Gujarat High Court
Nathu Abhram (Since Deceased) & 2 vs Sumra Punjabhai Hamirbhai & 6 on 1 August, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/13814/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13814 of 2017
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NATHU ABHRAM (SINCE DECEASED) & 2....Petitioner(s)
Versus
SUMRA PUNJABHAI HAMIRBHAI & 6....Respondent(s)
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Appearance:
MR HARSHESH R KAKKAD, ADVOCATE for the Petitioner(s) No. 1 - 3.3
MR RC KAKKAD, ADVOCATE for the Petitioner(s) No. 1 - 3.3
MR UTKARSH SHARMA, AGP - ADVANCE COPY SERVED TO GP/PP for the
Respondent(s) No. 3
MR NABIL O BLOCH, CAVEATOR for the Respondent(s) No. 1
MR VIRAL K SHAH, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 01/08/2017
ORAL ORDER
1 With the consent of the parties, the matter is taken up for final disposal, as the same can be disposed of on a short point.
2 Mr. Viral Shah, the learned counsel has appeared on behalf of the respondent No.1.
3 By this application under Article 227 of the Constitution of India, the applicants call in question the legality and validity of the order dated 21st June 2017 passed by the Special Secretary of the Revenue Department (Appeals) at Ahmedabad, by which the S.S.R.D. allowed the revision application filed by the respondent No.1 herein, thereby quashing and setting aside the order passed by the Collector, Jamnagar dated 14th August 2015.
4 The facts of this case may be summarised as under:
Page 1 of 6HC-NIC Page 1 of 6 Created On Mon Aug 21 07:10:22 IST 2017 C/SCA/13814/2017 ORDER 4.1 The dispute between the parties pertains to a parcel of land bearing Survey No.386 situated at mouje: Masitiya, Taluka and District:
Jamnagar.
4.2 It appears from the materials on record that on 30th January 1960, one Hurbai Ranmal, widow of Abhram Bava claiming to be the lawful owner of the land in question, executed a sale deed in favour of the father of the respondent No.1 herein. The document of sale was registered as the sale deed No.1828. After the sale, it appears that by an order dated 25th September 1964, the authority concerned declined to mutate the name of the purchaser on the strength of the sale deed, as according to the authority, Hurbai Ranmal was not the owner of the land. Nothing happened thereafter for years together.
4.3 The petitioners herein claiming to be the lawful owner of the land in question have filed a Regular Civil Suit No.123 of 1998 in the Court of the learned Civil Judge at Jamnagar for declaration, cancellation of the sale deed dated 30th November 1960 and injunction. The Civil Court, by judgment and order dated 12th September 2008, dismissed the suit.
4.4 Thus, prima facie, it appears that the petitioners herein were not able to establish before the Civil Court that they are the owners of the land in question.
4.5 In any view of the matter, I am informed that the First Appeal has been filed by the petitioners herein before the District Judge and it is now for the Appellate Court to look into the matter so far as the legality and validity of the judgment and order passed by the Civil Judge is concerned.
4.6 After the dismissal of the suit filed by the petitioners herein, the Page 2 of 6 HC-NIC Page 2 of 6 Created On Mon Aug 21 07:10:22 IST 2017 C/SCA/13814/2017 ORDER respondent No.1 herein filed an application before the Prant Officer, Jamnagar that his name may be mutated in the record of rights being the successor through the original purchaser. As there was gross and inordinate delay on the part of the respondent No.1 in filing such application, he also prayed for condonation of delay by filing a separate application. The application seeking condonation of delay came to be rejected by the Prant Officer, Jamnagar by an order dated 30th November 2013.
4.7 Being dissatisfied, the respondent No.1 went before the Collector.
The Collector also declined to condone the delay and affirmed the order passed by the Prant Officer.
4.8 Being dissatisfied, the respondent No.1 went before the S.S.R.D. and he succeeded before the S.S.R.D. 4.9 The S.S.R.D., while allowing the revision application filed by the respondent No.1, held as under:
"The contents of applicant's revision application, the oral and written submissions of the parties and original record with reference to the order under challenge of Collector, Jamnagar are considered. The applicant claims that his father - Sumra Punjabhai Hamir had purchased land from the widow of Abram Bava named Hurbai Ranmal by way of registered document No.1828, dated 30.11.1960 admeasuring A404 Gunthas of S.No.386 at and post: Masitiya, Tal and District: Jamnagar and entry NO.367 dated 25.09.1964 has been mutated and that since sale transactions, the disputed land is under their possession and same is cultivated and yields are used for maintaining the family. Therefore, since long i.e. 57 years the possession and occupancy is theirs. The sale deed of the disputed land has been challenged for cancellation before the ld. Civil Court, Jamnagar vide Reg. Civil Case No.123/98 by the legal heirs of Abram Bava and the same has been dismissed by order dated 12.09.2008 and in the said order it comes on record that late Sumra Punja Hamir is occupying and cultivating since 1960 and the registered sale deed has been certified to be valid. The record of rights entry No.683 is made and certified on 27.03.1987. The Collector, Jamnagar has only adjudicated on delay aspect. The case has not been considered on merits. Therefore, on Page 3 of 6 HC-NIC Page 3 of 6 Created On Mon Aug 21 07:10:22 IST 2017 C/SCA/13814/2017 ORDER this issue the Hon'ble High court and Supreme Court in S.C.A. No.14915/2011 held that the Art. 226 and 227 of the Constitution of India, 1950, Gujarat Land Revenue Code, 1879 in its Section 135D, Limitation Act, 1963 in its Section 5 that for condoning delay technical approach cannot be adopted. Therefore, considering the principles of natural justice, even merits are required to be considered. Therefore, it would be lawful and appropriate to interfere with the order of Collector, Jamnagar.
The below order is passed:
ORDER The applicant's revision application is allowed. The order impugned by the Collector, Jamnagar No.HKP/Rev/200/201213, dated 14.08.2015 is set aside. On above facts disputed record of rights entry No.367, dated 25.09.1964 is confirmed. The parties can approach the ld. Civil Court to praying for their rights."
5 Being dissatisfied with the order passed by the S.S.R.D., the applicants are here before this Court by way of this petition under Article 227 of the Constitution of India.
6 The only argument canvassed by Mr. Kakkad, the learned counsel appearing for the applicants is that the issue before the Prant Officer and the Collector was with regard to the condonation of delay in filing an application for mutation of the name in the record of rights. Whereas, the S.S.R.D., instead of addressing itself on this limited issue, entered into the merits, and by the reasons assigned in the impugned order, has not condoned the delay, but has also given the final verdict that the name of the respondent No.1 should be entered into the record of rights. This, according to the learned counsel, was not permissible and has caused serious prejudice to his clients.
7 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 Page 4 of 6 HC-NIC Page 4 of 6 Created On Mon Aug 21 07:10:22 IST 2017 C/SCA/13814/2017 ORDER passing the impugned order.
8 I find substance in the submission canvassed by the learned counsel appearing for the applicants. The S.S.R.D. has relied upon the judgment and decree passed by the Civil Court in the Regular Civil Suit No.123 of 1998. If the two authorities below thought fit not to condone the delay, then the S.S.R.D. should have adjudicated the issue only to that extent. It was open for the S.S.R.D. either to condone the delay or decline to condone the delay. For the purpose of condonation of delay, it could have assigned reasons and for the purpose of declining to condone the delay, appropriate reasons could have been assigned.
9 In the result, the impugned order passed by the S.S.R.D. is quashed and the matter is remitted to the S.S.R.D. for fresh consideration. The S.S.R.D. shall look into the legality and validity of the order passed by the Prant Officer as well as the Collector and take an appropriate decision whether the delay should be condoned or not so far as the prayer of the respondent No.1 for mutation of his name in the record of rights is concerned. In the event, if the S.S.R.D. comes to the conclusion that the delay deserves to be condoned, then he may pass an appropriate order and remit the matter to the Prant Officer for consideration on merits thereafter. If, ultimately, the condonation of delay is declined, then it shall be open for the respondent No.1 to take appropriate legal steps available in law. Let fresh decision be taken at the earliest, preferably within a period of four weeks from the date of receipt of this order.
10 With the above, this petition is disposed of. Direct service is permitted.
Page 5 of 6HC-NIC Page 5 of 6 Created On Mon Aug 21 07:10:22 IST 2017 C/SCA/13814/2017 ORDER (J.B.PARDIWALA, J.) chandresh Page 6 of 6 HC-NIC Page 6 of 6 Created On Mon Aug 21 07:10:22 IST 2017