Gujarat High Court
Bhagwanbhai Harmanbhai Padhiyar vs State Of Gujarat on 22 September, 2021
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/SCA/13613/2021 ORDER DATED: 22/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13613 of 2021
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BHAGWANBHAI HARMANBHAI PADHIYAR
Versus
STATE OF GUJARAT
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Appearance:
MR DILIP B RANA(691) for the Petitioner(s) No. 1
for the Respondent(s) No.
10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,3
3,34,34.1,34.2,34.3,34.4,34.5,35,36,4,5,5.1,5.2,5.3,5.4,5.5,6,7,7.1,7.2,8,9
MR ADITYASINH JADEJA ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 22/09/2021
ORAL ORDER
1. By way of this petition under Articles 226 and 227 of the Constitution of India filed on 18.09.2021, the petitioner has challenged the legality and validity of the concurrent decision delivered by the courts below. The prayers sought in the petition reads as under :-
"6(A) The Hon'ble Court be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, direction or order by quashing and setting aside the impugned order dated 27.04.2015 passed by the respondent no. 1 Tribunal whereby the revision application preferred by the petitioner is rejected and confirmed the order dated 27.03.2002 passed by the Deputy Collector, Dholka and rejected the order 16.12.1999 passed by the Mamlatdar Sanand in Ganot Case No. 1514 of 1995.
(B) Pending the final hearing and disposal of the petition, the Hon'ble Court be pleased to restrain the respondent private parties from disturbing the possession of the petitioner from the land in question as the petitioner is in possession of the agricultural land in question since last many decades and is cultivating the same as on date.Page 1 of 8 Downloaded on : Sun Oct 10 11:38:20 IST 2021
C/SCA/13613/2021 ORDER DATED: 22/09/2021 (C ) The Hon'ble Court be pleased to pass such other order or orders as may be deemed just and proper in the circumstances of the case including cost."
2. The facts which have given rise to the petition are that the petitioner is in possession and cultivating the agricultural land in question bearing Block/Survey No. 990 admeasuring 43.00 acres-gunthas located at Mouje Khoraj, Taluka Sanand and was declared as a tenant pursuant to the order passed by the Mamlatdar, Sanand in Ganot Case No. 1514 of 1995 under Section 70(b) of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the "Act"). By a common order dated 16.12.1999, the Mamlatdar and Krushipanch, Sanand disposed of various Tenancy cases under Section 70(b) of the Act, whereby the petitioner is declared as a tenant in Ganot Case No. 1514 of 1995. Accordingly, the revenue record is also mutated, but the respondent - Society filed Ganot Appeal No. 11 of 2000 before the Deputy Collector, Ahmedabad under Section 74 of the Act, which appeal came to be transferred for its disposal to the office of the Deputy Collector, Dholka Prant, which was numbered as Appeal No. 11 of 2000 (old) and 20 of 2000 (new). It is the case of the petitioner that without considering the documentary evidence available on record, appeal filed by the Society came to be allowed again by passing a common order on 27.03.2002, whereby the order passed by the Mamlatdar dated 16.12.1999 came to be quashed and set aside. A copy of the said order is not available to the petitioner as stated in para 3.4. It is further asserted that the petitioner and respondent nos. 34 to 36 preferred revision application before the Gujarat Revenue Tribunal at Ahmedabad being Revision Application No. TEN/BA/128 of 2002 on 24.05.2000 challenging the order passed by the Deputy Collector as stated before and by virtue of order dated 27.05.2002, interim protection was granted which operated till the disposal of the revision application. It is further the case of the petitioner that the Gujarat Revenue Tribunal passed the order whereby the revision application filed by the petitioner came to be Page 2 of 8 Downloaded on : Sun Oct 10 11:38:20 IST 2021 C/SCA/13613/2021 ORDER DATED: 22/09/2021 rejected and the order passed by the Deputy Collector came to be confirmed. It is the case of the petitioner that for quite some time, the petitioner was not within the knowledge of the said order and it is only when Manubhai Lalbhai Bharward (Chowkidar) restrained the petitioner from cultivating the land, a quarrel took place, which has resulted into filing of FIR on 03.07.2021 against the petitioner for the offences punishable under Sections 504, 506(2), 447 and 114 of the Indian Penal Code and after making an inquiry, according to the petitioner, it was then came to the knowledge of the petitioner about the impugned order and thereafter on 14.07.2021, a copy of the said order came to be obtained from the office of the Tribunal and upon legal advise, the petition came to be filed.
2.1. It is further the case of the petitioner that in between according to the petitioner on account of domestic problems right from December, 2015 due major accident and mental upset of state of affairs of the petitioner, his sister was hospitalized at Hi-Tech hospital at Gandhinagar for undergoing Knee replacement in the month of August, 2018 and also on account of pandemic situation as well, the petitioner could not approach this Court well in time. As a result of this, by way of this petition, filed in September, 2021 the petitioner has challenged the order dated 27.04.2015. With the aforesaid background, the present petition has come up for consideration before this Court.
3. Learned advocate Mr. Dilip Rana, appearing for the petitioner has contended that there is a sheer non application of mind on the part of the authority in dealing with the case of the petitioner. The authority below ought to have appreciated that the petitioner is in possession since long and is only cultivating the land uninterruptedly throughout and pursuant to the declaration as a tenant, the land is being occupied and as such, without considering these aspects in their proper perspective, when the Page 3 of 8 Downloaded on : Sun Oct 10 11:38:20 IST 2021 C/SCA/13613/2021 ORDER DATED: 22/09/2021 discretion is exercised by the courts below, the same appears to be perverse. As a result of this, the impugned orders are required to be quashed and set aside. Learned advocate Mr. Rana has submitted that long drawn litigation was not within the knowledge of the petitioner and the same is concluded way back in the year 2015. According to learned advocate Mr. Rana, nobody informed the petitioner. Had it be so prompt, steps could have been taken and apart from that the petitioner was already declared as a tenant by virtue of Section 70(b) of the Act and to that effect, not only the panchnama has been made, but necessary revenue record has also been prepared. When that be so, the authority below ought not to have ignored these material aspects and having not done so, the order suffers from vice of non application of mind. Learned advocate Mr. Rana has further submitted that the delay which has been apparently caused is on account of domestic problems which are already mentioned in the petition and as such, the delay may not come in the way of the petitioner in assailing the order impugned in the petition. No other submissions have been made.
4. Having heard the learned advocate for the petitioner and having gone through the order impugned in the petition, it clearly appears that the Tribunal which has passed the impugned order confirming the order passed by the Deputy Collector, and the same is in exercise of the discretion vested in Statute and after examining every issues of law as well as facts, and then arrived at a conclusion that no case is made out. A detailed discussion about the factual matrix which is clearly visible from the order impugned, it is not possible for this Court to construe the said exercise as perverse in any form. There appears to be an application of mind.
4.1. The conclusion which has been arrived at reflecting in last paragraph on page 28 in which there was no such representation made Page 4 of 8 Downloaded on : Sun Oct 10 11:38:20 IST 2021 C/SCA/13613/2021 ORDER DATED: 22/09/2021 before the Tribunal about the petitioner being "hidden Ganotia" nor any documentary material is adduced during the course of hearing. On the contrary, the registered agreement to sale deed dated 01.08.1994 which took place with the private respondent nos. 6 to 8 as said before the Tribunal by abundant caution, the said contention that if there is Ganotia in the land, the process to remove the same may be undertaken, but that contention according to the Tribunal is found to be not of much significance on the basis of which, the petitioner can be said to be or confirmed as a tenant, particularly, when the authorities below i.e. the Deputy Collector has also examined the issues and disposed of the appeal vide order dated 27.03.2002. No distinguishable material is produced before the Court to indicate that no other different conclusion is possible. Simply because the petitioner is in possession, the same would not be sufficient enough to grant the status of tenant to the petitioner particularly, when the authorities below have not believed the case on the basis of the very same material in exercise of extra ordinary jurisdiction. This Court is not inclined to substitute the findings so arrived at by the authorities below. In the absence of any patent illegality and material irregularity, it is hardly possible for this Court to just substitute the finding specifically to arrive at on the basis of the material on record after granting adequate opportunity to the petitioner.
4.2. Apart from that, it appears to this Court that the present petition has been filed in the month of September, 2021 for challenging the decision which has been taken way back on 27.04.2015 by making general assertion for justifying the delay. Such attempt appears to be too general in form and the petitioner is not in a position to convince the Court about the delay. Belated writ petition is normally not to be entertained, particularly, when there are no justifiable reasons assigned and, as such keeping in view the doctrine of laches, the Court is not inclined to exercise equitable jurisdiction, particularly, when the authorities below have concurrently not accepted the stand of the petitioner and there is no Page 5 of 8 Downloaded on : Sun Oct 10 11:38:20 IST 2021 C/SCA/13613/2021 ORDER DATED: 22/09/2021 distinguishable material placed for consideration of this Court. As a result of this, no case is made out by the petitioner.
4.3 At this stage, the Court would like to refer to few decisions delivered by the Hon'ble Supreme Court in the case of Karnataka Power Corporation Ltd., through its Chairman & Managing Director and Another Vs. K. Thaangappan And Another reported in (2006) 4 SCC
322., wherein the principle of delay and laches is well explained. The Court would like to reproduce the same hereunder :-
"6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports (AIR 1970 SC 769). Of course, the discretion has to be exercised judicially and reasonably.
7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurd etc. (1874 (5) P.C. 221 at page 239) was approved by this Court in Moon Mills Ltd. v. Industrial Courts (AIR 1967 SC 1450) and Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service (AIR 1969 SC 329). Sir Barnes had stated:
"Now, the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere Page 6 of 8 Downloaded on : Sun Oct 10 11:38:20 IST 2021 C/SCA/13613/2021 ORDER DATED: 22/09/2021 delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation with Article 32 of the Constitution. It is apparent that what has been stated as regards that Article would apply, a fortiori, to Article 226. It was observed in R.N. Bose v. Union of India (AIR 1970 SC 470) that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.
9. It was stated in State of M.P. v. Nandlal (AIR 1987 SC
251), that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction."
Page 7 of 8 Downloaded on : Sun Oct 10 11:38:20 IST 2021C/SCA/13613/2021 ORDER DATED: 22/09/2021 4.4. Additionally, on the basis of the aforesaid peculiar set of circumstances, apart from the order passed by the Tribunal, even the conclusion arrived at by the Deputy Collector is also not possible to be unnoticed by this Court which conclusion is based upon the analysis of the material on record, reflecting on page 73/B.
5. Upon overall consideration of the discussion made herein before would not permit the Court to exercise extra ordinary equitable jurisdiction. The law on the issue of exercise of extra ordinary equitable jurisdiction is well explained by catena of decision. Hence, the petition does not deserves to be entertained. On this issue, a reference is made by this Court to a decision delivered by the Hon'ble Apex Court in the case of Sameer Suresh Gupta Through Holder v. Rahul Kumar Agarwal reported in (2013) 9 SCC 374, and the relevant observations contained in para 6 and 7.
6. Thus, keeping in view the aforesaid observations in mind, since no case is made out by the petitioner warranting this Court to exercise jurisdiction, the petition stands dismissed with no order as to costs. Notice is discharged.
(ASHUTOSH J. SHASTRI, J) phalguni Page 8 of 8 Downloaded on : Sun Oct 10 11:38:20 IST 2021