Gujarat High Court
Joniben Damjibhai vs Nausirvan Bejanji & on 23 August, 2013
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
JONIBEN DAMJIBHAI, POWER OF ATTORNEY CHHABIRBHAI LAKHIAV/SNAUSIRVAN BEJANJI C/SCA/12671/2002 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 12671 of 2002 With SPECIAL CIVIL APPLICATION NO. 12672 of 2002 TO SPECIAL CIVIL APPLICATION NO. 12680 of 2002 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ JONIBEN DAMJIBHAI, POWER OF ATTORNEY CHHABIRBHAI LAKHIA &
3....Petitioner(s) Versus NAUSIRVAN BEJANJI &
4....Respondent(s) ================================================================ Appearance:
MR AJ YAGNIK, ADVOCATE for the Petitioner(s) No. 1 - 4 MR.
PARTH A. BHATT, ASSTT. GOVERNMENT PLEADER for the Respondent(s) No. 5 MRS KETTY A MEHTA, ADVOCATE for the Respondent(s) No. 1 - 4 RULE SERVED BY DS for the Respondent(s) No. 1 - 5 ================================================================ CORAM:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :23/08/2013 CAV JUDGEMENT Since the subject matter involved in this batch of petitions is the same and the challenge is also to a common order passed by the Gujarat Revenue Tribunal, Ahmedabad, those were heard analogously and are being disposed by this common judgment and order.
2. This petition under Article-227 of the Constitution of India, is directed against the order dated 28/9/2001 passed by the Gujarat Revenue Tribunal in Restoration Application No.9/2000 and other allied Restoration Applications in Revision Application No.71/1999 by which the Tribunal rejected all the Restoration applications on the ground that those were time barred and the sufficient cause explained by the applicants for not preferring the restoration application in time was found to be false.
3. It may be stated that although the petitioners have styled the petition as the one under Article 226/227 of the Constitution of India, however, as the Tribunal's decision was in exercise of its judicial power under Section 76 of the Tenancy Act, the present proceedings would in substance be under Article 227 of the Constitution of India, and I have accordingly, dealt with this petition under Article 227 of the Constitution of India. Even otherwise, there is no scope of issue of a writ of certiorari in exercise of power under Article 226 of the Constitution of India, where the Tribunal, whose order is sought to be quashed, is not made a party (See Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar and anr. reported in AIR 1963 SC 786).
4. The facts giving rise to these petitions may be summarized as under:-
4.1 The land bearing Survey No.39 situated at village Devgadh, Ta: Mandvi, Dist: Surat was of the ownership of the predecessors-in-title of the Respondent nos.1 to 4 herein. The predecessors-in-title of the respondents herein were personally cultivating the said land as Landlords. It appears that in the year 1959-60 proceedings for declaring the land for personal cultivation of the landlords were initiated. In such proceedings, the Mamlatdar and ALT held that 15 acres of the land was in personal cultivation of the landlords. The order passed by the Mamlatdar and ALT came to be confirmed by the Deputy Collector. Being dissatisfied with the order passed by the Deputy Collector, the predecessors of the petitioners herein filed Revision Application no.503/1960 before the Gujarat Revenue Tribunal.
The Gujarat Revenue Tribunal rejected the Revision Application thereby confirming the order passed by the Mamlatdar and ALT and the Deputy Collector of personal cultivation. As a consequence thereof an entry No.432 also came to be mutated in the record of rights on 2/8/1970.
4.2 The matter set at rest thereafter for a period of 25 years.
4.3 All of a sudden on 6/2/1996 the petitioners herein initiated fresh proceedings U/s.32G of the Bombay Tenancy and Agricultural Lands Act and such proceeding was registered as Case No.19/1996.
4.4 The Mamlatdar & ALT held that the petitioners herein were entitled to purchase the land even though the Gujarat Revenue Tribunal as back as in 1970 had concluded that the land was in personal cultivation of the landlords.
4.5 The respondents herein being dissatisfied with the order passed by the Mamlatdar & ALT filed an Appeal No.42/1996 before the Assistant Collector, Olpad. The Assistant Collector, Olpad vide order dated 19/8/1996 set aside the order passed by the Mamlatdar & ALT and remanded the matter. On remand, the Mamlatdar & ALT once again vide order dated 24/3/1998 confirmed his earlier order.
5. Being dissatisfied with the order passed by the Mamlatdar & ALT the respondents herein filed Appeal No.18/1998 before the Assistant Collector, Olpad. The Assistant Collector, Olpad vide order dated 26/5/1999 set aside the order passed by the Mamlatdar & ALT and held that the petitioners claiming to be the tenants of the land in question were not entitled to purchase the land U/s.32-G of the Tenancy Act.
6. Being dissatisfied with the order passed by the Assistant Collector, the petitioners herein filed Revision Application no.74/1999 before the Gujarat Revenue Tribunal.
7. It appears from the materials on record that each date of hearing was being informed by the Tribunal to the petitioners in accordance with the Regulation 31/1 of the Gujarat Revenue Tribunal Regulations. The petitioners herein were also represented by their lawyer who had filed his Vakalatnama on behalf of the petitioners.
8. It also appears from the materials on record that the registered A.D. Notices were also sent under Regulation No.46.
However, the advocate who was appearing on behalf of the petitioners, avoided the hearing before the Tribunal even after the due notices were served.
9. The materials on record further reveal that on 15/9/1999 the advocate for the petitioners had sent a telegram praying for an adjournment and on such request twice time was granted by the Tribunal i.e. on 15/9/1999 and on 25/10/1999. Thereafter even on the next date of hearing i.e. 28/10/1999 none remained present on behalf of the petitioners.
Accordingly the Tribunal rejected the Revision Application for default vide order dated 28th October, 1999.
10. It also appears from the materials on record that the Tribunal sent a copy of the order rejecting the revision application for default to all the petitioners by Registered A.D. The registered A.D. slips were also received duly signed by the petitioners dated 5/11/1999, 11/11/1999 and 30/11/1999 respectively.
11. It also appears from the materials on record that even pending the revision application attempts were made by the petitioners to take forcible possession of the land through some persons interested in the land. On 1/11/1999 the respondents filed a police complaint against the petitioners. On 24/12/1999 police protection was also provided to the respondents. It also appears from the materials on record that the Mamlatdar & ALT also gave a report that the respondents landlords were in possession of the land.
12. Almost after a period of 10 months from the date of rejection of the Revision Application for default, the petitioners herein filed Restoration Application being Application No.9/2000 and other allied applications on 5/8/2000. All the Restoration Applications were sent by post.
13. According to Regulation No.20 of the Gujarat Revenue Tribunal Act, the restoration application is to be filed within a period of 30 days. The Tribunal having realized that the Restoration Applications were hopelessly time-barred, decided to hear the Restoration Applications on a preliminary issue as regards the limitation.
14. The Tribunal vide order dated 20/9/2001 rejected all the Restoration Applications on the ground that the plea of the petitioners that they were not informed about the hearing was found to be false. The Tribunal recorded a finding that notices were given for hearing and the copy of the order rejecting the Revision Application for default was also duly received by the petitioners. The Tribunal also recorded a finding that the Restoration Applications were time barred and the petitioners failed to assign any sufficient cause for not filing the restoration applications in time.
15. Almost after a period of 7 months thereafter the present petitions came to be filed challenging the order passed by the Tribunal rejecting the Restoration Applications being filed beyond the period of limitation without any sufficient cause.
It deserves to be noted that although these petitions under Article-227 of the Constitution of India were filed in April, 2002 but the same were circulated for hearing for the first time in March, 2003.
16. Mr.Yagnik, the learned counsel appearing for the petitioners vehemently submitted that the Tribunal committed a serious error in rejecting the restoration applications since his clients had not received the order rejecting the Revision Application for default. Mr.Yagnik submitted that his clients learnt about the same only on 4/8/2000 when his clients had gone to the Office of the Talati to pay revenue. It is at that point of time that the Talati informed his clients that their Revision Application was dismissed way back on 28/10/1999.
Mr.Yagnik submitted that his clients were not informed by the advocate who was appearing on their behalf before the Tribunal about the rejection of the Revision Application for default. Mr.Yagnik also submitted that his clients, at no point of time, received any order from the Tribunal dismissing the Revision Application for default.
Mr.Yagnik submitted that the signatures on the acknowledgment receipts are also forged as someone in the village played a mischief by putting the signatures of the petitioners acknowledging the receipt of the order of the Tribunal rejecting the revision application for default.
Mr.Yagnik lastly submitted that the Tribunal ought to have appreciated an important question of fact that his clients hail from a very poor strata of the society and are illiterate. In such circumstances the Tribunal ought to have taken a liberal view of the matter by adopting a human approach.
In such circumstances referred to above Mr.Yagnik prays that there being merit in this application, the same may be allowed and the order of the Tribunal be quashed and set aside.
17. Mrs. Ketty Mehta, the learned Counsel appearing on behalf of the respondents vehemently submitted that no error, not to speak of any error of law could be said to have been committed by the Tribunal in rejecting the Restoration Applications warranting any interference at the hands of this Court in exercise of supervisory jurisdictions under Article-227 of the Constitution of India.
Mrs. Mehta submitted that the plea of being illiterate and hailing from a poor strata of the society, deserves to be rejected outright only on the ground that the sufficient cause put before the Tribunal has been found to be false . Mrs.Mehta submitted that once it is found that a party has tendered false explanation for getting the delay condoned that by itself is sufficient to reject the application for condonation of delay.
Mrs. Mehta submitted that this litigation is now almost 17 years old. Prior to that the litigation between the ancestors of the petitioners and the respondents had come to an end in the year 1970.
In such circumstances Mrs. Mehta submits that there being no merit in these petitions, the same deserve to be rejected with costs.
18. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration in this batch of petitions is, whether the Tribunal committed any error in passing the order impugned.
19. Before considering the matter on merit, it will be profitable to quote the findings recorded by the Tribunal while rejecting the application for condonation of delay in filing restoration applications.
The Tribunal in Paras-6 and 7 of its order has recorded the following findings of which the free English translation is as under:-
"(6) The facts that emerge from the record of the Revision Application are that the applicants had engaged an advocate Mr. M.B. Parekh as their lawyer. All Revision Applications being presented, my predecessor, instead of admitting the revision applications, ordered that, On question of Limitation preliminary issue to be heard (fix for P.H. on the point of Limitation).
On the said facts, the office had issued notice for preliminary hearing to advocate Shri M.B. Parekh under Regulation 13(1) and according to Regulation 46, by Registered Post A.D. Notices regarding preliminary hearing dated 16/9/1999 to advocate Shri M.B. Parekh, were sent from her on 23/24.8.1999, which was duly received by him. He had sent Telegram for seeking time on 15/9/1999 after receiving said notices. The same was received on 16/9/1999. Considering the said telegram, my predecessor had fixed the date of hearing of Revision Application on 25/10/1999. But on 25/10/1999 also applicants or their advocate Shri M.B. Parekh did not remain present and again preliminary hearing of Revision Applications was kept on 28/10/1999. On 28/10/1999, the applicants or their advocates did not appear, therefore, all revision applications, because of absence of applicants and their advocate were dismissed for default of prosecution.
(7) On Revision Applications being dismissed by order dated 28/10/1999, the office had to follow the procedure as per Regulation 44(A) of the Bombay Revenue Tribunal Regulation, 1958, and as per that certified copy of order has to be sent, without charging expenses, to the first applicant; and as inquired by advocate of respondents Shri M.K. Shah, office had sent to first applicant in Revision Applications by Registered Post A.D. Looking to the Revision application, by a printed forwarding letter with filling in number, name and address of first applicant etc. by writing in hand Regd. Post A.D. and keeping carbon copy of the said printed letter, the certified copy of the order with original letter was sent to first applicant of revision applications. The said carbon copy of original forwarding letter is in the file of Revision Applications. The date of said letter is 29/10/1999. Therefore, certified copy of order is sent with forwarding letter to first applicant after 29/10/1999. The said Registered Post A.D. slips are not filed in revision applications, but were found subsequently on inquiry and the copy of order sent with original forwarding letter has been received by them as stated above. In the said receipts date and order, name of village applicant, Devgadh is shown in post office stamp. On certain receipts there are signatures of first applicant and on other where there are thumb impressions of left hand, it is taken by postman in presence of a witness. According to the date inside the stamp, in Revision Application no.70 of 1999, 71 of 1999, 73 of 1999, 72 of 1999, 76 of 1999 and 78 of 1999 the applicants have received it on 5/11/1999 and in revision application No.67 of 1999 and 75 of 1999, the first applicant received the Registered P.A.D. on 30/11/1999. Only in case of Restoration Application No.10 of 2000, the receipt in Revision Application No.74 of 1999 of first applicant is not found on inquiry. All applicants of the revision application belong to the same village of Devgadh. Looking to the order of the Assistant Collector, it transpires that all the applicants of the Revision Applications had made application as joint tenants to fix the price of the land. In Devgadh village post office is there. The first applicants of other revision applications have also received the order by Registered Post A.D. The first applicant of revision application no.74 of 1999 in Restoration Application no.10 of 2000 has also received the certified copy of the order by Registered Post A.D. as stated herein above. Therefore, because the receipt of first applicant is not found, it cannot be inferred that the certified copy of order sent by Registered Post A.D. has not been received and he has no information about the order.
Therefore, it is proved beyond doubt that the advocate of applicants Shri Parekh having asked for time by telegram received time on 16/9/1999 in all the Revision Applications of 25/10/1999, given by my predecessor; and it is hard to believe that advocate Shri Parekh did not inform the applicants about next date. In spite of the fact that in each Revision Application, the first applicant having received the certified copy of the order, they are not telling the truth, and are making false representation that they have not been informed about order dated 28/10/1999 from her. The applicants deny the fact in spite of having received the order of dismissal of the revision applications, therefore, they are telling lies for a selfish motive and telling lies that they were not informed about date of hearing by their advocate. Under the circumstances, I come to the conclusion that the contention of applications being false, cannot be accepted. Under the circumstances, it cannot be held that their advocate Shri M.B. Parekh, did not inform them of the date of hearing. Only because of the fact that the applicants are tribals, in view of circumstances stated above, they cannot be given any advantage. In addition as stated in the order of Assistant Collector, dated 26/5/1999, the landlord had filed suit, 35 to 40 years back, to get the possession of the land for personal cultivation in accordance with law, and in the said suits the landlords had received the legal possession of the land in accordance with law and the said order was confirmed right upto Gujarat Revenue Tribunal. The said orders were passed 35 to 40 years back. Against the said orders either applicants or their lawyer never filed further, proceedings and thereafter, after period of 35 to 40 years are raising objection regarding the disputed land which was given to landlords for personal cultivation. In view of the facts stated by the Assistant Collector, the contention of applications that their lawyer did not inform them the date of hearing is false and to show that the applicants are in habit of telling lies, the facts regarding the order of Assistant Collector is stated. If the advocate of applicants had no intention to inform the applicants of date of hearing he would not have sent telegram and asked for time.
It is the say of all the applicants that all the applicants had gone to pay Revenue on 4/8/2000 and at that time the Talati informed them about dismissal of the Revision Applications, that is not possible. It is not possible that all the applicants went to pay Revenue on the same day and which is not true in this case and it is raised to get sympathy of the court. From all the circumstances, it is definitely proved that the applicants are showing false reason of their advocate Shri Parekh did not inform them. It is therefore, held that Advocate Shri Parekh informed the applicants about date of hearing, however, applicants are making false plea for their personal gain.
20. Before proceeding further, I am quite alive to the scope of interference at the instance of a High Court in a proceeding under Article 227 of the Constitution of India, as repeated and reiterated by the Supreme Court in the case of Estralla Rubber Vs. Dass Estate (P) Ltd. reported in (2001) 8 SCC 97, wherein it was observed as follows:-
The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.
21. In one of the recent pronouncements of the Supreme Court in the case of Jai Singh and others Vs. Municipal Corporation of Delhi reported in (2010) 9 SCC 385, the Supreme Court in paragraph 15 observed as follows:-
"15.
.... we may notice certain well recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It can not be exercised like a bull in a china shop , to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice."
22. In Mohd. Yunus Vs. Mohd. Mustaqim and ors.
reported in AIR 1984 SC 38, the Supreme Court in paragraphs 6 and 7 made the following observations:
"6.
....... ...... A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article
227.
7. The supervisory Jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority,"
and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art. 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors of law in the decision."
23. The picture that emerges from the materials on record is thus:-
(i) The petitioners were being represented by an Advocate before the Tribunal;
(ii) The Tribunal forwarded a copy of the order rejecting the Revision Application for default to all the petitioners by a Registered A.D. The Registered A.D slips were received by the Tribunal duly signed by the petitioners dated 5th November, 1999, 11th November, 1999 and 30th November, 1999 respectively.;
(iii) Almost after a period of ten months from the date of rejection of the Revision Application for default, the petitioners filed Restoration Applications before the Tribunal and such Restoration Applications were sent to the Tribunal by post;
(iv) The Tribunal recorded a clearcut finding that the plea of the petitioners that they were not informed about the hearing was found to be false.
The Tribunal recorded a finding that the notices were issued for hearing and the copy of the order rejecting the Revision Application for default was also received by the petitioners;
(v) Almost after a period of seven months thereafter, the present petitions were filed challenging the order passed by the Tribunal rejecting the Restoration Applications.
24. It is a settled law that the discretion given by Section 5 of the Limitation Act should not be defined or crystallized so as to confer a discretionary matter into a rigid rule of law. It is equally well settled that the expression "sufficient cause" should receive a liberal construction. Whether or not there is a sufficient cause for condonation of delay is a question of fact depending upon the facts and circumstances of the particular case.
However, the position would be altogether different if it is found that an incorrect or false statement has been made in the application seeking condonation of delay. In the present case, the Tribunal has reached to a definite conclusion that the petitioners have made an incorrect statement that they were not aware of the order passed by the Tribunal rejecting the Revision Application for default.
25. In my opinion, any incorrect or false statement made in the application seeking condonation of delay itself is sufficient to reject the application without any further enquiry, whether the averments made in the application reveal sufficient cause to condone the delay. A party taking a false stand to get-rid of the bar of limitation should not be encouraged to get any premium on the falsehood on its part by condoning the delay. [See Pundlik Jalam Patil (Dead) By LRs Vs. Executive Engineer, Jalgaon Medium Project and ors. reported in (2008) 17 SCC 448 and Binod Bihari Singh Vs. Union of India, reported in (1993) 1 SCC 572.)
26. I am not impressed by the vociferous submission of Mr. Yagnik that his clients being illiterate and hailing from a poor strata of society, deserve to be pardoned for the delay caused in filing the Restoration Applications.
27. In the aforesaid context, I may profitably refer to a decision of the Supreme Court in the case of Lanka Venkateswarlu (D) By LRs. Vs. State of A.P. and ors. reported in 2011 SCCL.COM 154, wherein the Supreme Court observed in so many words as under:-
The concepts such as liberal approach , justice oriented approach , substantial justice can not be employed to jettison the substantial law of limitation. Whilst considering applications for condonation of delay under section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers.
28. In the decision of Messrs Bharat Barrel & Drum MFG. Co Vs. the Employees State Insurance Corporation [1971 (2) SCC 860], the Supreme Court held as under:
The necessity for enacting periods of limitation is to ensure that actions are commenced within a particular period, firstly to assure the availability of evidence documentary as well as oral to enable the defendant to contest the claim against him;
secondly to give effect to the principle that law does not assist a person who is inactive and sleeps over his rights by allowing them when challenged or disputed to remain dormant without asserting then in a Court of law. The principle which forms the basis of this rule is expressed in the maximum vigilantibus, non dermientibus, jura sub-eniunt (the laws give help to those who are watchful and not to those who sleep). Therefore, the object of the statutes of limitations is to compel a person to exercise his right of action within a reasonable time as also to discourage and suppress stale, fake or fraudulent claims."
29. Having considered the matter threadbare, I am of the opinion that the Tribunal committed no error not to speak of any error of law warranting any interference at my end in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India. I am in complete agreement with the findings recorded by the Tribunal in rejecting the Restoration Applications on the ground that they were time barred. For the foregoing reasons, all the petitions fail and are hereby rejected with no order as to costs.
(J.B.PARDIWALA, J.) Mohandas Page 19 of 19