Mahadevbhai Dhanabhai and ors. Vs. State of Gujarat and ors. - Court Judgment

D.A. Mehta, J.

1. Both these petitions have been heard together as they challenge the same order made by the revisional authority in Revision Application No. 1 of 1990 dated 24-4-1990 in the backdrop of following facts.

2. The petitioners of Special Civil Application No. 740 of 1991 are respondent Nos. 2 and 3 in Special Civil Application No. 8846 of 1990. Hereinafter, for the sake of convenience, they shall be referred to as the original land owners. The petitioners of Special Civil Application No. 8846 of 1990 are purchasers and shall hereinafter be referred to as the purchasers. The original land owners held land bearing Old Survey Nos. 67/1, 67/2, 68 and 70/4, comprised of block No. 218. Out of that, land admeasuring 16 Acres-21 Gunthas came to be purchased vide registered sale-deed on 21-6-1983 by the purchasers. Entry No. 3075 dated 15-12-1987 came to be made in this regard and the said entry came to be certified on 21-1-1988 by Mamlatdar, Viramgam.

3. Collector, Ahmedabad found that the said transaction was in violation of provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (the Act), and therefore, initiated proceedings through the Deputy Collector. Ultimately finding that there was breach of provisions of Section 31(1)(b) of the Act, an order came to be made under provisions of Section 9 of the Act directing that - (i) Entry No. 3075 be cancelled as the same was void; (ii) original land holders were fined a sum of Rs. 250/-; and (iii) the possession of the land was found to be unauthorized and illegal in hands of the purchasers in terms of the provisions of Section 9(3) of the Act.

4. The purchasers challenged the same before the revisional authority, who passed the impugned order on 24-4-1990/20-6-1990 upholding the order made by the Collector. Aggrieved by the same, the purchasers have preferred Special Civil Application No. 8846 of 1990. The original land owners have challenged a part of the said order by way of Special Civil Application No. 740 of 1991 to the extent the revisional authority has held against the original land owners by directing the vesting of the land in the State Government.

5. Learned Advocate for the purchasers has assailed the orders of the Collector and the revisional authority principally on the ground that the proceedings have been initiated and conducted at a belated point of time and cannot be termed to be within a reasonable period considering the fact that the sale transaction had taken place on 21-6-1983. That the notice was issued only on 16-9-1989 which was beyond a period of more than six years from the date of the execution of the sale-deed, and therefore, the authority could not have initiated the action. It was submitted that in terms of provisions of Section 135C of Bombay Land Revenue Code, 1879 (the Code) there was no obligation on a purchaser under a registered deed to report acquisition of any right, and therefore, the period of limitation, namely, reasonableness of the action, had to be considered from the point of time of the sale-deed.

6. When the Court pointed out to the learned Advocate that even if there was no obligation under Section 135C of the Code, a conjoint reading of Sections 135C and 135D of the Code would indicate that reasonableness of time for initiating action had to be judged from the point of time the revenue authorities derived knowledge learned Advocate invited attention to Paragraph No. 31 of the Manual of Revenue Accounts of the Villages, Talukas and District of the Gujarat State to point out that Talati is required to receive monthly intimation from Sub-Registrar through Mamlatdar an abstract recording transactions which have been effected during the month by registered documents and immediately upon receipt of such intimation make necessary entries in Village Form No. VI in the prescribed manner. Therefore, according to the learned Advocate, if the authorities fail to discharge their duties, as per procedure prescribed within a reasonable time, the revenue authorities could not be permitted to initiate action beyond reasonable time from the date of transaction.

7. The second contention raised on behalf of the purchasers was in light of provisions of Sections 19, 20 and 21 of the Act to submit that in case of consolidation of holdings a scheme had to be framed and land allotted to the owners or persons entitled to possess holdings under the Act. That even Section 31 requires that allotment of land was a must and in absence of any order of allotment no action could be initiated under provisions of Section 31 of the Act. That no scheme as such had been formulated as prescribed, and therefore, there was no question of any allotment of land to the original owners. The transfer of land by the original owners to the purchasers could not thus be treated in breach of provisions of the Act, more particularly Section 31 of the Act.

8. Lastly, it was contended that even if the period of limitation could not be considered from the point of time of the sale-deed and had to be considered only from the point of time when the authority derived knowledge about the transaction, the entry having been made and certified in December, 1987/January, 1988 the action initiated by notice dated 16-9-1989 was beyond a period of one year by almost eight months from the date of certifying the entry, and therefore, also the action of the respondent authorities was bad in law. In support of various submissions made, the learned Advocate for the petitioners has placed reliance on judgment of this High Court in the case of Valjibhai Jagjivanbhai v. State of Gujarat : 2005 (3) GLR 1852 : 2005 (2) GLH 34 to submit that that the authorities are duty-bound under the provisions of the Act and related revenue laws to obtain information as to transaction and make necessary entry in this regard and if they fail in that duty any action initiated beyond a reasonable period of time was liable to be struck down. Judgment in case of Harshadbhai Dahyabhai Desai v. State of Gujarat and Ors. 2000 (4) GLR 3402 was also relied upon for the same proposition.

9. On behalf of the original land owners, the petitioners of Special Civil Application No. 740 of 1991, it was submitted that the original land owners do not dispute the correctness of the orders made by the revenue authorities to the extent it was held that the transaction was invalid in eyes of law, but dispute only the directions issued by the revenue authorities as regards vesting of the land in the State Government. It was submitted that neither the provisions of Section 9 of the Act nor any other provisions permitted such vesting in the State Government and once the authorities had come to the conclusion that the transaction was bad in law, the lands in question had to be restored to the original land owners. In support of the submissions, reliance was placed on the following two judgments:

(i) Govindsingh Ramsinghbhai Vaghela v. G. Subbarao, Asstt. Collector, Dholka and Ors. : 1970 GLR 897; and

(ii) Dhulabhai C. Kotwal and Ors. v. Bhikhabhai K. Prajapati and Ors. 2000 (3) GLH 130

10. Learned Assistant Government Pleader submitted that the entire submission of the purchasers was based on an incorrect reading of the provisions of the law. It was submitted that the revenue authorities had categorically found that the scheme for consolidation of holdings had been voluntarily accepted by all the villagers, and accordingly necessary entry had been mutated in revenue records at relevant point of time indicating implementation of the scheme. That insofar as original land owners were concerned, the parcels of land owned by them were falling within different survey numbers but were a contiguous block, and therefore, while framing the scheme the said lands were consolidated in one block number, without disturbing the possession of the original owners as there was no need to undertake any exchange of the lands. Therefore, there was no question of any allotment of new plots of land. In the circumstances, it was not open to the purchasers to contend that there was no scheme or that there was no allotment of lands.

11. In relation to the contention regarding limitation it was pointed out that Apex Court had while consistently holding that action had to be initiated within a reasonable time had also held that as to what would be the reasonable time in the facts and circumstances of the case had to be considered with a view to carry out the object of the Act and prevent miscarriage of justice. That there was no straitjacket formula in this regard. That Apex Court had also taken cognizance of the fact that the concept of reasonable time had to be considered from the point of time when the transaction comes to the notice of the authorities, even after a long time. That once the order was found to be void the only requirement was that the same should be so declared by a competent authority or Court and for declaring an order to be void, it was not necessary to stipulate any time-limit. In support of the submission made reliance has been placed on the following two judgments of the Apex Court:

(i) State of Orissa and Ors. v. Brundaban Sharma and Anr. : 1995 Supp (3) SCC 249; and

(ii) Pune Municipal Corporation v. State of Maharashtra and Ors. : 2007 (3) GLR 2610 (SC).

12. Learned Assistant Government Pleader very fairly pointed out that on a conjoint reading of provisions of Sections 9 and 10 of the Act the claim made by original land owners for restoration of the possession of land to them was justified and the revisional authority had erred in holding that the land should be vested in the State Government.

13. The facts are not in dispute. The only question is as to whether the transaction in question entered into by a sale-deed on 21-6-1983 can be termed to be in violation of provisions of the Act and if yes, whether the action initiated by the respondent authorities is within a reasonable time in light of settled position in law.

14. Under provisions of the Act Chapter-Ill has laid down the procedure for consolidation. Section 15 of the Act permits the Government to declare its intention to make a scheme for consolidation of holdings either of its own accord or on an application. Section 15A of the Act stipulates as to how the scheme is to be prepared and the principles that are to be followed in its preparation. The said provision stipulates that the Consolidation Officer shall after, giving due notice to the land owners concerned and the village committee, visit each of the concerned villages and shall in consultation with the village committee, proceed to prepare a scheme for the consolidation of holdings. Sub-section (2) prescribes the requirements which the Consolidation Officer shall have regard to while preparing the scheme and one of the requirements is the manner of allotting new plots to each owner. Rules 10 and 11 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Rules, 1959 (the Rules) lay down the procedure for grouping of lands in a village into blocks and the manner of allotment of new plots to owners. The definition of the phrase 'Consolidation of holdings' as appearing in Section 2(2) of the Act reads as under:

(2) 'Consolidation of holdings' means the amalgamation and where necessary the redistribution of holdings of portions of holdings in any village, mahal or taluka or any part thereof so as to reduce the number of plots in holdings;

Thus, the definition itself indicates that after amalgamation of holdings only where redistribution is required, of holdings or portions of holdings in any village so as to reduce the number of plots in holdings, that redistribution has to take place. This is clear from the use of the words 'where necessary'.

15. The 'village committee' is defined by Section 2(10a) of the Act to mean a village committee constituted under Section 34A of the Act. Therefore, in a case where in consultation with the village committee, the Consolidation Officer comes to the conclusion that consolidation of holdings can be undertaken as far as possible voluntarily and without disturbing the holdings of a particular land owner, it cannot be stated that such a scheme framed is not in consonance with the requirements of the Act. The purpose of formation and involvement of a village committee in the process of consolidation itself indicates that as far as possible the exercise should be voluntary, or one which involves minimum change of holdings vis-a-vis the owners thereof. Therefore, the contention on behalf of the purchasers that there was no scheme formulated in accordance with law, requirements of the Act and the Rules thereunder cannot be accepted. There is no prohibition in law that a scheme cannot be voluntarily framed and accepted by the villagers.

16. The concept of allotment has to be understood in light of the procedure prescribed in Rules 10 and 11 of the Rules. Therefore, if contiguous lands fall within one block and form a homogeneous group considering the quality of soil, irrigation facility, etc., it is not necessary that in the process of grouping a fresh allotment has to be made to the same person even if his land holdings are not disturbed, nor exchanged. In fact, Rule 11(c) of the Rules refers to allotment of new plot of land to any owner in lieu of any plot taken away from him; Rule 11(b) of the Rules stipulates that every owner shall as far as may be feasible be allotted land in the blocks where he holds the largest and principal part of his holdings, etc. Therefore, the contention that there is no allotment, and hence, there is no scheme resulting in non-applicability of provisions of Section 31 of the Act also cannot be accepted. At the cost of repetition, the definition of the phrase 'consolidation of holdings' has to be referred to when the said provision stipulates that redistribution of holdings is to be made only 'where necessary'.

17. In the facts of the case admittedly the record reveals that original land owners were permitted to continue to hold the lands they were holding prior to the scheme coming into force and the consolidation had taken place in one block considering the procedure laid down by Rules 10 and 11 of the Rules. Therefore, there is no question of allotment of new plots to original land owners. The allotment has to be of 'new' plot, if there are any new plots in case of a particular land holder. Therefore, in a case of consolidation of same plots in a block involving no exchange there would be a constructive allotment.

18. In light of the aforesaid position, it cannot be stated that provisions of Section 31 of the Act are not attracted because the said provision opens with a non-obstante clause. The provision as is material for the present reads as under:

31. Restrictions on alienation and sub-division of consolidated holdings :- (1) Notwithstanding anything contained in any law for the time-being in force, no holding allotted under this Act, nor any part thereof, shall be:(a) transferred, whether by way of sale (including sale in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue) or by way of gift, exchange, or lease, or otherwise, except in accordance with such conditions as may be prescribed;

The emphasis by the learned Advocate for the purchasers that the use of the words 'no holding allotted under this Act' would mean that an allotment was a prerequisite condition and non-fulfilment thereof would disentitle the authority from exercising powers under the Act and holding that provisions of Section 31 of the Act were violated. The contention is not only misconceived but is contrary to the object and purpose of the Act. The object of the Act is to prevent fragments and consolidate holdings so as to ensure that all agricultural lands operate as viable economic holdings and consolidated lands are not fragmented so as to result in uneconomic holdings. The process of consolidation, as already noted hereinbefore, has to be undertaken and completed, as far as possible, by involving the villagers and permitting them to mutually agree to exchange lands where necessary, as stipulated by the procedure laid down in Rule 11 of the Rules. In the circumstances, where the villagers, of their own volition, consolidated their holdings in such a manner that there is minimum of exchange required between the villagers of the respective holdings and yet consolidation takes place so as to result in, as far as possible four blocks, it cannot be stated that either there is no scheme of consolidation or that there is no allotment of plots. The contention that there is nothing on record to show any scheme having been framed loses sight of the fact that necessary entries had been made in revenue records as regards the respective holdings where the change took place, and therefore, where no change took place, merely because no fresh entries were made, it cannot be stated that no scheme had come into being.

19. In the circumstances, it is not possible to agree that either there was no scheme or that there was no allotment under provisions of the Act. Admittedly, the transaction of sale and purchase took place in relation to a part of the land falling within block No. 218, and therefore, the authorities undertook the exercise to ascertain whether the same was in breach of requirement of provisions of Section 31(1)(b) of the Act.

20. Insofar as the aspect of limitation is concerned, there cannot be dispute to the proposition that an action has to be initiated in a reasonable manner within a reasonable time, and therefore, the only inquiry that is required is whether in the facts and circumstances of the case the action initiated by the authorities under the Act was within a reasonable time. In the case of State of Orissa and Ors. v. Brundaban Sharma and Anr., (supra) the Apex Court has observed as under:

16. It is, therefore, settled law that when the revisional power was conferred to effectuate a purpose, it is to be exercised in a reasonable manner which inheres the concept of its exercise within a reasonable time. Absence of limitation is an assurance to exercise the power with caution or circumspection to effectuate the purpose of the Act, or to prevent miscarriage of justice or violation of the provisions of the Act or misuse or abuse of the power by the lower authorities or fraud or suppression. Length of time depends on the factual scenario in a given case. Take a case that patta was obtained fraudulently in collusion with the officers and it comes to the notice of the authorities after a long lapse of time. Does it lie in the mouth of the party to the fraud to plead limitation to get away with the order? Does lapse of time an excuse to refrain from exercising the revision power to unravel fraud and to set it right? The answers would be no.

21. As to what is reasonable time would depend upon the facts and circumstances of each case and no rule of universal application can be laid down as held by the Apex Court. Merely because the action is initiated after a long lapse of time that by itself is not sufficient to hold that the action is illegal unless and until the surrounding circumstances and the facts of the case indicate that despite knowledge about the transaction the authority chose not to act.

22. In the facts of the case admittedly Entry No. 3075 came to be made for the first time only on 15-12-1987 in relation to the transaction entered into on 21-6-1983. The said entry was certified only on 21-1-1988. Therefore, it cannot be stated that the notice issued on 16-9-1989 is so grossly belated that the entire action is vitiated. As held by the Apex Court, the issue has to be approached from the perspective of the purpose and object of the Statute under which the action is initiated and the breach which is alleged. In the facts of the case, the purpose and object of the Act has already been noted hereinbefore. Therefore, the transaction which is contrary to and frustrates the purpose and object of the Act cannot be permitted to hold and operate only on the ground of action having been initiated beyond a reasonable time, because in the facts of the case, it is not possible to state that the action was initiated beyond a reasonable time.

23. The contention based on provisions of Section 135C of the Code and the Paragraph No. 31 of Manual also does not merit acceptance. It is true that under the Second Proviso to Section 135C of the Code a person acquiring right under a registered transaction is not obliged to inform the Talati but from that it cannot be read and presumed that the limitation has to be considered from the date of the transaction. Even Paragraph No. 31 of the Manual, on which reliance is placed to emphasis that necessary mutation entry has to be made in the village form in relation to registration being intimated by the Sub-Registrar every month, suffice it to state that the said requirement itself stipulates that the Talati will, 'immediately on receipt of this' indicating that on receipt of the monthly abstract regarding transaction from the Sub-Registrar, through the Mamlatdar, is duty-bound to immediately post entries. If for any reason the Sub-Registrar has failed in his duty (assuming that such duty is cast on the Sub-Registrar by any other provisions) the Talati, and for that matter any revenue authority, cannot be held liable and a transaction which is invalid in law in light of the purpose and object of the Statute cannot be valid Even the aforesaid Paragraph in the Manual itself indicates that it is from the point of time when the intimation is received, viz. the point of time when it comes to the knowledge of the Talati, that a duty is cast on him to make the entry. The reason is simple. There could be various reasons due to which the Talati does not derive knowledge about a registered transaction. The limitation therefore commences from that point of time. This provision in the Manual accords with the general position in law and human affairs in normal course. The purchasers, therefore, cannot succeed on this count also.

24. In the result, on none of the grounds can the purchasers be permitted to seek validation of the transaction in question which has concurrently been found by both the subordinate authorities as being violative of requirement of Section 31(1)(b) of the Act. The orders made by the subordinate authorities in exercise of powers under Section 9(3) of the Act to the extent they hold the transaction to be invalid in law and direct eviction of the purchasers from the land in question cannot be faulted with for the reasons recorded hereinbefore. The fine levied on the original land owners is not in dispute, and hence, it is not necessary to record any finding as regards the same.

25. The order of revisional authority to the extent it directs the vesting of the land in question in favour of the State Government cannot be upheld considering the Scheme and the provisions of the Act. Therefore, to the said extent the order of revisional authority is quashed and set aside and the authorities are directed to ensure that the lands in question are restored to the original owners in accordance with law.

26. In the result, Special Civil Application No. 8846 of 1990 is rejected. Rule discharged. Interim relief stands vacated.

27. Special Civil Application No. 740 of 1991 is allowed. Rule made absolute. There shall be no order as to costs.