Document Fragment View

Matching Fragments

1. The appellants-original petitioners are husband and sons of late Smt. Shantaben Babulal Mehta. She purchased land bearing survey no.18 of village-Umargam, Dist. Valsad from one Vithal Kambali on 23rd February, 1956. Mutation Entry No. 1411 was effected on 28th April, 1956. However, concerned authority made an endorsement that the said land was fragment and the sale having made in contravention of the provisions of Bombay Prevention of Fragmentation and Consolidation Act, 1948 (for short "the Act"), therefore, the said mutation entry was required to be cancelled and accordingly it was cancelled on 7th August, 1957. This was done behind the back of Shantaben without giving any opportunity of hearing to her. Shantaben died in 1976 without the knowledge that mutation entry regarding the land in question purchased by her was cancelled by the authority on 7th August, 1957. Because of this her legal heirs and representatives i.e. her husband and her sons were also in know of the fact that the mutation entry was cancelled by the authority in 1957, till 1991.

2. It is the case of the appellants-petitioners that as soon as they came to know about the cancellation of mutation entry in 1957, they immediately filed RTS Appeal No. 100/91 before the Deputy Collector challenging the order dated 7th August, 1957 passed by the authority cancelling mutation entry regarding the land in question. However, the said appeal was dismissed by the Deputy Collector, on the technical ground like limitation as he was of the opinion that there was a gross delay in filing the appeal against the order of cancelling the mutation entry without going into the merits of the case. This was challenged by the appellants-petitioners in revision being RTS Revision No. 113 of 1993 before the Collector. However, the learned Collector, by his order dated 20th January, 1994 dismissed the said revision on the ground of limitation. Hence, further revision application was filed under rule 108(6)(a) of the Gujarat Land Revenue Rules, 1972 before the State Government. The same was also dismissed on 2.3.2000 by Principal Secretary, Revenue Department (Appeals), State of Gujarat.

4. Learned counsel Mr. Sunil Patel for appellants-petitioners vehemently submitted that all the authorities below and the learned Single Judge have committed grave error in throwing out the case on the ground of delay. He submitted that admittedly, the mutation entry was cancelled by the concerned authority on 7th August, 1957 behind the back of deceased-Shantaben. She was not given any opportunity before cancelling the mutation entry by the concerned authority. This had never come to the notice of Shantaben till she died in 1976. So as the case with the appellants-petitioners, who are husband and sons of Shantaben. They, for the first time, came to know about the cancellation of mutation entry in 1991 only i.e. after a period of almost 34 years. As soon as they came to know about the same they filed appeal and challenged the order of authority cancelling the mutation entry passed in 7th August, 1957. Unfortunately, all the authorities below, including the learned Single Judge of this court committed grave error in throwing out their case on the ground of delay. In fact, there was no delay in approaching the authority. Period of limitation would start only from the date of knowledge and the fact mentioned by the appellants-petitioners in their appeal filed before the Deputy Collector was never controverted. In that view of the matter, authorities were absolutely wrong in dismissing their case on the ground of gross delay and latches. Similarly, mistake was committed by the learned Single Judge while dismissing the writ petition.

6. Having heard the learned counsel for the parties we are of the opinion that period of limitation would start only from the date of the knowledge. On facts of this case, it is clear that without affording any opportunity of hearing to deceased-Shantaben the authorities straightaway cancelled the mutation entry by its order dated August 7, 1957. There is nothing on record to show that the said order of cancellation was ever communicated to deceased-Shantaben. In that view of the matter, there is no reason for us not to accept the version of the appellants-petitioners that neither the deceased-Shantaben came to know about cancellation of mutation entry till she died in 1976 nor the appellants came to know about the order of cancellation of mutation entry passed in 1957. It is only in 1991 when the appellants came to know about the said order passed on August 7, 1957 then without wasting time they immediately approached the appellate authority i.e. the Deputy Collector. Thus, in this case there was no delay on their part, therefore, all the authorities as well as the learned Single Judge committed grave error in throwing out their case on the ground of delay.