State of
Maharashtra Vs. Pravin Jethalal Kamdar [2000] INSC
107 (7 March 2000)
S.S.Ahmad,
Y.K.Sabharwal
Y.K.SABHARWAL
J.
The
respondent, now represented through his legal heirs, is the original plaintiff
in a suit for declaration and possession filed against the appellant - State of
Maharashtra and others. The suit was filed on
22nd August, 1976, seeking a declaration that the order dated 26th May, 1976 by
which the right of pre-emption was exercised by defendants 1 and 2 (State of Maharashtra
and Deputy Collector and Competent Authority Urban Land Ceiling, Nagpur
respectively) to purchase the property in question and the sale deed dated 23rd
August, 1976, obtained from the plaintiff in pursuance of the said order was
null and void and do not confer any right title or interest in the property in favour
of defendants. A decree for possession was also sought against refund of Rs.2,60,000/-
received by the plaintiff under the sale deed dated 23rd August, 1976.
The
facts in brief and in respect whereof, there is hardly any dispute are.
The Urban Land (Ceiling and Regulation) Act, 1976 (for short, 'the Act')
came into force for the State of Maharashtra w.e.f. 17th February, 1976. The plaintiff claims that he was not holding any land in excess of the
ceiling limit prescribed under the Act and, therefore, was under no obligation
to file a return under Section 6(1) of the Act before the competent authority.
The plaintiff wanted to sell the suit property to his relations and business
acquaintances with whom he entered into an agreement of sale dated 31st March,
1976 for sale of the suit property for consideration of Rs. 2,60,000/-. Section
27(1) of the Act required the plaintiff and the prospective purchaser to obtain
permission from the competent authority under the Act to sell the suit
property. According to the plaintiff, the application for grant of the said
permission to sell the property to prospective purchaser was rejected by the
competent authority by order dated 26th May, 1976 and further by the same order, the
competent authority exercised option to buy the property on behalf of the State
of Maharashtra. The plaintiff was offered the same
consideration which was to be paid to the plaintiff by the prospective
purchaser, i.e., Rs.2,60,000/-. Thus, pursuant to the order dated 26th May, 1976, passed under Section 27 of the
Act, a sale deed dated 23rd
August, 1976 was
executed between the plaintiff and the State of Maharashtra and possession was also taken over by defendant no. 3,
namely, Deputy Commissioner of Sales Tax, Eastern Division, Nagpur.
Since
then, the suit property is in possession of defendant no. 3.
In Maharao
Sahib Shri Bhim Singhji v. Union of India and Ors. [(1981) 1 SCC 166], this
Court upheld the validity of the Act except Section 27(1) insofar as the said
provision imposed a restriction on transfer of any urban or urbanisable land
with a building or a part of on such building, which was within the ceiling
limit. Section 27(1) to the extent it sought to affect the right of a person to
dispose of his urban property within the ceiling limit was held invalid. In
view of this decision, the plaintiff claimed in the suit that the order dated
26th May, 1976 and sale deed executed pursuant thereto on 23rd August, 1976
were null and void since what was sought to be sold to the prospective
purchaser was the property within the ceiling limit and the plaintiff was
entitled to a decree of declaration that the impugned order and the sale deed
are illegal and invalid and do not confer right of ownership on defendants. The
possession taken pursuant to above was claimed to be illegal and thus the
plaintiff is entitled to recovery of possession besides damages for wrongful
use and occupation at the average market rental value of the property. It has
also been pleaded that the plaintiff was ready and willing to return the amount
of Rs.2,60,000/- paid to him under the sale deed dated 23rd August, 1976.
The
suit was dismissed by the trial court. In the appeal reversing the decision of
the trial court, the High Court has passed a decree for possession in favour of
the plaintiff on his deposit of sum of Rs.2,60,000/- which has been directed to
be paid to the defendants/appellants.
Under
these circumstances, the State of Maharashtra has filed the present appeal.
Article
58 of the Limitation Act, 1963, prescribes limitation of three years from the
date when the right to sue first accrues to obtain a declaration. Under Article
65, the period of limitation prescribed for filing a suit for possession of
immovable property or any interest therein based on title is 12 years from the
date when possession of the defendants becomes adverse to the plaintiff. The
contention urged on behalf of the State Government was that Article 58 of the
Limitation Act was applicable as the plaintiff had sought declaration about the
invalidity of the order dated 26th May, 1976 and sale deed dated 23rd August,
1976 and that the period of limitation of three years had to be computed from
26th May, 1976 and, therefore, the suit filed on 22nd August, 1988 was hopelessly
barred by time.
This
contention was rejected by the High Court as also by the trial court. The
contention urged on behalf of the plaintiff and which has been accepted is that
the suit is basically for possession of the property based upon title and the
sale deed dated 23rd August, 1976 and the order dated 26th May, 1976 being void
ab initio and without jurisdiction, a plea about its invalidity can be raised
in any proceedings and it is not necessary to claim any declaration and thus
Article 65 which deals with suit for possession based on title would be
applicable from the date, the possession of the defendant becomes adverse to
the plaintiff. The High Court held that in view of the order and the sale deed
being null and void and without jurisdiction, the same have no existence in the
eyes of law and the plea about invalidity of these documents can be raised in
any proceedings and no separate declaration is necessary to be sought. It held
that the suit for possession would be governed by Article 65 of the Limitation
Act, 1963. It was further held that a suit is within time even from the date
when the possession of the suit property was taken on the execution of the sale
deed on 23rd August,
1976.
As
already noticed, in Bhim Singhji's case (supra), Section 27(1) insofar as it
imposes a restriction on transfer of any urban or urbanisable land with a
building or a portion of such building, which is within the ceiling area, has
been held to be invalid. Thus, it has not been and cannot be disputed that the
order dated 26th May,
1976, was without
jurisdiction and nullity. Consequently, sale deed executed pursuant to the said
order would also be a nullity. It was not necessary to seek a declaration about
the invalidity of the said order and the sale deed. The fact of plaintiff
having sought such a declaration is of no consequence. When possession has been
taken by the appellants pursuant to void documents, Article 65 of the
Limitation Act will apply and the limitation to file the suit would be 12
years. When these documents are null and void, ignoring them a suit for
possession simpliciter could be filed and in the course of the suit it could be
contended that these documents are nullity. In Ajudh Raj and Ors. v.
Moti
S/o Mussadi [(1991) 3 SCC 136] this Court said that if the order has been
passed without jurisdiction, the same can be ignored as nullity, that is,
non-existent in the eyes of law and is not necessary to set it aside; and such
a suit will be governed by Article 65 of the Limitation Act. The contention
that the suit was time barred has no merit. The suit has been rightly held to
have been filed within the period prescribed by the Limitation Act.
Next,
it was contended that simply on account of Section 27(1) to the extent stated
above having been declared unconstitutional, it does not follow that the
petitioner is entitled to equitable relief particularly when he accepted the
sale consideration and executed the sale deed. Reliance has been placed on the
decision of Mafatlal Industries Ltd. and Ors. v. Union of India & Ors.
[(1997)
5 SCC 536] holding that equitable considerations cannot be held to be
irrelevant in case of claim for refund under Section 72 of the Contract Act or
in a writ petition filed under Article 226 or 32 of the Constitution. That was
a case where refund was not directed despite invalidity of the provisions under
which duties had been paid or collected as person claiming the refund had
passed on the burden of duty to others and had not suffered any prejudice or
loss and, therefore, no directions were issued for refund. It was held that
under these circumstances there is no question of reimbursement to such a
person. The principles laid down in Mafatlal Industries' case have no
applicability to the facts of the present case. It cannot be said that the
plaintiff has not suffered any prejudice or loss. It is not a case of a
voluntary sale. The plaintiff had to execute the sale deed on account of an
illegal and without jurisdiction order made under Section 27(1) of the Act in
respect of property within the ceiling limit. If the plaintiff has retained the
sum of Rs.2,60,000/- all these years, at the same time, defendants have also
retained the possession of the property. The plaintiff on his own did not want
to sell the property to the defendants/appellants.
The
fact that the same amount of consideration as mentioned in the agreement of
sale was paid to the plaintiff by the defendants, is of no relevance. On the
facts of the case, it cannot be held that there are any equitable
considerations against the plaintiff to warrant the denial of relief of
possession granted to him by the High Court.
For
the foregoing reasons, the appeal is dismissed leaving the parties to bear
their own costs.
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