Gujarat High Court
Bhagubhai Bhikhabhai Patel & 2 vs District Collector & 7 on 5 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/14284/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14284 of 2017
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BHAGUBHAI BHIKHABHAI PATEL & 2....Petitioner(s)
Versus
DISTRICT COLLECTOR & 7....Respondent(s)
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Appearance:
MR PRABHAKAR UPADYAY, ADVOCATE for the Petitioner(s) No. 1-3
MS. THAKORE, AGP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/09/2017
ORAL ORDER
1. By this application under Article 227 of the Constitution of India, the applicants call in question the legality and validity of the order dated 19th August, 2016 passed by the S.S.R.D at Ahmedabad, by which, the S.S.R.D allowed the revision application filed by the private respondents, thereby quashing and setting aside the order passed by the Collector, Navsari dated 10th October, 2013 and affirming the order passed by the Deputy Collector dated 6th December, 2010 in RTS Appeal No.993 of 2009.
2. The dispute between the parties pertains to the land bearing Survey No.11, New Survey No.404, situated at Mouje Bhervi, Taluka: Chikhli, District: Navsari. It appears that in the record of rights, the names of all the parties concerned, i.e., the applicants and the private respondents came to be entered Page 1 of 6 HC-NIC Page 1 of 6 Created On Sat Sep 16 02:11:59 IST 2017 C/SCA/14284/2017 ORDER vide Entry No.415 dated 25th March, 1969. The case of the applicants herein is that the names of the private respondents were wrongly entered in the revenue records at the relevant point of time though they have no right, title or interest over the property in question. It is important to note that the entry of 1969 came to be challenged, for the first time, before the Deputy Collector in the year 2009, i.e., almost after a period of about 40 years. The Deputy Collector, at the outset, declined to condone the delay, as according to the Deputy Collector, no sufficient cause was made out for condonation of delay in filing the appeal almost after a period of 40 years. The Deputy Collector did not enter into the merits of the matter. The Deputy Collector only concentrated on the delay condonation application filed by the applicants herein. The applicants herein, being dissatisfied with the order passed by the Deputy Collector, preferred the RTS Revision No.73 of 2012 before the Collector, Navsari. The Collector, Navsari entered into the merits of the matter and allowed the revision application. Being dissatisfied with the order passed by the Collector, the private respondents herein went before the S.S.R.D and the S.S.R.D by its impugned order quashed the order passed by the Collector. Being dissatisfied with the order passed by the S.S.R.D, the applicants are here before this Court by this application under Article 227 of the Constitution of India.
3. The S.S.R.D., while allowing the revision application filed by the private respondents herein, observed as under;
"Considered the revision application of the applicants, the impugned order of the Collector, the oral and written arguments of the learned advocates for the applicant and the opponents as well as the evidence so lead, and examined the record. One mutation entry No.415 dated Page 2 of 6 HC-NIC Page 2 of 6 Created On Sat Sep 16 02:11:59 IST 2017 C/SCA/14284/2017 ORDER 25.3.1969 was entered in the revenue record in respect of the agricultural land being Revenue Survey No.11 of village Bhairavi, Taluka: Chikhli, District: Navsari wherby the name of co-cultivator was entered and upon certification of the said entry, an appeal came to be filed by the opponent No.1 and other with delay application, wherein vide order dated 6.12.2010 passed in the RTS/Appeal No.993 of 2009, the Deputy Collector rejected the appeal against which the opponent No.1 had preferred the revision before the Collector. In which revision, the Collector has allowed the revision vide order dated 10.10.2013 thereby cancelling the disputed mutation entry No.415. Being aggrieved by the said order, has preferred the present revision.
It is mainly contended by the applicants that the land bearing Block No.404, Khata No.99 of Village Bhairavi, Taluka: Khergam, District: Navsari is running jointly in the name of the applicant and the opponent in the revenue record as the owner and occupier. Originally the land in dispute was running in the name of Bhikhabhai Bhanabhai. Since the forefather, the land in dispute is continued in the name of the applicant as the owner and the occupier and having agreed to enter the name of the co-cultivator as per the actual possession of the disputed land, all names were entered vide Mutation Entry No.415 dated 25.3.196 which came to be certified on 14.7.1969. Which entry has been challenged by the other side, i.e., the opponent No.1 in the year 2009 almost after a period of 40 years. The Deputy Collector has rejected the appeal on the ground of delay. Against which upon preferring revision before the Collector, the Collector has allowed the revision on the fact that the applicant has not produced any evidence to show being the heir of Bhikhabhai Bhanabhai. On such fact has ordered to cancel the disputed mutation entry . It is contended that the said order is improper and illegal and therefore is required to be quashed. It appears that the Collector has not considered the fact that the name of the applicant has been entered in the disputed land vide Mutation Entry No.634 by succession. Against which the opponents have not raised any objection or dispute and now when the land price has gone high, dispute has been raised after 40 years, which does not seems to be proper. Therefore the disputed entry No.415 seems to be proper and legal and is required to be confirmed. The aforesaid Page 3 of 6 HC-NIC Page 3 of 6 Created On Sat Sep 16 02:11:59 IST 2017 C/SCA/14284/2017 ORDER submissions are required to be accepted because the disputed mutation entry No.415 of co-cultivator is entered in the year 1969, against which, the opponents Nos.1 to 3 have filed appeal after 40 years and no satisfactory explanation is given either before this Court or before the lower court for such huge delay. To condone the delay, sufficient cause is required to be assigned. But, if no sufficient cause is proved, even short delay cannot be condoned for which many judgments have been delivered by the Hon'ble Supreme Court and the High Court. Some of those are as under;
(1) AIR 1981 SC 733, 1981 Cri. L.J., 293 (2)1982 GLH 6824 (3)2003(2) GCD (U.J) 68 (4)AIR 1972 Supreme Court-749.
Therefore, there is substantial delay in appeal filed by the opponents. Further, the case of the the case of the opponents is that their father was mentally retarded and by wrongly getting will executed in their favour, the applicants have got their names mutated, is not required to be accepted as no documentary evidence has been placed on record by the opponents either before this Court or before the lower court in that regard.
Also the father of the opponents, during his life time or between 1969 to 2001, has not taken any objection. Moreover, the Collector has passed the impugned order without verifying the main issue, which is not proper and legal. Therefore, the revision application is legal and proper and required to be accepted. The impugned order of the Collector is erroneous and is therefore required to be rejected.
ORDER The revision application of the applicants is hereby allowed. The order of the Collector, Navsari, being CH/RTS/REVISION/CASE NO.73/12, dated 10.10.2013 is hereby quashed and the order No.RTS/APPEAL NO.993 of 2009 dated 6.12.2010 passed by the Deputy Collector, is hereby confirmed."
4. Having heard the learned counsel appearing for the Page 4 of 6 HC-NIC Page 4 of 6 Created On Sat Sep 16 02:11:59 IST 2017 C/SCA/14284/2017 ORDER parties and having considered the materials on record, I am of the view that no error, not to speak of any error of law could be said to have been committed by the S.S.R.D in passing the impugned order.
5. If the Deputy Collector thought fit not to condone the delay of about 40 years in filing the appeal and if such order is challenged before the Collector, it was expected of the Collector only to examine the issue with regard to the condonation of delay. The Collector could not have ignored the issue of condonation of delay and enter into the merits of the matter for the purpose of allowing the revision application. If the Collector was of the view that the delay ought to have condoned, then he could have passed an appropriate order in that regard and remitted the matter to the Deputy Collector for consideration on merits. However, the Collector travelled beyond his jurisdiction.
6. In my view, the S.S.R.D rightly interfered and quashed the order of the Collector. If it is the case of the applicants herein that the private respondents have nothing to do with the property in question and they have no right, title or interest, then they will have to seek an appropriate declaration from the Civil Court by filing a civil suit. An entry posted in the year 1969 could not have been disturbed in the manner in which the same has been challenged.
7. In view of the above, this application fails and is hereby rejected.
Page 5 of 6HC-NIC Page 5 of 6 Created On Sat Sep 16 02:11:59 IST 2017 C/SCA/14284/2017 ORDER (J.B.PARDIWALA, J.) Vahid Page 6 of 6 HC-NIC Page 6 of 6 Created On Sat Sep 16 02:11:59 IST 2017