this Court as well as of the Hon'ble Supreme Court:

(A) In State of Punjab and Ors. v. Gurdev Singh and Ashok Kumar : AIR 1992 SC 111, it is held that the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time-limit expires the Court cannot give the declaration sought for. Further, the words 'right to sue' under Article 113 ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.

(B) In Chhaganbhai Zinabhai Patel and Ors. v. Vallabhbhai Virambhai and Ors. 1976 GLR 464, it is held that though Section 35 of the Fragmentation Act confers upon the State Government revisional jurisdiction which it may exercise at any time, it should exercise it within a reasonable time. What is the reasonable time depends upon the facts and circumstances of each case. Merely because Section 35 or any other Section of the said Act does not prescribe any period of limitation and provides that it may be exercised at any time, it does not mean that it can be exercised after any length of time.

(C) In Sursangji Ambaram and Ors. v. State of Gujarat and Anr. : 2002 (2) GLR 1462, it is held that a so-called void order does not cease to be a binding order. Such an order does not carry any label of voidness. Any party aggrieved by such an order has to approach the competent forum for challenging such order, and it is only when such competent forum sets aside the order that the order can be ignored otherwise it continues to be binding on all concerned. The order of the Mamlatdar passed in 1960 having held the field for forty years could not have been set aside on merits (assuming that it was required to be set aside) without condoning the gross delay of 40 years for which no explanation whatsoever was offered by the occupants. It is further held that even though the order may be void, if the party does not approach the Court within the period of limitation, where prescribed or if not prescribed within reasonable time (which is always a question of fact) and have the order invalidated, the Court can decline to grant the relief.

(D) In Adambhai Sulemanbhai Desai, Chairman, Desai Co-operative Housing Society Ltd., Dhandhuka v. State of Gujarat and Ors. : 2004 (1) GLR 906, it is held that even assuming that for the reasons stated in the orders of the Deputy Collector and the Tribunal, the order dated 22-6-1971 could be treated as nullity yet unless and until the same is challenged within the prescribed period of limitation or in a reasonable period beyond the period of limitation and declared to be a nullity by a competent Court, it would remain effective. In that case, the Court held that even if the finding that the order dated 22-6-1971 passed by the Mamlatdar & A.L.T. was a nullity could be said to be a correct finding, yet no explanation is forthcoming for filing appeal after a period of nearly 16 years. The position in law is well settled that just because an order is a nullity, it does not save limitation nor does it grant appellant to leave to approach the Court/appellate authority beyond the prescribed period of limitation.

(E) In Valjibhai Jagjivanbhai v. State of Gujarat : 2005 (3) GLR 1852 : 2005 (2) GLH 34, it is held that even the void transaction under Section 9(1) if allowed to remain effective for considerably long period, the authority named therein will be precluded from initiating proceedings to annul it. It can remain effective and in existence till it is invalidated and set aside. If its existence is allowed to remain for a considerable period and with the passage of time, it brings about several changes, creating valuable rights in favour of considerable section of people, it is difficult to accept the proposition that despite the change, the Collector would be entitled to exercise power under Sub-section (3) of Section 9 of the Act. Similar observations can also be made with regard to the land wherein no change is brought about, but number of years have passed after the transfer against the provisions of the Act has taken place. When the things have been allowed to remain as such for years together, the purchaser cannot be deprived of his possession so as to render indirect benefit to the seller who was equally responsible for entering into such illegal transaction. Thus, when the authority had considerable opportunities to know about the transaction and despite that, has not taken any action thereon for years together, such authority cannot be allowed to exercise powers conferred upon it at a belated stage. The concept of reasonableness of time will equally apply in such cases. Powers conferred upon the Collector under Sub-sections (2) and (3) of Section 9 are required to be exercised within a reasonable time.

(F) In Bhavnagar Municipal Corporation v. Palitana Sugar Mills (P) Ltd. and Ors. 2004 (12) SCC 670, it is held that whether the suo motu power has been exercised within a reasonable period would depend upon the facts and circumstances of each case and while exercising that power, whether the authority concerned has indicated any reasons for the same. In this case, the Court held that on examining the impugned notice of show-cause that was issued, the Collector has not indicated as to why from 1992 till 1996, no action could be taken though the narration of facts had been made. In the absence of any explanation by the Collector in the impugned notice, the exercise of jurisdiction after expiry of about four-and-a-half years must be held not to have been exercised within a reasonable period within the ambit of Section 211 read with Rule 108(6) of the relevant Rules. Consequently, the Court did not find any infirmity with the impugned decision requiring its interference under Article 136 of the Constitution.

(G) In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and Ors. 1996 AIR SCW 301, it is held that even a void order or decision rendered between parties cannot be said to be non-existent in all cases and in all situations. Ordinarily, such an order will, in fact be effective inter panes, until it is successfully avoided or challenged in higher forum. Mere use of the word 'void' is not determinative of its legal impact. The word 'void' has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise.

13. Based on the aforesaid decisions and looking to the peculiar facts and circumstances of the case, Mr. Patel has strongly urged that the revisional authority was not justified in entertaining the revision application after the expiry of the period of 19 years and in granting stay against implementation, execution and operation of the order passed by the Deputy Collector in 1987. He has, therefore, submitted that both the orders challenged in the present petitions are required to be quashed and set aside and the petitions are required to be allowed.

14. Mr. J. S. Yadav, learned Advocate appearing for respondent Nos. 2.1 to 2.6 has submitted that the petitioners have filed the present petitions challenging the interim orders passed by the Special Secretary, Revenue Department. The revision petitions are still pending before the Special Secretary. The order of admission can never be the subject matter of challenge before this Court. The revisional authority is well within its right to admit the revision after having prima facie satisfied and found substance in the revision application. The condonation of delay can also be considered as a discretionary relief and the Court should not interfere in such discretion judiciously exercised by the Special Secretary. Once, the revision is admitted, the revisional authority has granted stay against the order passed by the Deputy Collector so as to prevent further misuse of the said order. He has further submitted that since an ex parte stay was granted by this Court against the orders passed by the Special Secretary, the respondents had to move before this Court for vacation of the said interim relief. The respondents have found that under the shelter of the stay order of this Court, the petitioners were carrying out the construction activities on the disputed land and the properties have undergone substantial changes whereby third party rights were also created. He has, therefore, submitted that the present petitions are required to be dismissed and the stay granted by this Court is required to be vacated.

15. Mr. Yadav has further submitted that the only dispute in the present proceedings is that a piece of land in question was taken into fragmentation proceedings and the impugned order was passed by the Deputy Collector. The said order was challenged after a long delay before the Special Secretary. After appreciating the facts of the case, the Special Secretary has condoned the delay, and thereafter, granted interim relief in favour of the respondents. The land in question which is all throughout considered and taken in the proceedings as fragmentation, is in fact, not in the fragmentation as declared under Section 3 after following procedure as prescribed under Section 6(1) of the Fragmentation Act. The Fragmentation Act is itself not applicable and hence, the exercise of powers by the Deputy Collector are ab-initio void. The construction work of commercial nature is going on the land in question. It is the case of the respondents that N.A. permission and G.U.D.A. permission have been taken from the competent authorities. It, therefore, pre-supposes that the land in question has fallen within the purview of Town Planning Act and respective zoning is also done under the provisions of Town Planning Act. If the land in question falls within the purview of the Town Planning Act, the Town Planning Act changes the status of land qua the fragmentation proceedings and, therefore, this question needs to be examined in the context of the applicability of the provisions of the Town Planning Act. He has further submitted that after admission of the petitions and granting ad interim relief in favour of the petitioners, it is expected from the petitioners that the subject-matter of the property cannot be changed in such a situation wherein the disputed parties cannot seek final relief at the end of the proceedings. If the constructed property is handed over to other private parties, the same would cause irreparable loss and undue harm and the respondents would not be able to claim any relief even if they succeed in the present proceedings. He has further submitted that under the guise of relief granted by this Court, the petitioners are putting up construction at a full speed which is as good as taking advantage of the interim relief and that should not be permitted by this Court. He has, therefore, submitted that the interim relief granted by this Court is required to be vacated.

16. Mr. Yadav further submitted that deed of conveyance executed in favour of respondent No. 2 is still subsisting. The petitioners have not filed any suit before the competent Civil Court praying for cancellation of the said conveyance deed. Simply because, revenue authority had passed some orders and on that basis, certain entries were effected in the revenue records, the same does not take away the rights of respondent No. 2 vested in them by virtue of the registered sale-deed executed in his favour. Mr. Yadav relied on the decision of the Hon'ble Supreme Court in the case of Prem Singh and Ors. v. Birbal and Ors. : 2006 (5) SCC 353, it is held that there is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In that case, the Court held that since the respondent No. 1 has not been able to rebut the said presumption, the document cannot be held to be invalid document.

17. He has, therefore, submitted that both the petitions may be dismissed or in the alternative, matters may be sent back to the revisional authorities with a direction to decide the revision applications as expeditiously as possible.

18. Having heard learned Advocates appearing for the respective parties and having considered their rival submissions in light of the settled legal position, the Court is of the view that there is no dispute about the fact that the order passed by the Deputy Collector way back on 26-8-1987 was challenged before the Special Secretary only in November 2006. It is true that along with the revision application, the respondent No. 2 had also filed a delay condonation application. However, the only reason for condonation of delay given in that application is that the order passed by the Deputy Collector is illegal and void and period of limitation is not applicable to any void order. If an order is void, it is a nullity and that can be challenged at any point of time. Another reason was given that they were illiterates and were not aware about the provisions of law.

19. While admitting the revision application after condonation of delay, the learned Special Secretary (Appeals) have not considered various contentions and submissions made by the petitioners. In support of these submissions, various authorities were cited before him. In almost all cases, the Courts held that even an order is nullity, it remains in operation till it is reversed by any higher Court, forum or authority. Challenge to such order must be made within the period of limitation where prescribed and where no such period is prescribed, challenged to such order be within reasonable time. By no stretch of imagination, the period of 19 years can be said to be reasonable period. Instead of rejecting the revision application filed after 19 years, the learned Special Secretary not only admitted the revision, but also granted stay against the operation of the order of the Deputy Collector passed on 26-8-1987. It is nothing but an excess of jurisdiction vested in him and both orders under challenge are in violation of the settled principles of law. The Court therefore, deviates from the normal practice adopted when the revisions are pending before the authorities. Instead of issuing the directions to the revisional authority to decide the revision at an early date, the Court hereby quashes and sets aside both the impugned orders of admission after condonation of delay of 19 years and grant of stay against the operation of Deputy Collector's order dated 26-8-1987. The resultant effect of this order is that both the petitions are allowed and Civil Applications are rejected. The revision application pending before the Revisional Authority now becomes infructuous in view of this order.

20. In the result, both these petitions and Civil Applications preferred therein are accordingly disposed of.

21. On pronouncement of judgment, Mr. J.S. Yadav, learned Advocate appearing for respondent Nos. 2.1 to 2.6 has requested the Court to stay this order or in the alternative, directions may be issued to the parties to maintain status-quo. Mr. S.P. Majmudar, learned Advocate appearing for the petitioners strongly objected to grant of stay against the present order or even to direct the parties to maintain status quo, as the petitioners have filed the writ petitions and this Court has granted stay against the orders of the Secretary. Having considered the request made by Mr. Yadav as well as the objection raised by Mr. S.P. Majmudar, the Court is of the view that looking to the facts and circumstances of the case, no order of status quo is required to be passed. The request of Mr. Yadav is, therefore, rejected.