Gujarat High Court
Nathubhai Bhagwanbhai Dudhat & vs State Of Gujarat & 13 on 29 March, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/CA/463/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 463 of 2016
in
SPECIAL CIVIL APPLICATION NO. 20990 of 2015
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NATHUBHAI BHAGWANBHAI DUDHAT & 1....Applicant(s)
Versus
STATE OF GUJARAT & 13....Respondent(s)
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Appearance:
MR SHITAL R PATEL, ADVOCATE for the Applicant(s)
MS AMITA SHAH, ASSISTANT GOVERNMENT PLEADER for Respondents No. 1 - 3
MR MB PARIKH, ADVOCATE for the Respondent(s) No. 10.1 - 10.6
MS KRUSHITA PATEL, for Respondents Nos.4 to 9, 13, 14
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
Date : 29/03/2017
ORAL ORDER
1. Rule. Ms. Amita Shah, learned Assistant Government Pleader, waives service of notice of Rule for respondents Nos.1 to 3, Ms.Krushita Patel, learned advocate, waives service of notice of Rule for respondents Nos.4 to 9, 13 and 14, and Mr.M.B.Parikh, learned advocate, waives service of notice of Rule for respondents Nos.10.1 to 10.6. On the facts and in the circumstances of the case and with the consent Page 1 of 10 HC-NIC Page 1 of 10 Created On Tue Aug 15 13:10:43 IST 2017 C/CA/463/2016 ORDER of the learned counsel for the respective parties, the application is being heard and decided finally.
2. This application has been preferred by the applicants original petitioners with a prayer to permit them to bring on record, the heirs and legal representatives of deceased respondent No.10 Nankabhai Kalabhai, who have been arrayed as opponents Nos.10.1 to 10.6 in the application.
3. It is submitted by Mr.Shital R. Patel, learned advocate for the applicants that respondent No.10 had passed away on 28.06.2008, even before the initiation of proceedings by the Collector. Further, the Collector did not bring the legal heirs on the record of the proceedings which were initiated by him suo motu. Respondent No.10, being the original seller of the Sale Deed executed in favour of the petitioners in the year 1979, was no more an aggrieved party, having pocketed the consideration and parted with the land in question willingly. In any Page 2 of 10 HC-NIC Page 2 of 10 Created On Tue Aug 15 13:10:43 IST 2017 C/CA/463/2016 ORDER case, as the claim is now being made by learned counsel for respondents Nos.10.1 to 10.6 that the proposed opponents are in possession of the land in question, it is necessary to bring them on record.
4. The application has been opposed by Mr.M.B.Parikh, learned advocate for opponents Nos.10.1 to 10.6, by submitting that opponent No.10 had passed away even before the proceedings were initiated by the Collector. The applicants were aware of the same but did not take care to join the legal heirs of the deceased opponent either before the Collector or the Special Secretary (Appeals), Revenue Department ("SSRD").
5. It is further submitted that there is a delay in joining the proposed respondents, therefore, the application, being timebarred, may be rejected.
6. Ms.Amita Shah, learned Assistant Government Pleader appearing for opponents Nos.1 to 3, reiterates the contentions raised by the learned advocate for proposed opponents Nos.10.1 to Page 3 of 10 HC-NIC Page 3 of 10 Created On Tue Aug 15 13:10:43 IST 2017 C/CA/463/2016 ORDER 10.6, by submitting that the application is timebarred.
7. Ms.Krushita Patel, learned advocate, submits that she has received instructions to appear on behalf of opponents Nos. 4 to 9 and 13 and 14, and has filed her Vakalatnama in the cognate matter. She is permitted to file the Vakalatnama in this application, as well.
8. Opponent Nos.11 and 12 have passed away.
However, learned advocate for the applicants submits that the legal heir of opponent No.11 is already on record as opponent No.4 and opponent No.12 has passed away before the proceedings were initiated.
9. This Court has heard learned counsel for the respective parties at length, perused the averments made in the application and taken note of the objections raised by some of the respondents.
10. At the first instance, the objections raised by opponents Nos.10.1 to 10.6 regarding the Page 4 of 10 HC-NIC Page 4 of 10 Created On Tue Aug 15 13:10:43 IST 2017 C/CA/463/2016 ORDER application being timebarred may be considered.
11. It is a settled position of law enunciated by the Supreme Court in the case of Puran Singh v. State of Punjab and others - AIR 1996 SC 1092 that the power of writ courts is not limited by procedural provisions prescribed in the Civil Procedure Code, 1908 ("the Code") in view of Section 141 of the Code. The provisions of the Code may be taken as a guide, however, the High Courts under Articles 226 and 227 of the Constitution are free to adopt their own procedure which is reasonable and expeditious.
12. The above judgment of the Supreme Court was followed by this Court in the case of Sureshbhai Suvalal Jayswal & Anr. v. State of Gujarat & Ors. 2016(1) GLR 477, wherein, it has been held that no period of limitation is prescribed for filing proceedings under Articles 226 and 227 of the Constitution of India though they are required to be filed within a reasonable time. After taking into consideration the principles of law enunciated by the Supreme Page 5 of 10 HC-NIC Page 5 of 10 Created On Tue Aug 15 13:10:43 IST 2017 C/CA/463/2016 ORDER Court, this Court in the above judgment held as below:
"6. Honble Division Bench of this Court has also taken similar view vide order dated 4.3.2010 passed in Letters Patent Appeal No.937 of 2009. Following are the observations made in the said order: It is settled law that the provision of Code of Civil Procedure is not applicable in the proceeding under Article 226 of the Constitution of India in view of the Explanation below Section 141 of Code of Civil Procedure. In the case of Smt.Sudama Devi v. Commissioner and Others, reported in (1983) 2 SCC 1, the Hon'ble Supreme Court held that provisions of Limitation Act are not applicable to the writ petition under Article 226 of the Constitution of India though the general rule of delay and laches may be considered on the basis of circumstances of the case. Similar is the view of the Hon'ble Supreme Court in the case of State of U.P. And others v. Raj Bahadur Singh and another reported in (1998) 8 SCC 685.
In view of the aforesaid finding of the Hon'ble Supreme Court, we are of the view that for filing the petition for substitution of the heirs, neither provision of Code of Civil Procedure was maintainable nor provision of Limitation Act is applicable for condoning the delay though it was open to the Court to find out whether there was delay and laches on the part of the applicant. In such circumstances, Page 6 of 10 HC-NIC Page 6 of 10 Created On Tue Aug 15 13:10:43 IST 2017 C/CA/463/2016 ORDER neither the Registry should have objected the application for restoration i.e. Civil Application (Stamp) No.3743 of 2003 on the ground that it was beyond time and not accompanied with separate application for condonation of delay, nor the learned Single Judge should have accepted such objection raised by the Registry.
For the reasons aforesaid, we allow Misc. Civil Application No.2689 of 2005 for restoration of Civil Application (Stamp) No.3743 of 2003 to its original file and order passed by the learned Single Judge dated 26th March 2009 is set aside. Office is directed to register Civil Application (Stamp) No.3743 of 2003 in Special Civil Application No.341 of 1999 and list it on an earlier date preferably in first week of April 2010.
7. It was however, brought to the notice of the Court that Rule 67 of the Gujarat High Court Rules provides for making of separate application seeking condonation of delay if occurred in filing the application for bringing heirs of deceased party on record. The Court, however, finds that Rule 67 of the said Rules cannot be applied to the proceedings filed under Articles 226 and 227 of the Constitution of India.
8. In view of above, it was not required of the applicants to prefer separate application to seek condonation of delay occurred in filing the application to bring Page 7 of 10 HC-NIC Page 7 of 10 Created On Tue Aug 15 13:10:43 IST 2017 C/CA/463/2016 ORDER heirs of the deceased party on record of the proceedings of the main petition filed under Article 226/227 of the Constitution of India. It is always open for the applicants to explain delay or laches occurred in filing the application for bringing heirs of the deceased party on record of the petition."
13. No separate application for condonation of delay has been filed by the applicants which, in any case, is not required as per the settled legal position. This discussion is being made in view of the objection raised by learned counsel for opponents Nos.10.1 to 10.6 regarding the application being timebarred. However, while taking this objection, no specific provision of law has been pressed into service and nor has it been explained or argued how, and in what manner, the law of limitation would affect the proceedings under Article 226 of the Constitution.
14. In other words, it cannot be said that the present application is timebarred, as has been submitted by learned advocate for proposed Page 8 of 10 HC-NIC Page 8 of 10 Created On Tue Aug 15 13:10:43 IST 2017 C/CA/463/2016 ORDER respondents Nos.10.1 to 10.6 and the learned Assistant Government Pleader.
15. There is another aspect of the matter that opponents Nos.10.1 to 10.6 have taken a stand in the petition that they are in possession of the property in question and as the mutation entry in the name of the original owner of the land has been revived, equity has been created in their favour. If this is the stand taken by the proposed respondents, then there is all the more reason why they should be impleaded in the writ petition as they would be opposing the petition filed by the applicants which they cannot do by remaining outside the purview of the litigation. This would amount to shadowboxing, which cannot be permitted by this Court.
16. It deserves to be noted that the Collector initiated suo motu proceedings and it is not the applicants who had approached the revenue authorities, therefore, to add these opponents as party was the responsibility of the Collector.
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17. Taking into consideration the above facts and circumstances of the case, and in view of the settled legal position, this Court considers it just and proper to allow the application. Hence, the following order:
The application is allowed. The applicants are permitted to join opponents Nos.10.1 to 10.6 as party respondents Nos.10.1 to 10.6 in Special Civil Application No.20990 of 2015.
The necessary amendment in the causetitle of the petition be made within a period of one week from today.
18. Rule is made absolute, to the above extent.
(SMT. ABHILASHA KUMARI, J.) sunil Page 10 of 10 HC-NIC Page 10 of 10 Created On Tue Aug 15 13:10:43 IST 2017