Bombay High Court
Gavindbhai Somabhai
Versus
State of Gujarat
Decided On:

Headnote:BOMBAY LAND REVENUE CODE, 1879

       Section 65-An order under the section for granting permission to make non-agricultural use of land which is nullity, if can be regularised to avoid hardship to subsequent purchasers.

       It was next submitted that even if the Court comes to the conclusion that the order passed by the Taluka Development Officer granting permission was a nullity, the proper course for the Secretary (Appeals) was to regularise the grant of permission to avoid unnecessary hardships to third parties, namely, those who had purchased the lands after the grant of permission. It was submitted that no litigant can be permitted to suffer for the fault of Government authority, more particularly because the purchasers must be taken to have purchased the lands in question on the strength of the permission granted under Section 65 of the Code, It was submitted that if the permission granted by the Taluka Development Officer is cancelled. It would result in upsetting several transactions causing avoidable hardships and anxiety to the purchasers. It must be realised that it is the duty of those who enter into transactions for the purchase of land to ascertain that the title offered by the vendor is clear and marketable. On the ground of avoidance of hardship a null and void order cannot be regularised. There can be no question of regularising that which does not exist in the eye of law. Irregularities can be regularised but an order which is out and out a nullity cannot be regularised in the name of avoidance of hardship to subsequent purchasers. It was the duty of the purchasers to ascertain whether permission to make non-agricultural use of the land proposed to be purchased was by an officer competent to grant such permission.

       Sections 65 and 211 - Transferring of power of Collector by State Government for making non-agricultural use of agricultural land to district Panchayats and district Panchayats delegating such power to subordinate Panchayats.

       The Power to grant permission for making non-agricultural Use of agricultural lands vests in the Collector by virtue of Section 65 of the Code. However, sub-section (1) of Section 157 of the Panchayats Act which begins with a non-obstante clause. empowers the State Government subject to such conditions as it may think fit to impose to transfer by an order published in the Official Gazette to a District Panchayat any such powers functions and duties relating to any matter as are exercised or performed by the State Government or any officer of Government under any enactment which the State Legislature is competent to enact or otherwise in the executive power of the State, which appear to relate to matters arising within a District and are administrative in character. In exercise of this power the State Government transferred the power of the Collector under Section 65 to District Panchayat by virtue of the order dated 25th March, 1963. By another order of even date it also directed in exercise of power under sub-section (3) of Section 157 of the Panchayats Act that out of the powers, functions and duties transferred to the District Panchayats under the aforesaid order, the District Panchayats shall delegate to the subordinate Panchayat mentioned in column 4 of the statement all the powers, functions and duties under Section 65 insofar as class II villages were concerned. On the basis of the amended Rule 81 of the Gujarat Land Revenue Rules, 1972, the State Government by an order dated 25th September, 1978 further directed that the powers, functions and duties under Section 65 of the Code should be delegated to the Taluka Panchayats insofar as Class D and E villages were concerned. Thus, the District Panchayats were by the aforesaid resolutions of the State Government empowered to delegate the powers, functions and duties of the Collector under Section 65 of the Code in the subordinate Taluka Panchayats, but admittedly the Mehsana District Panchayat failed to delegate this power to the Kalol Taluka Panchayat. In the absence of a valid delegation order by the District Panchayat, Mehsana, it is obvious that the Taluka Panchayat, Kalol could not exercise power under Section 65 of the Code. The Taluka Development Officer, Kalol, therefore, had no jurisdiction to entertain the applications of the petitioners dated 13th/14th April, 1982 to grant permission under Section 65 of the Code. The order passed by the Taluka Development Officer dated 19/20th April 1982 granting permission to the petitioners for making non-agricultural use of their lands was, therefore without authority and wholly void. The Secretary (Appeals was, therefore, right in concluding that the order passed by the Taluka Development Officer, Kalol, granting permission to make non-agricultural use of the lands in question was ab initio void and, therefore, a nullity.

       For Citation : 1987 (2) Guj LR 760 (775, 776).