Gujarat High Court Case Information System
Print
SCA/1039220/2008 2/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10392 of 2008
=========================================================
CHHELABHAI
VAGHABHAI KHANT & 1 - Petitioner(s)
Versus
STATE
OF GUJARAT & 8 - Respondent(s)
=========================================================
Appearance :
MR
VIKRAM J THAKOR for Petitioner(s) : 1 - 2.
MR
VIPUL MISTRY AGP for Respondent(s) : 1 - 3,
MR AV PRAJAPATI for
Respondent(s) : 4 -
9.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 12/11/2008
ORAL
ORDER
Heard
learned counsel for the parties.
Rule.
Mr.Vipul Mistry, learned AGP and Mr.A.V.Prajapati, learned counsel
appear and waive service of notice of rule for respective
respondents.
This
petition under Article 226 of the Constitution of India is filed by
the petitioner with a prayer to quash and set aside the order dated
9/11-7.2008 passed by the Secretary (Appeal), Revenue Department,
State of Gujarat in Revision Application No.MVV/HKP/Pancham/8/
2008(Dasu) by which the revision application preferred by the
petitioner came to be rejected on the ground of delay.
The
petitioners are the owners and occupiers of the land baring survey
No.389 admeasuring 5 acres and 29 gunthas of village Tadva, Taluka
Sahera, Dist. Panchmahal and according to them they are in actual
and physical possession of the subject land as owners.
So
far as petitioner No.1 is concerned, part of the subject land was
purchased by executing sale deed dated 2.4.1997 by the original
owner Shri Chandubhai Jesingbhai i.e. father of respondents Nos.4 to
6. Pursuant to the registered sale deed executed by the original
owner, names of the petitioners came to be mutated in revenue
records by mutation entry No.1691 and 1692 dated 18.3.1999. The
above mutation entries came to be challenged by the respondents
which came to be dismissed in RTS Appeal by an order dated 9.10.2003
confirming both the above entires. Against which RTS Revision
Application No.8 of 2005 was preferred by the respondents herein
before the District collector and vide order dated 26/28.07.2005 the
order passed by the Deputy Collector dated 9.10.2003 came to be
quashed and set aside and cancelled both the entries Nos.1691 and
1692 on the ground that the subject land was restricted tenure land
as per Section 43 of the Bombay Tenancy and Agricultural Act and
sale transactions were illegal.
Against
which the revision application was preferred in the year 2008 being
Revision Application No.8 of 2008 which same to be rejected by the
Revisional Authority vide order dated 9/11.7.2008 on the ground that
sufficient cause was not shown for delay of more than two and half
years.
Learned
counsel for the petitioners contend that as such there is no time
limit prescribed for preferring revision application before the
Revisional Authority under Section 211 of the Code. Not only that
but in the memo of revision application in ground No.7 sufficient
reasons were shown for delay in preferring application and
justification for the same, which was not considered in proper
perspective. Learned counsel for the petitioners even relied on
various decisions in the context of applicability of Section 5 of
the limitation Act and submitted that for doing substantial justice,
the concerned authority ought to have been condoned the delay in
filing the revision application by the petitioner.
Mr.Prajapati,
learned counsel for the private respondents submits that though
sufficient notices were given to the petitioners by the authority
concerned, due care and diligence was not shown by them and the
petitioners herein never remained present either before the Deputy
Collector or the Collector, and therefore, when the transaction in
question was hit by Section 43 of the Act the order passed by the
Collector is just and proper. Not only that but the delay in
preferring revision application is rightly rejected by the
Revisional Authority after taking into consideration all the
relevant aspects and providing sufficient opportunity of hearing to
the petitioners. According to learned counsel for the private
respondents, the petitioners herein are consistent in their approach
and attitude in not remaining present before the authorities below,
and therefore also, they do not deserve any relief in exercise of
power under Article 226 of the Constitution of India.
Heard
learned AGP who supports the arguments of the learned counsel for
the private respondents.
Having
heard learned counsel for the parties and perusing the record of the
case, I am inclined to accept the arguments of the learned counsel
for the petitioners inasmuch as there was no justification for the
revisional authority for not considering sufficient cause shown to
the petitioners for delay in filing the revision application. No
other reasons are given by the Revisional Authority to ground 7 of
the memo of revision application in which explanation was rendered
by the petitioner for delay in filing the revision application. It
goes without saying that when there is merit or substance in the
subject, justice demands procedure is to be followed in toto and
approach of the authority exhibits lacking understanding of exercise
of revisional jurisdiction in its proper perspective. Decision
relied by the learned counsel for the petitioner in the case of
Collector, Land Acquisition, Anantnag v. Mst.Katiji reported
in in AIR 1987 SC 1353 is applicable to the facts and
circumstances of the case.
In
view of the above, this petition is allowed and the order dated
9/11.7.2008 passed by the learned Secretary (Appeals), Revenue
Department, State of Gujarat in Revision Application
No.MVV/HKP/Pancham/8/2008 (Dasu) is hereby quashed and set aside and
the matter is remanded to the authority concerned for taking
appropriate decision in accordance with law within a period of 8
weeks from today.
Accordingly,
this Special Civil Application. Rule is made absolute to the
aforesaid extent only.
(ANANT S. DAVE, J.)
*pvv
Top