Gujarat High Court High Court

Adambhai Sulemanbhai Desai vs State Of Gujarat on 26 June, 2003

Gujarat High Court
Adambhai Sulemanbhai Desai vs State Of Gujarat on 26 June, 2003
Equivalent citations: (2004) 1 GLR 906
Author: D Mehta
Bench: D Mehta


JUDGMENT

D.A. Mehta, J.

1. This is a petition under Article 226 of the Constitution of India challenging the order dated 26/6/1992 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN.BA. 127/88 & TEN BA.137/88 as well as order dated 17/4/1995 in Review Application No.TEN CA.42/92 and TEN CA.43/92 passed by the Gujarat Revenue Tribunal (for short ‘the Tribunal’)

2. The petitioner is Chairman of one Desai Cooperative Housing Society Limited and has preferred the petition for and on behalf of the petitioner society registered under the Gujarat Cooperative Societies Act. The dispute relates to land bearing survey no.205 admeasuring 4 Acres 31 Gunthas situated in the sim of Dhandhuka town. The said lands were originally of the ownership of a public trust named ‘SARVARSHA PIR’. One Musabhai Yakubbhai (since deceased), was the tenant and was cultivating the aforesaid land owned by the trust. Upon death of said Musabhai Yakubbhai the names of his heirs viz. respondent nos. 2 to 5 came to be entered in the revenue records as tenants. Respondent No.5 is the mother of respondent nos. 2, 3 and 4. Respondent nos. 6, 7 and 8 are the Vahivatdars i.e. Administrators/Trustees of the aforesaid trust. The lands were Devsthan Inams and, hence, upon the Devsthan Inams Abolition Act coming into force with effect from 15.11.1969, respondent no.5 became deemed purchaser of the said land in light of provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (the Act).

3. Accordingly, the Mamlatdar & ALT initiated proceedings under Section 32G of the Act bearing Tenancy Case No. 5/71. After recording the statements of respondent no.5 as well as one of the trustees of the trust, viz. the land owner, declared respondent no.5 as permanent tenant and also determined the purchase price which was mutually agreed upon by the parties during the course of proceedings of Tenancy Case No.5/71. The Mamlatdar & ALT directed the revenue authority to delete the name of the land owners, i.e. the trust and enter the names of respondent nos. 2 to 5 in the revenue records.

4. On 24/11/1971 respondent no.5 entered into a sale transaction with the petitioner and the petitioner society purchased the land for a consideration of Rs.21,000/-. Thereafter, the petitioner applied for conversion of the said land into non-agricultural land on 6/9/1975 and the District Development Officer, District Panchayat, Ahmedabad vide his order dated 29/11/1995 granted permission to convert the said land and use the same for building purpose as per the plan produced before him subject to various conditions imposed in the order dated 29.11.1975.

5. Respondent Nos.    2  to  4  filed   Civil   Suit   No.265/85 in the Civil Court, Narol on 30/11/1985 seeking   partition of  the  suit land.  An ex-parte injunction was   obtained against the petitioner society not to  plot  out   the land  and  put-up  construction.  However,  the Civil   Court, Narol  after  hearing  the  parties  to  the  suit   vacated ad-interim stay  granted earlier.  
 

6. Thereafter, on 15/4/1987 respondent nos.  2 to  4   filed  an  appeal  under Section 74 of the Act before the   Deputy Collector against the order  of  Mamlatdar  &  ALT   dated 22/6/1971 and the said appeal came to be registered   as Appeal No.   104/87.  The Deputy Collector, vide order   dated 30/12/1987 allowed  the  appeal  and  directed  the   Mamlatdar  &  ALT  to  issue notice to all the interested   persons and dispose of the case in accordance with law.  
 

7. Being  aggrieved  by   the   said   order   dated   30/12/1987  the  petitioner  filed  Revision  Application   No.TEN.BA 137/88 under Section 76 of the Act  before  the   Gujarat Revenue  Tribunal.    The respondent no.8 - Trust   also filed a separate Revision Application bearing TEN.BA   127/88 before the Tribunal.  As  the  subject  matter  of   both  the  Revision Applications was same and the parties   were also the same, the Tribunal  consolidated  both  the   Revision  Applications  and  passed  a common order dated   26/6/1992  confirming  the  order  made  by  the   Deputy   Collector.   The  petitioner society thereafter preferred   Review Application bearing Review  Application  No.TEN.BA   42/92  and the Trust preferred Review Application bearing   No.TEN BA 43/92.  However, for the reasons stated in  its   consolidated   order  dated  17/4/1995  both  the  Review   Applications were rejected by the Tribunal.  
 

8. Heard Mr.J.M.Patel,  learned  Advocate  appearing   for Mr.P.J.Vyas  on behalf of the petitioner society.  It   is contended by him that both the  Deputy  Collector  and   the Tribunal have grievously erred in law in holding that   the  order  dated 22/6/1971 passed by the Mamlatdar & ALT   in Tenancy Case No.5/71 was a nullity.  It was  submitted   that  the  appellate  authority  has  failed to take into   consideration, firstly, that the  appeal  was  hopelessly   barred  by  limitation,  the same having been filed after   about 16  years  from  the  date  of  the  order  of  the   Mamlatdar & ALT; secondly, that respondent nos.  2, 3 and   4 who were appellants before the Deputy Collector and the   Tribunal  could  not  be said to be aggrieved parties and   thus becoming entitled to the statutory right  of  Appeal   and;  thirdly,  that  once  the land in question had been   converted into non-agricultural  land  vide  order  dated   29.11.1975   made   by   the   competent  authority,  the   provisions of the  Act  ceased  to  apply  divesting  the   Deputy  Collector  of  any  jurisdiction to act under the   provisions of the Act.  It was submitted  in  support  of   the first proposition :  that respondent nos.  2, 3 and 4   had  contended before the Appellate Authorities that they   were not parties to the proceedings before the  Mamlatdar   &  ALT  and,  hence,  on  the  one  hand  the  aspect  of   limitation would not come in way of respondent nos.  2, 3   and 4 while filing the appeal and, secondly, that as they   had not been joined as parties by Mamlatdar  &  ALT,  the   order  was  null  and  void  in law and all consequential   actions should fail :  to this Mr.patel replied that  the   deposition given  by  respondent no.5 viz.  Gauriben, the   mother of respondent nos.  2, 3 & 4 had  been  signed  by   two  sons  and  though  this  fact was on record both the   appellate authorities had failed to  consider  the  same,   there  being  no discussion or finding on the said aspect   of the  matter.    It  was  further  submitted  that  the   position  in  law  was well settled that even if null and   void order was to be challenged such a challenge  had  to   be  raised within the prescribed period of limitation, or   at least within a reasonable period after the  expiry  of   period of limitation.  That till such a challenge was not   raised  the  said order was effective for all intents and   purposes.  In the present case, third  party  rights  had   intervened,  by  the  time the appeal came to be filed in   1987 and once the land had been sold by a valid sale deed   the same was not open to challenge.  In  support  of  the   aforesaid  contention reliance was placed on the decision   of the Apex Court in the case  of  State  of  Punjab  and   others Vs.  Gurdev Singh reported in AIR 1992 SC 111.  
 

8.1  Mr.Patel further submitted that the order  passed   by  the  Mamlatdar  &  ALT  on  22/6/1971  declaring  the   respondent to be a permanent tenant of the  land  was  in   favour of  the  respondents and respondent nos.  2, 3 & 4   cannot claim to be aggrieved parties  which  would  grant   them right  to  prefer  an  appeal.    For  this  purpose   attention was invited to the provisions of Section 32G of   the Act read with Section 32H as well as  Section  43  of   the  Act  and  it was contended that the order in Tenancy   Case No.  5/71 granted benefit to the respondents as  the   respondents  were declared to be permanent tenants and in   no circumstances could the  respondents  state  that  any   adverse  order  had been made which would prejudice their   interest.  
 

8.2  In relation to  the  third  contention  regarding   conversion    of    the   land   from   agricultural   to   non-agricultural, it was submitted that the  position  in   law was well settled.  That once an order was made by the   competent   authority   granting   permission   for  such   conversion the provisions of  the  Act  cannot  be  taken   recourse to.    Reliance  was  placed  in support of this   proposition on the decisions of this Court in the case of   Mali Amrutlal Becharbhai and others  Vs.    The  District   Collector  of  Banaskantha and others, AIR 1994 (Guj.) 36   and in the case of M/s.Jailaxmi Estate  and  Another  Vs.   State of Gujarat and others, AIR 1994 (Guj.) 38.  
 

9. As against this Mr.N.G.Gandhi,  learned  Advocate   appearing on  behalf of respondent nos.  2 to 4 submitted   that all the points raised by  the  petitioner  had  been   dealt  with  by  the  Tribunal  and  there being no error   apparent on the face  of  the  record  it  would  not  be   permissible  to  this  Court to go into the merits of the   controversy under Article  227  of  the  Constitution  of   India.   It  was  submitted  that though the petition was   stated to be filed under Article 226 of the  Constitution   of India in effect it was a petition under Article 227 of   the  Constitution  of  India and position in law was well   settled that the scope of  jurisdiction  under  the  said   Article was   well   prescribed.     In  support  of  the   proposition that there was no error apparent  on  record,   order  of  the  Tribunal  in  Review Application was read   extensively.  It was further contended that the appellate   authority had rightly held that the order passed  by  the   Mamlatdar  &  ALT  was null and void and no prejudice was   caused to the petitioner as the entire  proceedings  were   open  before  the  Mamlatdar  & ALT in light of the order   made by the Deputy Collector.  
 

10.  Mr.H.D.Dave, learned Assistant Government Pleader   appearing on behalf of respondent No.1 submitted that the   State Government had  nothing  to  state  either  for  or   against  the  petition  in  light  of  the  fact that the   dispute was  primarily  a  dispute  between  two  private   parties  and  no  relief was sought in any manner against   the State.  
 

11. In  rejoinder  Mr.Patel  repelled  the contention   raised by Mr.Gandhi that there was no error  apparent  on   record  by referring and relying upon the decision in the   case of Gopala Ganu Wagale Vs.  Shri Nageshwardeo  Patas,   AIR 1978  SC  347.    It  was  submitted that even if the   petition was treated to be a petition under  Article  227   of  the  Constitution  the Apex Court had in no uncertain   terms laid down in the aforesaid decision  that  whenever   the  revenue  authorities  had committed a manifest error   the High Court would be justified in interfering with the   findings recorded by the revenue authorities.  
 

12. The contention regarding limitation as well as the order of the Mamlatdar & ALT being nullity are interlinked and are required to be dealt with together. The golden thread running through the orders of the appellate authorities and the order in review application are primarily based on the finding that the order dated 22/6/1971 was a nullity. Both the Deputy Collector as well as the Tribunal have held that once the order under challenge was a nullity the law of limitation would not apply and it was in that context that the Deputy Collector after setting aside the order dated 22/6/1971 passed by Mamlatdar & ALT, restored the matter to the file of Mamlatdar & ALT. On going through the appellate orders of the Deputy Collector and the Tribunal, it is apparent that both the authorities have proceeded on the footing that the Mamlatdar & ALT had not issued necessary notice as required under Section 32G of the Act to the interested persons.

13. Section 32G of the Act stipulates that the Mamlatdar & ALT shall publish or cause to be published a public notice in the prescribed form calling upon all the tenants (deemed purchasers), all landlords and all other interested persons. Over and above this public notice, the Tribunal is also required to issue an individual notice to each such tenant, landlord and also, as far as practicable, other persons. Both the public notice and the individual notices are required to specify the date on which the said parties shall appear before the Mamlatdar & ALT. Sub-section (2) of Section 32G of the Act lays down the mode and manner in which the statement of the tenant is to be recorded by Mamlatdar & ALT regarding willingness or otherwise to purchase the land. Sub-section (4) of Section 32G of the Act directs that the Mamlatdar & ALT shall after hearing all the persons, more particularly described in sub-section (1) of the said Section and after holding inquiry determine the purchase price in accordance with the provisions of Section 32H and sub-section (3) of Section 63A of the Act. However, under the Proviso to sub-section (4) it is open to the landlord and the tenant to mutually agree upon the purchase price and the Mamlatdar & ALT is thereafter required to satisfy itself that the tenant’s consent to the agreement is voluntary and that the purchase price is fixed in accordance with the provisions of Section 32H of the Act. If this Scheme laid down in Section 32G of the Act is borne in mind and applied to the facts of the case it becomes abundantly clear that the Mamlatdar & ALT while passing the order dated 22/6/1971 had not only complied with the statutory requirement but also has taken care to see that the interest of all concerned is taken care of. During the course of hearing the statement of respondent no.5 viz. Gauriben has been placed on record and it goes to show that after recording the deposition and obtaining thumb impression of respondent no.5, respondent nos. 2 and 3 have signed below the said deposition. This goes to show and suggest that not only the respondent no.5 but even respondent nos. 2, 3 and 4 were aware of the date fixed by the Mamlatdar & ALT for hearing of the tenancy case and accordingly were present before the Mamlatdar & ALT. It is not the case of the said respondents viz. respondent nos. 2, 3 and 4 that they were not present at the time of hearing and that their signatures have been either obtained subsequently or that they have not appended their signatures. If this be the position, it is not possible to agree with the reasoning of the appellate authorities viz. Deputy Collector and the Tribunal that all interested persons were not issued necessary notice. Even otherwise on a plain reading of provisions of Section 32G(1) of the Act, it is apparent that the individual notice to each such tenant, landlord, and also, as far as practicable, other persons, is required to be issued by the Mamlatdar & ALT. If the reasoning of the Deputy Collector and the Tribunal is correct then phrase ‘as far as practicable’ in sub-section (1) of Section 32G of the Act becomes redundant and otiose. The statute does not mandate the service of individual notice to other persons once the public notice is issued. The phrase “as far as practicable” is preceded by a comma, which in turn is preceded by the words “and also”. Hence, the position of the aforesaid words punctuated by a comma definitely indicates the legislative intent of an individual notice being mandatory so far as a landlord or a tenant is concerned; but such an individual notice in relation to other persons (not being the landlord or the tenant) may be served if it is possible to do so. There is no compulsion. The reason is : the ALT may not be in a position to have knowledge about such other persons, if any. On the other hand, the opening portion of sub-section (1) of Section 32G of the Act mandates publication of a public notice, only to take care of such unknown other persons, if any.

14. It is in this context that one will have to appreciate the findings of the appellate authorities when they go on to record that no public notice was issued. The memorandum of appeal and the grounds raised by respondent nos. 2, 3 and 4 before the Deputy Collector do not state that any public notice was not issued. The entire memorandum of appeal only goes on the footing that the individual notice to interested persons, more particularly, heirs of the deceased Musabhai Yakubbhai had not been issued. As already seen from the facts hereinbefore, it is apparent that two of the respondents out of the three contesting respondents were present before the Mamlatdar & ALT. If this be the position it is not possible to agree with the findings and conclusion of the appellate authorities that interested persons were not served with notice and hence entitling them to challenge the order as a nullity.

15. Even if it is assumed that no public notice or individual notices were served, would it make the order dated 22.6.1971 made by the Mamlatdar and ALT a nullity ? Considering the fact that two out of three respondents participated in the proceedings, the answer would be No. In almost similar situation (though under a different statute) this Court has stated thus in the case of Commissioner of Income-Tax, Gujarat-I Vs. Sumantbhai C.Munshaw, 128 ITR 154.

“Now, the rights and liabilities which a dead man leaves behind him ordinarily pass on to some person whom the dead man, or the law on his behalf, has appointed to represent him in the world of the living. Such representative bears the persona of the deceased and has vested in him all the inheritable rights and has imposed upon him all the inheritable liabilities of the deceased. He is in some sort identified by the law with him he represents. The legal personality of the dead man thus survives his natural personality, until his obligations being duly performed, his representation among the living is no longer called for (See Salmond on Jurisprudence, 12th Edn., p. 443)”

Thereafter, the Court while analysing Section 159 of the Income Tax Act,1961 states thus :

 The basic scheme underlying this provision, which    extends  the  legal  personality  of  a  deceased      person for the  purpose  of  assessment  of  tax,      proceed  on  a  recognition  of  the audi alteram      partem rule which mandates that no man  shall  be      condemned unheard. Therefore,  although  the      natural personality of the  deceased  person  has      disappeared,   the   legal   representative,  who      represents him in the world of living, is treated      as  the  assessee  and  he  is  afforded  a  full      opportunity  of  being heard before an assessment      is made which is binding on the estate.  
 

 The foregoing discussion shows that s. 159, which    merely   prescribes   the   method   for   making      assessment  of  tax  in  a special case, does not      bear upon the initial jurisdiction of the  taxing      authority  but  deals  with matters incidental to      it.  If the assessing authority, in the  exercise      of his jurisdiction, omits to take one or more of      the various procedural steps therein laid down or      in  taking  any of such steps commits an error or      even deviates from  the  statutory  mandate,  the      assessment  would  be  null and void, only if the      omission, error or breach, as the case may be, is      so fundamental as could not be waived because  it      affects inherent   jurisdiction. The   legal      representative has a right to waive the advantage      of any of the statutory  provisions  made  solely      for  his  protection or benefit and not conceived      in public interest.    Therefore,  if  the  legal      representative  (which term includes plurality of      persons) is present before the  taxing  authority      in  some  capacity  or voluntarily appears in the      proceeding without  service  of  notice  or  upon      service of notice not addressed to him but to the      deceased  assessee,  and  does  not object to the      continuance  of  the   proceeding   against   the      deceased  person  and  is  heard  by  the ITO, in      regard to the tax liability of the  deceased  and      invites  an  assessment  on  merits, such a legal      representative must be taken  to  have  exercised      the  option of abandoning the technical plea that      the proceeding has  not  been  continued  against      him,  although,  in substance and reality, it has      been so continued.  If  and  when  an  assessment      order  is  consequently made in such a proceeding      in the name of the deceased assessee,  even  that      would   not   be   a   nullity   qua   the  legal      representative, not only because he was  afforded      a  full  opportunity of being heard in respect of      it but also  because  he  having  not  raised  an      objection  at the appropriate time with regard to      the  continuance  of  the  assessment  proceeding      against  the deceased person, he must be taken to      have  known  the  inevitable   outcome   of   the      assessment being made in the name of the deceased      and  to have opted to treat such an assessment as      having been  made  as  the  legal  representative      against  him and to waive any objection as to its      nullity on the said ground.  Such an exercise  of      option  on  his part is not against public policy      or public morality because the  waiver  is  of  a      statutory  provision  which  is  conceived not in      public interest but in the interest of the  legal      representative.   It  is obvious, therefore, that      under such circumstances,  the  contravention  of      the  relevant statutory provision would be a mere      irregularity may be a gross irregularity, but not      a nullity".      
 

 16.  Hence,  having  participated  in  the proceedings   before the Mamlatdar and ALT it does not lie in the mouth   of Respondents 2, 3 & 4  to  say  that  the  order  dated   22.6.1971 is  a  nullity.    To  the contrary, there is a   strong presumption that procedural requirement was waived   by them.   Even  if  there  was  a  procedural  lapse  it   amounted only to an irregularity and not a nullity.  
 

 17 However,  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 the case of  State  of  Punjab  Vs.   Gurudevsingh  (supra), the Apex Court took up the hearing   of two Civil Appeals together.  In one case the suit  for   declaration  of  the  order of termination was instituted   after a period of seven years and  in  another  case  the   suit had been instituted after nearly six years.  In both   the  cases Punjab and Haryana High Court had held that, a   suit for declaration that  the  order  of  dismissal  was   void, could not be stated to be barred by limitation.  It   was  against  the  said decision that State of Punjab had   preferred appeal before the Apex Court.  In para 4 of the   judgment the Apex Court has discussed the Scheme  of  the   Limitation Act and held that :          "The words 'right to  sue'  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  (See  :(i)  Mt.Bolo      v.Mt.Koklan, AIR 1930  PC  270  and  (ii)  Gannon      Dunkerley and Co.    v.  Union of India, AIR 1970      SC 1433)."   
  

 The Supreme Court thereafter goes on  to  lay  down  that   even if the respondents before it had been dismissed from   service  illegally  yet to challenge the same they had to   approach  the  Court  within  the  prescribed  period  of   limitation.   As  to what is the effect of an order which   is void or nullity, it has been laid down thus :       

  "xxx  xxx  xxx For the purpose of these cases, we      may assume that the order of dismissal was  void,      inoperative and ultravires, and not voidable.  If      an  Act  is  void or ultra vires it is enough for      the Court to  declare  it  so  and  it  collapses      automatically.  It  need  not  be set aside.  The      aggrieved party can  simply  seek  a  declaration      that it  is  void  and  not  binding upon him.  A      declaration merely declared the existing state of      affairs and does not 'quash' so as to  produce  a      new state of affairs.     
 

    But  nonetheless the impugned dismissal order has    at least  a de facto operation unless  and  until      it is declared  to  be  void  or    nullity by  a      competent body  or Court. In Smith V. East  Elloe      Rural District    Council,  1956  AC 736 at p.769      Lord Radcliffe observed :       

   'An order even  if not  made  in  good  faith  is      still  an  act  capable of legal consequences. It      bears no brand of invalidity upon  its  forehead.      Unless the necessary proceedings are taken at law      to  establish  the cause of invalidity and to get      it quashed  or otherwise upset, it will remain as       effective for its ostensible purpose as the most      impeccable of orders'.       

   7.  Apropos to this principle Prof.  Wade states;      the principle must be equally true even where the      'brand'  of  invalidity  is  plainly  visible for      their also the order can effectively be  resisted      in  law  only  by  obtaining  the decision of the      Court (See :  Administrative Law  6th  Ed.p.352).      Prof.Wade sums up these principles :  
 

  'The truth of the matter is that the  Court  will      invalidate an  order only if the right remedy  is      sought  by  the  right  person   in   the   right      proceedings  and  circumstances. The order may be      hypothetically a nullity,  but  the    Court  may      refuse to quash    it because  of the plaintiff's      lack of standing, because he does not  deserve  a      discretionary remedy,  because  he has waived his      rights, or for some other  legal reason.  In  any      such case the 'void' order  remains effective and      is, in  reality, valid. It follows that  an order      may be   void  for  one  purpose  and  valid  for      another, and  that  it  may   be void against one      person but valid against another'. (Ibid p.352).  
 

  8.  It will be clear  from these principles,  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".         
 

 18. In  two  subsequent  decisions the Apex Court has   stated the law thus :  In the case of State of Kerala Vs.   M.K.Kunthikannan Nambiar, (1996) 1 SCC 435:  
     

 8.In   Halsbury's  Laws  of  England,  4th  Edn.,      (Re-issue) Vol.1(1)  in  para  26,  p.31,  it  is      stated thus :
 

 ' If  an  act  or  decision,  or  an order or other      instrument is invalid, it should,  in  principle,      be  null  and  void  for all purposes; and it has      been said that there are no degrees  of  nullity.      Even  though  such an act is wrong and lacking in      jurisdiction, however, it  subsists  and  remains      fully  effective unless and until it is set aside      by a court of competent jurisdiction.  Until  its      validity   is   challenged,   its   legality   is      preserved'.
 

  In the Judicial Review of Administrative  Action,      De Smith,   Woolf  and  Jowell,  1995  Edn.    at      pp.259-60 the law is stated thus :        

 " The   erosion   of   the   distinction    between      jurisdictional   errors   and  non-jurisdictional      errors has,  as  we  have  seen,  correspondingly      eroded  the distinction between void and voidable      decisions.  The courts have  become  increasingly      impatient  with  the  distinction,  to the extent      that the situation today  can  be  summarised  as      follows :  
 

 (1) All official decisions are presumed to  be  valid      until  set  aside or otherwise held to be invalid      by a court of competent jurisdiction."  
 

  Similarly,  Wade  and  Forsyth  in Administrative      Law, Seventh Edn.,1994, have stated the law  thus      at pp.341-342 :  
 

 ".....    every  unlawful  administrative  act,  however     invalid,is merely  voidable.  But this is no more      than the truism that in most situations the  only      way  to  resist unlawful action is by recourse to      the law."  
 

  And in the case of State of Rajasthan and  others      Vs.  D.R.Laxmi and others, (1996) 6 SCC 445:     "10. The  order  or  action,  if ultravires the power,      becomes void and it does not  confer  any  right.      But  the  action  need  not necessarily be set at      naught in all events.  Though the  order  may  be      void,  if  the  party does not approach the Court      within  reasonable  time,  which  is   always   a      question  of  fact and have the order invalidated      or acquiesced or waived, the  discretion  of  the      Court has to be exercised in a reasonable manner.      When  the  discretion  has  been conferred on the      Court, the Court may in appropriate case  decline      to  grant  the  relief, even if it holds that the      order was  void.    The  net   result   is   that      extraordinary  jurisdiction  of the Court may not      be exercised in such circumstances".      
 

19. To this general proposition of law the Apex Court   itself has  carved  out  an  exception,  viz.    in  what   circumstance limitation would not operate as a bar  while   exercising revisional powers.  In case of State of Orissa   and others  Vs.    Brundaban  Sharma  and  Another,  1995   Supp.(3) SCC 249, it is stated thus in  para  16  of  the   judgment :  
    

 "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  revisional      power to unravel fraud and to set it right ?  The      answers would be no."    
 

The Supreme Court thereafter goes on to observe in context of the facts before it that “a non est order is a void order and it confers no title and its validity can be questioned or invalidity be set up in any proceeding or at any stage”. However, the Apex Court has also before making the aforesaid observation stated in earlier paras to the effect that : “Power under Section 211 of the Code must be exercised within 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.” xxx xxx xxx “What would be a reasonable time so as to be immune from the attack that the power has been exercised in any reasonable manner would depend upon the facts and circumstances of the case”.

20. Thus the settled position is : An order which is nullity has to be declared so by a competent court within the prescribed period of limitation; while exercising revisional power the law of limitation would normally apply; what would be a reasonable period of limitation would depend on facts and circumstances of each individual case; and, limitation would not be a bar in case of fraud or suppression of facts.

21. In the aforesaid circumstances, taking into consideration the ratio enunciated by the Supreme Court, it is apparent that in the present case even if the finding that the order dated 22/6/1971 passed by Mamlatdar & ALT 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 leave to approach the Court/Appellate Authority beyond the prescribed period of limitation. Hence, on this ground also the orders of the appellate authorities viz. Deputy Collector and the Tribunal suffer from legal infirmity and are likely to be interfered with.

22 . Mr.Patel is right when he contends that respondent nos. 2, 3 and 4 could not have exercised their right of appeal as they cannot be termed to be ‘aggrieved’ by the order of the Mamlatdar & ALT passed on 22/6/1971. They have been declared as permanent tenants and the purchase price has been fixed in accordance with the provisions of Section 32H(1)(i)(a) of the Act. In case the said respondents were treated as other tenants then under Section 32H(1)(ii)(a) of the Act, they would have been required to pay purchase price which would not be less than 20 times the assessment but not exceeding 200 times assessment as against the amount they have been called to pay as purchase price viz. six times the rent of the land. Therefore, so far as determination of purchase price is concerned no prejudice has been caused to respondent nos. 2, 3 and 4 which would entitle them to exercise their right of appeal. Similarly, Section 43 of the Act which deals with restriction of transfer of land purchased under the Act specifically prescribes that the tenant who has purchased the land or any interest under various sections mentioned in Section 43 of the Act is not entitled to sell or transfer or alienate in any manner except without previous sanction of the Collector and except without the consideration being fixed by the State Government. Section 32G of the Act does not find place in Section 43 of the Act and hence the land purchased under Section 32G of the Act is freely transferable. Therefore, even on this ground the respondent nos. 2, 3 and 4 cannot be said to be aggrieved which would grant them the right of appeal. It is apparent that both the appellate authorities viz. Deputy Collector and the Tribunal failed to take this aspect into consideration. It is settled law that the statutory right of appeal can be exercised only by an aggrieved party as stipulated.

23 . In this connection what has been laid down by this Court in the case of Parshottam Ramaji Rathod Vs. Dhirajlal Dharamshi Mistry, 1999(3) G.L.R. 1079 :

“6. Reverting back to the facts of the case, there cannot be any controversy that the appeal filed by the petitioner before the Collector was in exercise of a statutory right of appeal. It is well settled principle that the right of appeal is a statutory right and is subject to all the restrictions imposed by the statute which confers that right. It is not an absolute right or an abstract right. The right of appeal is not merely a statutory right, but it is also a right to resort to a statutory procedure i.e., it is a procedural right and that therefore the same must comply with and must fall within the parameters laid down by the statute which governs the exercise of that right. If the statute conferring that right also imposes a period of limitation for the exercise of such a right, the appeal must be filed within the prescribed period. It goes without saying that if such right is sought to be exercised beyond the period of limitation it must be held that the right has been extinguished by lapse of limitation.”

7 Learned Counsel for the petitioner seeks to overcome this hurdle by contending that where the subject-matter of challenge in the appeal viz., the entries in question are themselves void ab initio, the very concept of limitation cannot apply. This submission is fallacious for the simple reason that if the relevant entries in question were, in the opinion of the petitioners, null and void ab initio, it was open to the petitioners to ignore their existence, since according to the petitioners, they had no effect in law. It was also open to the petitioners, if their so-called rights were challenged in any proceedings before in any forum, to contend that their rights cannot be challenged on the basis of any entry which is in itself null and void ab initio. However, the petitioners have not adopted this course. What the petitioners have chosen to do is to approach the appropriate forum specifically for a declaration that the entries are null and void. The petitioners, therefore, have approached the forum for a specific declaration, sought on various grounds including the ground that such entries are null and void. However, it cannot be overlooked that the petitioners are seeking to exercise a statutory right of appeal for the purpose of obtaining such a declaration. Obviously, such a declaration could not possibly be obtained by the petitioners except by exercising such statutory right. Once this statutory right is sought to be exercised, as explained hereinabove, such right must be exercised within the period of limitation. It cannot, then be contended that although the right is sought to be exercised beyond the period of limitation, the concept of limitation becomes irrelevant merely because one of the grounds of challenge to the entries is that they are null and void.

7.1. What also cannot be overlooked is that in order to conclude that the entries are null and void or otherwise, the prescribed forum is required to apply its mind to the contentions raised, on the facts and circumstances of the case, and to record a finding thereon. Obviously, such application of mind and the recording of a finding thereafter cannot be achieved by the prescribed forum except by way of prescribed appeal. Thus, without there being a proper appeal i.e., unless the right of appeal is exercised within the period of limitation, the prescribed forum cannot possibly examine the matter on merits and/or to record the finding as prayed for by the petitioners. It also goes without saying that a series of decisions have laid down the principle that the expiration of the prescribed period of limitation extinguishes the procedural right to move the appropriate forum for the reliefs sought, and that the expiration of the period of limitation raise a jurisdictional barrier against that forum examining the case on merits. Thus, if the prescribed forum because of the lapse of limitation has no jurisdiction to examine the petitioner’s contention on merits, it could not possibly first come to the conclusion that the entries were null and void and then hold that because the entries are null and void, the concept of limitation has no application at all.”

24. The last contention regarding non applicability of provisions of the Act to a land which is permitted to be converted into non agricultural land by a competent Court also merits acceptance in light of settled legal position enunciated by the aforesaid two decisions of this Court. It is apparent that once the land is declared to be non agricultural one on the basis of N.A. Permission granted by the competent authority the said land loses its characteristic of agricultural land and would not be a ‘land’ within the meaning of Section 2(8) of the Act. If this be the position, the provisions of the Act would not apply to the land in question and the Deputy Collector could not have entertained the statutory power under the Act including entertaining of appeal under Section 74 of the Act.

25. In light of what is stated hereinbefore even if the petition is treated as a petition under Article 227 of the Constitution of India, as contended on behalf of the respondents, it is clear that appellate orders suffer from an error apparent on face of the record which would require this Court to assume jurisdiction. The Deputy Collector held that the order dated 22/6/1971 was a nullity and hence bar of limitation did not apply and entertained the appeal holding that the Mamlatdar & ALT had not complied with the provisions of Section 32G of the Act. This order was confirmed by the Tribunal and even the review application was rejected. As already demonstrated hereinbefore the order dated 22/6/1971 could not be treated as a nullity, and even if it is treated as nullity, the law of limitation would apply and in absence of any explanation the appellate authority could not have entertained the appeal. Similarly the nature of the land having undergone change, the appellate authority could not have exercised its jurisdiction and power under the provisions of the Act as the same stood divested by virtue of the fact that the provisions of the Act did not apply.

26. Hence, for all the aforestated reasons the impugned orders of the Tribunal viz. the orders dated 26/6/1992 and 17/4/1995 as well as the order of Deputy Collector dated 30/12/1987 are hereby quashed and set aside. Rule made absolute. There shall be no order as to costs.