Gujarat High Court
Legal Heirs Of Deceased vs State Of Gujarat & on 27 February, 2013
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
LEGAL HEIRS OF DECEASED MOTIJI JODHAJI SUTHARV/SSTATE OF GUJARAT C/SCA/406/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 406 of 2013 ================================================================ LEGAL HEIRS OF DECEASED MOTIJI JODHAJI SUTHAR & 4....Petitioner(s) Versus STATE OF GUJARAT & 3....Respondent(s) ================================================================ Appearance: MR HITESH N ACHARYA, ADVOCATE for the Petitioners MS ASMITA PATEL, ASSISTANT GOVERNMENT PLEADER for Respondents Nos.1 to 3 ================================================================ CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 27/02/2013 ORAL ORDER
By filing this petition under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for the issuance of a Writ of Certiorari, to quash and set aside the order dated 03.10.2012, passed by the Gujarat Revenue Tribunal ( the Tribunal for short) in Tenancy Revision No.TEN/BA/219/11 or, in the alternative, to remand the matter to the Tribunal for fresh hearing and reconsideration, on merits. By the impugned order, the Tribunal has rejected the revision application preferred by the petitioners, on the ground of delay.
Briefly stated, the facts of the case are that the petitioners are the heirs and legal representatives of deceased Motiji Jodhaji Suthar, who was the owner of the land bearing Survey No.557/1 admeasuring 04 Acres and 03 Gunthas, situated at Village: Lakhwad, Taluka and District:
Mehsana. During the Tenancy proceedings that took place, the father of respondents Nos.4/1 to 4/6 made a statement before the Mamlatdar and ALT, to the effect that he is not a tenant on the land in question and is not interested in purchasing the land. The Mamlatdar and ALT, thereafter, initiated suo-motu proceedings under Section 32(O) of the Bombay Tenancy and Agricultural Lands Act, 1948 ( the Act for short) and directed vesting of the land in the State Government, by order dated 31.03.1975. The father of the petitioners challenged the said order of the Mamlatdar and ALT, before the Deputy Collector, Mehsana. Vide order dated 24.09.1977, the Deputy Collector, Mehsana, confirmed the order of the Mamlatdar and ALT. The father of the petitioners expired on 30.05.2001. It is only thereafter, that the petitioners challenged the order dated 24.09.1977, before the Tribunal by filing the above-mentioned revision application. On the ground that the revision application had been filed after a delay of 34 years, and no weighty grounds for condonation of delay had been advanced by the petitioners, the Tribunal rejected the revision application. Aggrieved thereby, the petitioners have approached this Court by way of the present petition.
Mr.Hitesh N.Acharya, learned advocate for the petitioners, has submitted that the tenant was not interested in purchasing the land in question. The father of the petitioners, and now the petitioners, are in possession and cultivation of the land, till date. The petitioners were not in receipt of a copy of the order dated 24.09.1977, passed by the Deputy Collector, therefore, they applied for the same on 12.08.2011, and filed the revision application along with an application for condonation of delay. It is further submitted that the ground that the petitioners did not receive a copy of the order, is a ground that cannot be lightly brushed aside by the Tribunal, as has been held by this Court in Madhaji Kohyaji Zala (Decd.) Through His Heirs & LRS. v. Mangaji Ghelaji Parmar & Ors. - 2004(4) GLR 3456.
It is submitted that the petitioners have a good case on merits and as they are still in possession of the land in question, the impugned order dated 03.10.2012, passed by the Tribunal, may be quashed and set aside and the Tribunal may be directed to hear the matter afresh, on merits.
Ms.Asmita Patel, learned Assistant Government Pleader, has appeared on behalf of respondents Nos.1 to 3, on the supply of an advance copy of the petition. She has submitted that the order of the Mamlatdar and ALT dated 31.03.1975, was challenged unsuccessfully by the father of the petitioners before the Deputy Collector. The order of the Deputy Collector dated 24.09.1977, itself shows that copies of the said order have been sent to the parties, therefore, the ground that the petitioners were not aware of the said order is not tenable. It is further submitted that the father of the petitioners, till his death on 30.05.2001, did not challenge the order dated 24.09.1977 passed by the Deputy Collector. Ten years after the death of their father, the petitioners challenged the order of the Deputy Collector before the Tribunal, by filing an application for condonation of delay. Learned Assistant Government Pleader further contends that the ground pleaded in the application for condonation of delay, that the petitioners were not aware of the order of the Deputy Collector, is incorrect as per the record and as no sufficient cause has been shown by the petitioners for condonation of delay, the Tribunal has rightly rejected the revision application, on the ground of delay of 34 years. In support of her contentions, learned Assistant Government Pleader has placed reliance upon a judgment of the Supreme Court in the case of Ketan K.Parekh v. Special Director, Directorate of Enforcement and Anr. - AIR 2012 SC 683, I have heard learned counsel for the petitioners and learned Assistant Government Pleader for respondents Nos.1 to 3, perused the averments made in the petition, contents of the impugned order and other documents on record.
It is borne out from the facts of the present case, as emerging from the record, that a copy of the order dated 24.09.1977, passed by the Deputy Collector, has been sent to the father of the petitioners and the respondents. This is clear from the order itself. The father of the petitioners did not chose to challenge the said order, during his lifetime. It is only after about ten years had passed after his death, that the petitioners thought of raising a challenge to the order dated 24.09.1977. In short, the order of the Deputy Collector has been challenged before the Tribunal, after a period of 34 years.
In the application for condonation of delay preferred by the petitioners before the Tribunal, it is mentioned that the father of the petitioners has challenged the order of vesting of the land passed by the Mamlatdar on 31.03.1975, before the Deputy Collector. This shows that the petitioners were well aware of the pendency of the proceedings, but did not choose to prosecute the same diligently. It is clear from the averments made in the application for condonation of delay, that the petitioners applied for a certified copy of the order dated 24.09.1977, only on 12.08.2011. It is conveniently stated on behalf of the petitioners that they were not in receipt of the order of the Deputy Collector, even though their father, who had prosecuted the proceedings before the said authority never laid challenge to this order in his lifetime. A copy of the order has been sent to him and as he is no more, the petitioners cannot take the advantage of this position and say that it was not sent to him. The aspect whether the explanation offered by the petitioners carries weight, or not, would have to be judged in light of the facts and circumstances of the case.
Learned advocate for the petitioners has placed reliance upon Madhaji Kohyaji Zala (Decd.) Through His Heirs & LRS. v. Mangaji Ghelaji Parmar & Ors. (supra), wherein this Court, while dealing with a similar explanation, has held in the factual matrix of that case that such an explanation cannot be thrown away on the ground that it is not believable. Upon perusal of the judgment relied upon by the petitioners, it is clear that in that case, the Tribunal had insisted upon an explanation upon an affidavit from the petitioners therein. In the present case, there is no stipulation in the order of the Tribunal that the petitioners should file an affidavit in support of their contentions. A copy of the order dated 24.09.1977 has been sent to the father of the petitioners, as is clear from the said order itself. There is an endorsement below the order dated 24.09.1977 that copies of the order have been sent to the parties. As the fact situation in the present case is different from the fact situation in the case relied upon by the learned advocate for the petitioners, the said judgment would not be applicable to the facts of the present case.
The aspect that the petitioners have chosen to challenge the order of the Deputy Collector several years after the death of their father, who did not chose to do so in his own lifetime, is also another distinguishing feature in this case. From the averments made in the application for condonation of delay, it is clear that the petitioners were aware that their father, Motiji Jodhaji Suthar, had challenged the order dated 31.03.1975 passed by the Mamlatdar before the Deputy Collector. The petitioners were aware of the litigation as their father was alive till much after the order of the Deputy Collector was passed. It is clear that no action was taken by their father, in his lifetime or by the petitioners till after 10 years from his death, to challenge the said order. The ground of not being aware of the order, therefore, is not believable or convincing.
Insofar as the judgment in Ketan K.Parekh v. Special Director, Directorate of Enforcement and Anr. (supra), relied upon by learned Assistant Government Pleader is concerned, it appears to have been rendered in a different fact situation where the appellants prosecuted the remedy before the wrong forum. As such is not the case in the present petition, this judgment would not be applicable.
Though it is true that the Court would not take a technical view of the matter while dealing with cases regarding condonation of delay, it is incumbent upon the petitioners to show sufficient cause for condonation of the delay, which the petitioners have not been successful in doing in the present case. The explanation rendered by the petitioners is not tenable or borne out from the record. As such, it appears to be an afterthought.
The Tribunal has not entered into the merits of the case, but has rejected the application on the ground of delay of 34 years. It is specifically mentioned in the impugned order passed by the Tribunal that no weighty grounds have been shown by the petitioners for condonation of delay. Upon perusal of the material on record, especially the application for condonation of delay preferred by the petitioners before the Tribunal, this Court would agree with the findings of the Tribunal that no sufficient cause has been shown by the petitioners for condonation of the inordinate delay of 34 years. In this view of the matter, it cannot be said that the impugned order passed by the Tribunal suffers from any legal infirmity.
The petition is devoid of merit, and deserves to be rejected.
It is, accordingly, rejected.
(SMT. ABHILASHA KUMARI, J.) Sunil Page 11 of 11