http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13  

CASE NO.: Appeal (civil)  1084 of 2006

PETITIONER: PUNE MUNICIPAL CORPORATION

RESPONDENT: STATE OF MAHARASHTRA & ORS

DATE OF JUDGMENT: 26/02/2007

BENCH: C.K. THAKKER & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

Hon. C.K. THAKKER, J.

       This appeal is filed by the Pune Municipal  Corporation (’Corporation’ for short) against the  judgment and order dated July 8, 2004 passed by the  Division Bench of High Court of Judicature at Bombay in  Writ Petition No. 643 of 1996. By the said order, the  High Court confirmed the order passed by the State of  Maharashtra on June 21, 1995 in purported exercise of  revisional jurisdiction under Section 34 of the Urban  Land (Ceiling & Regulation) Act, 1976 (hereinafter  referred to as ’the Act’) holding that no sufficient  opportunity had been given to the land-owners before  declaring their land to be excess and vacant land under  the Act.         The case has a checkered history and to appreciate  rival contentions raised by the parties in their proper  perspective, it would be appropriate to bear in mind the  facts.         Pranlal Zaverchand Doshi (since deceased) who has  been represented through his heirs and legal  representatives and Chandravadan Pranlal Doshi were  owners of certain lands situate at village Mouje Parvati,  Taluka Haveli, District Pune in the State of Maharashtra.  On February 17, 1976, the Act came into force in the  State of Maharashtra. The owners of the land filed a  statement under sub-section (1) of Section 6 of the Act in  the prescribed form on August 14, 1976. The Competent  Authority, Pune Urban Agglomeration prepared draft  statement under sub-section (1) of Section 8 of the Act.  The draft statement was sought to be served in  accordance with the provisions of sub-section (3) of  Section 8 of the Act. An order was passed by the  Competent Authority on April 20, 1977 under sub- section (4) of Section 8 of the Act observing therein that  a notice under Section 8(3) of the Act was issued and  sent to the declarant by Registered A.D. but it was  received back ’undelivered’. It was also observed that the  notice was properly sent at the address given by the  declarant and hence the owner was treated as ’served’.  Since the declarant had not raised any objection nor he  remained present on the date fixed for enquiry, the  notice was finalized without any change. A direction was  issued to pass final order as required by Section 9 of the  Act.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13  

       Pursuant to the above direction, final order came to  be passed on April 25, 1977. After the final statement, a  notification under sub-section (1) of Section 10 of the Act  was issued on April 28, 1977 intimating the persons  having interest in the land to prefer their claims to the  Competent Authority either personally or through an  agent within a period of 30 days from the date of  publication of notification in the Official Gazette. The  said notification was published in the Maharashtra  Gazette on May 12, 1977. The case was fixed for hearing  on June 23, 1977. On June 16, 1978, the Competent  Authority issued notification under sub-section (3) of  Section 10 of the Act declaring excess land to be  acquired by the State. It was notified for the information  of general public that the land specified in the Schedule  appended thereto would be deemed to have been  acquired by the Government of Maharashtra with effect  from July 31, 1978 and would be deemed to have been  vested in the Government of Maharashtra free from all  encumbrances from that date. The said notification was  published in the Official Gazette on August 24, 1978.         Since the land stood vested in the State of  Maharashtra free from all encumbrances, the appellant- Corporation made an application in August, 1978 for  purchase of land declared to be excess land under the  Act and stood vested in the State. The  Competent  Authority vide its letter dated January 8, 1979 offered  the land to the appellant-Corporation for occupancy  price of Rs.1,45,000/- for Development Plan Reservation,  Pune Municipal Corporation. In the said communication,  it was stated that the terms and conditions subject to  which the land was offered, were enclosed in the form of  Agreement. If those terms and conditions were  acceptable to the Corporation, the latter was required to  execute the Agreement with the Collector of Pune and to  pay occupancy price by challan.         On January 9, 1979, the Competent Authority also  issued notice under sub-section (5) of Section 10 of the  Act directing the land-owners to handover possession of  land within 30 days. It was stated in the said notice that  the notification under sub-section (3) of Section 10 of the  Act was published in the Maharashtra Government  Gazette on August 24, 1978 and the land specified in the  Schedule had absolutely vested in the Government of  Maharashtra. It was further stated that since the owners  were in possession of the land, they were required to  surrender and deliver possession thereof within 30 days  to the Tehsildar, Pune City who was duly authorized by  the State Government to take it. It was also stated that  in the event of their failure or refusal to surrender the  possession by the owners, appropriate steps would be  taken to take possession of the land by use of force.         It appears that original owners of the land preferred  an appeal under Section 33 of the Act in the Court of  Collector and Appellate Authority under the Act at Pune  on February 20, 1979. The said appeal was against an  order passed under sub-section (3) of Section 10 of the  Act. It may be stated that so far as the order declaring  the land as excess land under the Act as also issuance of  final statement are concerned, no challenge was made to  them.  In the Memorandum of Appeal, it was stated that  the enquiry under sub-section (2) of Section 10 was  pending. It was also stated that the property was not  being utilized by the Pune Municipal Corporation for  public purpose because of shortage of funds. The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13  

appellants\027owners intended to make use of the land for  public purpose such as hostel, cinema house, petrol  pump, mangal karyalaya, lodge, hospital, godown etc.  They had submitted layout plans to the Government of  Maharashtra for construction and the matter was under  active consideration of the Government. It was further  stated that even though the order under sub-section (5)  of Section 10 of the Act was passed on January 9, 1979,  it was received by the appellants somewhere on 21st  January, 1979. The appeal was, therefore, within time,  but even if there was some delay, it might be condoned.  A prayer was, therefore, made to set aside the order  dated January 9, 1979 passed under sub-section (5) of  Section 10 of the Act.          It has come on record that the appellant- Corporation had paid the occupancy price of  Rs.1,45,000/- for the land admeasuring 37,517 sq.  meters from Survey No. 33A/1, 32/A and  34/A/2+1  (part). It is also on record that on February 22, 1979,  possession of the land was handed over by the State  Government through Tilathi Parvati to the appellant- Corporation. The possession receipt has been duly  signed in token of ’possession given’ and ’possession  taken’ by the parties.          An order was passed on August 23, 1979 by the  Appellate Authority on the appeal filed by the land- owners under Section 33 of the Act. It was stated that  the appeal was against the notification under Section  10(5) of the Act, but such appeal was not maintainable.  The Appellate Authority, therefore, summarily dismissed  the appeal by inter alia observing as under: "On perusal of the notification u/s. 10(5) of the  Act produced by the appellants it is observed  that final notification u/s. 10(3) of the Urban  Land (Ceiling and Regulation) Act, 1976 has  been published on 24.8.1978 and 26.10.1978  respectively from when the surplus land is  deemed to have been acquired and vested in  State Government free from any  encumbrances. Besides there is no remedy of  appeal after final notification u/s. 10(3) of the  Act has been published. Considering all these  facts the present appeal is not tenable".

It is pertinent to note that nothing was done by the  owners of the land for more than a decade after the  above order in appeal was passed in August, 1979. On  May 21, 1990, one Shaikh Issaqua Saikh Gafoor, Power  of Attorney of P.Z. Doshi, one of the owners of the land,  preferred an appeal to the Government under Section 34  of the Act.  It was stated therein that the land was jointly  owned by P.Z. Doshi and G.P. Doshi and it consisted of  ’a built-up bungalow of about 500 sq. meters’. The  bungalow was existing on the land since long i.e. when  the land was purchased. It was further stated that since  the land attracted the provisions of the Act, the owners  had filed return (statement) under Section 6(1) of the  Act. The Competent Authority, Pune Urban  Agglomeration, while deciding the case, should have  accorded two units i.e. 1,000 sq. meters each to P.Z.  Doshi and C.P. Doshi to make total of 2,000 sq. meters.  The authority, however, had granted only one unit of  1,000 sq. meters. A copy of the order under sub-section  (4) of Section 8 was also enclosed by the appellants for  ready reference. A grievance was also made that the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13  

Competent Authority had not considered the build-up  property of bungalow required to be excluded from the  total holding together with the land appurtenant and  additional land appurtenant. Thus, gross injustice had  been done to the owners. A prayer was, therefore, made  to the Government to redress the grievance and to award  2 units and to exclude built-up property of bungalow.  The Revisional Authority disposed of the Revision on  August 7, 1991 observing that there was no provision  under Section 34 of the Act to consider the application of  the applicants and the application could not be  considered. Even after the disposal of the above application in  1991, nothing was done by the land-owners for quite  some time. After more than three years on September  21, 1994, through another Power of Attorney (Mr. Ashok  Milapchand Jain), C.P. Doshi and his wife Mrs. Rajnana  P. Doshi requested the Minister for Housing & Special  Assistance Department to revise the orders passed  earlier. In the said application, it was said that the  Additional Collector and Competent Authority, Pune  Urban Agglomeration was pleased to decide the case of  applicants on February 20, 1979 declaring the  applicants to be surplus holders of land.  (It may be  stated that the order declaring surplus land was passed  by the Competent Authority in April, 1977) It was stated  that the Competent Authority had decided the case  ’without considering all the necessary facts’. Then, a  grievance was made with regard to units as also  exclusion of the land of built up area. It was stated that  an appeal was filed but it was rejected on the ground  that remedy of appeal was not available after the final  notification under Section 10(3) of the Act. It was also  stated that the land was proposed to be allotted to Pune  Municipal Corporation but applicants had filed Regular  Civil Suit No. 1913 of 1979 against the State  Government and Pune Municipal Corporation and the  learned Civil Judge, Senior Division, Pune had granted  status quo thereby restraining Pune Municipal  Corporation from taking possession of land or developing  it. It was asserted that the applicants had submitted a  scheme under Section 20 of the Act to the Competent  Authority which was pending. The applicants were ready  to construct a maternity home and hospital and for that  purpose plans were submitted. A prayer was, therefore,  made to decide the matter on merits and to issue  direction to Additional Collector and Competent  Authority to scrutinize and sanction the scheme under  Section 20 of the Act.  The Revisional Authority observed that it was  proved that the applicant had not been given sufficient  opportunity for showing the ownership documents to the  Competent Authority and prima facie, the order of the  Competent Authority dated April 28, 1977 was ’wrong’.  In exercise of power under Section 34 of the Act,  therefore, the said order was set aside and the case was  remitted for reconsideration to Additional Collector and  Competent Authority, Pune. It was directed that the  applicant should be given sufficient opportunity by  Additional Collector and Competent Authority, Pune  before deciding the matter. It may be stated that neither the owners joined the  appellant\027Pune Municipal Corporation as party  respondent, nor notice was issued, nor opportunity of  hearing was afforded to the Corporation by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13  

Revisional Authority though it was stated in the Revision  itself that the land was allotted  to the Corporation and  the Corporation was proceeding with construction  thereon. In view of the fact that the revision was allowed and  the order passed by the Competent Authority was set  aside without making the Corporation a party and  without affording opportunity of being heard, the  Corporation filed a writ petition in the High Court of  Bombay. The petition came up for hearing before the  Division Bench and the Division Bench passed the   impugned order holding that since no notice was served  upon the owners, the order passed by the Competent  Authority was bad in law and was rightly set aside in  revision. Regarding right of the Corporation, the Division  Bench was of the view that hearing could be afforded  only to the ’affected’ parties. According to the High  Court, the Corporation could not be treated as an  ’affected’ party as it was ’mere beneficiary of allotment by  the State of Maharashtra’ which could only be done had  there been a valid vesting in the State of Maharashtra.  Since the order was passed by the Competent Authority  without hearing the owners, it was violative of natural  justice. In the circumstances, the Corporation had no  right over the land and it was not necessary to hear the  Corporation. The High Court also held that since the  proceedings were initiated without serving notice to the  land-owners, there was no valid vesting of property in  the State.  Allowing the petition filed by the Corporation  would, therefore, result in revival of an illegal order.  No  Court of law would make an order which would restore  illegal or ultra vires order. Accordingly, the High Court  dismissed the petition and directed the Appellate  Authority to decide the matter pending under Sections 8  and 9 of the Act within a period of three months from the  date of judgment of the High Court. It is this order which  is challenged in the present appeal. Notice was issued by this Court on November 5,  2004 and stay against further proceedings was granted.  The matter was thereafter heard from time to time.  Finally, on February 6, 2006, leave was granted and stay  continued. The matter has now been placed for final  hearing. We have heard learned counsel for the parties. Learned counsel for the appellant-Corporation  contended that the Revisional Authority had committed  grave error of law in entertaining revision and in setting  aside the order passed by the Competent Authority  under the Act. It was submitted that the order was  passed by the Competent Authority as early as in 1977  and several consequential actions had been taken  thereafter. Notifications under Section 10 were issued  and the land stood vested ’free from all encumbrances’ in  the State Government. Pursuant to the demand made by  the appellant-Corporation, a part of land was granted to  the Corporation. An appeal filed by the owners under  Section 33 was dismissed in August, 1979.  The said  order was never challenged by the owners by  approaching the High Court. Revisional jurisdiction was  invoked thereafter in 1990 i.e. after more than ten years  of disposal of the appeal.  (Though it was described as an  appeal under Section 34 of the Act)  Even that petition  was dismissed. Surprisingly after more than three years,  second revision petition was filed which was allowed by  the Revisional Authority and the order of the Competent

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13  

Authority was set aside. The counsel also submitted that  though the land declared to be excess under the Act and  vested in the Government was granted to appellant- Corporation and the owners were aware of the fact and  had also filed a suit in the Court of Civil Judge, Senior  Division, Pune in 1979 and had obtained ’status quo’  order, they did not think it proper to join Corporation as  party opponent, nor the Revisional Authority thought it  appropriate to issue notice and to afford hearing to the  Corporation. The order passed by the Revisional  Authority, therefore, was violative of principles of natural  justice and fair play. The Corporation, therefore,  approached the High Court. Unfortunately, however, the  High Court committed the same mistake and went on to  observe that Corporation was not ’affected’ party. The  order passed by the Revisional Authority and confirmed  by the High Court, therefore, deserves to be quashed and  set aside. The learned counsel for the land-owners supported  the order passed by the Government and confirmed by  the High Court. He submitted that from the record, it  was clear that notice under Section 8 of the Act was  never served upon the owners. Declaration of surplus  land was, therefore, violative of principles of natural  justice.  Such an order cannot be said to be an order in  the eye of law and it was rightly set aside by the  Government. Regarding appeal as also revision filed  earlier, it was submitted that they were dismissed on the  ground of ’maintainability’ and not on merits. In the  circumstances, second revision was rightly allowed  setting aside the order passed by the Competent  Authority. The High Court correctly observed that since  the initial order passed by the Competent Authority was  in contravention of principles of natural justice, allowing  the petition of the Corporation would result in revival of  an order which was illegal and unlawful. It, therefore,  cannot be said that the High Court committed an error.  The present appeals, hence, deserve to be dismissed. On behalf of the State Government, the learned  counsel submitted that it was the duty of the State to do  justice to the parties and when the record revealed that  notice had never been served upon the owners of the  land, the order of the Competent Authority was rightly  set aside by the Revisional Authority and the action does  not require interference. Having given anxious consideration to the facts and  circumstances of the case in the light of statutory  provisions, in our opinion, the appeal deserves to be  allowed. It is not in dispute by and between the parties that  the land-owners filed a statement under sub-section (1)  of Section 6 of the Act in August, 1976. Final order was  passed declaring certain land to be excess land under  the Act in 1977. Notification under Section 10(3) was  issued and the land stood vested in the State ’free from  all encumbrances’. A notice was issued to the land  owners to handover possession of the excess land and  the possession was taken over by the authorities. Pune  Municipal Corporation applied for land and the State  Government asked the Corporation to pay occupancy  price of Rs.1,45,000/- which was paid by the  Corporation in February, 1979. So far as the order  passed under Section 8 of the Act is concerned, it was  never challenged by the land owners in the appeal. An  appeal which was filed by the land owners in 1979 was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13  

an appeal against an order passed under Section 10(3) of  the Act. The Appellate Authority, therefore, rightly held  such appeal to be not maintainable. If the land owners  were aggrieved by the order passed under Section 8 of  the Act, either they should have challenged the order  before the Appellate Authority or before the Revisional  Authority.  The Land owners did neither. The order,  therefore, became final. More than a decade had passed  thereafter. In 1990, land owners, through one Power of  Attorney (Shaikh Issaqua Shaikh Gafoor) approached  Revisional Authority under Section 34 of the Act by filing  an appeal (revision) which was dismissed on the ground  of maintainability. Again, the said order had not been  challenged. After more than three years, through another  Power of Attorney, (Ashok Milapchand Jain) second  revision was filed without arraying appellant-Corporation  as party respondent. It is indeed surprising as to how  the Revisional Authority did not think it proper to issue  notice and to afford hearing to Corporation, though the  record clearly revealed development from 1979 and  allotment of land to Corporation and payment of price by  it. Moreover, the order of the Revisional Authority is  conspicuously silent as to filing of appeal as well as first  revision by the land-owners. In our opinion, therefore,  the learned counsel for the appellant-Corporation is right  in submitting that the order passed by the Revisional  Authority deserves to be set aside. Section 34 of the Act confers on Government  revisional jurisdiction.  It reads thus; 34.     Revision by State Government.\027The  State Government may, on its own motion,  call for and examine the records of any order  passed or proceeding taken under the  provisions of this Act and against which no  appeal has been preferred under Sec. 12 or  Sec. 30 or Sec. 33 for the purpose of  satisfying itself as to the legality or propriety  of such order or as to the regularity of such  procedure and pass such order with respect  thereto as it may think fit;

       Provided that no such order shall be  made except after giving the person affected a  reasonable opportunity of being heard in the  matter.

The learned counsel for the appellant-Corporation  submitted that the Act does not confer right to file  revision upon a person aggrieved.  The State alone is  empowered to exercise revisional power. The counsel  submitted that such power can be exercised by the State  Government on its own motion (suo motu) calling for and  examining the records of any order passed under the Act  for the purpose of satisfying itself of the legality and  propriety of such order. It is, therefore, implicit that a  party cannot invoke revisional jurisdiction under Section  34 of the Act. We are, however, unable to uphold the said  contention. It is true that Section 34 enables the State  Government to exercise revisional powers suo motu.  That, however, does not mean that a party cannot invoke  such jurisdiction. A revision can also be filed by party  aggrieved and it can invite the attention of the Revisional  Authority as to illegality or impropriety of any order  passed under the Act.  The revision filed by the land-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13  

owners, therefore, could not be held to be not  maintainable.  But reading of the above provision makes it clear  that revision is not an additional remedy over and above  remedy of appeal under Section 33 of the Act. Section 34  of the Act authorizes the State Government to exercise  revisional jurisdiction in those cases in which "no appeal  has been preferred". Thus, the remedy of revision is  alternative to appeal and not additional or  supplementary. The learned counsel for the appellant-Corporation  is also right in contending that the Revisional Authority  ought to have considered the fact that such jurisdiction  was invoked by the petitioner after several years.  It may  be recalled that the first appeal filed by the land-owners  was not against an order under Section 8 of the Act but  against the notification under Section 10 of the Act,  which was dismissed on the ground of maintainability.   Likewise, the first revision filed in the year 1990 was  dismissed as not maintainable in 1991.  Now it is true that no period for revision is provided  in the Act. It was, therefore, submitted on behalf of the  land-owners that when the Legislature did not think it fit  to prescribe period of limitation, such power can be  exercised ’at any time’ and no Court by a ’judicial fiat’,  usurp legislative power and prescribe period of  limitation. It is no doubt true that the statute does not  fix period of limitation within which revisional power  should be exercised under Section 34 of the Act. The  Legislature, in its wisdom, has not fixed period of  limitation as it had empowered the State Government to  exercise revisional power suo motu. In our judgment,  however, only in such cases i.e. where the period of  limitation is not prescribed that the concept of  ’reasonable time’ can be invoked and power must be  exercised within such period.  In this connection, it would be profitable to refer to  a leading decision of this Court in State of Gujarat v.  Patel Raghav Natha & Ors., (1969) 2 SCC 187. In that  case, an application was filed by the land-owner under  Section 65 of the Bombay Land Revenue Code, 1879 for  converting agricultural land to non-agricultural use. The  permission was granted. The Municipal Committee,  however, objected to such permission and the  Commissioner, in purported exercise of revisional power  under Section 211 of the Code,  set aside the order  passed earlier. When the matter reached this Court, it  was contended by the owners, that though Section 211  did not prescribe period of limitation, revisional powers  ought to be exercised within a reasonable time.  Upholding the contention and considering the  scheme of Sections 65 and 211 of the Code, this Court  stated: "The question arises whether the  Commissioner can revise an order made  under s. 65 at any time.  It is true that  there is no period of limitation prescribed  under s. 211, but it seems to us plain that  this power must be exercised in  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.                    It seems to us that s. 65 itself indicates

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13  

the length of the reasonable time within  which the Commissioner must act under s.  211. Under s. 65 of the Code if the Collector  does not inform the applicant of his decision  on the application within a period of three  months the permission applied for shall be  deemed to have been granted. This section  shows that a period of three months is  considered ample for the Collector to make up  his mind and beyond that the legislature  thinks that the matter is so urgent that  permission shall be deemed to have been  granted.  Reading Sections 211 and 65  together it seems to us that the Commissioner  must exercise his revisional powers within a  few months of the order of the Collector.  This  is reasonable time because after the grant of  the permission for building purposes the  occupant is likely to spend money on starting  building operations at least within a few  months from the date of the permission. In  this case the Commissioner set aside the  order of the ’Collector on October 12, 1961,  i.e. more       than a year after the order, and it  seems to us that this order was passed too  late".                  (emphasis supplied)

The law laid down in Patel Raghav Natha has been  reiterated by this Court in several cases. We do not  intend to burden our judgment with all those cases. We  may only state that broad contention of the land owners  that when no period of limitation is prescribed, revisional  jurisdiction can be exercised at any time cannot but be  rejected. If the law prescribes period of limitation, the  action must be taken within such period.  But where the  law does not prescribe limitation, the Court would  import the concept of ’reasonable time’. We may,  however, hasten to add that what is the length of the  reasonable time would depend upon the facts and  circumstances of each case and no rule of universal  application can be laid down.  [See also Shailesh Jadavji  Varia v. Sub-Registrar, Vadodara & Ors. (1996) 3 Guj LR  783 (FB)]. In the facts and circumstances of the case, in our  opinion, the Revisional Authority was duty bound to take  into account the length of delay, intervening  circumstances and subsequent events from 1977 to  1995 and to consider whether the powers should have  been exercised or not.  Since no such exercise has been  undertaken, the order suffers from legal infirmity and  must be quashed. We have also gone through the grievance of the  land-owners when they had filed an appeal in 1979  against an order under Section 10(3) of the Act as also  appeal (Revision) in 1990 (first revision). There was no  whisper about non-service of notice and non-observance  of principles of natural justice.  Reading of Memorandum  of Appeal, grounds and prayers makes it clear that  contentions were raised as to legality of decision on  merits.  It was urged, inter alia, that certain land was  sold prior to the commencement of the Act which could  not have been taken into account for the purpose of  declaring the land to be surplus; that constructed  portion and built up area (bungalow) ought to have been  excluded and that two units ought to have been granted.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13  

Even in the second revision filed in 1994, there is  nothing about non service of notice or absence of hearing  by the Competent Authority.  The Revisional Authority,  in our view, ought to have considered that aspect as  well. Again, the Revisional Authority was bound to apply  its mind to the effect of vesting of land ’free from all  encumbrances’ in the State and grant of land by the  State in favour of appellant-Corporation. It was only after  the land vested in the State that it was disposed of in  accordance with the provisions of the Act. After the  notification under Section 10(3) was issued, a prayer was  made by the Corporation to allot the land.  The prayer  was granted and payment of Rs.1,45,000/- was made by  the Corporation and it started construction.  They were  indeed relevant and material facts and circumstances.  The Revisional Authority, however, has not even referred  to those facts and circumstances.  The impugned order  thus suffers from serious infirmity. To us, the High Court was wholly wrong in holding  that Corporation was not ’affected’ party.  When the land  was assigned to Corporation and Corporation made the  payment of price, by no stretch of imagination, it can be  said that the Corporation was not ’affected’ party. From  the record, it was clear that possession was handed over  by the State and was taken over by the Corporation.  The  Corporation was proceeding to put up construction on  the land which compelled the land-owners to institute a  suit and to obtain order of status quo. The High Court in  the circumstances, ought to have allowed the petition     by setting aside the order of the Revisional Authority,    by directing it to issue notice to the Corporation, to  afford hearing and to pass appropriate order on merits.  By    not doing so, the High Court has committed the  same error which had been committed by the  Government and the order of the High Court also cannot  be sustained. The High Court was also wrong in referring to and  relying upon Gadde Venkateswara Rao v. Government of  Andhra Pradesh & Ors., AIR 1966 SC 828 and also  Maharaja Chintamani Saran Nath Shahdeo v. State of  Bihar & Ors., 1999 (8) SCC 16 for the proposition that  allowing a petition of the Corporation would result in  reviving and restoring of illegal order. In our view, the  High Court has ignored an important fact that setting  aside of order by the Revisional Authority would not have  resulted in restoring illegal order inasmuch as the  original order passed under Section 8 of the Act was not  challenged by the land-owners in an appeal filed in  1979.  The order passed by the Competent Authority,  therefore, cannot be held void, still-born or purported  order.  On the contrary, in the said order, it was stated  that the notice was properly sent at the address supplied  by the declarant and the owner would have to be treated  as served.  In the appeal also, it was never contended by  the land-owners that they were not served and on that  ground the order was bad.  Hence, unless the said order  was set aside, it could not be termed as illegal or void  order.         It is well settled that no order can be ignored  altogether unless a finding is recorded that it was illegal,  void or not in consonance with law. As Prof. Wade states:  "The principle must be equally true even where the  ’brand of invalidity’ is plainly visible; for there also the  order can effectively be resisted in law only by obtaining

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13  

the decision of the Court".          He further states:         "The truth of the matter is that the court  will invalidate an order only if the right  remedy is sought by the right person in the  right proceedings and circumstances. 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. In any such case the ’void’ order  remains effective and is, in reality, valid. It  follows that an order may be void for one  purpose and valid for another, and that it  may be void against one person but valid  against another".

       In Smith v. East Elloe Rural District Council, 1956  AC 736 at 769 : (1956) 1 All ER 855,  Lord Redeliffe had  an occasion to consider a similar argument (that the  order was null and void).  Negativing the contention, the  Law Lord made the following off-quoted observations: "(T)his argument is in reality a play on the  meaning of the word ’nullity’.  An order even  if not made in good faith, is still an act  capable of legal consequences. It bears no  brand of invalidity upon its forehead. Unless  the necessary proceedings are taken at  law to establish the cause of invalidity  and to get it quashed or otherwise upset,  it will remain as effective for its  ostensible purpose as the most  impeccable of orders". (emphasis supplied) A similar question came up for consideration before  this Court in State of Punjab & Ors.. v. Gurdev Singh,  (1991) 4 SCC 1. In Gurdev Singh, a suit for declaration  was instituted by the plaintiff contending that the order  dismissing him from service was ultra vires,  unconstitutional, violative of principles of natural justice  and void ab initio and he continued to be in service.  Such suit, in accordance with the provisions of Article  113 of the Limitation Act, 1963, must be filed within  three years from the date of passing of order or where  departmental appeal or revision is filed from the date of  dismissal of such appeal/revision. The suit was,  however, filed beyond the period of three years. The High  Court held that since the order was void, the provisions  of Limitation Act would not apply to such order. The  aggrieved State approached this Court. Setting aside the decree passed by all the Courts  and referring to several cases, this Court held that if the  party aggrieved by invalidity of the order intends to  approach the Court for declaration that the order against  him was inoperative, he must come before the Court  within the period prescribed by limitation. "If the  statutory time of limitation expires, the Court cannot  give the declaration sought for".  The Court then stated;          "If an Act is void or ultra vires it is  enough for the Court to declare it so and it  collapses automatically. It need not be set  aside.  The aggrieved party can simply seek a  declaration that it is void and not binding  upon him. A declaration merely declares the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13  

existing state of affairs and does not ’quash’  so as to produce a new state of affairs". In the present case, no period of limitation is  prescribed for preferring Revision under Section 34 of  the Act. The principle laid down in Patel Raghav Natha,  hence, applies. If, therefore, the Revisional Authority was  inclined to exercise jurisdiction, it ought to have been  satisfied that such power was invoked by the petitioner  within reasonable time. Merely on the ground that the  order passed in 1977 was unlawful was not sufficient to  ignore length of delay and other attenuating  circumstances. It was also contended that the order passed by the  Appellate Authority dismissing appeal as ’not  maintainable’ and order passed in first revision refusing  relief on the same ground i.e. non-maintainability of  revision would not operate as res judicata. In this  connection, our attention has been invited by the  counsel for the land-owners to several decisions of this  Court. It is not necessary to refer to those decisions  since in our opinion, the respondents are right that the  doctrine of res judicata has no application. That does  not, however, mean that Revisional Authority would not  consider the extent of delay, grounds/reasons for not  approaching Revisional Authority and intervening  circumstances. It is only thereafter on satisfaction of the  Government that it could consider the merits of the  matter and pass an appropriate order in accordance with  law. The learned counsel for the State of Maharashtra  strongly urged that the State authorities must act fairly  and reasonably. When it found that an order was passed  under Section 8 of the Act but the requisite notice was  not served upon the land-owners, it must fairly state  that the order was illegal and an opportunity should be  given to the land-owners as to why appropriate order  should not be passed under the Act after hearing them.  There can be no two opinions about it. The State  has to act fairly.  But the State or a public authority  must be fair not to one party but to all the parties to the  litigation. In the present case, an order was passed by  the Competent Authority in 1977, and in 1979, the land  vested in the State, possession was taken over from  land-owners, application was made by the Pune  Municipal Corporation, land was allotted to it, an  amount of Rs.1,45,000/- was paid by the Corporation,  possession was handed over to the Corporation and  Corporation was undertaking construction activities. An  appeal by the land-owners was dismissed in 1979 and  revision, which was filed after more than ten years met  with the same fate.  The State Government was,  therefore, expected to issue a notice and afford hearing  to the Corporation when second revision petition was  filed by the land-owners. The Government was aware of  all the above facts which were on record.  It was also  alive of the fact that a Civil Suit was filed before more  than ten years in 1979 and status quo order was  obtained by the land-owners. Therefore, when it was  submitted that the State ought to have acted fairly  towards land owners, it ought to have acted fairly  towards Municipal Corporation also. But Pune Municipal  Corporation was never issued any notice, nor given  opportunity for hearing. Even when the Corporation  challenged the order passed by the Revisional Authority  in a writ petition in the High Court, it was not conceded

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13  

by the State that the order in revision was liable to be set  aside as it was not made by the Revisional Authority in  observance of principles of natural justice and the  matter must be sent back to the Government to decide it  afresh after extending opportunity of hearing to all the  parties. The matter did not end there.  Even in this  Court, the State counsel submitted that the Revisional  Authority rightly set aside the order passed against the  land-owners as they could not be served before the  impugned order was passed under Section 8 of the Act.   The State counsel also supported the order passed by  the High Court, but the counsel did not state that the  same reasoning would apply to an order passed by the  Revisional Authority and by the High Court without  hearing Pune Municipal Corporation. The State has its  own concept of ’fairness’.  We, however, express our  inability to put seal of approval on the stand taken by  the State and on its concept of ’fairness’. It may be recalled that neither in the Memorandum  of Appeal filed by the land owners in 1979, nor in the  first revision nor in the second revision, which are part  of the record, it was even alleged by the land-owners that  they were not served with the notice under Section 8 of  the Act and they had no opportunity to put forward their  case and the order was, therefore, liable to be set aside.  In fact, no appeal was filed against an order passed  under Section 8 of the Act. Be that as it may, had such  contention been taken by the land-owners and had the  appellant-Corporation been joined as party respondent  before the Revisional Authority in the second revision, it  could have pointed out that the land-owners were aware  of the proceedings and because of such knowledge, they  had not raised such contention. Ultimately, in such  matters, the Court would apply ’prejudice test’. If the  circumstances had proved that the land-owners were in  know of proceedings, it is possible that the Revisional  Authority might have refrained from exercising  discretionary jurisdiction. Moreover, the appellant- Corporation could have contended that there was gross,  unreasonable and unexplained delay on the part of the  land-owners and it was not a fit case to exercise  revisional power after such period. For the foregoing reasons, in our opinion, the order  passed by the Revisional Authority and confirmed by the  High Court is liable to be set aside and is hereby set  aside. The matter is now remitted to the Revisional  Authority for taking fresh decision in accordance with  law after hearing the parties, including the Corporation.  It is open to all the parties to raise all contentions  available to them.  It goes without saying that all  proceedings taken in pursuance of the order passed in  revision are of no consequence and no effect can be given  to them.  We may clarify that we have not entered into  correctness or otherwise of the allegations and counter- allegations and we may not be understood to have  expressed any opinion on the merits of the matter. As  and when the Revisional Authority will take up the  matter for consideration, it will decide the same without  being influenced by the observations made by the High  Court as also by us. The appeal is accordingly allowed  with costs.