TaxTMI 
TaxTMI 
2015 (9) TMI 1673
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.... land bearing Survey No.111 admeasuring 39 acres 60 gunthas situated at Village: Madhapar, Taluka & District: Rajkot were sold by four persons (1) Jagjivan Kalidas Thakker, (2) Patel Kana Arjan, (3) Khodidas Vashram Thakker and (4) Patel Premji Ganesh to five persons, namely, Sudhaben Buddhidhan Modi, Bhupatlal Chaganlal Shah, Shantaben Dhirajlal Shah, Minaben Nikhilbhai Shah and Niranjan Chimanlal Maniar. Registered sale deed Nos. 471, 430, 429, 428 and 431 were executed on 2.1.1970, 31.1.1970, 30.1.1970, 31.1.1970 and 31.1.1970, respectively. Revenue entries were mutated in the revenue record vide Village Entry Nos. (1) 471 dt. 4.12.1973 for land admeasuring 5 acres 0 gunthas (2) 472 dt. 4.12.1973 for land admeasuring 5 acres0 gunthas (3) 473 dt. 4.12.1973 for land admeasuring 2 acres 30 gunthas (4) 474 dt. 4.12.1973 for land admeasuring 2 acres 10 gunthas, and (5) 475 dt. 4.12.1973 for land admeasuring 2 acres 20 gunthas. After the entries were mutated in the revenue record, one of the sellers, Khodidas Vashram Thakker, expired on 28.6.1994. Other executant of the sale deed expired prior thereto. During the lifetime of all the executants of the sale deed, no dispute was raised b....
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....now about the aforesaid litigation, they preferred Civil Application No. 3062 of 2011 for being joined as party in the aforesaid Special Civil Application. On 8.3.2011, respondent No.3 placed the copy of the notice dated 4.3.2011 in the proceedings of aforesaid Special Civil Application stating, inter alia, that the proceedings under Saurashtra Gharkhed, Tenancy Settlement and Agricultural Land Ordinance, 1949 (hereinafter referred to as 'the Ordinance' for the sake of convenience) were initiated. In view of the said notice, respondent No.5 did not press the petition and consequently the petition was disposed of as not pressed. The application of the appellants was also disposed of accordingly. 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 showcause 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 showcause notice and ther....
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.... 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 showcause 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 vs. Patel Raghav Natha reported at (1969) 2 SCC 187, wherein it was held that if the revisional auth....
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....asonable 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 scholastic 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 ....
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....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 retur....
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....han 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 agritools. (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 ....
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....nitiating 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 in the case between Smt. Sulochana Chandrakant Galande v. Pune Municipal Transport and ors (AIR 2010 SC 2962) wherein, while considering the legal position with regard to Section 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 Section 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 assumed that the legislature has conferred an everlasting and interminable powe....
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....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 ....
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....as found that the transaction had taken place between the agriculturist to nonagriculturist and therefore, the action has been taken thereafter immediately and hence, it cannot be said that the bar of delay would operate in the present case. He further submitted that the learned Single Judge has exercised the discretion of not interfering with the impugned action on the ground that it was at a show cause notice stage and when the discretion is exercised, unless it is found to be perverse or erroneous on the face of it, this Court may not interfere with such decision in exercise of the appellate jurisdiction. 12. We may first consider the question for interference to the order passed by the learned Single Judge. There cannot be second opinion on the aspect that if two views are possible and the learned Single Judge has taken one view, the Division Bench of this Court in exercise of the jurisdiction under Letters Patent would be loathe to interfere and may not entertain the appeal, but in a case where only one view was possible or that well settled legal position is not considered, which goes to the root of the matter for the jurisdiction of the authority, such would be an appropr....
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....also, as per the provisions of the Bombay Land Revenue Code read with the Rules, before any entry is mutated in the revenue record, the notice under section 135D is required to be served to the original owner. Further, if the notice is served and the entry is signed as pakka entry in the revenue record, the same would remain as it is until it is certified by the Circle Inspector. It is the duty of the Circle Inspector to verify the relevant record and then to certify and then if he finds that the proper procedure has been followed, he would certify the entry. After certification of the entries, as per the scheme of the Land Revenue Rules, statements are required to be forwarded. As per Rule 111 of the Land Revenue Rules, whenever index of the land is prepared and is complete, the same is required to be placed before the Collector or the SubDivisional Officer for inspection. After such material is placed before the SubDivisional Officer or the Collector, a notice is required to be issued to the interested person and the notice is also required to be placed in the vicinity of the village concerned and thereafter, the Collector or the SubDivisional Officer has to compare the index and....
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....h of the provisions of the Act, legal heirs of the transferor who are appellants herein are desirous to see that the litigation continues for one reason or other even though the transfror has accepted the consideration and the transferor might have made the transferee believe that the transaction was in accordance with law. We are of the view that the legal heirs of the original transferor cannot be heard to say that they are entitled to benefit of such transaction which was opposed to law, more particularly, when it is a case of voluntary sale. 21. In our considered opinion, the present appeal is clear misuse of process of law and therefore we cannot accept the last submission of Mr. Shelat that the sale to be declared void and the possession of the land should be restored to the appellants. 22. At this stage we find that equitable considerations are against the appellants and prima facie it appears that the appellants want to use the process of law with a view to take undue benefit by contending that the transaction of voluntary sale was void or was opposed to law. During the period of 16 years not a single whisper is made by the appellants or the transferor reg....
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....on made under the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 and the interpretation thereof by this Court, in the decision reported in the case of Govindsingh Ramsinghbhai Vaghela v. G. Subbarao, Asstt. Collector Dholka reported at 1970 GLR 897, the original owner would be entitled to get back the land and not the vesting thereof in the State Government. 18. Section 75 of the ordinance provides for the enabling power of summary eviction by the Collector. There are no express powers for forfeiture by the State Government nor there is any express power for reentrustment of the land to the original owner. If the provisions of section 75 are considered with the provisions of section 84C of the Bombay Tenancy and Agricultural Lands Act, 1948, whenever the legislature wanted, it provided for the entrustment of the land to the transferor or the forfeiture thereof by the State Government. Such is not the language used in section 75 of the Act. 19. We may leave at that without observing further, but in absence of any express language used under section 75 in contradistinction to the language used under section 84 C of the Bombay Tenancy an....