Gujarat High Court
Nadirhusain Ahmedbhai vs State Of Gujarat on 24 January, 2022
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/20294/2021 ORDER DATED: 24/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20294 of 2021
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NADIRHUSAIN AHMEDBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR HITESH N ACHARYA(2302) for the Petitioner(s) No. 1,2,3,4,5,6,7
for the Respondent(s) No. 10,11,12,13,2,3,4,5,6,7,8,9
MS.ASMITA PATEL, ASSISTANT GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 24/01/2022
ORAL ORDER
Mr.Hitesh N. Acharya, learned advocate appearing for the petitioners has tendered the draft amendment. Amendment is allowed in terms of the draft. The same shall be carried out forthwith.
2. By this petition, inter alia, under Articles 226 and 227 of the Constitution of India, the petitioners pray for quashing and setting aside (i) order dated 16.8.2017 passed by the Special Secretary, Revenue Department (Appeals) (hereinafter referred to as "learned SSRD"); (ii) order dated 3.7.2014 passed by the Collector and (iii) order dated 28.05.2012 passed by the Prant Officer, Kalol. The issue pertains to the mutation of entry No.438 dated 5.4.1948 posted in the Village Form No.6 with respect to Survey Nos.667/2 and 668/2 (hereinafter referred to as the "land in question").
3. The facts, in nutshell, are that the grandfather of the petitioners namely Mahamadbhai Jalalbhai was the owner of the land in question. Somewhere in the year 1951-52, survey no.667 was divided into two, i.e. survey no.667/1 admeasuring 5 acres and 29 gunthas and survey no.667/2 admeasuring 5 acres and 29 Page 1 of 10 Downloaded on : Sat Dec 24 09:39:58 IST 2022 C/SCA/20294/2021 ORDER DATED: 24/01/2022 gunthas. Similarly, survey no.668 was divided into two, i.e. survey no.668/1 admeasuring 1 acre and 14 gunthas and survey no.668/2 admeasuring 1 acre and 14 gunthas. According to the petitioners, the grandfather of the petitioners, vide registered sale deed dated 6.1.1956, sold the land, pursuant to which, entry no.1250 was mutated in the revenue record on 3.3.1956 and was certified on 31.12.1959.
3.1 It is the case of the petitioners that so far as the land in question is concerned, half portion of it, was never sold by the grandfather of the petitioners, but respondent no.7 - Shri Prahladbhai Maganbhai and Shri Babubhai Prahladbhai purchased the land and got entry no.438 mutated in the revenue record. The grandfather expired on 13.2.1962 and accordingly, the name of the father of the petitioners was entered in the revenue record vide entry no.110. It is also the case of the petitioners that some portion of the land bearing survey nos.667/1 and 667/2, came to be sold on 14.5.2003, 11.7.2003 and 1.6.2004 to the respondent nos.12 and 13 by registered sale deeds and entry no.10362 came to be mutated in the revenue record. The father of the petitioners expired on 14.09.2006 and being the heirs, the petitioners applied for mutation of their names in the revenue record.
3.2 It is the case of the petitioners that in the proceedings before the Prant Officer being RTS/Appeal/SR/65/2009 and another, the sale deeds dated 14.05.2003, 11.07.2003 and 01.06.2004 were declared to be illegal. The petitioners, being aggrieved, preferred an appeal before the Prant Officer, challenging the entry no.438 dated 05.04.1948 and the Deputy Collector, rejected the appeal. The petitioners, thereafter, preferred a revision application before the Collector under the provisions of Rule 108(6) of the Gujarat Land Revenue Rules, 1972 which, also came to be rejected and in further Page 2 of 10 Downloaded on : Sat Dec 24 09:39:58 IST 2022 C/SCA/20294/2021 ORDER DATED: 24/01/2022 revision before learned SSRD, the order of the Collector came to be confirmed, vide order dated 16.08.2017. The petitioners, along with the revision application, had filed application seeking stay which came to be rejected on 31.01.2015 which was challenged before this Court by way of Special Civil Application No.11487 of 2015 which also came to be dismissed as having been rendered infructuous on 17.01.2020. Hence, the petitioners, being aggrieved, have filed the present writ petition challenging all the three orders passed by the revenue authorities.
4. Mr Hitesh N. Acharya, learned advocate appearing for the petitioners submitted that as is discernible from the village form of the year 1942-43, the land, was of the ownership of the grandfather of the petitioners. Initially, the land bearing survey nos.667 is concerned, the same came to be divided and designated into survey nos.667/1 and 667/2. Similarly, so far as survey No.668 is concerned, the same was also bifurcated and designated as survey Nos.668/1 and 668/2. So far as the survey no.667/1 and 668/1 are concerned, a registered sale deed dated 6.1.1956 was executed by the grandfather of the petitioners namely Mahamadbhai Jamalbhai and entry no.1250 was mutated in the revenue record on 3.3.1956 which was subsequently certified on 31.12.1959. So far as the land bearing survey nos.667/2 and 668/2 are concerned, they were never sold by the grandfather of the petitioners. Prahladbhai Maganbhai and Babubhai Prahladbhai, purchased the same from Gulabhai Hasanbhai and Imambhai Hasanbhai, who were not the owner of the property and it was only the grandfather of the petitioners, who was the sole owner of the land in question. As a result of the transaction, entry no.438 was mutated in the revenue record. It is submitted that the sale by Gulabhai Hasanbhai and Imambhai Hasanbhai in favour of Prahladbhai Maganbhai and Babubhai Prahladbhai was nullity and void ab initio inasmuch as, they had no authority to sell Page 3 of 10 Downloaded on : Sat Dec 24 09:39:58 IST 2022 C/SCA/20294/2021 ORDER DATED: 24/01/2022 the whole parcel of land of the ownership of the grandfather of the petitioners.
4.1 It is submitted that the private respondents, playing fraud with the petitioners as well as authorities and the Court, got the transaction executed in their favour. It is also submitted that the grandfather of the petitioners, had never executed any sale deed in favour of the private respondents and more particularly, with respect to Survey Nos.667/2 and 668/2. It is also submitted that at no point of time, the notice under Section 135D was ever issued to the grandfather or father of the petitioners whose names, were available in the revenue record at the time of mutation of the entry no.438. It is also submitted that no sooner the petitioner came to know about the mutation of the entry no.438, than the petitioner approached the authorities challenging the same.
4.2 It is submitted that the grandfather of the petitioners, died on 13.2.1962 and therefore, the name of the father of the petitioners, was mutated in the revenue record vide entry no.110. It is also submitted that the father of the petitioners expired on 14.9.2006 and thereafter, the petitioners applied for mutation of the heirship entry in the revenue record. It is submitted that the entry no.438 was without any authority of law and therefore, nullity. The petitioners, upon knowledge, filed the appeal before the Deputy Collector, who without considering the explanation offered, rejected the same vide order dated 28.5.2012. The petitioners, being aggrieved, had also preferred a revision application, but the Collector also did not consider the fact that the transaction which was executed in the year 1948, was by the persons who had no authority to execute such transaction. The Collector did not entertain the revision application and confirmed the order passed by the Prant Officer certifying the entry no.438. Similarly, learned Page 4 of 10 Downloaded on : Sat Dec 24 09:39:58 IST 2022 C/SCA/20294/2021 ORDER DATED: 24/01/2022 SSRD, did not interfere with the revision application and held and observed that the petitioners, had challenged the entry after the delay of 63 years and in view of such a gross delay, the revision cannot be entertained. It is submitted that the revisional authority failed to appreciate that the transaction was itself a nullity and therefore, the application could not have been rejected on the ground of limitation. It is therefore submitted that all the authorities, did not consider the case of the petitioners properly and rejected the same only on the ground that entry is sought to be challenged after a period of almost 63 years.
5. Heard Mr.Hitesh N. Acharya, learned advocate appearing for the petitioners and considered the documents available on the record.
6. The present petition, has been filed challenging the order dated 28.05.2012 passed by the Prant Officer; order dated 03.07.2014 passed by the Collector and order dated 16.08.2017 passed by learned SSRD. All the three authorities, have concurrently held that there is a delay of 63 years on the part of the petitioners in approaching the authorities concerned. The entry sought to be challenged by the petitioners, is entry no.438 which was mutated in the revenue record on 5.4.1948. The Deputy Collector has observed that the entry no.438 concerns land bearing survey no.667/2 admeasuring H-2, A-31, 68 sq. mtrs. and land bearing survey no.668/2 admeasuring H-0, A-54, 63 sq. mtrs. It has been observed that the land admeasuring H-2, A-31, 68 sq. mtrs. has been vested in the State Government and out of which, H-0, A-28, 32 sq. mtrs. of land is running in the name of Ahmedabad Urban Development Authority. Similarly, so far as survey no.668/2 is concerned, H-0, A- 54, 63 sq. mtrs. is running in the name of Telecommunication Department. The Deputy Collector has also observed that the Page 5 of 10 Downloaded on : Sat Dec 24 09:39:58 IST 2022 C/SCA/20294/2021 ORDER DATED: 24/01/2022 transaction has been executed between Shri Qureshi Gulabbhai Hasanbhai and Imambhai Hasanbhai as seller and Prahladbhai Managbhai and Babubhai Prahladbhai have been shown as purchaser, and the entry reflects "owing to the promulgation". The Deputy Collector has set out the transactions in the order itself and was of the opinion that the transactions appear to be illegal. So far as the delay is concerned, the Deputy Collector, was of the opinion that entry no.438, has been challenged after a delay of 64 years. It has been also observed that the law, helps a person who is vigilant of his rights and for extending protection to them, and the appeal by the petitioners is barred by the limitation. If at all the petitioners are desirous of claiming their rights they can very well do it through the Civil Court. By observing thus, the Deputy Collector has rejected the appeal.
7. The petitioners have filed the revision application under the provisions of Rule 108(6) before the Collector. In the application for condonation of delay, in paragraph 12, the petitioners have tried to put an attempt to explain the delay. It has been stated in vernacular and free english translation would be that the entry has been mutated on the basis of the illegal documents. No notice under the provisions of Section 135D has ever been issued. It is also stated that the original owner of the land, is the petitioner and his sisters. The explanation put forth for the purpose of delay is that the petitioners and their father and grandfather were not aware about the mutation of the entry and it is only recently when the petitioners applied for the documents, the entry no.438, came to his knowledge and immediately, revision application has been filed. The Collector, considering the submissions advanced by the petitioners so also the replies of the respondent nos.6 and 7 therein, observed that the entry no.438 has been mutated in the revenue record as a result of the promulgation, with respect of survey nos.667/2 and 668/2, and Page 6 of 10 Downloaded on : Sat Dec 24 09:39:58 IST 2022 C/SCA/20294/2021 ORDER DATED: 24/01/2022 was certified. The revision application, has been filed almost after a period of 70 years and therefore, the application is barred by the limitation. The Collector, was also of the opinion that it would not be proper to condone gross delay inasmuch as, law helps the vigilant and not a person who sleeps over his/her rights.
8. In the revision application before learned SSRD, it was argued that the entry no.438, has been posted on the basis of an illegal document, which would be nullity and therefore, all the transactions would be non-effective and illegal and therefore, would be void ab initio. It was also the case of the petitioners that all the consequential entries, subsequent to entry no.438, deserve to be quashed and set aside. After considering the case, the learned SSRD concluded that the petitioners, have not been able to justify or had offered explanation for the delay which has been caused in approaching the authorities concerned. It has also been observed that the petitioners, have sought for numerous prayers and have challenged various entries and all the entries, would entail different cause of action and therefore, the common challenge cannot be made in one appeal. Learned SSRD, concluded that the appeal, is filed after almost 63 years and therefore, the delay which has been caused, is gross and cannot be condoned. The revision application also came to be rejected.
9. Brief reference, of the facts, is necessitated. The petitioners are aggrieved by the entry no.438 dated 05.04.1948. By the said entry, land bearing Survey Nos.667/2 and 668/2 were sold in favour of the private respondents. The grandfather of the petitioners passed away on 13.2.1962 and during his lifetime, he did not take any steps either challenging the entry no.438 or cancellation of the sale deed in favour of the private respondents. The father of the petitioners passed away on 14.9.2006, he also did not take any Page 7 of 10 Downloaded on : Sat Dec 24 09:39:58 IST 2022 C/SCA/20294/2021 ORDER DATED: 24/01/2022 steps either challenging the entry or the sale deed. No steps worth the name, have been either taken by the grandfather of the petitioners or by the father of the petitioners. The entry no.438 is existing since 1948 and is sought to be challenged in the year 2009. The only explanation offered, is in paragraph 12 of the revision memo (page 45), which is to the effect that recently, the petitioners got the copies of the sale transaction from the revenue record, and the petitioners came to know about the transaction and therefore, have filed the revision application; however, the explanation put forth is vague and stated, to be rejected.
10. The Court when confronted the learned advocate with the explanation offered, the learned advocate for the petitioners could not justify the delay. The petitioners have not been able to offer sufficient explanation in support of the delay in approaching the Deputy Collector in the first instance, Collector in the second and learned SSRD in the third. Under the circumstances, no error can be said to have been committed by all the authorities. In view of the concurrent findings of fact, having been arrived at by all the authorities, this Court is not inclined to entertain the writ petition.
11. The petition deserves to be dismissed on the ground of delay in approaching this Court, against the order dated 16.08.2017 as well. Pertinently, the petitioners, have challenged the orders of all the authorities and the order of learned SSRD is dated 16.08.2017; whereas, the petition has been filed as late as in the year January 2021. The explanation, offered is in paragraph 4.13, which reads thus:
"4.13 The petitioner respectfully submits that due to covid-19 Corona and present pandemic situation, there is delay in challenging the impugned order and there was communication gap between petitioner and his advocate petitioner could not approached to this Hon'ble Court immediately and there is no Page 8 of 10 Downloaded on : Sat Dec 24 09:39:58 IST 2022 C/SCA/20294/2021 ORDER DATED: 24/01/2022 malafide intention or deliberate attempt to delay the proceedings and hence this Hon'ble Court may be pleased to condone the delay caused in filing the present petition in the interest of justice. The petitioner states that the petitioner has got a good case on merits. All that the petitioner seeks is that the decision on merits of the case. Therefore also the condonation of delay would serve the ends of justice and hence, and be pleased to hear the same on merits."
12. The explanation offered, is that owing to Covid-19 hiatus, the petitioners could not approach this Court and therefore, there is a delay. It has also been stated that there was a communication gap between the petitioners and their advocates and therefore, immediately the order could not be challenged. In the opinion of this Court, the explanation was not sufficient and therefore, the learned advocate for the petitioners was required to explain the delay. The petitioners, have tried to put an attempt by amending the writ petition. The explanation now offered in paragraph 4.15, which reads thus:-
"4.15 The petitioner respectfully submits that after impugned order dated 16.08.2017, passed by the Secretary (Appeals), petitioner applied for certified copy on 12.09.2017. It is stated that certified copy of was received on 30.10.2017. It is submitted that thereafter applicant discussed with family members that whether to challenge to higher forum or not? Subsequently came to conclusion to approach higher forum to challenge the order impugned herein and then applicant waited for arrangement of money. Thereafter, the applicant has immediately in further course of action in challenging the aforesaid Judgment and Order and also intimated the Learned Advocate at Ahmedabad. It is submitted that immediately thereafter, the Learned Advocate at Ahmedabad and as per his instructions, they have contacted the Learned Advocate at Mehsana for collecting records of the case. It is submitted that this arrangement took longer time consumed from gathering records of the case from lower court and after collecting all those record and getting evidence of facts the appellant have contacted the Learned Advocate at Ahmedabad again and the aforesaid petition is filed at the earliest possible time. It is submitted that petitioner waited for that and not started proceeding till the date and hence, petitioner decided to challenge the impugned order dated 16.08.2017 of the Secretary (Appeals), but due to Corona Covid-19 and under such circumstances, petitioner could not preferred petition within limitation and hence delay was cause in filing present petition. It is submitted that Hon'ble Supreme Court took suo-Page 9 of 10 Downloaded on : Sat Dec 24 09:39:58 IST 2022
C/SCA/20294/2021 ORDER DATED: 24/01/2022 motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus. In computing the period of limitatio for any suit, appeal, application or proceeding, the period from 15.03.2020 till 14.03.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 15.03.2021. It is submitted that under the circumstances, delay cause in filing this petition which may be condoned in the interest of justice."
13. What has been stated is that the petitioners applied for certified copy on 12.09.2017 which was received on 30.10.2017 and it consumed some time in taking a decision and discussing with the family members, whether to challenge the order before the higher forum or not? It was only after the decision was taken by the family members that immediately the petitioners approached this Court. Such explanation offered is nothing but an afterthought and cannot be considered to be an explanation justifying the delay. Covid-19 hiatus has been reiterated. The same also cannot be accepted considering the fact that the order is of year 2017 and not of the year 2020. The delay from the year 2017 to year 2020 has remained unexplained. On this count as well the petition deserves to be dismissed.
14. In view of the aforementioned discussion, the petitioner has not made out any case for interference and therefore, the petition is dismissed in limine. No order as to costs.
(SANGEETA K. VISHEN, J) RAVI P. PATEL Page 10 of 10 Downloaded on : Sat Dec 24 09:39:58 IST 2022