{"id":95749,"date":"2003-06-26T00:00:00","date_gmt":"2003-06-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/adambhai-sulemanbhai-desai-vs-state-of-gujarat-on-26-june-2003-2"},"modified":"2017-09-12T11:14:15","modified_gmt":"2017-09-12T05:44:15","slug":"adambhai-sulemanbhai-desai-vs-state-of-gujarat-on-26-june-2003-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/adambhai-sulemanbhai-desai-vs-state-of-gujarat-on-26-june-2003-2","title":{"rendered":"Adambhai Sulemanbhai Desai vs State Of Gujarat on 26 June, 2003"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Adambhai Sulemanbhai Desai vs State Of Gujarat on 26 June, 2003<\/div>\n
Equivalent citations: (2004) 1 GLR 906<\/div>\n
Author: D Mehta<\/div>\n
Bench: D Mehta<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 D.A. Mehta, J.  <\/p>\n
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’)<\/p>\n
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).\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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.  \n \n\n6. 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.  \n \n\n7. 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.  \n \n\n8. 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.  \n \n\n8.1  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.  \n \n\n8.2  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.  \n \n\n9. 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.  \n \n\n10.  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.  \n \n\n11. 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.  \n \n\n<\/pre>\n
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.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
   “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)”\n<\/p>\n
Thereafter, the Court while analysing Section 159   of the Income Tax Act,1961 states thus :\n<\/p>\n
 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.  \n \n\n 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\".      \n \n\n 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.  \n \n\n 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<\/a> 1970      SC 1433).\"   \n  \n\n 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 :       \n\n  \"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.     \n \n\n    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 :       \n\n   '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'.       \n\n   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 :  \n \n\n  '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).  \n \n\n  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\".         \n \n\n 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:  \n     \n\n 8.In   Halsbury's  Laws  of  England,  4th  Edn.,      (Re-issue) Vol.1(1)  in  para  26,  p.31,  it  is      stated thus :\n \n\n ' 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'.\n \n\n  In the Judicial Review of Administrative  Action,      De Smith,   Woolf  and  Jowell,  1995  Edn.    at      pp.259-60 the law is stated thus :        \n\n \" 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 :  \n \n\n (1) All official decisions are presumed to  be  valid      until  set  aside or otherwise held to be invalid      by a court of competent jurisdiction.\"  \n \n\n  Similarly,  Wade  and  Forsyth  in Administrative      Law, Seventh Edn.,1994, have stated the law  thus      at pp.341-342 :  \n \n\n \".....    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.\"  \n \n\n  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\".      \n \n\n19. 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 :  \n    \n\n \"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.\"    \n \n\n<\/pre>\n
  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”.\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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.\n<\/p>\n
 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 :\n<\/p>\n
 “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.”\n<\/p>\n
 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.\n<\/p>\n
 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.”\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
 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.<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-95749","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAdambhai Sulemanbhai Desai vs State Of Gujarat on 26 June, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/adambhai-sulemanbhai-desai-vs-state-of-gujarat-on-26-june-2003-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Adambhai Sulemanbhai Desai vs State Of Gujarat on 26 June, 2003 - 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