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Patel Ratilal Maganbhai and ors. Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtGujarat High Court
Decided On
Case NumberLetters Patent Appeal No. 1086 of 1999 in Special Civil Application No. 4741 of 1998
Judge
Reported in(2003)1GLR562
ActsConstitution of India - Article 226; Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 - Sections 9 and 31
AppellantPatel Ratilal Maganbhai and ors.
RespondentState of Gujarat and ors.
Appellant Advocate K.V. Shelat, Adv. for Appellant Nos. 1 and 4
Respondent Advocate Government Pleader, for Respondent Nos. 1-2 and 4,; B.N. Raval, Adv. for Respondent No. 3 and;
DispositionAppeal dismissed
Cases ReferredA. P. State Financial Corporation v. Gar Re
Excerpt:
- - j, patel has submitted that the voluntary sale came to be executed by the father of the appellants and the deceased has received full consideration and executed the sale deed and has enjoyed the amount for his benefit and the benefit of the family and for a period of 16 years no whisper is made by the deceased or the appellants herein who are legal heirs of the deceased regarding transaction for sale. in a matter of voluntary sale between the parties, the purchaser as well as the seller have the right as well as obligation under law. if the seller establishes that the seller himself as well as the purchaser, both were under the bona fide mistake that the permission of the competent authority for sale is not required, then in the given case, the court keeping in view the intent of.....jayant patel, j.1. in the present letters patent appeal, the main question arises for the consideration of this court is that whether this court should exercise the powers under article 226 of the constitution of india at the instance of the transferor of a voluntary sale for examining as to whether the said sale was in breach of provisions of the bombay prevention of fragmentation & consolidation of holdings act, 1947 (hereinafter referred to as 'the act'), more particularly, when the said transferor himself is a party to the said voluntary sale and when he has not resorted to any procedure for getting the declaration that the said sale is void or otherwise.2. the short facts of the present appeal are that the appellants who are the original petitioners are the legal heirs of maganlal.....
Judgment:

Jayant Patel, J.

1. In the present Letters Patent Appeal, the main question arises for the consideration of this Court is that whether this Court should exercise the powers under Article 226 of the Constitution of India at the instance of the transferor of a voluntary sale for examining as to whether the said sale was in breach of provisions of the Bombay Prevention of Fragmentation & Consolidation of Holdings Act, 1947 (hereinafter referred to as 'the Act'), more particularly, when the said transferor himself is a party to the said voluntary sale and when he has not resorted to any procedure for getting the declaration that the said sale is void or otherwise.

2. The short facts of the present appeal are that the appellants who are the original petitioners are the legal heirs of Maganlal Joitaram Patel. The said deceased Maganlal Joitaram Patel had sold the land measuring 1 hectare 80 RA 09 Gunthas bearing Block No. 335 situated at village Sela, Taluka Sanand of Ahmedabad District. As per the said sale deed, the deceased Maganlal Joitaram Patel was paid the full consideration and in exchange thereto the possession of the said agricultural land was handed over by the deceased Maganlal Joitaram Patel to the purchaser of the land, namely, transferee who is the respondent No. 3 in this appeal, namely, Ibrahimbhai Usmanbhai. The aforesaid sale came to be made by registered sale deed dated 10-4-1980, and since then the respondent No. 3 was enjoying the possession and was cultivating the land in question. The revenue entry pursuant to the said sale came to be mutated, and for a pretty long time, i.e., upto 1996, the appellants continued to accept the validity of the sale.

3. On 11-7-1996, upon inspection of the revenue record of the village, the Deputy Collector issued notice to the transfered i.e., the respondent No. 3 herein to show-cause as to why the sale should not be declared illegal on account of prima facie view that there is a division on the block of the land, and therefore, there is breach of the provisions of the Act. The respondent No. 3 herein replied to the said show-cause notice to the Deputy Collector and contended, inter alia, that he is in possession of the land in question pursuant to agreements of sale dated 6-5-1975 and 2-6-1975 and part performance thereof and at the relevant point of time i.e., on 2-6-1975 the block therein was not constituted and the respondent No. 3 further contended that he is in possession of the adjacent lands which are held by him as the owner and since last 20 years he is in possession, and therefore, it was contended by him that since the period of 20 years has already passed and since he is the owner of the adjacent lands there is no breach of provisions of the Act. The Deputy Collector ultimately passed the order on July 30, 1996 holding, inter alia, that before the block came to be constituted under the provisions of the Act, the agreements to sale were already entered into between the transferor and the transferee and it was further found that there is no mala fide intention of dividing the block and as such no permission is required for division of the block and even if it is required there is no objection for granting such permission, and therefore, the Deputy Collector withdrew the show-cause notice.

4. At that stage, the appellants woke up from slumber and expected that some how or other if the sale is declared illegal they should get back the land, and therefore, in the year 1997-98 the appellants who are legal heirs of the transferor for the first time, i.e., after a period of about 17 years of the registered sale deed preferred revision before the State Government against the order dated 30th July, 1996 passed by the Deputy Collector contending, inter alia, that while passing the order dated 30th July, 1996 the Deputy Collector has not given any hearing to the appellants, and therefore, the order of the Deputy Collector should be set aside. The State Government in revision ultimately passed order dated 21-3-1998 whereby in Para 6 of its order the State Government has recorded that the Advocate for the applicant has admitted the fact that the land in question was agreed to be sold as per the agreements to sale dated 6-5-1975 and 2-8-1975 and subsequently registered sale deed was executed on 10-4-1980 regarding the said transaction of sale. The State Government found that since the Deputy Collector had not initiated any proceedings against the transferor for imposing fine or penalty, the appellants were not required to be heard and on that ground the order of the Deputy Collector would not be rendered nullity, ultimately, the State Government rejected the revision.

5. In June, 1998, the appellants who are original petitioners preferred Special Civil Application No. 4741 of 1998 before this Court under Article 226 of the Constitution for appropriate writ to quash the order of the State Government and that of the Deputy Collector. It was also prayed in the said writ petition to declare the sale ab initio void and to restore the possession thereof to the petitioners. The learned single Judge after hearing the parties passed the order dated 22-2-1999 and found that the respondent No. 3 had taken the possession of the land in question on the strength of banakhat entered into in the year1975, and thereafter, registered sale deed was also executed by the originalowner in the year 1980. The learned single Judge further found that there isno material on record to show as to how the respondent No. 3 the purchasercan be said to have committed any fraud or suppression of material fact. Thelearned single Judge further observed that the breach of Section 31 of the Actdoes not render the transaction void as all that is required to be done beforethe execution of the sale deed is to obtain permission of the competent authorityand since the competent authority while passing the order dated 30th July, 1996has granted ex-post facto permission it cannot be said to be arbitrary orunreasonable and ultimately for the reasons recorded in the order the learnedsingle Judge was pleased to dismiss the Special Civil Application. It is againstthe said order of the learned single Judge dated 22-2-1999 the appellants havepreferred the present appeal before this Court.

6. We have heard Mr. K. V. Shelat appearing on behalf of appellants and Mr. A. J. Patel appearing for the respondent No. 3 and the learned Asstt. Government Pleader.

7. Mr. K. V. Shelat, learned Advocate appearing on behalf of appellants has drawn our attention to the judgment of this Court in the matter of Govindsingh Ramsinghbhai Vaghela v. G. Subbarao, Asstt. Collector, Dholka and Ors., reported in 1970 GLR 897 whereby the constitutional validity of the Act keeping in view the provisions of Section 31A (which was then existing) is upheld. Mr. Shelat has raised the contentions that (i) as no notice under Section 9 of the Act has been given by the Deputy Collector to the appellant and as no hearing has been given, the order deserves to be quashed; (ii) the impugned order is based on factual perversity, inasmuch as, there was no agreement to sale in existence, and therefore, the orders of both the authorities deserve to be quashed; (iii) when the challenge to the transaction which is ab initio void or the order itself is nullity as per the settled legal position, no limitation would come in the way of exercising powers of declaring the transaction as void; (iv) since no permission was given for the sale in question the transaction of sale is void, and therefore, by declaring the transaction as void the appellants are entitled restoration of the possession.

8. On behalf of respondent No. 3, Mr. A. J, Patel has submitted that the voluntary sale came to be executed by the father of the appellants and the deceased has received full consideration and executed the sale deed and has enjoyed the amount for his benefit and the benefit of the family and for a period of 16 years no whisper is made by the deceased or the appellants herein who are legal heirs of the deceased regarding transaction for sale. He further submitted that both the authorities have found that the block is not divided and even if the block is divided the permission is granted and the show-cause notice is withdrawn. He further submitted that when the deceased transferor himself is a party to the voluntary sale and for about 16/17 years he has not challenged the legality and validity of the sale and when he has received the full consideration, the sale cannot be declared void at his instance or at the instance of the appellants who are legal heirs of the transferor, that too when neither the deceased nor the appellants have chosen to file appropriate proceedings of filing suit for declaring the sale as void, and therefore, in his submission this is a fit case of abuse of process of law and this Court should not permit the party to invoke the extraordinary equitable jurisdiction under Article 226 of the Constitution who themselves are admitting that they have committed wrong and have pocketed the undue benefits pursuant to transaction of sale which is under challenge.

9. Mr. Shelat in support of his first contention drew our attention to Section 9 of the Act which reads as under :

'9. Penalty for transfer or partition contrary to provisions of Act :

(1) The transfer or partition of any land contrary to the provisions of this Act shall be void.

(2) The owner of any land so transferred or partitioned shall be liable to pay such fine not exceeding Rs. 250/- as the Collector may, subject to the general orders of the (State) Government, direct (such fine shall be recoverable as an arrear of land revenue)

(3) Any person unauthorisedly occupying or wrongfully in possession of, any land, the transfer or partition of which, either by the act of parties or by the operation of law, is void under the provisions of this Act, may be summarily evicted by the Collector.'

10. That a perusal of Section 9 of the Act, more particularly, Section 9(2) of the Act says that the Collector has powers to impose fine upon the owner of the land who has transferred the land or partitioned the land. It is an admitted position that the Collector has not initiated any action for imposing fine upon the transferor, and therefore, the appellants who are the legal heirs of the transferor cannot be said to be an aggrieved party to the show-cause notice in question. When no fine is to be imposed upon the transferor or his legal heirs who are appellants herein it cannot be said that the Deputy Collector was required to give an opportunity of hearing to the appellants herein before passing the final order, dated 30th July, 1996. In furtherance to the said contention, Mr. Shelat submitted that since the right of restoration of possession is with the original owner of the land in the event of the outcome of proceedings, under Section 9 the transferor is required to be heard. We are unable to accept the said submission of Mr. Shelat for the reason that it is only when the sale is declared void and after that stage when the possession of the land is to be recovered as per Section 9(3) of the Act, the transferor might contend that he should be heard, but not prior thereto. However, we are not expressing any final opinion on the said aspect by keeping the question open as to whether transferor is required to be heard at the stage of Section 9(3) of the Act. In a given case, where the Collector has chosen not to initiate proceedings against the transferee for imposing fine it cannot be said that the transferor is required to be heard since till that stage no transferor is not to be visited with any adverse consequences. Therefore, in out view, the first contention of Mr. Shelat that the order of the Deputy Collector is nullity deserves to be rejected.

11. As regards second contention of Mr. Shelat that the impugned orders are based on factual perversity since there was no agreement to sale in question is concerned, it will not be out of place to mention that in the order of the State Government it has been mentioned at Para 6 that the Counsel for the applicants who are appellants herein has admitted the fact that the land in question was sold by agreement to sale dated 6-5-1975 and 2-6-1975 and subsequently for the said transaction of sale registered deed came to be executed on 10-4-1980. On the face of the said admission in the order of the revisional authority, we cannot accept the submission of the appellants that no agreement to sale was ever in existence. Furthermore, whether the agreement was in existence or not is a question of fact which can only be arrived at after looking at the original record and when the lower authorities after examining the record have given factual finding that the agreement was in existence and that too when it is admitted by the appellants before the State Government in the revision, we cannot accept the submission of the appellants that the impugned orders are based on factual perversity.

12. As regards the third contention of Mr. Shelat that no limitation would come in the way of the appellants since the transaction is void for all purposes is concerned, in support of said contention Mr. Shelat has relied upon the judgment of this Court in the matter of Patel Jividas Trikamdas v. Dist. Collector, Mehsana, reported in 1996 (2) GLR 688 and he has also relied upon the decision of this Court in the case of Koti Nagjibhal Varjan v. State of Gujarat, reported in 1992 (1) GLR 14. In both these cases, the lower authorities had found that there is breach of provisions of the Act and the sale is void and challenging the said decision of the authority the purchaser of the land has raised contention that the exercise of powers is beyond reasonable period, and therefore, in those circumstances the Court had held that when the transaction is void the question of limitation would not arise for the purpose of exercising powers by the authority for declaring the transaction as void. In the instant case, both the authorities have found that there is no breach of provisions of the Act since the block was not divided and it is further found that even if the permission is required the said permission is granted, and therefore, when the competent authority under the Act have found that the transaction is not void, whether the appellants should be allowed to contend that the transaction is void and they should be permitted to say so at any point of time and the limitation does not come in their way?

13. It will also be fruitful to refer to the decision of the Full Bench of this Court in the matter of Jadav Prabhatbhai Jethabhai v. Parmar Karsanbhai Dhulabhai, reported in 2001 (1) GLR 16 (FB) wherein the Full Bench had an occasion to consider as to whether the alienation of minor's property by de facto guardian of a minor is always void and whether it is obligatory for the minor to get it quashed by the legal process and whether the minor is also obliged to resort to such legal process within the period of three years from the date of attaining majority or not. In Paras 24 and 25 of the said decision it has been observed by the Full Bench that 'the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him'. The Full Bench further observed that 'he must approach the Court within the period of limitation. If the statutory time-limit expired, the Court cannot give a declaration sought for'. It is pertinent to note that in the said decision the Full Bench had also considered the principles of Administrative Law that 'the order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason'. The Full Bench also considered the principles of Administrative Law that 'in such a case the 'void' order remains effective, and is in reality, valid and the order may be void for one purpose and valid for another and that it may be void against one person but valid against another'. Thus, in the circumstances, we have to see as to whether the appellants herein have chosen to initiate any proceedings for declarating the sale as void or not. A bare perusal of the record shows that until 1997-98 that is for a period of 16/17 years the transferor and the legal heirs of the transferor who are appellants herein also continued to accept the legality and validity of the sale. However, when they came- to know about the order dated 30th July, 1996 of the Deputy Collector of withdrawing the show-cause notice, they have raised the dispute, for the first time, for challenging the said order of the Deputy Collector. It does not come on record as to what were the prayers made in the revision before the State Government. However, it appears from Para 3 of the order of the State Government that a prayer was made before the State Government by the applicants therein who are appellants herein to set aside the order of the Deputy Collector on the ground that no hearing was given to them. It is for the first time in the writ petition in the year 1998 the appellants herein have made a prayer for declaring the sale as ab initio void and to restore the possession to them. In a matter of voluntary sale between the parties, the purchaser as well as the seller have the right as well as obligation under law. It is the duty of the seller of the property to see that the lawful rights are conveyed in favour of the purchaser and the titles which are held by the sellor are completely transferred to the purchaser and it is upon the said legal obligation on the part of the seller, the purchaser enters into the transaction of purchasing the property by paying consideration thereof. It is true that it is also the duty of the purchaser of the immovable property to verify the title of the seller. However, in a case where the permission to sell is required to be obtained of any competent authority, it is obligatory on the part of the seller to disclose to the purchaser that the permission of the competent authority is required to be obtained, and thereafter, the sale should be effected. When such informations are withheld by the seller from the purchaser and subsequently on account of non-availability of permission the sale is declared illegal or void and the purchaser is visited with the consequences of depriving of the property or otherwise, the purchaser can legitimately sue the seller for recovery of damages permissible under law. Therefore, in such circumstances, when any voluntary sale is required to be declared void on account of breach of any of the provisions of law, the Court will have to examine as to whether the seller had disclosed all the material facts before the purchaser regarding the requirement of obtaining permission of the competent authority or not. However, when the sale deed of any immovable property is once registered, it goes on the public record and it is known to public at large. The competent authorities under law can take up the stand that the transaction is without obtaining prior permission, and therefore, is void and no limitation would come in the way of the competent authority for declaring that the transaction is void. However, same is not the case when the transaction is to be declared void and the restoration of possession is to be made at the instance of the seller of the property because the seller will have to establish before the competent Court that when the transaction of sale was entered into it was disclosed any the seller to the purchaser that the permission of the competent authority before entering into the registered sale deed was required and in spite of the same the purchaser has at his own risk agreed to purchase the land without permission of the competent authority. If the purchaser establishes that the seller of the property has withheld this information from the purchaser and has made the purchaser to believe that on account of sale transaction the rights and titles of the seller are fully conveyed and he would become the absolute owner of the property, the Court may decline the relief to the seller for declaring the sale as illegal or void. If the seller establishes that the seller himself as well as the purchaser, both were under the bona fide mistake that the permission of the competent authority for sale is not required, then in the given case, the Court keeping in view the intent of the legislature may declare the transaction of sale as void. But, in those circumstances also the Court may decline the equitable relief of restoring the possession back to the seller and even if the Court decides to restore the possession back to the seller, the Court may also put the seller on condition of repaying the sale consideration and the compensation also if circumstances so demand. All these questions of facts can only be examined in the proceedings of civil suit. Therefore, in the circumstances, it cannot be said that no independent proceedings are required to be initiated by the transferor who is seeking declaration that the sale is void. In our view, the seller of such transaction in a case of voluntary sale is required to file suit before the appropriate Court for declaration that the sale is void, even if he is seeking a declaration that the transaction of sale is void on account of non-availability of permission of the competent authority. Since it is a question of voluntary sale, seeking the declaration of such voluntary sale is void at the instance of seller of land, we are of the view that in view of the decision of the Full Bench in the case of Jadav Prabhatbhai Jethabhai (supra) such seller must approach the Court within the period of limitation for declaration that the sale is invalid or void and the period of limitation as provided under law is three years from the date of sale which has expired on 9-4-1983. Further, as observed by the Full Bench in the aforesaid case, if the statutory limit is expired, the Court cannot give a declaration sought for. In the instant case, the appellants have chosen not to prefer suit for a period of 16 years and a prayer for declaration of sale as void is made, for the first time, in the writ petition in the month of June, 1998, i.e., after a period of about 18 years. It is well settled principle of law that the thing which cannot be done directly cannot be allowed to be done indirectly and the High Court while exercising powers under Article 226 of the Constitution would not grant relief, which is otherwise not permissible under law. Therefore, there is no substance in the contention of Mr. Shelat that no limitation would come in the way of appellants for getting the declaration that the sale as void, and therefore, same deserves to be rejected. Further, as stated above as a normal period of limitation for filing suit for declaration that the sale is void has expired long back, i.e., in the year 1983 we cannot allow the appellants to get the declaration that the sale is void. It may be stated that Mr. Shelat has relied upon the judgment of the Supreme Court in the case of State of Maharashtra v. Pravin Jethalal Kamdar, reported in 2000 (3) SCC 460 in support of his contention that the Limitation Act would not be applicable to the instant case. However, in the case before the Supreme Court the State had exercised the right of pre-emption and had rejected the application for grant of permission to sale and had opted for purchasing the said land from the owner, and therefore, the original owner was compelled to file suit for declaration. In Para 6 of its judgment the Court had specifically recorded that 'it is not a case of voluntary sale. In the aforesaid case, the plaintiff had to execute the sale deed on account of an order not only illegal but without jurisdiction order made under Section 27(1) of the Urban Land (Ceiling & Regulation) Act and the plaintiff on his own did not want to sell the property to the appellants, and therefore, the Court held that the period of limitation would not apply and observed that there are no equitable considerations against the plaintiff to deny the relief of possession. The instant case is a clear case of voluntary sale and the transferor on his own and voluntarily entered into sale with the transferee and for a period of more than 16 years no grievance, whatsoever, is raised. Therefore, we are of the view that the aforesaid judgment of the Apex Court upon which reliance is placed by Mr. Shelat would be of no help to him.

14. As regards last contention of Mr. Shelat that the appellants are entitled to declaration that sale is void and that the possession of the land in question should be restored to them is concerned, Mr. Shelat has relied on the decision of the Apex Court in the case of Revenue Officer v. Prafullakumar Pati, reported in 1990 (2) SCC 162. It was a case where the competent authority found that the land is transferred by a person belonging to SC/ST category to a non-member without permission, and therefore, the Court declared that the transferors are entitled to restoration of land. In the case before us, both the lower authorities have found that no permission is required, and even if it is required, the permission is granted, and therefore, when the competent authority themselves have found that no such permission is required and even if it is required same is granted, the same cannot be equated with the case of Revenue Officers (supra). The fact remains that the sale is not declared void by any competent authority, and hence, the reliance placed by Mr. Shelat upon the aforesaid judgment of the Apex Court is of no help to him. Mr. Shelat also has further relied upon the judgment of the Apex Court in the case of State of Orissa v. Brundaben Sharma, reported in 1995 Supp. (3) SCC 249 to show that the administrative action is non-est, and therefore, title and its validity can be questioned at any stage. As stated above, in the present case, as observed earlier while dealing with the first contention, no opportunity of being heard was required to be given to the appellants, and therefore, it cannot be said that the order is non-est. So far as the transaction of sale is concerned, even the competent authority also has not found the said transaction is void. Therefore, it cannot be said that no title has vested with the purchaser and as regards the question of sale is concerned, we have also observed in earlier part of this judgment that if the voluntary sale is to be declared void at the instance of seller the law provided under the Limitation Act for preferring suit would be applicable, and therefore, we are of the view that the aforesaid judgment of the Apex Court cited by Mr. Shelat is of no help to him.

15. When we considered the aforesaid submissions of Mr. Shelat seeking declaration that the transaction of sale is void in a writ petition and that the possession of the land should be restored back to the appellants, Mr. A. J. Patel appearing for the respondent No. 3 had drawn our attention to the judgment of this Court in the case of Smt. Ratnaprabhabai, D/o. Hirojirao Naranrao Mane v. Tulsidas V. Patel, reported in 1982 (2) GLR 213 where in the question of exercise of powers by the Court under Article 227 of the Constitution against the order of the lower authority rejecting to set aside the sale on account of permission not obtained of the competent authority and initiating proceeding under Section 84C of the Bombay Tenancy & Agricultural Lands Act was considered by this Court and this Court held that 'the petitioner who is a transferor and party to sale would never be said to be aggrieved party which would entitled him to carry the matter in appeal when the State has chosen not to challenge the order of the Mamalatdar under the said Act.' It was further observed that 'the position of such petitioner who has pocketed the money long back and is trying to catch at a straw and is practically indulging in the policy of dog in the manger by seeing that the handing sword of the litigation lingers on so that at some future time the purchaser may come round and may give some added financial advantage to the petitioner by way of bargain and if the present proceedings are kept pending such oblique intention of the petitioner may get fortified'. It was observed that 'the Court obviously cannot be a party to such a design.' At this stage, Mr. Shelat had tried to distinguish the judgment in the aforesaid case of this Court by contending that it was a case under Section 84C of the Act where the purchaser is not going to get back the land and the land would vest with the State Government. However, we do not agree with the distinction sought to be made by Mr. Shelat because the position would remain the same that this Court would not be a party to the mala fide design on the part of the seller who has voluntarily entered into sale transaction and has pocketed money long back and has allowed the transaction to continue for a period of more than 16 years.

16. Mr. A. J. Patel has drawn our attention to the judgment of the Division Bench (Coram : Mr. K. G. Balakrishnan, C.J. & Mr. Justice J. N. Bhatt) dated 2-9-1999 in Letters Patent Appeal No. 1153 of 1998 in Special Civil Application No. 6265 of 1998 in the case of Legal Heirs of Mithabhai Mavjibhai v. State of Gujarat. Before the Division Bench the aforesaid matter under the present Act itself and Division Bench speaking through K. G. Balakrishnan, C.J., observed as under :

'We have heard the appellants' Counsel. The present appeal is filed by the legal heirs of the original transferor. The Counsel contended that the sale deed executed contrary to the provisions contained in the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 is a void transaction, and therefore, no rights will flow from such a transaction and the Collector was justified in setting aside the same even after a period of 21 years. It is important to note that the present challenge is made by the appellants who are none other than the legal heirs of the original transferor. The original transferor accepted consideration and must have made the transferees believe that the transaction was in accordance with law. Therefore, the present appellants who are the legal heirs of the original transferors cannot be heard to say that they are entitled to the benefit of such a transaction which was opposed to law'.

17. We are of the view that the aforesaid judgment of the Division Bench of this Court is squarely applicable to the facts of the present case.

18. At this stage, we may also refer to the contention raised by the respondent No. 3 in the affidavit-in-reply that the appellants themselves are not only the party to the transaction to the sale in question but they have also executed another registered sale deed by receiving Rs. 10 lacs as consideration for the lands admeasuring 60905 sq.mtrs. of Block No. 335 of village Sela and the said sale deed is an action on the part of appellants to divide the block without obtaining permission of appropriate authority. There is no rejoinder to this affidavit. Mr. Shelat submitted that the said transaction of sale refers to a different land of different block. But this shows the conduct of the appellants who are trying to invoke extraordinary equitable jurisdiction of this Court under the Constitution. It is well settled principle of law that powers under Article 226 of the Constitution are discretionary and if this Court finds that the equitable considerations are against the person who tries to invoke the jurisdiction the Court may decline to entertain the petition because the powers vested are not to encourage the wrong orders who themselves are party to the litigation.

19. At this stage, it would fruitful to refer to the decision of the Apex Court in the case of A. P. State Financial Corporation v. Gar Re-rolling Mills and Ors., reported in 1994 (2) SCC 647 wherein the Apex Court has observed there is no equity in favour of defaulting party which may justify interference by the Courts in exercise of its equitable extraordinary jurisdiction under Article 226 of the Constitution. The Apex Court further observed that the aim of equity is to promote honesty and not to frustrate the legitimate rights of the Corporation which after advancing the loan takes steps to recover its dues from the defaulting party. A Court of equity when exercising its equitable jurisdiction under Article 226 must so act as to prevent perpetration of a legal fraud and the Courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law.

20. A bare perusal of the record clearly shows that even if the competent authority has come to conclusion that there is no breach 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 transferor 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 proceedings even though the limitation for filing suit for such relief under Law of Limitation has expired. We are of the view that the instant case is nothing but clear misuse and abuse of process of law and we agree with the view taken by the learned single Judge while dismissing the petition and we find that there is no substance in the appeal, and therefore, the appeal is dismissed. Notice is discharged.

23. However, since we have found the present case as misuse and abuse of process of law resorted to by the appellants we award costs which are quantified at Rs. 5,000/-.

24. It is made clear that we have decided this appeal on the basis of thefacts of the present case only and the observations made in this judgment willbe without prejudice to the rights and contentions of the parties in respect ofdivision of blocks made by the petitioners in respect of the other lands held by them.


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