1. This is a petition under Article 226 of the Constitution of India challenging the order dated 26/6/1992 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN.BA. 127/88 & TEN BA.137/88 as well as order dated 17/4/1995 in Review Application No.TEN CA.42/92 and TEN CA.43/92 passed by the Gujarat Revenue Tribunal (for short 'the Tribunal')

2. The petitioner is Chairman of one Desai Cooperative Housing Society Limited and has preferred the petition for and on behalf of the petitioner society registered under the Gujarat Cooperative Societies Act. The dispute relates to land bearing survey no.205 admeasuring 4 Acres 31 Gunthas situated in the sim of Dhandhuka town. The said lands were originally of the ownership of a public trust named 'SARVARSHA PIR'. One Musabhai Yakubbhai (since deceased), was the tenant and was cultivating the aforesaid land owned by the trust. Upon death of said Musabhai Yakubbhai the names of his heirs viz. respondent nos. 2 to 5 came to be entered in the revenue records as tenants. Respondent No.5 is the mother of respondent nos. 2, 3 and 4. Respondent nos. 6, 7 and 8 are the Vahivatdars i.e. Administrators/Trustees of the aforesaid trust. The lands were Devsthan Inams and, hence, upon the Devsthan Inams Abolition Act coming into force with effect from 15.11.1969, respondent no.5 became deemed purchaser of the said land in light of provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (the Act).

3. Accordingly, the Mamlatdar & ALT initiated proceedings under Section 32G of the Act bearing Tenancy Case No. 5/71. After recording the statements of respondent no.5 as well as one of the trustees of the trust, viz. the land owner, declared respondent no.5 as permanent tenant and also determined the purchase price which was mutually agreed upon by the parties during the course of proceedings of Tenancy Case No.5/71. The Mamlatdar & ALT directed the revenue authority to delete the name of the land owners, i.e. the trust and enter the names of respondent nos. 2 to 5 in the revenue records.

4. On 24/11/1971 respondent no.5 entered into a sale transaction with the petitioner and the petitioner society purchased the land for a consideration of Rs.21,000/-. Thereafter, the petitioner applied for conversion of the said land into non-agricultural land on 6/9/1975 and the District Development Officer, District Panchayat, Ahmedabad vide his order dated 29/11/1995 granted permission to convert the said land and use the same for building purpose as per the plan produced before him subject to various conditions imposed in the order dated 29.11.1975.

12. The contention regarding limitation as well as the order of the Mamlatdar & ALT being nullity are interlinked and are required to be dealt with together. The golden thread running through the orders of the appellate authorities and the order in review application are primarily based on the finding that the order dated 22/6/1971 was a nullity. Both the Deputy Collector as well as the Tribunal have held that once the order under challenge was a nullity the law of limitation would not apply and it was in that context that the Deputy Collector after setting aside the order dated 22/6/1971 passed by Mamlatdar & ALT, restored the matter to the file of Mamlatdar & ALT. On going through the appellate orders of the Deputy Collector and the Tribunal, it is apparent that both the authorities have proceeded on the footing that the Mamlatdar & ALT had not issued necessary notice as required under Section 32G of the Act to the interested persons.

13. Section 32G of the Act stipulates that the Mamlatdar & ALT shall publish or cause to be published a public notice in the prescribed form calling upon all the tenants (deemed purchasers), all landlords and all other interested persons. Over and above this public notice, the Tribunal is also required to issue an individual notice to each such tenant, landlord and also, as far as practicable, other persons. Both the public notice and the individual notices are required to specify the date on which the said parties shall appear before the Mamlatdar & ALT. Sub-section (2) of Section 32G of the Act lays down the mode and manner in which the statement of the tenant is to be recorded by Mamlatdar & ALT regarding willingness or otherwise to purchase the land. Sub-section (4) of Section 32G of the Act directs that the Mamlatdar & ALT shall after hearing all the persons, more particularly described in sub-section (1) of the said section and after holding inquiry determine the purchase price in accordance with the provisions of Section 32H and sub-section (3) of Section 63A of the Act. However, under the Proviso to sub-section (4) it is open to the landlord and the tenant to mutually agree upon the purchase price and the Mamlatdar & ALT is thereafter required to satisfy itself that the tenant's consent to the agreement is voluntary and that the purchase price is fixed in accordance with the provisions of Section 32H of the Act. If this Scheme laid down in Section 32G of the Act is borne in mind and applied to the facts of the case it becomes abundantly clear that the Mamlatdar & ALT while passing the order dated 22/6/1971 had not only complied with the statutory requirement but also has taken care to see that the interest of all concerned is taken care of. During the course of hearing the statement of respondent no.5 viz. Gauriben has been placed on record and it goes to show that after recording the deposition and obtaining thumb impression of respondent no.5, respondent nos. 2 and 3 have signed below the said deposition. This goes to show and suggest that not only the respondent no.5 but even respondent nos. 2, 3 and 4 were aware of the date fixed by the Mamlatdar & ALT for hearing of the tenancy case and accordingly were present before the Mamlatdar & ALT. It is not the case of the said respondents viz. respondent nos. 2, 3 and 4 that they were not present at the time of hearing and that their signatures have been either obtained subsequently or that they have not appended their signatures. If this be the position, it is not possible to agree with the reasoning of the appellate authorities viz. Deputy Collector and the Tribunal that all interested persons were not issued necessary notice. Even otherwise on a plain reading of provisions of Section 32G(1) of the Act, it is apparent that the individual notice to each such tenant, landlord, and also, as far as practicable, other persons, is required to be issued by the Mamlatdar & ALT. If the reasoning of the Deputy Collector and the Tribunal is correct then phrase 'as far as practicable' in sub-section (1) of Section 32G of the Act becomes redundant and otiose. The statute does not mandate the service of individual notice to other persons once the public notice is issued. The phrase "as far as practicable" is preceded by a comma, which in turn is preceded by the words "and also". Hence, the position of the aforesaid words punctuated by a comma definitely indicates the legislative intent of an individual notice being mandatory so far as a landlord or a tenant is concerned; but such an individual notice in relation to other persons (not being the landlord or the tenant) may be served if it is possible to do so. There is no compulsion. The reason is : the ALT may not be in a position to have knowledge about such other persons, if any. On the other hand, the opening portion of sub-section (1) of Section 32G of the Act mandates publication of a public notice, only to take care of such unknown other persons, if any.

14. It is in this context that one will have to appreciate the findings of the appellate authorities when they go on to record that no public notice was issued. The memorandum of appeal and the grounds raised by respondent nos. 2, 3 and 4 before the Deputy Collector do not state that any public notice was not issued. The entire memorandum of appeal only goes on the footing that the individual notice to interested persons, more particularly, heirs of the deceased Musabhai Yakubbhai had not been issued. As already seen from the facts hereinbefore, it is apparent that two of the respondents out of the three contesting respondents were present before the Mamlatdar & ALT. If this be the position it is not possible to agree with the findings and conclusion of the appellate authorities that interested persons were not served with notice and hence entitling them to challenge the order as a nullity.

15. Even if it is assumed that no public notice or individual notices were served, would it make the order dated 22.6.1971 made by the Mamlatdar and ALT a nullity ? Considering the fact that two out of three respondents participated in the proceedings, the answer would be No. In almost similar situation (though under a different statute) this Court has stated thus in the case of Commissioner of Income-Tax, Gujarat-I Vs. Sumantbhai C.Munshaw, 128 ITR 154.

"Now, the rights and liabilities which a dead man leaves behind him ordinarily pass on to some person whom the dead man, or the law on his behalf, has appointed to represent him in the world of the living. Such representative bears the persona of the deceased and has vested in him all the inheritable rights and has imposed upon him all the inheritable liabilities of the deceased. He is in some sort identified by the law with him he represents. The legal personality of the dead man thus survives his natural personality, until his obligations being duly performed, his representation among the living is no longer called for (See Salmond on Jurisprudence, 12th Edn., p. 443)"

Thereafter, the Court while analysing Section 159 of the Income Tax Act,1961 states thus :

The Supreme Court thereafter goes on to observe in context of the facts before it that "a non est order is a void order and it confers no title and its validity can be questioned or invalidity be set up in any proceeding or at any stage". However, the Apex Court has also before making the aforesaid observation stated in earlier paras to the effect that : "Power under Section 211 of the Code must be exercised within reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised." xxx xxx xxx "What would be a reasonable time so as to be immune from the attack that the power has been exercised in any reasonable manner would depend upon the facts and circumstances of the case".

20. Thus the settled position is : An order which is nullity has to be declared so by a competent court within the prescribed period of limitation; while exercising revisional power the law of limitation would normally apply; what would be a reasonable period of limitation would depend on facts and circumstances of each individual case; and, limitation would not be a bar in case of fraud or suppression of facts.

21. In the aforesaid circumstances, taking into consideration the ratio enunciated by the Supreme Court, it is apparent that in the present case even if the finding that the order dated 22/6/1971 passed by Mamlatdar & ALT was a nullity could be said to be a correct finding, yet no explanation is forthcoming for filing appeal after a period of nearly 16 years. The position in law is well settled that just because an order is a nullity, it does not save limitation nor does it grant appellant leave to approach the Court/Appellate Authority beyond the prescribed period of limitation. Hence, on this ground also the orders of the appellate authorities viz. Deputy Collector and the Tribunal suffer from legal infirmity and are likely to be interfered with.

22 . Mr.Patel is right when he contends that respondent nos. 2, 3 and 4 could not have exercised their right of appeal as they cannot be termed to be 'aggrieved' by the order of the Mamlatdar & ALT passed on 22/6/1971. They have been declared as permanent tenants and the purchase price has been fixed in accordance with the provisions of Section 32H(1)(i)(a) of the Act. In case the said respondents were treated as other tenants then under Section 32H(1)(ii)(a) of the Act, they would have been required to pay purchase price which would not be less than 20 times the assessment but not exceeding 200 times assessment as against the amount they have been called to pay as purchase price viz. six times the rent of the land. Therefore, so far as determination of purchase price is concerned no prejudice has been caused to respondent nos. 2, 3 and 4 which would entitle them to exercise their right of appeal. Similarly, Section 43 of the Act which deals with restriction of transfer of land purchased under the Act specifically prescribes that the tenant who has purchased the land or any interest under various sections mentioned in Section 43 of the Act is not entitled to sell or transfer or alienate in any manner except without previous sanction of the Collector and except without the consideration being fixed by the State Government. Section 32G of the Act does not find place in Section 43 of the Act and hence the land purchased under Section 32G of the Act is freely transferable. Therefore, even on this ground the respondent nos. 2, 3 and 4 cannot be said to be aggrieved which would grant them the right of appeal. It is apparent that both the appellate authorities viz. Deputy Collector and the Tribunal failed to take this aspect into consideration. It is settled law that the statutory right of appeal can be exercised only by an aggrieved party as stipulated.

23 . In this connection what has been laid down by this Court in the case of Parshottam Ramaji Rathod Vs. Dhirajlal Dharamshi Mistry, 1999(3) G.L.R. 1079 :

"6. Reverting back to the facts of the case, there cannot be any controversy that the appeal filed by the petitioner before the Collector was in exercise of a statutory right of appeal. It is well settled principle that the right of appeal is a statutory right and is subject to all the restrictions imposed by the statute which confers that right. It is not an absolute right or an abstract right. The right of appeal is not merely a statutory right, but it is also a right to resort to a statutory procedure i.e., it is a procedural right and that therefore the same must comply with and must fall within the parameters laid down by the statute which governs the exercise of that right. If the statute conferring that right also imposes a period of limitation for the exercise of such a right, the appeal must be filed within the prescribed period. It goes without saying that if such right is sought to be exercised beyond the period of limitation it must be held that the right has been extinguished by lapse of limitation."

7 Learned Counsel for the petitioner seeks to overcome this hurdle by contending that where the subject-matter of challenge in the appeal viz., the entries in question are themselves void ab initio, the very concept of limitation cannot apply. This submission is fallacious for the simple reason that if the relevant entries in question were, in the opinion of the petitioners, null and void ab initio, it was open to the petitioners to ignore their existence, since according to the petitioners, they had no effect in law. It was also open to the petitioners, if their so-called rights were challenged in any proceedings before in any forum, to contend that their rights cannot be challenged on the basis of any entry which is in itself null and void ab initio. However, the petitioners have not adopted this course. What the petitioners have chosen to do is to approach the appropriate forum specifically for a declaration that the entries are null and void. The petitioners, therefore, have approached the forum for a specific declaration, sought on various grounds including the ground that such entries are null and void. However, it cannot be overlooked that the petitioners are seeking to exercise a statutory right of appeal for the purpose of obtaining such a declaration. Obviously, such a declaration could not possibly be obtained by the petitioners except by exercising such statutory right. Once this statutory right is sought to be exercised, as explained hereinabove, such right must be exercised within the period of limitation. It cannot, then be contended that although the right is sought to be exercised beyond the period of limitation, the concept of limitation becomes irrelevant merely because one of the grounds of challenge to the entries is that they are null and void.

7.1. What also cannot be overlooked is that in order to conclude that the entries are null and void or otherwise, the prescribed forum is required to apply its mind to the contentions raised, on the facts and circumstances of the case, and to record a finding thereon. Obviously, such application of mind and the recording of a finding thereafter cannot be achieved by the prescribed forum except by way of prescribed appeal. Thus, without there being a proper appeal i.e., unless the right of appeal is exercised within the period of limitation, the prescribed forum cannot possibly examine the matter on merits and/or to record the finding as prayed for by the petitioners. It also goes without saying that a series of decisions have laid down the principle that the expiration of the prescribed period of limitation extinguishes the procedural right to move the appropriate forum for the reliefs sought, and that the expiration of the period of limitation raise a jurisdictional barrier against that forum examining the case on merits. Thus, if the prescribed forum because of the lapse of limitation has no jurisdiction to examine the petitioner's contention on merits, it could not possibly first come to the conclusion that the entries were null and void and then hold that because the entries are null and void, the concept of limitation has no application at all."

24. The last contention regarding non applicability of provisions of the Act to a land which is permitted to be converted into non agricultural land by a competent Court also merits acceptance in light of settled legal position enunciated by the aforesaid two decisions of this Court. It is apparent that once the land is declared to be non agricultural one on the basis of N.A. Permission granted by the competent authority the said land loses its characteristic of agricultural land and would not be a 'land' within the meaning of Section 2(8) of the Act. If this be the position, the provisions of the Act would not apply to the land in question and the Deputy Collector could not have entertained the statutory power under the Act including entertaining of appeal under Section 74 of the Act.

25. In light of what is stated hereinbefore even if the petition is treated as a petition under Article 227 of the Constitution of India, as contended on behalf of the respondents, it is clear that appellate orders suffer from an error apparent on face of the record which would require this Court to assume jurisdiction. The Deputy Collector held that the order dated 22/6/1971 was a nullity and hence bar of limitation did not apply and entertained the appeal holding that the Mamlatdar & ALT had not complied with the provisions of Section 32G of the Act. This order was confirmed by the Tribunal and even the review application was rejected. As already demonstrated hereinbefore the order dated 22/6/1971 could not be treated as a nullity, and even if it is treated as nullity, the law of limitation would apply and in absence of any explanation the appellate authority could not have entertained the appeal. Similarly the nature of the land having undergone change, the appellate authority could not have exercised its jurisdiction and power under the provisions of the Act as the same stood divested by virtue of the fact that the provisions of the Act did not apply.

26. Hence, for all the aforestated reasons the impugned orders of the Tribunal viz. the orders dated 26/6/1992 and 17/4/1995 as well as the order of Deputy Collector dated 30/12/1987 are hereby quashed and set aside. Rule made absolute. There shall be no order as to costs.