TMI Blog2015 (9) TMI 1673X X X X Extracts X X X X X X X X Extracts X X X X ..... tiation 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 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. The contention should fail even if considered in either way. If considered to be patent in any case, the action was required to be initiated within reasonable period which has not been in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ben 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 by any of the sellers for the legality and validity of the sale. In June, 2002 the heirs of the original owner of the land sold the remaining land of Survey No. 111 admeasuring 17 acres 38 gunthas and the revenue entries were also mutated for such purpose vide Entry Nos. 1464, 1465 and 1466 since the transactions were by registered sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 therefore the learned Single Judge did not interfere with the showcause notice and dismissed the petition without entering into the merits of the showcause 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 appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the land in question as agricultural land is not changed and it continues to be agricultural land (said factual assertion by the petitioner has not been disputed by the respondents and any contrary evidence is not placed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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 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 provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appropriate case for interference for exercise of the jurisdiction under the Letters Patent. Examining the case on the said aspects, we find that as per the above referred decisions of the Apex Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 has power to make necessary correction, if it is so required. After such process is undertaken, new index is to be prepared which will show the tested entries. The aforesaid provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh 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 regarding any infirmity or illegality in the sale, but at the stage when the Deputy Collector withdrew the notice the appellants want to take undue benefit of such proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, 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 and Agricultural Lands Act, one possible view is that the notice would be ultra vires to the powers under section 75 of the ordinance. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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