J.B. Pardiwala, J. - (1.) The revenue authority while declaring the transaction to be hit by Section 54 of the Saurashtra Gharkhed, Tenancy Settlement and Agricultural Lands Ordinance, 1949 (for short "Ordinance") has placed reliance on the decision of this Court in the case of Bhakabhai Boghabhai Bharwad and others v. State of Gujarat and others rendered in the Special Civil Application No.7769 of 2010 decided on 08.07.2010 . The learned Single Judge of this Court observed in paragraphs No. 7 and 8 as under : "7. Now so far as exercise of power belatedly and after unreasonable period is concerned, identical question came to be considered by this Court in Special Civil Application No.11825 of 2009 (supra) with respect to very provisions i.e. Section 54 of Saurashtra Gharkhed Ordinance and in that case also it is sought to be submitted that the proceedings were initiated after unreasonable period, the same is not permissible. After considering the provision of Section 54 of Saurashtra Gharkhed Ordinance, this Court has held that if the transaction is nullity and void ab-initio, exercise of power belatedly and after unreasonable period would not arise. This Court in paras 6 and 7 in the aforesaid judgement has observed as under: "6. Considering Section 54 Gharkhed Ordinance Act, 1949 the transaction/sale in favour of the petitioner is a nullity and void abinitio and therefore, had no efficacy in the eye of law. Such an order is nonexistent and even if not set aside, it has no legal validity or existence. A transaction which is a nullity in the eye of law has, therefore, to be ignored but since the same came to the attention of the authority, he thought it wise to put an end it. Even if the authorities below were not to pass the impugned orders and canceling the transfer/sale in favour of the petitioner, it would not have made any difference for the simple reason that such transaction would be nonexistent and unenforceable. No question of limitation or reasonableness of time for setting aside such a transaction can really arise. This Court in the case of Govindbhai Somabhai Nai and Ors. v. State of Gujarat reported in 1987 (2) GLR, 760 (para 13) has also taken the similar view. 7. It is also required to be noted that as such the object and reasons of Section 54 of the Gharkhed Ordinance Act, 1949 clearly shows that the land is transferred in favour of non-agriculturist and under the circumstances if the impugned orders are quashed and set aside solely on the ground of delay in initiation of proceedings, the object and purpose of Section 54 would be frustrated as admittedly petitioner was an agriculturist at the time when he purchased the land in question. In view of the above and for the reasons stated above, the sale in favour of the petitioner was nullity and void abinitio and in breach of Section 54 of the Gharkhed Ordinance Act, 1949, the same is rightly quashed by all the authorities below and no illegality has been committed by any of the authorities below, which calls for the interference of this Court in exercise of powers under Articles 226 &227 of the Constitution of India. Hence, there is no substance in the present Special Civil Application, which deserves to be dismissed and is accordingly dismissed." 8. Considering the aforesaid facts and circumstances of the case and considering the aforesaid decision, it cannot be said that both the Authorities below have committed any error and/or illegality, which calls for interference of this Court under Articles 226 and 227 of the Constitution of India. In view of the above and for the reasons stated herein above, there is no substance in the present petition, which deserves to be dismissed and is accordingly dismissed. No costs."
(2.) The learned Single Judge took the view that any transaction in breach of Section 54 of the Ordinance, 1949 is a nullity, and if that be then the Suo Motu power can be exercised at relevant point of time. It is brought to my notice that the above referred order of the learned Single Judge was carried in Letters Patent Appeal No.509 of 2013. The judgment of the learned Single Judge came to be quashed by the Appellate Court. The Division Bench observed in paragraphs No.3, 4 and 5 as under : "3. Learned advocate for the appellant also relied upon the decision of this Court in the case of Chandulal Gordhandas Ranodriya and Ors, v. State of Gujarat and Ors, reported in 2013(2) GLR, 1788 and unreported decision of this Court rendered in L.P.A. No.422 of 2010 and other allied matters, more particularly paragraph Nos. 5, 5.1, 5.2, 5.3 and 6, which reads as under:- 5. Having heard learned counsel for both the sides it is borne out that similar issue was decided by this Court in the case of Bhanji Devshibhai Luhar v. State of Gujarat reported in 2011(2) GLR 1676 . In that case, the transaction was under the Ordinance, like the present case, and though it was found that the transaction was in violation of the very same Ordinance, the authority took action after a long delay of seventeen years. From the said decision, Paras 21 and 23 are reproduced hereunder:- "21. In light of the aforesaid facts of present case, we are of the view that while the conclusion and the decision of the 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 be overlooked that the impugned action in exercise of the power under Section 75 of the Ordinance to summarily evict the petitioner, after having allowed the transaction to remain alive for 17 years 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 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 available on record, however the respondents have disputed the said factual assertion by the petitioner. 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." 5.1 The Division Bench of this Court, after considering many other decisions, has held that even if the original transaction is in contravention of the Act, the action of taking such transaction in suo-moto revision, cannot be allowed to stand after a long delay. 5.2 As stated above, in the present case, the competent authority had initiated suomoto powers, after a period of twenty one years. The learned Single Judge has relied upon the decision passed in Special Civil Application No. 11825 of 2009 which has been set aside by the Division Bench as observed hereinabove. Even though the learned Single Judge came to the conclusion that the order passed by the competent and appellate authority holding the transaction in question as void, is in consonance with the provisions of the Ordinance, in the interest of justice and equity, it also ought be overlooked that the impugned action in exercise of the power under section 75 of the Ordinance to summarily evict the appellants, after having allowed the transaction to remain alive for 21 years only ignores the wide chasm between the date of transaction and the dates of the notice and the order, but also overlooks the continued possession of the appellants who had put their land to use for agricultural purpose and had changed the status and nature of the land. 5.3 Apart from the fact that in the present case, there is a delay of about more than twenty years, the respondents are in a position to offer any plausible explanation for such delay. Therefore, the learned Single Judge erred in setting aside the order passed by the Secretary (Appeals) and Collector as the authorities below could have exercised suo-moto powers, after an unreasonably long period. Considering the facts of the case and the law laid down by this Court, in my opinion, the impugned orders deserve to be quashed and set aside. 6. In the premises aforesaid, the impugned order dated 11.01.2010 passed by the learned Single Judge in Special Civil Application No. 13443 of 2009 and order dated 18.01.2010 passed by the learned Single Judge in Special Civil Applications No. 13444 to 13446 of 2009, orders dated 02.12.2009 passed by respondent no. 1 in Revision Applications and 27.10.2008 passed by respondent no. 2 in Suo Motu Revision proceedings are hereby quashed and set aside. The sale deed in favour of the appellants and the subsequent mutation proceedings carried out in favour of the appellants is hereby confirmed. Appeals are allowed accordingly. 4. We have heard learned advocate appearing for the appellant and learned AGP appearing for the respondent-State and perused the material on record. We find substance in the submission of learned advocate for the appellant. It appears from the impugned order that the learned Single Judge has dismissed the writ petition solely on the basis of the order passed in Special Civil Application No.11825 of 2009. However, the said decision has been upturned by the Division Bench of this Court in Bhanji Devshibhai Luhar (supra). 5. In view of the above, the present appeal deserves to be allowed. Even otherwise, in view of the decision of this Court reported in the case of Chandulal Gordhandas Ranodiya (supra) and the unreported decision passed in Letters Patent Appeal No.422 of 2011, the present appeal deserves to be allowed."
(3.) The issue, whether a 'Maldhari' would fall within the meaning of 'Agriculturist' is also at large before this Court in the Writ Petition (PIL) No.34 of 2011. A Division Bench of this Court, to which I was a party, passed the following order on 04.05.2011. "Pursuant to the order of the Court, Mr. HS Patel, Collector, Rajkot and Mr. AM Parmar, Collector, Junagadh appeared and assisted the Court. It was brought to the notice of the Court that under Explanation below Section 54 of the Saurashtra Gharkhed Tenancy Settlement and Agricultural Lands Ordinance, 1949. "Maldharis" fall within the meaning of "agriculturist". It is also informed that they are governed by the Meswadi Rules, 1953 and there are schemes under which most of the Maldharis have already been settled. 2. According to Mr. Patel, Collector, Rajkot, most of the Maldharis have already been settled and those who are presently Maldharis, they may come within the meaning of 'agriculturist', as many of them may be doing any agricultural activities. 3. It has been brought to our notice that the Maldharis are the owners of cattle and under Section 2(i) of the Gujarat Agricultural Produce Markets Act, 1963, 'agricultural produce' means all produce, whether processed or not, of agriculture, horticulture and animal husbandry, specified in the Schedule, which includes animal husbandry products including cattle [Clause IX(3) of the Schedule to the Gujarat Agricultural Produce Markets Act, 1963]. Under Section 2(ii), 'agriculturist' means a person who ordinarily by himself or who by his tenants or hired labour or otherwise is engaged in the production or growth of agricultural produce. 4. In this background, the respondent - State is directed to file an affidavit and state as to why the Court will not treat Maldharis as agriculturists for all purposes, whether they only perform agricultural work or not and why the Collector and other competent authorities be not directed to mutate the agricultural land if any purchased by one or other Maldharis. Let a copy of this order be handed to Mr. PK Jani, learned Government Pleader who may file appropriate affidavit within a week. Post the matter on 13th June, 2011 on the top of the list. Appearance of Mr. HS Patel, Collector, Rajkot and Mr. AM Parmar, Collector, Junagadh is dispensed with.";