Gujarat High Court
Bhikhabhai Jadavbhai Rathod vs State Of Gujarat on 7 July, 2026
NEUTRAL CITATION
C/SCA/11794/2017 JUDGMENT DATED: 07/07/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11794 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
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Approved for Reporting Yes No
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BHIKHABHAI JADAVBHAI RATHOD
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR RAJESH O GIDIYA(5222) for the Petitioner(s) No. 1
MR. RAHUL DAVE, AGP for the Respondent(s) No. 1
MR Y J PATEL(3985) for the Respondent(s) No. 4
RULE SERVED for the Respondent(s) No. 5,7
RULE SERVED BY DS for the Respondent(s) No.
10,11,12,13,14,15,16,2,3,8,9
UNSERVED EXPIRED (R) for the Respondent(s) No. 6
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 07/07/2026
ORAL JUDGMENT
1) By way of filing present petition under Article 226 of the
Constitution of India the petitioner herein have prayed for the
following reliefs:
”A. That this Hon’ble Court be pleased to admit the petition.
B. That this Hon’ble Court be pleased to quash and set aside the
impugned show cause notice No. RO/suo-moto-revision/Case No.
15/17 dated 16.06.2017 issued by the Respondent No. 2 District
Collector, Botad, by issuing a writ in the nature of certiorari or any
other appropriate writ, order or direction as this Hon’ble Court mayPage 1 of 19
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deem fit in the interest of justice.
C. Pending admission and/or final disposal of the petition, this
Hon’ble Court be pleased to stay the operation. Implementation,
execution of the impugned show-cause notice No. RO/suo-moto-
revision/Case No. 15/17 dated 16.06.2017 issued by the Respondent
No. 2 District Collector, Botad, till this petition is finally heard and
decided by this Hon’ble Court.
D. That this Hon’ble Court be pleased to grant such other and further
relief/s as may be deemed fit and proper in the facts and
circumstances of the case.
E. That this Hon’ble Court be pleased to award cost of the petition
from the respondents.”
2) The case of the petitioner can be summarized in a nutshell
as under:
2.1) The petitioner is an agriculturist/agricultural labourer who
purchased the agricultural land in question from the concerned
landholders by way of registered sale deeds executed upon
payment of valuable sale consideration. Pursuant to the
execution of the said sale deeds, corresponding mutation entries
came to be posted in the revenue record and the same were
subsequently certified by the competent revenue authorities
after due verification and scrutiny of the relevant documents
Thereafter, the Collector initiated proceedings and issued a
show-cause notice dated 16.06.2017 with a specific direction to
cancel the mutation entries effected on the basis of the
aforesaid registered sale deeds. The notice was issued without
jurisdiction and sought to unsettle transactions which had
already attained finality in the revenue record. Being aggrievedPage 2 of 19
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by and dissatisfied with the issuance of the aforesaid show-cause
notice, the petitioner has approached this Court by way of the
present petition seeking appropriate reliefs.
3) Heard learned advocate Mr. Rajesh O. Gidiya appearing for
the petitioner and learned AGP Mr. Rahul Dave for Respondent
No. 1.
4) Learned advocate Mr. Rajesh O. Gidiya appearing for the
petitioner submitted that it is an admitted position of fact that
the petitioner is an agricultural labourer and has been engaged in
agricultural activities for many years. He submitted that a
certificate to that effect was issued by the competent revenue
authority. On the strength of the agricultural labourer certificate
dated 02.05.2007 issued by the Mamlatdar, Botad, and in
accordance with the prevailing Government policy, the petitioner
purchased the agricultural land in question by way of a registered
sale deed after paying the requisite sale consideration to the
landowners. Pursuant thereto, Mutation Entry No. 2271 came to
be mutated in the revenue record and was certified on
08.08.2008. He further submitted that the petitioner had
purchased and sold different parcels of agricultural land situated
in various villages on the basis of the said certificate and the copy
of the relevant sale deeds have also been placed on record.
4.1) Learned advocate for the petitioner further submitted that
the petitioner had first purchased agricultural land by a
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registered sale deed dated 03.08.2007, pursuant to which
Mutation Entry No. 2189 was entered in the revenue record and
certified on 02.11.2007. Thereafter, the petitioner received a
show-cause notice issued by the office of the Collector, Botad,
alleging that the transactions entered into by the petitioner were
in contravention with the statutory provisions of law and had
been undertaken without obtaining prior permission from the
competent authority. On the basis of said reasons, the Collector
initiated suo motu revision proceedings for cancellation of the
entries mutated in the revenue record. Learned advocate
submitted that a copy of the impugned notice has been produced
on record along with the memo of petition. He further submitted
that by making cursory glance upon the contents of the notice, it
can be found out that the said show-cause notice was issued to
number of persons who had entered into transaction of
registered sale deed based upon the agriculture labourer
certificate issued by competent revenue authority and who
entered into transaction without obtaining the prior permission
of competent authority. It seems that several independent
transactions carried out by different individuals in respect of
different parcels of lands situated altogether in different
villages, executed at different points of time have been sought
to be declared as cancelled by way of issuing a common
consolidating show-cause notice. He submitted that all such
transactions had already been acted upon and the corresponding
mutation entries had been duly certified by the competent
revenue authorities. However, after a considerable period of
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time, the authority sought to cancel such entries on the ground
that prior permission of the competent authority had not been
obtained before entering into the transactions.
4.2) Learned advocate further submitted that the action of the
authority is ex facie illegal and contrary to law and therefore, the
impugned show-cause notice deserves to be quashed and set
aside. He submitted that the petitioner had purchased the land in
the year 2007, whereas the impugned proceedings came to be
initiated only in the year 2017, after a delay of more than ten
years. In support of his submissions, he placed reliance upon
various decisions of the Hon’ble Supreme Court as well as this
Court, particularly the decision in the case of Bharatbhai
Narendbhai Vegda and Others vs. State of Gujarat, reported in
2016 (2) GLR 1021. He submitted that in the said decision, this
Court had quashed similar proceedings on the ground of
inordinate delay and that the principle laid down therein squarely
applies to the facts of the present case. He, therefore, urged that
the impugned show-cause notice dated 16.06.2017 be quashed
and set aside. Learned advocate further submitted that although
no specific period of limitation is prescribed under the statute for
exercise of suo motu powers by the revenue authorities, it is well
settled that such powers are required to be exercised within a
reasonable period. Initiation of proceedings after a lapse of more
than ten years cannot be said to be within a reasonable period
and would amount to an inordinate and unexplained delay. He
has further put reliance upon the decision rendered by this Court
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in the case of Vinubhai Mangalbhai Shah vs. District Collector –
Surendranagar & Others decided on 25.03.2026. He, therefore,
submitted that in view of the settled proposition of law, the
impugned show-cause notice deserves to be quashed and set
aside.
5) Learned AGP Mr. Rahul Dave appearing for the
respondent-State submitted that it is an admitted position of
fact that the petitioner is an agricultural labourer and had
entered into transactions for purchase of agricultural land,
pursuant to which the relevant mutation entries came to be
mutated in the revenue record. He submitted that during the
course of scrutiny of the record, it came to the notice of the
Collector that the petitioner had entered into the transactions
without obtaining the necessary permission from the competent
authority as required under the statutory provisions. Learned
AGP further submitted that the transactions were undertaken in
contravention of the provisions of law and while mutating and
certifying the entries in the revenue record, the concerned
revenue authorities had failed to verify the relevant aspects in
their true spirit and proper perspective. Upon examining the
record, the Collector found that there were several instances
where mutation entries had been certified despite the
transactions having been entered into without obtaining the
requisite permission from the competent authority. He
submitted that with a view to rectify such irregularities and to
examine the legality of the transactions, the Collector issued the
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impugned show-cause notice. The proceedings initiated by the
Collector are in accordance with law and have been undertaken
in exercise of the powers vested in the authority. Learned AGP,
therefore, submitted that the action of the Collector is just, fair
and legal and does not warrant interference by this Court in
exercise of its extraordinary jurisdiction under Article 226 of the
Constitution of India. He, therefore, urged that the petition be
dismissed.
6) Having heard learned advocates for the respective parties
and having gone through the record and proceedings, it emerges
from the record that the petitioner herein is an agricultural
labourer and was engaged in carrying out agricultural activities
upon the agricultural lands of different landowners. Pursuant
thereto, and as per the policy of the Government, the revenue
authority concerned had issued a certificate declaring the
petitioner to be an agricultural labourer. It is also a matter of fact
on record that as per the prevailing policy of the Government of
Gujarat, a person holding such certificate of agricultural labourer
was entitled to purchase agricultural land by way of a registered
sale deed. It further emerges from the record that after
obtaining the certificate declaring him to be an agricultural
labourer, the petitioner purchased agricultural land by way of a
registered sale deed after paying the amount of sale
consideration. Pursuant to the execution of the said sale deed,
the revenue entry came to be mutated in the revenue record and
the same was subsequently certified by the competent revenue
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authority after verifying the relevant record and proceedings. It
is a matter of fact on record that the petitioner purchased the
said property on 03.08.2007 by way of a registered sale deed and
Mutation Entry No.2189 came to be mutated on 02.11.2007.
Thereafter, the said entry was duly certified by the competent
authority.
6.1) It is revealed from the record that on 16.06.2017, a show-
cause notice came to be issued at the instance of the District
Collector, Botad to the petitioner as well as other identically
situated persons. A copy of the said show-cause notice is placed
on record along with the memo of petition. Upon a bare perusal
of the contents of the said notice, it appears that during scrutiny
of the revenue record, certain issues came to the notice of the
District Collector and therefore, proceedings were initiated by
issuing the show-cause notice alleging that the transactions in
question had been carried out in contravention of the statutory
provisions of law and therefore, the entries mutated in the
revenue record were required to be cancelled. By bare perusal of
the contents of the notice itself, crystallises the position of fact
that the show-cause notice had been issued to different
individuals in respect of different transactions relating to
different properties situated in different villages and executed
between different parties on different dates. Pursuant to the
execution of such sale deeds, entries came to be mutated in the
revenue record by the competent authority. The revenue
authority has clubbed together various disputed questions of
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fact relating to different transactions and different entries and
has issued one consolidated show-cause notice seeking
explanation from all concerned persons.
6.2) This Court finds that no specific allegations or particulars
have been stated in the show-cause notice. By issuing one
consolidated notice to different individuals, the issues involved in
each case have been generalized. In absence of specific
particulars regarding the transaction in question, the petitioner
as well as other affected persons could not have effectively
replied to the notice. It is a settled proposition of law that if any
entry mutated in the revenue record is sought to be questioned,
the authority concerned is required to initiate proceedings by
issuing a show-cause notice containing specific facts and
grounds. Apparently, on the face of the record, such particulars
are lacking in the present show-cause notice. Apart from the
aforesaid aspect, there is gross delay in initiation of the
proceedings. The sale transaction was entered into in the year
2007 and the corresponding entry was also certified in the year
2007. However, the proceedings came to be initiated only in the
year 2017. It is well settled that though no specific time period of
limitation is prescribed under the statute, the authority
concerned is required to exercise its powers within a reasonable
period of time. The consistent view taken by the Hon’ble Apex
Court as well as this Court is that such powers cannot be
exercised after an unreasonable and inordinate delay. In the
present case on hand, the proceedings have been initiated after a
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lapse of about ten years. Therefore, on both the counts, namely,
absence of specific particulars in the show-cause notice and gross
delay in initiation of proceedings, this Court is of the opinion that
the action initiated by the authority is not in consonance with the
settled principles of law and therefore, the impugned order
deserves to be quashed and set aside.
6.3) At this juncture, I would like to rely and refer to the
decision rendered by the Division Bench of this Court in the case
of Bharatbhai Naranbhai Vegda & Ors. vs. State of Gujarat &
Ors., reported in 2016 (2) GLR 1021, the extracts of the said
decision more particularly paragraph nos. 4 to 10 which are
reproduced hereinunder:
“4. When the appellants came to know through their Advocate about
the aforesaid notice initiated by the respondent No. 3, they have
preferred Special Civil Application No. 4370 of 2011 challenging the
show-cause notice, inter alia, on the ground that after 37 years from the
date of the revenue entry, the proceedings are initiated under the
Ordinance. The learned Single Judge found that the aspects of delay can
be examined by the authority while deciding the show-cause notice, and
therefore, the learned Single Judge did not interfere with the show-
cause notice and dismissed the petition without entering into the merits
of the show-cause notice. It is under these circumstances, the present
Appeal before the Division Bench of this Court.
5. We have heard Mr. Mihir Joshi, learned Sr. Counsel appearing with Mr.
Vimal Patel for the appellants, Mr. Percy Kavina, learned Sr. Counsel,
appearing with Mr. Majmudar for respondent No. 5, Mr. Rakesh Patel,
learned A.G.P. appearing for the State and its officers, Mr. Saurabh Amin
appearing for respondent Nos. 8 to 14, Mr. Haresh Patel for respondent
Nos. 6 and 7 and Mr. Sandip Bhatt for respondent No. 12.
6. It is by now well-settled that if the action of initiation of the show-
cause notice is without jurisdiction, or ex-facie barred by delay, the
Court may entertain the petition under Art. 226 of the Constitution. At
this stage, we may refer to the decision of the Apex Court in case of
State of Punjab v. Bhatinda District Co-operative Milk Producers UnionPage 10 of 19
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Ltd., reported at 2007 (11) SCC 363, wherein the show-cause notice
issued in purported exercise of the revisional power came to be
challenged, inter alia, on the ground that the notice was beyond the
period of limitation. A question arose before the Apex Court as to
whether such a question could be considered as the jurisdictional
question or not. At Paragraph 24, it was observed thus:
“24. Question of limitation being jurisdictional question, the writ
petition was maintainable.”
Further, at Paragraph 25, it was observed thus:
“25. We are, however, not oblivious of the fact that ordinarily the
writ Court would not entertain the writ application questioning
validity of a notice only, particularly, when the writ petitioner would
have an effective remedy under the Act itself. This case, however,
poses a different question. The Revisional Authority, being a creature
of the statute, while exercising its revisional jurisdiction, would not
be able to determine as to what would be the reasonable period for
exercising the revisional jurisdiction in terms of Sec. 21(1) of the Act.
The High Court,. furthermore in its judgment, has referred to some
binding precedents which have been operating in the field. The High
Court, therefore, cannot be said to have committed any jurisdictional
error in passing the impugned judgment.” (Emphasis supplied)
7. If the facts of the present case are further examined in light of the
above-referred legal position, two aspects may be required to be
addressed. One would be the question of reasonable period for initiation
of the action by issuance of the show-cause notice under the Ordinance
and the another is whether it could be said that the initiation of the
action is without jurisdiction. The third aspect which may incidentally
arise for consideration is about the locus on the part of respondent No. 5
in insisting for invalidation of the transaction which has taken place
between the original owner, i.e., his father and the purchaser wherein
father of respondent No. 5 received the consideration and by his own
volition, parted with the possession, acted for transfer of the property
and did not raise any grievance during his lifetime.
8. On the first aspect, for reasonable period, we may refer to some of
the decisions, though of course, there are number of such decisions. The
first judgment on the principle delay in exercise of power came to be
considered in the case of State of Gujarat v. Patel Raghav Natha,
reported at 1969 (2) SCC 187 [1969 GLR 992 (SC)], wherein it was held
that if the revisional authority was inclined to exercise the power under
the Bombay Land Revenue Code, it ought to have been satisfied that
such power has been invoked within reasonable time, otherwise the bar
of delay would operate. Thereafter, there are number of decisions on
the said point but, we may usefully refer to the recent decision of this
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Court in the case of Chandulal Gordhandas Ranodriya v. State of
Gujarat, reported at 2013 (2) GLR 1788, wherein, this Court while
considering the question of delay in initiation of action under Sec. 84C of
the Bombay Tenancy and Agricultural Lands Act, in a case where delay
was about 5 years, observed at Paragraph 13 as under :
“13. In our opinion, it is well settled that even though void
transaction if is allowed to remain effective for considerable long
period, the authority named therein will be precluded from initiating
proceedings to annul it. It can remain effective and in existence till it
is invalidated and set aside. If its existence is allowed for a
considerable period and by a passage creating valuable rights in
favour of a considerable section of people, like the appellants in the
present case, it is difficult to accept the proposition that despite the
change the competent authority under the Act would be entitled to
exercise powers under Sec. 84C of the Act at any point of time.”
Further, this Court in the said decision elaborately considered the
question of delay and the reasonable period at Paragraph 16, which
reads as under :
“16. In the case of Employees State Insurance Corporation v. C. C.
Santhakumar, reported in 2007 (1) SCC 584, the Supreme Court has
elaborately explained this principle of action to be taken within a
reasonable period of time. It would be appropriate for us to quote
Paragraph Nos. 35, 36, 37, 38, 39 and 40.
“35. A “reasonable period” would depend upon the factual
circumstances of the case concerned. There cannot be any
empirical formula to determine that question. The
Court/authority considering the question whether the period is
reasonable or not has to take into account the surrounding
circumstances and relevant factors to decide that question.
36. In State of Gujarat v. Patel Raghav Natha, 1969 (2) SCC 187,
it was observed that when even no period of limitation was
prescribed, the power is to be exercised within a reasonable time
and the limit of the reasonable time must be determined by the
facts of the case and the nature of the order which was sought to
be varied. This aspect does not appear to have been specifically
kept in view by the Division Bench. Additionally, the points
relating to applicability of the Andhra Pradesh Assigned Lands
(Prohibition of Transfers) Act, 1977, and even if it is held that the
Act was applicable, the reasonableness of the time during which
action should have been initiated were also not considered. It
would be hard to give an exact definition of the word
“reasonable”. Reason varies in its conclusions according to the
idiosyncrasy of the individual and the times and circumstances in
which he thinks. The reasoning which built up the old scholasticPage 12 of 19
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logic stands now like the jingling of a child’s toy. But mankind
must be satisfied with the reasonableness within reach; and in
cases not covered by authority, the decision of the Judge usually
determines what is “reasonable” in each particular case; but
frequently reasonableness “belongs to the knowledge of the law,
and therefore, to be decided by the Courts”. It was illuminatingly
stated by a learned author that an attempt to give a specific
meaning to the word “reasonable” is trying to count what is not,
a number and measure what is not space. It means prima facie in
law reasonable in regard to those circumstances of which the
actor, called upon to act reasonably, knows or ought to know.
(See: Municipal Corpn. Supply & Sewerage Board v. Unique
Erectors (Gujarat) (P) Lid., 1989 (1) SCC 532. As observed by Lord
Romilly, M.R. in Labouchere v. Dawson, 41 LJ Ch 472 it is
impossible a priori to state what is reasonable as such in all cases.
You must have the particular facts of each case established
before you can ascertain what is reasonable under the
circumstances. Reasonable, being a relative term is essentially
what is rational according to the dictates of reason and not
excessive or immoderate on the facts and circumstances of the
particular case.*
37. These aspects were highlighted in Collector v. P. Mangamma,
2003 (4) SCC 488.
38. As observed in Veerayee Ammal v. Seeni Ammal, 2002 (1) SCc
134, it is “looking at all the circumstances of the case; a
“reasonable time” under ordinary circumstances; as soon as
circumstances will permit; so much time as is necessary under the
circumstances, conveniently to do what the contract requires
should be done; some more protracted space than ‘directly’; such
length of time as may fairly, and properly, and reasonably be
allowed or required, having regard to the nature of the act or
duty and to the attending circumstances; all these convey more or
less the same idea”.
39. According to Advanced Law Lexicon by P. Ramanatha Aiyar,
3rd Edition, 2005 reasonable time means as follows :
“That is a reasonable time that preserves to each party the rights
and advantages he possesses and protects each party from losses
that he ought not to suffer.
“Reasonable time” is defined to be so much time as is necessary,
under the circumstances, to do conveniently what the contract or
duty requires should be done in a particular case.
If it is proper to attempt any definition of the words “reasonable
time”, as applied to completion of a contract, the distinctionPage 13 of 19
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given by Chief Baron Pollock may be suggested, namely, that a
“reasonable time” means as soon as circumstances will permit.
In determining what is a reasonable time or an unreasonable
time, regard is to be had to the nature of the instrument, the
usage or trade or business, if any, with respect to such
instrument, and the fact of the particular case.
The reasonable time which a passenger is entitled to alighting
from a train is such time as is usually required by passengers in
getting off and on the train in safety at the particular station in
question.
A reasonable time, looking at all the circumstances of the case; a
reasonable time under ordinary circumstances; as soon as
circumstances will permit; so much time as is necessary under -the
circumstances, conveniently to do what the contract requires
should be done; some more protracted space than “directly” such
length of time as may fairly, and properly, and reasonably be
allowed or required, having regard to the nature of the act or
duty and to the attending circumstances; all these
convey more or less the same idea.
Reasonable time always depends on the circumstances of the
case. (Kinney).
It is unreasonable for a person who has borrowed ornaments for
use in a ceremony to detain them after the ceremony has been
completed and the owner has demanded their return. AIR 1930
Oudh 395.
The expression “reasonable time” means so much time as is
necessary under the circumstances to do conveniently what the
contract or duty requires should be done in a particular case”.
[See: Joseph Severance v. Benny Mathew, 2005 (7) SCC 667]
40. In all these cases at hand the factual aspects have not been
examined, because the grievance appears to have been focused
on the applicability of Sec. 77(1A)(b).”
Further, at Para 19, it was observed as thus :
“19. It must be fairly said that if the statute does not prescribe time-
limit for exercise of revisional powers, it does not mean that such
powers can be exercised at any point of time even if there is a breach
of Sec. 43 of the Act, which is a provision which relates to a new
tenure land, rather it should be exercised within a reasonable period
of time. It is so because the law does not expect a settled thing to be
unsettled after a long lapse of time. It is clear from various
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exercise of any suo motu powers of revision does not prescribe any
limitation, the powers must be exercised within a reasonable period
of time even in the case of transaction which would be termed as
void transaction.”
9. We may also record that in the another decision of this Court in the
case of Bhanji Devshibhai Luhar v. State of Gujarat, reported at 2011 (2)
GLR 1676, the question arose for consideration of the initiation of the
action after 17 years under the Ordinance itself wherein the provisions
of Secs. 54 and 75 of the Ordinance were referred to in the show-cause
notice and the action was initiated. This Court at Paragraphs 19 to 23,
observed thus:
“19. In this, background, it deserves to be considered that when the
respondent’s action of scrutinizing the transaction in question after
delay of 17 years is under consideration and when it is apparent that
if the respondent’s action and decision are allowed to prevail and are
not interfered with, the purchaser (i.e. the appellant), as a
consequence of the said decision, will be deprived of the land
purchased by him. before 17 years (by now almost 30 years) then in
such facts, circumstances the aforesaid aspects i.e. the fact that the
appellant has put the land in question for agricultural use only and
has not used the land for any purpose other than agricultural use and
has not changed its status and has even incurred expenditure to
improve the quality of soil, would become relevant and would
deserve due consideration.
20. Even if the concept that the void action cannot be validated on
the ground of belated action is applied in present case, then also, in
view of the special facts and circumstances of present case it would
be appropriate to take into account the peculiar facts of present case
which emerge from the record viz. :
(a) during the entire period of 17 years the vendor has not taken out
any action in law against the transaction and any suit or proceeding
for declaration or for any other relief does not appear to have been
filed by the vendor.
(b) the petitioner was an agricultural labourer at the time when the
transaction was executed and was tiling and cultivating various
agricultural lands.
(c) The petitioner was also artisan i.e. engaged in the activity of
preparing agri-tcols.
(d) more important is the fact that even after purchasing the land in
question, the petitioner has, as claimed by him, continued to use the
land for agricultural purpose and the status or nature of the land in
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agricultural land (said factual assertion by the petitioner has not
been disputed by the respondents and any contrary evidence is not
placed on record)
(e) the petitioner has also claimed that he has incurred substantial
expenditure in improving quality of soil.
(f) another important factor which, in the facts of present case, has
emerged is that in view of the orders of the authorities it is only the
vendor who will stand to gain/benefit since the land, even after the
orders, will not vest in the government in absence of any provision
providing for such consequential.
21. In light of aforesaid facts of present case, we are of the view that
while the conclusion and the decision of the competent and
appellate authority holding the transaction in question as void, is in
consonance with the provisions of the ordinance and cannot be
faulted, in the interest of justice and equity, it also ought not be
overlooked that the impugned action in exercise of the power under
Sec. 75 of the Ordinance to summarily evict the petitioner, after
having allowed the transaction to remain alive for 17 years not only
ignores the wide chasm between the date of transaction and the
dates of the notice and the order, but it also overlooks the fact that
the petitioner has continued to put the land to use for agricultural
purpose and has not changed the status and nature of the land and
that he has also incurred expenditure to improve the quality of soil
and invested further amounts for betterment of the land in question.
The figures of such expenditure by the petitioner are not available on
record, however the respondents have not disputed the said factual
assertion by the petitioner.
22. In backdrop of the aforesaid facts and circumstances, if we recall
the observations by the Larger Bench in the case of Shailesh J. Varia
(supra) to the effect that :
“If delay of few months cannot be explained it would be beyond
reasonable period. If a delay of years can be explained and
justified it would be “within reasonable period” (emphasis
supplied) and when we consider present case in light of said
observations, then we have to record that from the material on
file the respondents do not appear to have, in any manner,
explained and justified the long-gap of 17 years in initiating the
action. The said delay of 17 years has remained unexplained and
unjustified. It is only defended on the ground that the transaction
is statutorily void. However, while defending the action the
aforesaid relevant aspects and the absence of explanation
regarding delay are not being taken into account.”
22.1. In this context, we may refer to the decision by the Apex Court
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in the case between Smt. Sulochana Chandrakant Galande v. Pune
Municipal Transport, AIR 2010 SC 2962, wherein, while considering
the legal position with regard to Sec. 34 of Urban Land (Ceiling and
Regulation) Act, 1976 observed in Paragraph 23 that :
“23. The legislature in its wisdom did not fix a time-limit for
exercising the revisional power nor inserted the words “at any
time” in Sec. 34 of the Act, 1976. It does not mean that the
legislature intended to leave the orders passed under the Act
open to variation for an indefinite period inasmuch as it would
have the effect of rendering title of the holders/ allottee(s)
permanently precarious and in a state of perpetual uncertainty. In
case, it is ássumed that the legislature has conferred an
everlasting and interminable power in point of time, the title over
the declared surplus land, in the hands of the State/allottee,
would forever remain virtually insecure. The Court has to
construe the statutory provision in a way which makes the
provisions workable, advancing the purpose and object of
enactment of the statute. In view of the above, we reach the
inescapable conclusion that the Revisional powers cannot be used
arbitrarily at belated stage for the reason that the order passed
in Revision under Sec. 34 of the Act, 1976, is a judicial order. What
should be reasonable time, would depend upon the facts and
circumstances of each case.” (Emphasis supplied)
22.2. We may also refer to a recent decision in the case between
Krishnadevi Malchand Kamathia v. Bombay Environmental Action
Group, 2011 (3) SCC 363, the Apex Court, has, with regard to void
order, observed in Paragraph No. 16 that:
“16. It is a settled legal proposition that even if an order is void, it
requires to be so declared by a competent forum and it is not
permissible for any person to ignore the same merely because in
his opinion the order is void. In State of Kerala v. M. K.
Kunhikannan Nambiar Manjeri Hind Rubber Industries (P) Ltd.,
1997 (3) SCC 443; M. Meenakshi v. Metadin Agarwal, 2006 (7)
SCC 470 and Sneh Gupta v. Devi Sarup, 2009 (6) SCC 194, this
Court held that whether an order is valid or void, cannot be
determined by the parties. For setting aside such an order, even if
void, the party has to approach the appropriate forum.” While
referring to the earlier decisions in the case State of Punjab, 2007
(11) SCC 363 as well as in the case of Sultan Sadik v. Sanjay Raj
Sabba, 2004 (2) SCC 377 the Apex Court has observed:
“19. Thus, from the above it emerges that even if the
order/notification is void/voidable, the party aggrieved by the
same cannot decide that the said order/notification is not binding
upon it. It has to approach the Court for seeking such declaration.
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The order may be hypothetically a nullity and even if its invalidity
is challenged before the Court in a given circumstance, the Court
may refuse to quash the same on various grounds including the
standing of the petitioner or on the ground of delay or on the
doctrine waiver or any other legal reason. The order may be void
for one purpose or for one person, it may not be so for another
purpose or another person.”
23. Under the circumstances, upon considering the overall facts and
circumstances of the present case and in light of the foregoing
discussion and having regard to the fact that at the time of
transaction, the petitioner was agricultural labourer and he
purchased the land for agriculture use and since then he has
maintained the status of the land and continues to put the land to
agricultural use, the decision to compulsorily evict the petitioner
after lapse of 17 years (by now almost 30 years) deserves to be set
aside.
23.1. One of the reasons for our aforesaid view and conclusion is that
the only person who would benefit because of the orders of the
lower authorities is the vendor who is party to the disputed
transaction. The consequence of the impugned order by the
authorities would, ultimately and eventually result into unjust
enrichment for the vendor who entered into the transaction and has,
since then not taken out any action in law before any competent
Court against the transaction.
23.2. Therefore, in view of the facts of the present case, and having
regard to the aspects noted in Paras 20 to 23.1 above, we are
inclined to set aside the impugned orders passed by the lower
authorities. We order accordingly.”
10. In our view, the above-referred well considered two decisions of this
Court makes the position abundantly clear that if the action is to be
initiated for setting aside of a transaction under the Ordinance by
invoking Sec. 54 read with Sec. 75 of the Ordinance, it has to be within
reasonable period. The above referred two decisions are in respect of
the cases wherein the powers were exercised and proceedings were
initiated after 5 years and 17 years respectively, whereas in the present
case, it is after more than years. Hence, we find that the initiation of the
action itself can be said as beyond reasonable period and the bar of
delay and laches could operate against the authority in initiation of the
action. The aforesaid aspect is coupled with two additional
circumstances, one is that the land has changed hands further during
the period of delay and the ownership is transferred by the purchaser to
the another person and the second is that the revenue entries were
mutated. Thereafter, they were also certified by the competent
authority and in spite of that, no action was taken for cancellation of
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such entry or otherwise or even for declaration of the transaction as
invalid within reasonable period. If during the period of delay, the rights
of the parties in the properties are altered, the delay would operate as a
bar with more gravity and when the ownership is changed during the
period of delay, the bar for not taking action within reasonable period
would also operate with more gravity against the authority in initiation
of the action.”
Considering the above-stated principle of law laid down by the
Division Bench of this Court, I am of the opinion that statutory
powers are required to be exercised within a reasonable period
of time and invocation of powers/issuance of show-cause notice
after a reasonable period of time is without jurisdiction.
Secondly, the consolidated show-cause notice has been issued
without assigning any justifiable cause therein.
7) In view of the aforesaid discussion, the present petition
succeeds and is accordingly allowed. The impugned show cause
notice No. RO/suo-moto-revision/Case No. 15/17 dated
16.06.2017 issued by the respondent No. 2 – District Collector,
Botad is hereby quashed and set aside. Rule is made absolute to
the aforesaid extent.
(DIVYESH A. JOSHI,J)
GARVITA
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