Y.K. Sabharwal, J.@mdashThe 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:
2. 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 u/s 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. 2,60,0007-. 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 u/s 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.
3. In 270151 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 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 properly 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 arid 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.
4. The suit was dismissed by the trial Court. In the appeal reversing the decision of the trial Court, (he 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.
5. 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 plain tiff 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.
6. As already noticed, in 270151 Section 27(1) insofar as it imposes a restriction on transfer of any urban or urban sable laid 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 273318 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.
7. 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 299223 holding that equitable considerations cannot be held to be irrelevant in case of claim for refund u/s 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 u/s 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.
8. For the foregoing reasons, the appeal is dismissed leaving the parties to bear their own costs.