Gujarat High Court
Mamtaben D/O.Narottam Chandulal ... vs Urban Land Tribunal & ExOfficia ... on 11 April, 2014
Author: A.J.Desai
Bench: A.J.Desai
C/CA/5758/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 5758 of 2012
In
MISC.CIVIL APPLICATION NO. 2575 of 2011
In
SPECIAL CIVIL APPLICATION NO. 1403 of 1991
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MAMTABEN D/O.NAROTTAM CHANDULAL ZAVERI W/O.JITENDRA
MANILAL....Applicant(s)
Versus
URBAN LAND TRIBUNAL & EXOFFICIA SECRETARY & 2....Respondent(s)
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Appearance:
M/S THAKKAR ASSOC., ADVOCATE for the Applicant(s) No. 1
MR RAKESH PATEL, AGP for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1 2
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 11/04/2014
ORAL ORDER
1. By way of the present civil application filed under Section 5 of the Limitation Act, the applicant has prayed to condone delay of about 20 years for restoring Special Civil Application No. 1403 of 1991, which was dismissed for non prosecution, since the learned advocate, who had filed the aforesaid writ petition, did not remove the office objection within stipulated time granted by the High Court.
2. Brief facts of the case are required to be narrated are as under:
2.1. That pursuant to enactment of the Urban Land (Ceiling and Regulation) Act, 1976, the applicant submitted Form No. 1 as required under Section 6 of the ULC Act with the competent authority since the applicant - original petitioner and her family Page 1 of 5 C/CA/5758/2012 ORDER members were holding different piece and parcels of land in the city of Ahmedabad. The Form was processed by the competent authority. The applicant had her share in property situated in area of Dariyapur - Kazipur. By order dated 06.05.1988, the competent authority declared the said land is as excess piece of land other than retainable under the ULC Act. The applicant - petitioner challenged the said decision by way of filing appeal under Section 33 of the ULC before the Urban Land Tribunal, Ahmedabad being appeal No. 352 of 1988. Said appeal came to be dismissed by the Urban Land Tribunal, Ahmedabad on 31.08.1990. Being aggrieved by the above referred to order, the applicant - original petitioner preferred writ petition being Special Civil Application 1403 of 1991 through her lawyer Mr.J.B.Soni.
2.2 It is the case of the applicant - original petitioner that the office had raised objection that the petition was not affirmed by the petitioner and time to remove office objection was granted upto 1.8.1991. Since, the office objections were not removed within stipulated time, the petition came to be dismissed on 19.09.1991.
2.3. It is further the case of the applicant - original petitioner that applicant and her husband were green card holder of USA and used to stay in USA, and therefore, they were not aware about the dismissal of the matter and were not informed by the learned advocate. The applicant was used to inquire about the matter from Mr.J.B.Soni, learned advocate, who informed her that the same is pending before the Hon'ble High Court. Since, the ULC Act has been repealed in the year 1999, the applicant should not worry about her case. It is further the case of the applicant that in the end of 2010, some officers from the ULC department visited Page 2 of 5 C/CA/5758/2012 ORDER the residence of the applicant, which is in existence on the disputed land. When the applicant inquired about her matter from the lawyer, at that time, the applicant found that Mr.J.B.Soni, learned advocate, to whom the applicant had engaged, had died in the year 2008 and therefore, she could not get the details about the case, and thereafter, the applicant came to know that the petition was dismissed for not removing the office objections.
3. Mr. Navin Pahwa, learned advocate for the applicant states that when the applicant came to know about the dismissal of the petition for nonremoval of office objections, she immediately filed restoration application and thereafter, she preferred present application for condonation of delay. Learned advocate would further submit that the applicant is residing in the disputed property and was in possession of the disputed property and the possession of the disputed property is yet not taken by the respondent authority after proceedings under provisions of ULC Act. He would further submit that since the ULC Act has been repealed in the year 1999, the matter may be restored and may be heard on merits.
4. In support of his submissions, Mr. Navin Pahwa, learned advocate relied upon the decisions of Rafiq V. Munshi Lal reported in 1981(0) GLHELSC 22300 and Collector, Land Acquisition, Anantnag and Anr. V. Ms. Katiji and Ors. reported in (1987) 2 SCC 107 and submitted that the parties should not suffer on the inaction on the part of his lawyer, who did not remove the office objections and pursuing very petition, which was filed by the petitioner. He would further submit that therefore, the delay may be condoned in the matter and the matter may be restored.Page 3 of 5 C/CA/5758/2012 ORDER
5. On the other hand, Mr.Rakesh Patel, learned AGP has vehemently opposed this application and submitted that there is huge delay of about 20 years in preferring the present petition. The applicant has not established sufficient reason to condone the delay. He has further submitted the possession of the property was taken over by the respondent authority in the year 1990 and therefore, the application may be dismissed.
6. I have heard learned advocates for the respective parties. It appears from the record that that the applicant availed different remedies under the provisions of ULC Act by way of filing appeal under Section 33 of the ULC Act and thereafter, immediately filed Writ Petition being Special Civil Application No. 1403 of 1991 challenging the order of the Urban Land Tribunal after dismissal of the appeal. I have also gone through the application of the petitioner, by which she has sufficiently explained the delay that under what circumstances the application for restoration is filed at belated stage. It is an undisputed fact that Mr.J.B.Soni, learned advocate, through whom the petition was filed was expired in the year 2008. I am in respectful agreement with the ratio laid down by the Hon'ble Apex Court in the cases of Rafiq V. Munshi Lal (Supra) and Collector, Land Acquisition, Anantnag and Anr. V. Ms. Katiji (Supra). I am, therefore, of the opinion that the inaction on the part of the learned advocate, who did not remove the office objections in time, the applicant should not suffer and therefore, the application requires consideration and accordingly is allowed. Rule is made absolute.
7. It is hereby made clear that this Court has not gone into the merits of the matter and has not held that whether the petitioner is in Page 4 of 5 C/CA/5758/2012 ORDER possession of the disputed property or not. The respondent authority may oppose the writ petition by filing affidavitinreply in the matter.
(A.J.DESAI, J.) *Kazi...
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