1998 Supreme(Guj) 743

Gujarat High Court
Judgename :K.G.Balakrishnan, M.S.Shah
GUJARAT KHET KAMDAR UNION - Appellant
Versus
STATE - Respondent
S.C.A. 686 of 1994
Decided On : 12/29/1998

Headnote:(a) Bombay Tenancy and Agricultural Lands Act, 1948 - Sec. 84-C - Initiation of proceeding to invalidate any sale - Limitation - No period of limitation prescribed under the statute - As per the settled legal position such power must be exercised within reasonable period - Court enunciated the principle in no uncertain terms in its judgment in Special Civil Application No. 2770/79 that there is no fix period of one year for the purpose still - Tribunal committed an error of law by applying wrong test that initiation of proceedings under Sec. 84-C of the Act beyond one year would be per se illegal or unreasonable - Further relevant date for considering the period of reasonableness cannot be date of registration of Sale deed as held by Tribunal - It could also not be the mutation date - The relevant date could only be date of certification of the mutation entry on which date concerned Govt. Dept. can be said to be posted about the knowledge of such transaction.

       As per the settled legal position, when the statute does not provide for any period of limitation for exercising a particular power, such power must be exercised within a reasonable period, subject to the exception that such a plea is not available to a person who is himself guilty of fraud or who was suppressed material facts, but it is equally well settled that what is reasonable period during which a particular statutory power is to be exercised would depend on the facts and circumstances of each case and also on the nature of the order to be passed.

       It is unfortunate that inspite of enunciation of the aforesaid principle in no uncertain terms that there is no fixed period of limitation of one year and inspite of the fact that the aforesaid judgment of this Court in Special Application No. 2770 of 1979 was referred to by the Tribunal, the Tribunal committed an error of law apparent on the face of the record by applying a wrong test that initiation of proceeding under Sec. 84C of the Act beyond one year per se would be illegal or unreasonable.

       [Para 12]

       The Tribunal further committed an error apparent on the face of the record in holding that for considering the reasonableness or otherwise of the period, the date of registration of the sale deed is the relevant date because once the mutation entry made in the revenue record is certified, certification of the entry relates back to the registration of the sale deed.

       Different considerations would, however, arise when mutation entry made upon application being made by seller and/or purchaser of the land in question is certified by a revenue officer of the State Government. It is therefore, only upon certification of the mutation entry (which is generally done by a Deputy Mamlatdar or a higher officer as stated at the hearing of the petition) that the concerned Government Department can be said to have been posted about the knowledge of such transaction.

       [Para 13]

       (b) Bombay Tenancy and Agricultural Lands Act, 1948 - Sec. 84-C - Initiation of proceedings under - No fixed period of one year - Court still held in Mavji Dhorji vs. State of Gujarat (1994 (1) GLH 20) that one year may be treated as a yard-stick for testing contention of delay - In the meantime if purchaser has changed his position by constructing property on land, it is on him to contend & show that initiation of proceedings was after unreasonable delay - In the instant case nothing on record to find out the extent of expenditure incurred by purchaser between date of certification in Sept./Oct. 1981 & 1.1.1983, when impugned proceedings were initiated - Hence not possible to hold that initiation of proceedings were beyond reasonable time.

       Though there is no fixed period of limitation of the one year, the period of one year may be treated as a yardstick for the purpose of testing any contention about delay in initiation of proceedings under Sec. 84C of the Act. Hence, if the authorities initiate proceedings under Sec. 84C of the Act within one year from the date of certification of the entry in the revenue record, but in the meantime the purchaser has changed his position by constructing property on the land in question or by investing substantial amounts, it would be for the purchaser to contend and show that initiation of proceedings was after unreasonable delay. In short, in case of initiation of proceedings within one year, the onus will be on the purchaser to show why the time taken in initiation of proceedings be treated as unreasonable. On the other hand, if the proceedings under Sec. 84C of the Act are initiated after a period of one year from the date of certification of the entry, the onus will be on the authority to show why the time taken for initiation of the proceedings should not be considered to be unreasonable and it would be for the authority to justify its belated action. Here also the purchaser will be at liberty to show any prejudice that might be caused to him by overlooking delay, unless the authority can show fraud or suppression of material facts as indicated above. It appears that this would be a reasonable way of striking balance between the two conflicting claims-one of permitting authority exercising jurisdiction vested in it under Sec. 84C of the Act to initiate proceedings for invalidating an action contrary to the Act, without any fetter of period of limitation prescribed under the Act, and second of the right of a purchaser to deal with a property with the legitimate expectation that the statutory authority would not exercise its powers under Sec. 84C of the Act beyond reasonable period. The Court have merely attempted to evolve a workable formula for resolving this conflict.

       [Para 15]

       The particulars of the expenses said to have been incurred by way of improvement of the land are given in Annexure-A III to the reply affidavit (page 107). However, the first column in the said statement covers the period from 1.4.1980 to 31.3.1982 and therefore, it is not possible to find out the extent of expenditure incurred by the purchasers between the date of certification of the entries in September/October 1981 and 1.1.1983 when proceedings under Sec. 84C of the Act were initiated. It is therefore, not possible to hold that the initiation of the proceedings under Sec. 84C of the Act on 1.1.1983 was beyond reasonable time.

       [Para 16]

       (c) Government Resolution dated 29.9.1980 - Providing that a person intending to purchase agricultural land must have another agricultural land within radius of 5 miles - Effect of - Resolution not intended to set at naught the judgment of the Court in Devji Meghaji vs. Lalmiya (18 GLR 515) - Resolution only intended to clarify that existing holding as well as land intended to be purchased were required to be situated in State of Gujarat.

       Court is clearly of the view that the said Government Resolution was not intended to set at naught the judgment of this Court in Devji Meghaji vs. Lalmiya, 18 GLR 515 because it was clearly held in the said judgment that a person intending to purchase agricultural land must have another agricultural land within radius of 5 miles (8 kms.) from the land intended to be purchased. The said resolution was issued only for the limited purpose of clarifying that the existing holding as well as the land intended to be purchased were both required to be situate in the State of Gujarat. In other words the Resolution was intended to deal with a situation where a person in a District on an inter-State border intends to purchase land within the State of Gujarat on the strength of his agricultural holding which is within five miles from the land proposed to be purchased but is outside the State of Gujarat.

       [Para 17]

       (d) Constitution of India, 1950 - Arts. 14, 16 & 226 - Whether there had been unreasonable delay in filing present petition - Finding as to - After judgment of Tribunal on 13.4.1982 Entry No. 3093 was made in revenue record on 10.8.1992 and said entry was certified on 4.6.1993 indicating acceptance of Tribunal Judgment & close of file - Purchaser thereafter made various expenses going in crores as indicated in Annexure III & IV of Affidavit-in-reply - In face of all that Court cannot use its discretionary jurisdiction against the purchaser to invalidate all transaction of purchase invalid.

       Apropos the question whether there was unreasonable delay in filing of the present petitions challenging the order of the Tribunal, the purchasers seem to be on firmer ground. The affidavit-in-reply shows that after the judgment of the Tribunal on 13.4.1982 Entry No. 3093 was made in revenue record on 10.8.1992 and the said entry was certified on 4.6.1993 indicating acceptance of the Tribunals judgment and that the file was closed. The purchasers have stated that it was after certification of the Entry No. 3093 indicating finality of the judgment of the Tribunal (i.e. the State Government having accepted the judgment of the Tribunal) that the purchasers had purchased other agricultural lands admeasuring 27 acres 11 gunthas between 10.8.1993 and 27.5.1994.It is therefore, submitted that any interference by this Court at this stage would cause irreparable loss and damage to the purchasers as they had invested, in addition to the purchase consideration, total sum of Rs. 1.25 Crores on cultivation and improvement of the said lands.

       [Para 20]

       In view of the fact that we have accepted the contention of the learned counsel for the purchasers that after the impugned judgment of the Tribunal and before filing of the petitions by the State Government the purchasers had invested an amount of Rs. 25 lacs in purchasing other agricultural land and that they further incurred expenses running into Rs. 31,00,000/- before filing of the petitions by the State Government and that they have in all incurred Rs. 1.25 Crores for improving the lands between the date of the impugned judgment of the Tribunal and March 1997, this is a case where this Court would not exercise its discretionary writ jurisdiction and would not interfere with the final order of the Tribunal.

       [Para 22]