Gujarat High Court
Chandrakant Rasiklal Rami & vs Kantilal Somnath Rami & 7 on 24 April, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/16000/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16000 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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CHANDRAKANT RASIKLAL RAMI & 10....Petitioner(s)
Versus
KANTILAL SOMNATH RAMI & 7....Respondent(s)
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Appearance:
MR. BK. RAJ, ADVOCATE for the Petitioner(s) No. 1 - 10.4 , 11
DECEASED LITIGANT, ADVOCATE for the Respondent(s) No. 4
MR. MANAN MEHTA, AGP for the Respondent(s) No. 5 - 7
MR ND SONGARA, ADVOCATE for the Respondent(s) No. 1 - 3
RULE SERVED for the Respondent(s) No. 5 - 7
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 24/04/2017
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ORAL JUDGMENT
1. Heard Mr. Raj, learned advocate for the petitioners, and Mr. Mehta, learned AGP.
2. The petitioners are heirs of original applicant before the concerned authority. The petitioners are aggrieved by order dated 23.8.2013 passed by respondent No.5 in revision application No.11 of 2012 whereby respondent No.5 allowed the revision application filed by present respondents wherein the revisionistspresent respondents challenged order dated 19.11.2011 passed by Collector in RTS/Revision/98/2011.
3. So far as factual background is concerned, it has emerged from the submissions by learned advocate for the petitioners and learned AGP and also from the record that one Manilal Jethalal Rami was owner of certain parcels of land bearing survey Nos.401/1, 401/2 and 402 at village Pilvai, district Mehsana. After said Manilal Jethalal Rami died names of his three sons, i.e. Page 2 of 24 HC-NIC Page 2 of 24 Created On Mon Aug 14 06:56:45 IST 2017 C/SCA/16000/2013 JUDGMENT Somabhai Manilal, Ishwarlal Manilal and Puniram @ Rasiklal Manilal were entered into revenue record as heirs of said Manilal Jethalal Rami and entry No.1980 was mutated on 16.9.1957.
3.1 Said entry also reflected name of Somabhai Manilal as administrator of the family. Subsequently, heirs of Ishwarlal Manilal and Puniram Manilal raised dispute on the ground that said entry No.1980 actually reflected name of only Mr. Somabhai Manilal and that the names of heirs of Ishwarlal Manilal and Puniram Manilal should also be mutated in the revenue record. 3.2 The said dispute and demand were raised in 2008, i.e. about 51 years after the entry No.1980 was mutated in revenue record on 16.9.1957. 3.3 The concerned authority accepted the claim of present petitioners and recorded entry No.10829 whereby names of present petitioners i.e. heirs of Ishwarlal Manilal and Puniram @ Rasiklal Manilal came to be entered into revenue Page 3 of 24 HC-NIC Page 3 of 24 Created On Mon Aug 14 06:56:45 IST 2017 C/SCA/16000/2013 JUDGMENT record.
3.4 The said entry came to be made 51 years after the entry 1980 was mutated.
3.5 Therefore, the heirs of Somabhai Manilal i.e. present respondent Nos.1 to 4 felt aggrieved by said subsequent entry No.10829 and that therefore, they filed case No.2 of 2008 before the Mamlatdar.
3.6 The Mamlatdar considered the grievance of present respondent Nos.1 to 4 i.e. heirs of Somabhai Manilal and considering factual aspects, the Mamlatdar passed order dated 24.7.2009 and cancelled entry No.10829 which was mutated on 26.3.2008.
3.7. Feeling aggrieved by the said order dat4ed 24.7.2009, present petitioners i.e. heirs of Ishwarlal Manilal and Puniram @ Rasiklal Manilal filed RTS appeal No.279 of 2009 before the Dy. Collector. The Dy. Collector (Prant Page 4 of 24 HC-NIC Page 4 of 24 Created On Mon Aug 14 06:56:45 IST 2017 C/SCA/16000/2013 JUDGMENT Officer) considered said appeal and vide order dated 16.11.2010 rejected the said appeal and he confirmed the order dated 24.7.2009 passed by the Mamlatdar.
3.8 Feeling aggrieved by the said order dated 16.11.2010, the petitioners herein filed revision application No.6 of 2011 before the Collector. The Collector considered the said revision application and after hearing the parties, the Collector rejected the said revision application vide order dated 7.4.2011 for the reasons mentioned in the order.
3.9 By the said order dated 7.4.2011, the Collector, inter alia, confirmed and maintained the order dated 16.11.2010 and the earlier order dated 24.7.2009. Accordingly, the Collector disallowed the revision application No.6 of 2011. 3.10 After the Collector passed the said order dated 7.4.2011, the petitioners filed another RTS appeal No.3023 and 3024 wherein the Page 5 of 24 HC-NIC Page 5 of 24 Created On Mon Aug 14 06:56:45 IST 2017 C/SCA/16000/2013 JUDGMENT petitioners challenged entry No.1980 and entry No.5114. The said appeals came to be rejected by the Dy. Collector vide order dated 28.4.2011 inter alia on the ground that the appeals were preferred against entry No.5114 which was mutated in February 1981 and entry No.1980 which was mutated in January 1957 and therefore, after such abnormal and inordinate delay, the appeals against the said two entries cannot be entertained.
3.11 The petitioners felt aggrieved by the said order dated 28.4.2011 passed by the Dy. Collector (Prant Officer) and that therefore, the petitioners filed revision application before the Collector wherein the petitioners challenged the order dated 28.4.2011.
3.12 The said revision application was registered as RTS/Revision/98 of 2011. The Collector heard the said application and vide his order dated 19.11.2011 allowed the revision Page 6 of 24 HC-NIC Page 6 of 24 Created On Mon Aug 14 06:56:45 IST 2017 C/SCA/16000/2013 JUDGMENT application. The Collector vide his order dated 19.11.2011, set aside the order dated 28.4.2011 and he also directed that entry No.1980 and entry No.5114 should be cancelled and he declared that entry No.12106 and 12107 are nullity. The Collector also directed that the concerned parties should place relevant evidence before the competent authority to establish that they are heirs of original owners Manilal Jethalal Rami and get appropriate entries mutated. 3.13 In view of said order dated 19.11.2011, the respondents felt aggrieved and they filed revision application before the respondent No.5. The revision application came to be registered as Revision Application No.11 of 2012 wherein respondent No.5 passed order which is impugned in present petition.
4. Mr. Raj, learned advocate for the petitioners, submitted that respondent No.5 failed to appreciate that the order dated Page 7 of 24 HC-NIC Page 7 of 24 Created On Mon Aug 14 06:56:45 IST 2017 C/SCA/16000/2013 JUDGMENT 19.11.2011 passed by the Collector is just, legal and proper. He also submitted that the respondent No.5-Secretary (Appeals) failed to appreciate that the Collector had condoned delay and passed reasoned and speaking order whereby he directed that the entry Nos.1980, 5114, 12106 and 12107 shall be set aside. He submitted that in view of the fact that the said entries were mutated in disregard to Hindu Succession Act and the principles governing the rights of heirs and that therefore, there was no error in Collector's order directing that said entries may be set aside. According to learned advocate for the petitioners,the order dated 19.11.2011 passed by the Collector is a reasoned order and that therefore, the said order should not have been interfered on the ground that the Collector committed error in interfering with the entries which were mutated before almost 51 years. According to learned advocate for the petitioners, the respondent No.5 set aside the Collector's order only on two grounds viz.
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suppression of fact by petitioners and delay. He submitted that the petitioners had declared all facts and that the petitioners had not suppressed any fact, however, the respondent No.5 failed to appreciate said aspect. According to learned advocate for the petitioners, the respondent No.5 similarly failed to appreciate that the Collector had considered contention on the ground of delay and he found it proper to interfere with the entries even after delay, in view of the fact that said entries did not reflect correct facts with regard to rights of heirs and that therefore, the said order passed by the Collector should not have been interfered with by the respondent No.5. Learned advocate for the petitioners submitted that the order dated 19.11.2011 passed by the Collector deserves to be restored by setting aside the impugned order passed by respondent No.5.
5. Learned AGP submitted that the order passed by Respondent No.5 Secretary does not suffer from Page 9 of 24 HC-NIC Page 9 of 24 Created On Mon Aug 14 06:56:45 IST 2017 C/SCA/16000/2013 JUDGMENT any infirmity. Learned AGP submitted that undisputedly the petitioners raised the grievance with regard to Entry No. 1980 after passage of almost 51 years and that, therefore, such belated grievance should not have been and could not have been entertained. However, the Collector lost sight of the said aspect or he brushed aside the said objection on the ground of unreasonable delay with reference to the said Entry and that, therefore, the said order passed by the Collector deserved to be set aside. According to learned AGP, the Collector while passing order dated 19.11.2011 lost sight of the fact that after Entry No. 1098 was mutated, several other Entries were also mutated and that, therefore, there was no justification to set aside the Entry No. 1980 and/ or subsequent Entries, that too after such abnormal delay of almost 51 years. He also submitted that in the Revision Application the revisionist i.e. present petitioners had not challenged the Entry No. 12106 and/ or Entry No. 12107, however only on the ground that the Entry Page 10 of 24 HC-NIC Page 10 of 24 Created On Mon Aug 14 06:56:45 IST 2017 C/SCA/16000/2013 JUDGMENT No. 1980 is directed to be set aside, the Collector also set aside other Entries, which is unjustified and beyond the scope of Application which was filed by the Appellant/ Revisionist. It is also contended by learned AGP that the Collector failed to take into account the earlier order dated 7.4.2011 and without having regard to the said Order, the Collector passed Order dated 19.11.2011 and therefore also the order dated 19.11.2011 deserved to be set aside and Respondent No. 5 has not committed any error in setting aside the said order. Learned AGP submitted that the petition against the order passed by the Respondent No.5 does not deserve to be entertained and the same may be rejected.
6. I have considered rival submission by learned advocate for petitioners and learned AGP. I have also considered material available on record including the order passed by Deputy Collector, Collector and Secretary as well as other material available on record.
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7. The facts involved in present case are not in dispute.
8. It is not in dispute that after the death of original owner Mr. Manilal Jethalal Rami, names of the heirs of deceased owner Mr. Manilal Jethalal Rami were entered into Revenue Record by Entry No. 1980 which was mutated on 16.9.1957. 8.1 It is also not in dispute that for almost 51 years no one from any of the three sons of said Mr. Manilal Jethalal Rami and/ or Mr. Puniram and / or any heirs of said three sons raised any dispute against the said Entry dated 16.9.1957. 8.2 It is also not in dispute that after 16.9.1957 various entries were recorded and at any stage, any person or heir never came forward for 51 years against the said or other entry.
9. Suddenly, after about 51 years, the Page 12 of 24 HC-NIC Page 12 of 24 Created On Mon Aug 14 06:56:45 IST 2017 C/SCA/16000/2013 JUDGMENT petitioners i.e. heirs of two sons of Mr. Manilal Jethalal Rami approached the concerned authority and demanded that their names, as the heirs of Ishwarlal Manilal and Puniram @ Rasiklal Manilal, the sons of original owner Mr.Manilal Jethalal Rami should be included in the Revenue Records. 9.1 The concerned authority accepted the said request and after 51 years, he made another Entry i.e. Entry No. 10829 and recorded the names of present petitioners.
9.2 The said Entry No. 10829 came to be mutated on 26.3.2008.
9.3 The said Entry No. 10829 on 26.3.2008 gave rise to above mentioned Revision Application and Appeal which culminated in impugned order dated 23.08.2013 passed by Respondent No.5 Secretary.
10. It is pertinent to note that when the concerned authority accepted the request of Page 13 of 24 HC-NIC Page 13 of 24 Created On Mon Aug 14 06:56:45 IST 2017 C/SCA/16000/2013 JUDGMENT present Petitioners and thereupon the authority entered names of the said heirs in the revenue records, the heirs of Somabhai Manilal i.e. third son of Mr. Manilal Jethalal Rami felt aggrieved by Entry No. 10829 and they filed Entry Case No. 2 of 2008 before the Mamlatdar. The Mamlatdar considered the said dispute and passed order dated 24.7.2009 whereby Mamlatdar directed that Entry No. 10829 be set aside.
11. As mentioned above, the said proceedings reached before the Deputy Collector, who passed the order dated 19.11.2011. By the said order, the Collector accepted the grievance of present petitioners and he directed that Entry No. 1980 be set aside. He also directed that subsequent Entry No. 5114, 12106 and 12107 shall also stand cancelled. The Collector, however, did not pass any specific direction with reference to Entry No. 10829 which was set aside by the virtue of order dated 24.7.2009 passed by the Mamlatdar. The Collector, vide his order dated 19.11.2011, Page 14 of 24 HC-NIC Page 14 of 24 Created On Mon Aug 14 06:56:45 IST 2017 C/SCA/16000/2013 JUDGMENT has also not passed any direction for setting aside the order dated 24.7.2009 passed by the Mamlatdar.
12. Learned advocate for petitioner would submit that the Collector, vide his order dated 19.11.2011 had condoned the delay in raising the dispute against the Mutation of Entry No. 1980. 12.1 In the first instance, the said submission is erroneous and misconceived. Actually, there is no specific order/ direction in the order from which it can be concluded or even assumed that the Collector actually and specifically condoned the delay of almost 51 years caused in raising dispute with regard to Entry No. 1980 which recorded way back in 1957. 12.2 Even if it is assumed that the Collector actually condoned delay caused in raising grievance against the said Entry No. 1980 then also the said decision of the Collector would be Page 15 of 24 HC-NIC Page 15 of 24 Created On Mon Aug 14 06:56:45 IST 2017 C/SCA/16000/2013 JUDGMENT unjustified and without authority in law and, therefore, unsustainable.
12.3 That is so in view of the fact that the Collector, in the first instance, does not have any authority to condone the delay in raising grievance against Entry No. 1980 which was recorded in September, 1957.
12.4 Another reason is that even if it is assumed that Collector has such authority, then also in absence of any specific and separate application requesting the authority to condone the delay, the said authority should not and could not have suo motu condoned the delay in raising the dispute against Entry No. 1980.
12.5 Third reason against the said contention by the petitioners is that the petitioners had at any stage before any authority, particularly at the time of hearing of the Revision Application No. 98 of 201 before the Collector, not offered Page 16 of 24 HC-NIC Page 16 of 24 Created On Mon Aug 14 06:56:45 IST 2017 C/SCA/16000/2013 JUDGMENT any explanation and not made out any ground and/ or sufficient cause to condone such inordinate and abnormal delay of 51 years.
12.6 The fourth reason against the said contention by the petitioner is that not only the petitioners failed to offer satisfactory explanation and sufficient cause to condone the delay but more importantly the Collector has failed to record any reason in support of his decision to condone delay.
12.7 For such reasons, even if it is assumed that the Collector has such authority and he had actually condoned the delay then also, the decision by the Collector is unjustified and without application of mind stands, hence it is vitiated. It is unsustainable also because such decision is taken in absence of application/ request to condone delay i.e. the Collector acted suo motu and on his own and in absence of any request and/ or any explanation and despite the Page 17 of 24 HC-NIC Page 17 of 24 Created On Mon Aug 14 06:56:45 IST 2017 C/SCA/16000/2013 JUDGMENT fact that sufficient cause was not made out, the Collector decided to ignore such abnormal delay.
13. When the said order dated 19.11.2011 came to be challenged before the Secretary, the Secretary examined entire facts of the case and found various reasons to hold that the said order dated 19.11.2011 does not deserve to be sustained. The Respondent No.5 Secretary noticed that while passing order dated 19.11.2011 the Collector lost sight of his own order dated 7.4.2011 passed in Revision Application No. 6 of 2011. 13.1 Besides this, the Secretary also found that there was no justification to entertain the grievance of the petitioner against the order dated 28.3.2011.
13.2 The Secretary also found that while passing the order dated 19.11.2011, the Collector also lost sight of or ignored the order dated 24.7.2009 passed by the Mamlatdar and the fact that the said order was not challenged and / or Page 18 of 24 HC-NIC Page 18 of 24 Created On Mon Aug 14 06:56:45 IST 2017 C/SCA/16000/2013 JUDGMENT any substantial ground to interfere with order dated 24.7.2009 was not made out.
13.3 Actually, the order dated 24.7.2009 passed by the Mamlatdar was subsequently confirmed by the Deputy Collector by his order dated 16.11.2010 and thereafter Revision Application No.6 of 201 against the order dated 16.11.2010 was rejected by the Collector vide his order dated 7.4.2011.
13.4 The Respondent No. 5 Secretary noticed that while passing order dated 19.11.2011, the Collector failed to take into account the said facts and without any justification the Collector set aside the Entry No. 1980, which was mutated way back in 1957.
14. From the order dated 7.4.2011 passed by the Collector it comes out that the Collector himself had noticed the fact that the dispute between the parties was with regard to rights of the heirs Page 19 of 24 HC-NIC Page 19 of 24 Created On Mon Aug 14 06:56:45 IST 2017 C/SCA/16000/2013 JUDGMENT and that, therefore, at the time when the Collector decided Revision Application No. 6 of 2011, the Collector had considered it appropriate to direct the parties to approach appropriate forum.
15. Learned AGP is, therefore, justified in his contention that vide order dated 7.4.2011 the Collector had actually directed the parties to approach competent Court i.e. Civil Court who would be competent forum to decide rival claims related to rights of the heirs.
15.1 However, instead of approaching appropriate forum, the petitioner filed another Appeal/ Revision Application before Deputy Collector. The Respondent No.5 Secretary noticed that the said aspect was also overlooked by the Collector while passing the order dated 19.11.2011.
16. Having noticed above mentioned infirmity in the order passed by the Collector on 19.11.2011, Page 20 of 24 HC-NIC Page 20 of 24 Created On Mon Aug 14 06:56:45 IST 2017 C/SCA/16000/2013 JUDGMENT the Secretary considered it appropriate and necessary to set aside the said order dated 19.11.2011.
16.1 It is pertinent that after having set aside the order dated 19.11.2011, the Secretary restored the order dated 7.4.2011. 16.2 In the facts and circumstances of present case, the said direction appears proper and justified.
16.3 Ordinarily, it would appear that after setting aside the order dated 19.11.2011, the Secretary ought to have restored the order dated 28.4.2011. However, it appears that with a view to keeping option for the petitioner to approach appropriate forum, as directed vide order dated 7.4.2011, the Secretary seems to have considered it appropriate to restore the order dated 7.4.2011.
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17. The Respondent No. 5 Secretary has set aside the order dated 19.11.2011 on diverse grounds including the ground that there was no justification or material before the Collector to ignore abnormal, inordinate and unreasonable delay of almost 51 years in raising dispute against Entry No. 1980 which was recorded in as back as in September, 1957.
17.1 By any stretch of imagination the said reason and conclusion recorded by the Secretary cannot be faulted and cannot be said to be arbitrary or unjust. More particularly, because the petitioner not only failed before Collector as well as before other authority to offer any explanation with regard to abnormal delay and/ or any infirmity and the petitioners failed to make out sufficient cause to ignore or condone the delay.
17.2 Actually, the fact that after the Entry No. 1980 was mutated various other Entries Page 22 of 24 HC-NIC Page 22 of 24 Created On Mon Aug 14 06:56:45 IST 2017 C/SCA/16000/2013 JUDGMENT including Entry Nos. 5411, 12106 and 12107 came to be recorded, it cannot be assumed that until 2008 i.e. for almost 51 years and even when/ even after other entries came to be recorded the petitioners had no knowledge and they were not aware about Entry No. 1980 which was mutated in 1957 i.e. before 51 years.
18. For all these reasons, the order passed by Respondent No.5 which is impugned in the present petition does not deserve any interference. Any ground to interfere with the said order is not made out.
19. Before concluding it is necessary to mention that petitioners have tendered on record draft amendment dated 13.4.2017. The Petitioners seek to amend the petition so as to add Para3.8 in the petition. Thereby, the petitioners intended to place on record the fact that the private respondents have sold the disputed property during pendency of the petition i.e. somewhere in Page 23 of 24 HC-NIC Page 23 of 24 Created On Mon Aug 14 06:56:45 IST 2017 C/SCA/16000/2013 JUDGMENT October, 2015 and the said Sale Deed has been registered. Any order permitting to amend the petition in terms of draft amendment dated 13.4.2017 is not passed until now. However, the said factual aspect is taken into account by the Court. Actually, in absence of any injunction against respondents, the said transaction by the respondents cannot be examined or faulted by this Court at this stage, more particularly in present petition, which is filed against order dated 19.11.2011 passed by the Collector.
20. For above mentioned reasons, the petition fails and does not deserve to be entertained. Therefore, the petition is rejected. Rule is discharged.
(K.M.THAKER, J.) saj Page 24 of 24 HC-NIC Page 24 of 24 Created On Mon Aug 14 06:56:45 IST 2017