Gujarat High Court
Nathabhai Fakirbhai Patel Since Decd. ... vs Chandrakant Kuvarji Brahmbhatt, Since ... on 10 December, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/10325/1999 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10325 of 1999
With
CIVIL APPLICATION NO. 1 of 2006
With
CIVIL APPLICATION NO. 1 of 2017
With
CIVIL APPLICATION NO. 1 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order
NO
made thereunder ?
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NATHABHAI FAKIRBHAI PATEL SINCE DECD. THRO HEIRS & L.RS.
Versus
CHANDRAKANT KUVARJI BRAHMBHATT, SINCE DECD. THROUGH
LEGAL HEIRS
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Appearance:
MR MC BHATT(175) for the PETITIONER(s) No. 1,1.1,1.2,1.3,1.4,1.5,2,2.1,2.2,2.3,3,4,5
for the RESPONDENT(s) No. 9
DECEASED LITIGANT(100) for the RESPONDENT(s) No. 1
MR HARDIK SONI, AGP(1) for the RESPONDENT(s) No. 2,3,4,5,6
MR YN RAVANI(718) for the RESPONDENT(s) No. 7,8.1,8.2,8.3,8.4
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR.PARTH CONTRACTOR(7150) for
the RESPONDENT(s) No. 1.1,1.2,1.3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 10/12/2018
ORAL JUDGMENT
1 By this writ application under Article 226 of the Constitution of Page 1 of 23 C/SCA/10325/1999 JUDGMENT India, the writ applicants have prayed for the following reliefs:
"14(A) That Your Lordships be pleased to issue a writ of certiorari or any other appropriate writ or order quashing and setting aside the impugned judgment and order AnnexureQ dated 171299 passed by learned Additional Chief Secretary, Land Revenue (Appeals) in Revision Application No.37/97.
(B) Pending admission and final disposal of this petition, further proceedings in pursuance of judgment and order AnnexureQ dated 1712 99 passed by learned Additional Chief Secretary, Land Revenue (Appeals) in Revision Application No.37/97 may be stayed.
(C) Any other relief deemed fit to meet the ends of justice."
2 I take notice of the fact that this writ petition was heard and disposed of by a learned Single Judge of this Court vide judgment and order dated 2nd May 2014. The judgment and order dated 2nd May 2014 is reproduced hereinbelow:
"1.0. By way of this petition under Articles 226 & 227 of the Constitution of India, the petitioners have prayed for appropriate writ, direction and order quashing and setting aside the impugned judgment and order dated 17.12.1999 passed by the learned Additional Chief Secretary (Appeals), Revenue Department passed in Revision Application No. 37 of 1997 (Annexure Q), by which, the learned Revisional Authority Secretary (Appeals) has allowed the said revision application preferred by the respondent no.1 herein Chandrakant Kuvarji Brahmbhatt claiming to be the heir of deceased Bai Kusumben widow of Chimanlal Harishankar and has quashed and set aside the mutation entry no.27 dated 5.8.1953 and also quashed and set aside the subsequent consequential mutation entry nos. 42, 118 and 422.
2.0. Civil Application No. 6523 of 2000 has been preferred by the applicant of the said application permitting him to be joined as party respondent in Special Civil Application alleging inter alia that he has purchased the land in question for a consideration of Rs.51,000/ from the Page 2 of 23 C/SCA/10325/1999 JUDGMENT deceased Kusumben Chimanlal Acharya was to be in possession of deceased Kusumben Chimanlal Acharya since 27.9.1971 and therefore, he is vitally interested party to the litigation inasmuch as any decision which might be rendered in the present Special Civil Application would affect the civil rights.
2.1. Civil Application No.2861 of 2013 has been preferred by one Rajeshkumar Sharadchandra Patel through his power of attorney holder Kanjibhai Bavabhai Sakariya permitting him to be joined as party respondent in the present Special Civil Application by submitting that any decision in the present Special Civil Application is likely to affect his rights in the land in question.
3.0. The facts leading to the present Special Civil Application in nutshell are as under:
3.1. That mutation entry no.27 dated 5.8.1953 was made in the revenue record with respect to the disputed land in question mentioning the auction of land in question in favour of one Nathabhai Fakirbhai, auction by Sales Tax Department for arrears of sales tax of one Jubilee Construction Company Limited Managing Director Chimanlal Harishankar Acharya. That thereafter, mutation entry no.42 was made mutating name of Nathabhai Fakirbhai on the basis of sale deed executed in his favour and on the basis of auction of the land in question for arrears of sales tax, the said entry no.42 was mutated on 9.6.1957. It appears that thereafter vide entry no.118 dated 30.10.1955 which came to be certified on 9.6.1956 on the basis of partition between the brothers, name of Nathabhai Fakirbhai and Manubhai Fakirbhai were mutated. That thereafter, further entry came to be made on 4.2.1970. It appears that in the year 1995 Kusumben widow of Chimanlal Acharya executed a Will in favour of respondent no.1 herein Chandrakant Kuvarji Brahmbhatt and bequeathed the land in question and / or given the lands in question to Chandrakant Kuvarji Brahmbhatt. It appears that thereafter, respondent no.1 herein Chandrakant Kuvarji Brahmbhatt applied for probate by filing Probate Miscellaneous Application No.208 of 1996 and the probate was issued / granted in favour of the said Chandrakant Kuvarji Brahmbhatt. It appears that immediately thereafter the said Chandrakant Kuvarji Brahmbhatt challenged the mutation entry numbers 27, 42, 118 and 422 before the learned Deputy Collector, Vadodara under Section 108(5) of the Bombay Land Revenue Code and the said appeal came to be dismissed by the learned Deputy Collector, Vadodara by order dated 22.4.1997 on the ground of limitation.
3.2. Feeling aggrieved and dissatisfied with the order passed by the learned Deputy Collector, Vadodara, the said Chandrakant Kuvarji Brahmbhatt preferred Revision Application No.123 of 1997 before the learned Collector, Vadodara which also came to be dismissed by the Collector, Page 3 of 23 C/SCA/10325/1999 JUDGMENT Vadodara vide order dated 11.08.1997.
3.3. Feeling aggrieved and dissatisfied with the orders passed by the learned Deputy Collector, Vadodara as well as Collector, Vadodara, the said Chandrakant Kuvarji Brahmbhatt preferred Revision Application No.SRD/37/1997 and by impugned judgment and order, the learned Revisional Authority has allowed the said revision application and quashed and set aside the aforesaid mutation entries no. 27,42,118 and
422. Hence, petitioners heirs of Nathabhai Fakirbhai have preferred present Special Civil Application under Articles 226 & 227 of the Constitution of India.
4.0. Shri Vikram Thakore, learned advocate for the petitioners has vehemently submitted that the learned Revisional Authority Secretary (Appeals), Revenue Department, State of Gujarat has materially erred in quashing and setting aside the mutation entry no. 27 dated 5.8.1953 after a period of almost 40 years. It is further submitted that even after the mutation entry no.27 dated 5.8.1953, there were further mutation entries between the brothers of the Nathabhai Fakirbhai and himself and during the lifetime of Kusumben widow of Chimanlal Harishankar even did not challenge any of the entries. It is submitted that therefore, at the instance of Chandrakant who is claiming through Kusumben widow of Chimanlal Harishankar the Revisional Authority has materially erred in quashing and setting aside the mutation entry no.27 which was made in the year 1953.
4.1. It is further submitted that the learned Deputy Collector as well as Collector rightly rejected the appeal / revision application on the ground of limitation. It is submitted that even on the ground of delay and laches also the learned Revisional Authority ought not to have set aside the mutation entry no.27 and other subsequent mutation entries.
4.2. It is further submitted that even the sale in favour of the Nathabhai Fakirbhai on the basis of auction held by Sales Tax Department in the year 1953 has not been challenged by any of the parties and therefore, so long as the sale deed in favour of Nathabhai Fakirbhai stand and / or does not challenge name of Nathabhai Fakirbhai is required to be mutated in the revenue record and therefore, also learned Revisional Authority ought not to have set aside the mutation entry no.27 and the subsequent mutation entries.
4.3. Making above submissions, it is requested to allow the present petition.
5.0. Present petition is opposed by Shri Manav Mehta, learned advocate for the respondent no.1 herein. Present petition is also opposed by Shri Joshi, learned advocate for applicant of Civil Application No.6523 of 2000 Page 4 of 23 C/SCA/10325/1999 JUDGMENT as well as Shri Mangukiya, learned advocate for applicant of Civil Application No.2861 of 2013. Shri Manav Mehta, learned advocate for the respondent no.1 has submitted that as the learned Revisional Authority has specifically found that in the facts and circumstances of the case and when it is alleged that there is a fraud committed and even the orders of auction in the year 1953 and / or even the so called dues of Jubilee Construction Private Limited Managing Director Chimanlal Harishankar Acharya are not available, the learned Revisional Authority has rightly quashed and set aside the order passed by the learned Deputy Collector dismissing the appeal on the ground of limitation confirmed by the learned Collector. It is submitted therefore, in the facts and circumstances of the case, no error and / or illegality has been committed by the learned Revisional Authority and therefore, it is requested to dismiss the present petition. Applicant of Civil Application No. 6523 of 2000 and applicant of Civil Application No.2861 of 2013 are also claiming right, title or interest in the disputed land in question and therefore, they have submitted application for joining party in the present proceedings and they have also supported the respondent no.1 herein.
6.0. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that mutation entry no. 27 mentioning auction of the disputed land in question by the Sales Tax Department for the dues of Jubilee Construction Private Limited Managing Director Chimanlal Harishankar Acharya has been made in the year 1953. That thereafter on the basis of sale deed executed in favour of Nathabhai Fakirbhai who has purchased the land in question in auction is mutated in the revenue record in the year 1953 and the same also came to be certified. That thereafter, further entries have been made in the year 1956 and 1972. It is required to be noted that during the lifetime of Kusumben widow of Chimanlal Harishankar did not challenge the aforesaid mutation entry. It appears that thereafter respondent no.1 herein claiming to be the successor on the basis of Will executed by Kusumben widow of Chimanlal Harishankar executed in the year 1996 challenging the aforesaid mutation entry after a period of approximately 40 years by way of appeal before the learned Deputy Collector and the learned Deputy Collector dismissed the said appeal on the ground of limitation and the same came to be confirmed by the learned Collector. However on further revision, Revisional Authority Secretary, Revenue Department, State of Gujarat has quashed and set aside the aforesaid two orders and quashed and set aside the mutation entry nos. 27,42,118 and 422, more particularly, mutation entry no. 27 which was made in the year 1953. The learned Revisional Authority has materially erred in quashing and setting aside the mutation entry after a period of 40 years. The learned Revisional Authority has not properly appreciated the fact that as such Kusumben widow of Chimanlal Harishankar during her lifetime did not challenge the aforesaid mutation entry. The learned Revisional Authority also has not properly appreciated the fact that even nobody has challenged the sale in favour of Nathabhai Page 5 of 23 C/SCA/10325/1999 JUDGMENT Fakirbhai on the basis of which mutation entry was made in the year 1953. The learned Revisional Authority has materially erred in quashing and setting aside the order passed by the learned Deputy Collector dismissing the appeal on the ground of limitation which came to be confirmed by the Collector. The learned Deputy Collector rightly dismissed the appeal on the ground of limitation as the appeal challenging the mutation entry no.27 and other subsequent entries were challenged after a period of approximately 40 years. The order passed by the learned Deputy Collector confirmed by the Collector rejecting the appeal on the ground of limitation and / or on the ground of delay and laches was absolutely in consonance with law laid down by the Honble Supreme Court as well as this Court in catena of decisions. Under the circumstances, the impugned judgment and order passed by the learned Revisional Authority deserve to be quashed and set aside.
7.0. Now, so far as the contention on behalf of the respective respondents and even the applicant of Civil Application No.6523 of 2000 as well as applicant of Civil Application No.2861 of 2013 that there was a fraud committed and / or respondent no.1 has acquired the right, title and interest in the land in question on the basis of Will executed by Kusumben widow of Chimanlal Harishankar for which probate has been issued in his favour and that there was no arrears of sales tax of Jubilee Construction Private Limited Managing Director Chimanlal Harishankar Acharya and in fact there was no auction taken place and / or name of Nathabhai Fakirbhai was wrongly mutated in the revenue record is concerned, at the outset it is required to be noted that apart from the fact that the mutation entry was challenged after a period of 40 years and even nobody has challenged the so called auction and / or sale of the land in question in auction in favour of Nathabhai Fakirbhai on the basis of which mutation entry was made in the year 1953. It cannot be disputed and even as per the settled proposition of law, the mutation entry is only for the fiscal purpose and if anybody has grievance with respect to title, he is required to approach the Civil Court and on the basis of decree that may be passed by the Civil Court necessary mutation entry is required to be made. As per the settled proposition of law merely on the basis of mutation entry nobody can claim any right, title or interest in the land in question. In the present case, the dispute is with respect to mutation entry which was made in the year 1953. The learned Revisional Authority has materially erred in quashing and setting aside the mutation entry after a period of approximately 40 years, more particularly, when during the lifetime of widow of original land owner Kusumben widow of Chimanlal Harishankar Acharya did not challenge the mutation entries in question.
8.0. In view of the above and for the reasons stated above, present petition succeed. The impugned order dated 17.12.1999 passed by the learned Additional Chief Secretary (Appeals), Revenue Department passed in Revision Application No. 37 of 1997 is hereby quashed and set aside and Page 6 of 23 C/SCA/10325/1999 JUDGMENT the order passed by the learned Deputy Collector as well as learned Collector are hereby restored and consequently mutation entries no. 27, 42, 118 and 422 are hereby ordered to be restored. Rule is made absolutely to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. In view of disposal of main Special Civil Application, Civil Application No. 6523 of 2000 and Civil Application No. 2861 of 2013 stand disposed of."
3 It also appears that thereafter, a Miscellaneous Civil Application (for review) No.1586 of 2015 was filed by the original respondent No.7. The said review application came to be rejected vide order dated 26th June 2015. The order is reproduced hereinbelow:
"[1.0] Present application has been preferred by the applicant herein original respondent No.7 requesting to review and recall the judgment and order passed by this Court in Special Civil Application No.10325/1999.
[2.0] At the outset it is required to be noted that in the main Special Civil Application, the dispute was with respect to mutation entry No.27 dated 05.08.1953 and the subsequent consequential mutation entry Nos.42, 118 and 422 with respect to the land in question. That the original respondent No.1 Chandrakant Kunverji Brahmbhatt claiming to be the heir of Kusumben widow of Chimanlal Harishanker Acharya challenged the aforesaid mutation entries after a period of approximately 40 years and the revisional authority allowed the revision application and quashed and set aside the mutation entry No.27 dated 05.08.1953 and the subsequent consequential mutation entry.
[3.0] Feeling aggrieved and dissatisfied with the order passed by the Revisional Authority, the original petitioner Nathabhai Fakirbhai Patel (on his death, his heirs) preferred the aforesaid Special Civil Application and by the detailed judgment and order and by further observing that the mutation entries could not have been challenged after a period of approximately 40 years when the original petitioner did not challenge the same. This Court also observed and held that even otherwise the mutation entry does not confer any right, title or interest solely on the basis of the mutation entry and an aggrieved party has to approach the Civil Court for crystallizing their rights and on the basis of the degree that decree that may be passed, a mutation entry can be made. By making observations this Court allowed the aforesaid special civil application which is sought to be reviewed by the applicants herein original respondent No.7.
[4.0] It is required to be noted that as such so far as the applicants are Page 7 of 23 C/SCA/10325/1999 JUDGMENT concerned, they never challenged the mutation entries and it was Chandrakant Kunverji Brahmbhatt who challenged the said mutation entry that too after a period of 40 years. Under the circumstances, as such it is not appreciable how the applicants herein can prefer the present review application.
[5.0] Even otherwise there is no error apparent on the face of the record pointed out by the learned advocate appearing on behalf of the applicants. By the judgment and order this Court allowed the Special Civil Application. Under the circumstances, no case is made out to review / recall the judgment and order passed by this Court in Special Civil Application No.10325/1999. Under the circumstances, present application deserves to be dismissed and is, accordingly, dismissed."
4 It further appears that thereafter, a second review application was filed being Miscellaneous Civil Application No.839 of 2016 by the heirs and legal representatives of the original respondent No.1. The second review application was filed on the premise that the heirs and legal representatives of the original respondent No.1 were not brought on record at the relevant point of time, and in their absence, the matter was heard. The second review application referred to above came to be allowed vide order dated 5th May 2016 in the following terms:
"1.00. Present application has been preferred by the applicants herein heirs and legal representatives of the original respondent No.1 for an appropriate order to recall and review order dated 2/5/2014 passed by this Court in Special Civil Application No.10325 of 1999, by which this Court has allowed the said Special Civil Application preferred by the respondent Nos.1 to 5 herein.
2.00. It is the case on behalf of the applicants that the applicants are heirs and legal representatives of the original respondent No.1. It is the case on behalf of the applicants that original respondent No.1 has died / expired on 24/3/2011 and without bringing the applicants heirs of the original respondent No.1 on record and without giving an opportunity to the heirs, the order has been passed in the main Special Civil Application on 2/5/2014. Therefore, it is the case on behalf of the applicants that the order has been passed by this Court in the aforesaid main Special Civil Application against the dead person.Page 8 of 23
C/SCA/10325/1999 JUDGMENT 2.01. It is also the case on behalf of the applicants through Ms.Trusha Patel, learned advocate appearing on behalf of the applicants that as such, the original petitioners were aware of the death of the original respondent No.1 on 24/3/2011, as in the probate application pending before the learned trial court, death of the original respondent No.1 was declared and even the original petitioners also brought on record the applicants herein as his heirs. It is submitted that despite the above, no steps were taken by the original petitioners to bring the heirs of the original respondent No.1 on record. It is submitted that, therefore, when the order has been passed against the dead person, the same can be said to be nullity. Therefore, it is requested to allow the present application and recall and review the order dated 2/5/2014 passed in the main Special Civil Application and restore the aforesaid petition to file and pass appropriate order on merits after giving an opportunity to the applicants, being heirs of the original respondent No.1.
3.00. Present application is vehemently opposed by Mr.Vikram Thakor, learned advocate appearing on behalf of the original petitioners. It is vehemently submitted by Mr.Thakor, learned advocate appearing on behalf of the original petitioners that as such even the learned advocate appearing on behalf of the original respondent No.1 did not bring it to the notice of the learned advocate appearing on behalf of the original petitioners with respect to the death of the original respondent No.1. It is submitted that even the learned advocate appearing on behalf of the original respondent No.1 also made submissions on merits and thereafter the order has been passed by this Court dated 2/5/2014.
3.01. Mr.Thakor, learned advocate appearing on behalf of the original petitioners has also tried to submit the case on merits of the main Special Civil Application.
However, in the present application preferred by the heirs of the original respondent No.1, merits of the main Special Civil Application is not required to be considered and therefore, this Court is not considering the merits of the main Special Civil Application.
3.02. Mr.Thakor, learned advocate appearing on behalf of the original petitioners has further submitted that even no steps were taken by the applicants herein heirs of the original respondent No.1 to bring them on record. It is submitted that as such present application can be said to be second innings. It is submitted that earlier respondent Nos.7 and 8 herein, who also claimed to be owners on the basis of the Will, had preferred Misc.Civil Application No. 1586 of 2015 for the very prayer which is sought in the present application and this Court has dismissed the said application vide detailed order dated 26/6/2015. It is submitted that thereafter, present application has been preferred by the applicants herein. It is submitted except change in the cause title, there is no change in the present review application and the review application preferred by the Page 9 of 23 C/SCA/10325/1999 JUDGMENT respondent Nos.7 and 8 herein. It is submitted that in the said application preferred by the respondent Nos.7 and 8, this Court has specifically observed that there is no error apparent on the face of the record. It is submitted that, therefore, present application is required to be dismissed.
3.03. Mr.Thakor, learned advocate appearing on behalf of the original petitioners has relied upon the decision of the Hon'ble Supreme Court in the case of K. Naina Mohammed Versus A.M. Vasudevan Chettiar, reported in (2010) 7 SCC 603. It is submitted that in the present case also, the estate was represented and therefore, the order passed by this Court in the main Special Civil Application is not required to be recalled and/or reviewed at the instance of the applicants.
3.04. Mr.Thakor, learned advocate appearing on behalf of the original petitioners has also relied upon the decision of the Hon'ble Supreme Court in the case of Dr.Somayajulu, Secretary and others Versus Attili Appala Swamy and others, reported in (2015) 2 SCC 390.
3.05. Mr.Thakor, learned advocate appearing on behalf of the original petitioners has also relied upon the following decisions of the Hon'ble Supreme Court in support of his submission that no case is made out to recall and review the order passed in the main Special Civil Application, as there is no mistake or error apparent on the face of the record, because, at the time of hearing of the main Special Civil Application, the learned advocate appearing on behalf of the original respondent No.1 was heard on merits : [1] Parsion Devi and others Versus Sumitri Devi and others, reported in (1997) 8 SCC 715;
[2] Bhawana Narulla (Ms) and others Versus Manju Chaudhary (Ms) and others, reported in (1996) 2 SCC 205;
[3] State of Kerala and others Versus P.T. Thomas, reported in (2005) 12 SCC 347 and [4] Orissa Hydro Power Corn. Ltd. Versus Santwant Singh Gill, reported in (2006) 9 SCC 663;
Making above submissions and relying upon above decisions it is requested to dismiss the present application.
4.00. Heard the learned advocates appearing on behalf of the respective parties at length.
4.01. At the outset, it is required to be noted that this Court disposed of the main Special Civil Application vide judgement and order dated 2/5/2014. It is also not in dispute that the original respondent No.1 died on 24/3/2011 i.e. much prior to disposal of the main Special Civil Application. That thereafter present application has been preferred by the applicants herein heirs and legal representatives of the original respondent Page 10 of 23 C/SCA/10325/1999 JUDGMENT No.1 on 16/4/2015. It is an admitted position that when this Court allowed the main Special Civil Application vide judgement and order dated 2/5/2014, heirs of the original respondent No.1 were not brought on record. It cannot be disputed that as such it was for the original petitioners to bring the heirs of the original respondent No.1 on record. It appears from the proceedings that the original petitioners were aware about the death of the original respondent No.1, as the same was declared in probate proceedings pending before the learned trial court and even the applicants were brought on record as heirs in the said proceedings. Therefore, it was for the original petitioners to bring the heirs of the original respondent No.1 on record. It appears that neither of the advocates brought to the notice of the Court with respect to the death of the original respondent No.1. By the judgement and order dated 2/5/2014, this Court allowed the main Special Civil Application and passed order in favour of the original petitioners and against the respondent No.1. Therefore, the order passed by this Court in the main Special Civil Application dated 2/5/2014 is against the dead person and as such can be said to be nullity.
4.02. Now, so far as the contention on behalf of the original petitioners that even the applicants did not take steps to bring them on record is concerned, it is required to be noted that as such it was for the original petitioners to bring heirs of the original respondent No.1 on record. It is true that sometimes death with names of the legal heirs is required to be intimated. Still duty is cast upon the original petitioners to bring the heirs of the deceased respondent on record and if there is no intimation with respect to the death of the deceased respondent with the names of the heirs, limitation would start from the date of knowledge. However, it is for the original petitioners to bring the heirs of the deceased respondent on record.
4.03. Now, so far as the submission on behalf of the original petitioners that the review application preferred by the respondent Nos.7 and 8 has been dismissed by this Court in which the respondent Nos.7 and 8 herein sought to recall and review the very order on the very ground is concerned, on considering the order passed by this Court in the application preferred by the respondent Nos.7 and 8 herein, it appears that the said Misc.Civil Application No. 1586 of 2015 was dismissed vide order dated 26/6/2015 mainly on the ground of their locus, as earlier at no point of time they challenged the mutation entry which was the subject matter of the main Special Civil Application. In the said order though this Court has observed that no case is made out to recall and review the order, however, the same shall not affect the case of the applicants herein, when they contended that the order in the main Special Civil Application has been passed against the dead person. Their application is required to be considered independently and on its own merits.
4.04. Now, so far as the submission on behalf of the original petitioners Page 11 of 23 C/SCA/10325/1999 JUDGMENT that as the estate was represented, the order is not required to be recalled and reviewed is concerned, the aforesaid has no substance. None of the heirs of the original respondent No.1 were on record. Therefore, it cannot be said that the estate was represented.
4.05. Now so far as reliance placed upon the decision of the Hon'ble Supreme Court in the case of K. Naina Mohamed (supra) is concerned, on facts, the said decision shall not be applicable to the facts of the case on hand. In the said decision the Hon'ble Supreme Court observed that the estate was sufficiently represented by successorininterest, though not by natural legal representative of deceased party. Therefore, on facts, the said decision shall not be of any assistance to the original petitioners.
4.06. Similarly, the other decisions which are referred to hereinabove and relied upon by the learned advocate appearing on behalf of the original petitioners shall not be applicable to the facts of the case on hand. As observed hereinabove, order in main Special Civil Application has been passed against the dead person and therefore, the same can be said to be nullity.
5.00. In view of the above and for the reasons stated above, the order passed by this Court in main Special Civil Application No. 10325 of 1999 dated 2/5/2014 is hereby recalled, as the same is against the dead person i.e. original respondent No.1 and the said main Special Civil Application is hereby ordered to be restored to file.
Now, on a formal application to be filed either by the original petitioners or by the applicants herein heirs of the original respondent No.1, to be preferred within six weeks from today, the applicants herein be brought on record as heirs of the original respondent No.1 in the main Special Civil Application and thereafter appropriate order be passed in the main Special Civil Application in accordance with law and on merits.
All the contentions and defences which may be available to the respective parties are kept open to be considered in accordance with law and on merits.
Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs."
5 Let me put the facts of this case in brief. The disputed land was purchased by one Jubilee Construction Company Limited. The purchase was by way of a registered sale deed from its original owner. It is the case of the writ applicants herein that the Jubilee Construction Company Limited defaulted in payment of the tax dues. In such circumstances, the property was attached and put to auction. The petitioners participated in Page 12 of 23 C/SCA/10325/1999 JUDGMENT the auction and were declared as the highest bidders. The possession of the property was handed over to the petitioners by the concerned authority. It is also the case of the petitioners that since then they are cultivating the disputed land. The respondent No.1, claiming to be the heir and legal representative of the then Managing Director of the Jubilee Construction Company Limited, initiated RTS proceedings against the petitioners.
6 At this stage, Mr. M.C. Bhatt, the learned counsel appearing for the writ applicants clarified that on the demise of the Managing Director, the wife of the Managing Director namely Kusumben executed a 'will' dated 4th May 1995 and a second 'will' dated 13th June 1995. The second 'will' dated 13th June 1995 is a registered 'will'. The respondent No.1 is a legatee in the 'will' dated 4th May 1995. The respondent No.7 is a legatee in the 'will' dated 13th June 1995. Later, the respondent No.7 preferred an application seeking probate, and in those proceedings, the petitioners as well as the respondent No.1 raised objections, and in such circumstances, those proceedings were, thereafter, ordered to be treated as a regular civil suit. The proceedings, thereafter, came to be registered as the Kirkol Application No.425 of 1999. The suit proceedings, as on date, are pending in the Court of the Principal Senior Civil Judge, Vadodara. Mr. Bhatt, the learned counsel submitted that the property was of the ownership of Jubilee Construction Company and Chimanbhai was the only Managing Director. Mr. Bhatt submitted that the property of the company is not inherited by the Managing Director, and therefore, the wife of Chimanbhai namely Kusumben was not the owner of the property.
7 The rest of the facts are as under:
Page 13 of 23C/SCA/10325/1999 JUDGMENT "On 22nd June 1996, the Jubilee Construction Company Limited purchased disputed land from its original owner Jethabhai Patel by registered sale deed.
On 26th December, 1952, the disputed land was put to auction since Jubilee Construction Company Limited was defaulter in payment of tax dues.
On 11th April 1953, the petitioner No.1 was handed over possession of the disputed land.
On 5th August 1953, the entry posted in Form 6 substituting the name of the petitioners.
On 12th September 1969, Chimanlal H. Acharya, the Managing Director of Jubilee Construction Company Ltd. died.
On 19th May 1995, Kusumben widow of Chimanlal Acharya executed alleged will.
On 5th September 1995, the Deputy Collector rejected the appeal prepared by the respondent No.1 on the ground of limitation.
On 16th August 1997, The District Collector rejected revision application and confirmed the order of the Deputy Collecter.
On 17th December 19999, the Additional Chief Secretary set aside the orders dated 22th April 1996 and 16th August 1997 passed by the Deputy Collector and the District Collector respectfully and remanded the matter back to the Deputy Collector."
Page 14 of 23C/SCA/10325/1999 JUDGMENT 8 Thus, it appears from the materials on record that as asserted by
the petitioners, the property in question was put to auction way back in the year 1953. Since the petitioners claim to be the purchasers of the property in question, the names came to be entered in the revenue records by entry No.27 dated 5th August 1953.
9 The entry No.27, which came to be posted in the Form 6 substituting the names of the petitioners dated 5th August 1953, came to be challenged for the first time by the respondent No.1 by preferring an appeal before the Deputy Collector in the year 1997. The Deputy Collector declined to entertain the appeal solely on the ground of gross delay of almost forty years. The respondent No.1, being dissatisfied with the order passed by the Deputy Collector, preferred a revision application before the Collector. The Collector also declined to interfere with the order passed by the Deputy Collector on the ground of gross delay. The matter reached before the Special Secretary of the Revenue Department (Appeals), The S.S.R.D., for some reason or the other, went into the merits of the matter without entering into the issue of gross delay and passed the following order:
"The Revision application of the applicant is allowed. The order of the Deputy Collector dated: 22/04/1997 and the order of the Collector dated: 16/08/1997 passed in respect of entry in the record of rights vide No.27 dated: 05/08/1953 is set aside. As the entry in the record of rights vide No.27 dated: 05/08/1953 has not been made according to the order of competent officer, it is hereby cancelled and the consequent entry Nos. 42, 118 and 442 made thereof are also cancelled. The Deputy Collector is directed to take appropriate action by verifying the official record in respect of all the procedure regarding dues of the Sales Tax Department and auction."Page 15 of 23
C/SCA/10325/1999 JUDGMENT 10 I take notice of the fact that all the subsequent succession entries also came to be cancelled by the S.S.R.D. 11 Being dissatisfied with the order passed by the S.S.R.D., the
petitioners are here before this Court with this writ application.
12 The petition came to be admitted sometime in January 2000 and the interim relief was granted in terms of para 14(B). This interim relief in terms of para 14(B) has continued till this date. The impugned order passed by the S.S.R.D. has remained stayed from its operation, implementation and execution till this date.
13 Mr. M.C. Bhatt, the learned counsel appearing for the petitioners vehemently submitted that the impugned order passed by the S.S.R.D. is without jurisdiction and is erroneous in law. According to Mr. Bhatt, the S.S.R.D. could not have gone into the merits of the matter, more particularly, when the Deputy Collector and Collector declined to interfere on the ground of gross delay of forty years. According to Mr. Bhatt, when the Deputy Collector and Collector had no occasion to consider the merits, then there was no good reason for the S.S.R.D. to enter into the merits. According to Mr. Bhatt, this itself is a jurisdictional error on the part of the S.S.R.D. Mr. Bhatt, in support of his submissions, has placed reliance on a decision of the Supreme Court in the case of Joint Collector Ranga Reddy District and another vs. D. Narsing Rao and others reported in (2015) 3 SCC 695, wherein the Supreme Court has observed in paras 25 to 32 as under:
"25 The legal position is fairly wellsettled by a long line of decisions of this Court which have laid down that even when there is no period of limitation prescribed for the exercise of any power revisional or otherwise such power must be exercised within a reasonable period. This is so even in cases where allegations of fraud have necessitated the exercise of any Page 16 of 23 C/SCA/10325/1999 JUDGMENT corrective power. We may briefly refer to some of the decisions only to bring home the point that the absence of a stipulated period of limitation makes little or no difference in so far as the exercise of the power is concerned which ought to be permissible only when the power is invoked within a reasonable period.
26 In one of the earlier decisions of this Court in S.B. Gurbaksh Singh v. Union of India 1976 (2) SCC 181 : (AIR 1976 SC 1115), this Court held that excercise of suo motu power of revision must also be within a reasonable time and that any unreasonable delay in the exercise may affect the validity. But what would constitute reasonable time would depend upon the facts of each case.
27 To the same effect is the decision of this Court in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy and Ors. (2003) 7 SCC 667 : (AIR 2003 SC 3592) where this Court held that even in cases of fraud the revisional power must be exercised within a reasonable period and that several factors need to be kept in mind while deciding whether relief sooner be denied only on the ground of delay. The Court said:
"In cases of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bona fide transfers, the orders attaining finality under the provisions of other Acts (such as the Land Ceiling Act)."
28 To the same effect is the view taken by this Court in Sulochana Chandrakant Galande. v. Pune Municipal Transport and others (2010) 8 SCC 467 : (AIR 2010 SC 2962) where this Court reiterated the legal position and held that the power to revise orders and proceedings cannot be exercised arbitrarily and interminably. This Court observed:
"The legislature in its wisdom did not fix a timelimit for exercising the revisional power nor inserted the words "at any time" in Section 34 of the 1976 Act. It does not mean that the legislature intended to leave the orders passed under the Act open to variation for an indefinite period inasmuch as it would have the effect of rendering title of the holders/allottee(s) permanently precarious and in a state of perpetual uncertainty. In case, it is assumed that the legislature has conferred an everlasting and interminable power in point of time, the title over the declared surplus land, in the hands of the State/allottee, would forever remain virtually insecure. The Court has to construe the statutory provision in a way which makes the provisions workable, advancing the purpose and object of enactment of the statute".Page 17 of 23
C/SCA/10325/1999 JUDGMENT
29 In State of H.P. and Ors. v. Rajkumar Brijender Singh and Ors.
(2004) 10 SCC 585 : (AIR 2004 SC 3218) this Court held that in the absence of any special circumstances a delay of 15 years in suo motu exercise of revisional power was impermissible as the delay was unduly long and unexplained. This Court observed:
"We are now left with the second question which was raised by the respondents before the High Court, namely, the delayed exercise of the power under subsection (3) of Section 20. As indicated above, the Financial Commissioner exercised the power after 15 years of the order of the Collector. It is true that subsection (3) provides that such a power may be exercised at any time but this expression does not mean there would be no timelimit or it is in infinity. All that is meant is that such powers should be exercised within a reasonable time. No fixed period of limitation may be laid but unreasonable delay in exercise of the power would tend to undo the things which have attained finality. It depends on the facts and circumstances of each case as to what is the reasonable time within which the power of suo motu action could be exercised. For example, in this case, as the appeal had been withdrawn but the Financial Commissioner had taken up the matter in exercise of his suo motu power, it could well be open for the State to submit that the facts and circumstances were such that it would be within reasonable time but as we have already noted that the order of the Collector which has been interfered with was passed in January 1976 and the appeal preferred by the State was also withdrawn sometime in March 1976. The learned counsel for the appellant was not able to point out such other special facts and circumstances by reason of which it could be said that exercise of suo motu power after 15 years of the order interfered with was within a reasonable time. That being the position in our view, the order of the Financial Commissioner stands vitiated having been passed after a long lapse of 15 years of the order which has been interfered with. Therefore, while holding that the Financial Commissioner would have power to proceed suo motu in a suitable case even though an appeal preferred before the lower appellate authority is withdrawn, may be, by the State. Thus the view taken by the High Court is not sustainable. But the order of the Financial Commissioner suffers from the vice of the exercise of the power after unreasonable lapse of time and such delayed action on his part nullifies the order passed by him in exercise of power under subsection (3) of Section 20".
30 We may also refer to the decision of this Court in M/s Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhojpur and Ors. (1992) 2 SCC 598 : (AIR 1993 SC 802) where the Court explained the legal Page 18 of 23 C/SCA/10325/1999 JUDGMENT position as under:
"The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not as to physical running of time. Where the circumstances justifying the conduct exist, the illegality which is manifest cannot be sustained on the sole ground of laches. The decision in Tilokchand case relied on is distinguishable on the facts of the present case. The levy if based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that the suit has been rightly dismissed".
31 To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.
32 In the case at hand, while the entry sought to be corrected is described as fraudulent, there is nothing in the notice impugned before the High Court as to when was the alleged fraud discovered by the State. A Page 19 of 23 C/SCA/10325/1999 JUDGMENT specific statement in that regard was essential for it was a jurisdictional fact, which ought to be clearly asserted in the notice issued to the respondents. The attempt of the appellantState to demonstrate that the notice was issued within a reasonable period of the discovery of the alleged fraud is, therefore, futile. At any rate, when the Government allowed the land in question for housing sites to be given to Government employees in the year 1991, it must be presumed to have known about the record and the revenue entries concerning the parcel of land made in the ordinary course of official business. In as much as, the notice was issued as late as on 31st December, 2004, it was delayed by nearly 13 years. No explanation has been offered even for this delay assuming that the same ought to be counted only from the year 1991. Judged from any angle the notice seeking to reverse the entries made half a century ago, was clearly beyond reasonable time and was rightly quashed."
14 Mr. Bhatt, the learned counsel brought to my notice that the disposal of the civil suit between the parties will govern the final rights of the parties.
15 In such circumstances referred to above, Mr. Bhatt, the learned counsel prays that there being merits in this petition, the same be allowed and the impugned order be quashed.
16 On the other hand, this petition has been vehemently opposed by Mr. Shalin Mehta, the learned senior counsel appearing on behalf of the respondent No.1. The principal argument of Mr. Mehta is that although the names of the petitioners came to be entered in the revenue records way back in the year 1953, yet there is nothing on record to indicate that the property in question was put to auction. Mr. Mehta, the learned senior counsel has seriously disputed the factum of the property being put to auction in the year 1953 and the petitioners being the highest bidders in the said auction. According to Mr. Mehta, in such circumstances, the S.S.R.D. thought fit to remit the matter for the purpose of an inquiry.
Page 20 of 23C/SCA/10325/1999 JUDGMENT 17 Mr. Mehta, the learned senior counsel placed heavy reliance on
the averments made in the affidavitinreply filed on behalf of the Mamlatdar dated 6th December 2000.
18 According to Mr. Mehta, no interference is warranted at the end of this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.
19 This petition has also been vehemently opposed by Mr. Y.N. Ravani, the learned counsel appearing for the respondent No.7. The arguments of Mr. Ravani are by and large the very same arguments, as canvassed by Mr. Mehta. In addition to the submissions of Mr. Mehta, Mr. Ravani pointed out that his client on the strength of a registered 'will', applied for probate. In the probate proceedings, objections were raised at the end of the petitioners and the respondent No.1. It is brought to my notice that the proceedings initiated by the clients by Mr. Ravani, ultimately, came to be dismissed for default. As on date, as pointed out by Mr. Mehta, the learned senior counsel appearing for the respondent No.1 that there is a Kirkol Application No.425 of 1999 pending in the Court of the Civil Judge, Senior Division, Vadodara. According to Mr. Mehta, in the said application, the client of Mr. Mehta has filed counter claim. The respective civil rights of the parties over the property in question shall be decided by the Civil Court in accordance with law.
20 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the S.S.R.D. committed any error in passing the impugned order.
Page 21 of 23C/SCA/10325/1999 JUDGMENT 21 I am of the view that the S.S.R.D. committed a serious error in
disturbing the concurrent findings recorded by the two revenue authorities. There was no good reason for the S.S.R.D. to disturb the entries after a period of more than forty years. Even if the S.S.R.D. had reasons to entertain some doubt as regards the entire transaction, the concurrent findings should not have been disturbed solely on the ground of delay. There is some material on record to substantiate the say as regards the purchase of the subject property in the public auction conducted way back in 1953.
22 I may only say that the dispute between the parties in this petition is one relating to mutation of entries. Mutation of names in the revenue records is only for fiscal purpose. Such entries do not otherwise confer any right, title or interest in the property. If any party is asserting title over the property, then such party has to seek an appropriate declaration from the Civil Court. As stated above, the civil rights of the parties are kept open for being adjudicated by the competent Civil Court in appropriate proceedings in accordance with law.
23 In the result, this petition is allowed. The impugned order passed by the S.S.R.D. 17th December 1999 is hereby quashed and set aside. With a view to avoid any multiplicity of proceedings, it will be in the fitness of things to direct that in the revenue records, an entry be posted or a reference be made as regards the pendency of the civil suit before the Court concerned.
24 It is needless to say that the revenue records, as on date, shall be subject to the final outcome of the civil suit and subsequent orders that may be passed in the appeal. The entries Nos.27, 42, 118 and 422 are hereby ordered to be restored and they shall be subject to the final Page 22 of 23 C/SCA/10325/1999 JUDGMENT outcome of the Kirkol Application No.425 of 1999 and counter claim filed therein. The Court concerned is directed to ensure that the civil proceedings between the parties are disposed of within one year from the date of receipt of the writ of this order.
25 It is needless to clarify that all legal contentions available to the parties may be raised before the Civil Court.
26 Rule is made absolute to the aforesaid extent. Direct service is permitted.
27 In view of the disposal of the main matter, the connected civil applications are also disposed of.
(J.B.PARDIWALA, J) CHANDRESH Page 23 of 23