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SCA/588220/2000 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5882 of 2000
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
=========================================================
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 ?
=========================================================
MAGANBHAI
GOVANBHAI PATEL VILLAGE ORMA - Petitioner(s)
Versus
STATE
OF GUJARAT, THROUGH SECRETARY, REVENUE DEPTT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
DHIRENDRA MEHTA for
Petitioner(s) : 1,
MR DIPEN DESAI, Assistant Government Pleader
for Respondent(s) : 1 - 2.
NOTICE SERVED for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 10/09/2008
ORAL
JUDGMENT
The petitioner has filed
this petition under Articles 226 and 227 of the Constitution of
India challenging the legality, validity and propriety of the
impugned judgment and order dated 1.7.1999 and 14.10.1999 passed by
the learned Member, Gujarat Revenue Tribunal in Appeal
No.TEN.A.S.3/1999 and Restoration Application No.TEN.D.S.8/1999
respectively.
This Court has issued
notice on 21.6.2000 and petition was admitted on 18.10.2000. On
behalf of the respondents Nos.1 and 2 learned Assistant Government
Pleader appeared and affidavit-in-reply is filed by Dy. Collector,
Olpad, Surat on 30.10.2000. Despite service of notice and rule
nobody appeared on behalf of the respondent No.3.
The brief facts giving
rise to the present petition are that the petitioner’s grand-
father, namely, Shri Premabhai Dhanabhai was the tenant over the
land bearing Survey No.263 admeasuring 2 acres and 16 guntha
situated in Orma. By virtue of will executed by the said Premabhai
Dhanabhai, who died on 17.1.1987, the name of the petitioner was
entered into the revenue record vide mutation Entry No.250 and as
such the petitioner was in occupation and possession of the said
land bearing Survey No.263 situated in village Orma, which was the
Inam village under the provisions of the Act. On abolition of the
Inam of the Inamdar, the proceedings were initiated by the
respondent No.2 herein for the publication of the names of the
occupiers over the agricultural lands in the Inam village and the
objections were called for under the public notice dated 15.2.1997.
The respondent No.3 raised his objections in the writing under
application dated 15.6.1997.
It is also the case of
the petitioner that he is paying the land revenue for the said land
bearing Survey No.263 situated in village Orma. His name was
already shown in the revenue records as occupiers while the name of
the respondent No.3 has not been recorded anywhere in the revenue
records and as such, he has no right, title or interest in the land
in question. However, the respondent No.2 vide his order dated
30.7.1998 declared and held that the mutation in the name of the
petitioner was against the provision of the Act and without consent
of the Inamdar, therefore he ordered the land in question to be
vested in the Government and further directed the Mamlatdar to
initiate proceedings under Section 32P of the Bombay Tenancy and
Agricultural Lands Act. The respondent No.2 without having
jurisdiction to decide the matter under the Tenancy Act acted beyond
the scope of his power under the Act and passed the order on
30.7.1998.
Being aggrieved by the
said order of the Dy. Collector, the petitioner preferred an Appeal
under the provisions of the Act before the Gujarat Revenue Tribunal
being Appeal No.TEN.A.S. 3/1999 and also prayed for interim stay.
The petitioner had also filed a separate application for condonation
of delay in filing the said appeal. The learned Member of Gujarat
Revenue Tribunal rejected the said application for condonation of
delay. The learned Member of Tribunal rejected the delay
condonation application on preliminary hearing at preliminary stage
and did not entertain the appeal as the delay was not ordered to be
condoned. The petitioner’s advocate was not present at the time of
hearing of the preliminary hearing of the appeal on the question of
condonation of delay.
On coming to know of the
order dated 1.7.1999, after seeking legal advice he filed a
Restoration Application No.TEN.D.S. 8/1999 before the learned
Member of Tribunal, since the order dated 1.7.1999 was passed
without hearing the petitioner or his advocate. The said
application was also rejected and not entertained on the ground that
the said restoration application was not admissible under Regulation
20 as main appeal was not dismissed for default.
Being aggrieved by the
two orders passed by the Tribunal, the petitioner filed present
petition before this Court.
Mr. Dhirendra Mehta,
learned advocate appearing for the petitioner has submitted that the
petitioner being the agriculturist residing in remote rural area and
also for the ignorance of law, could not avail of the remedy of
appeal immediately and on receipt of the legal advise when the
appeal was filed it was delayed by about 137 days. He has further
submitted that there is settled legal position that a meritorious
case of the petitioner should not be thrown at the threshold merely
on technicalities and it is specially when the person residing in
the remote rural area is not expected to be well-versed of the
provisions of law. He has further submitted that the appeal
preferred by the petitioner on the important issue with regard to
the jurisdiction of the Dy. Collector and the finding given by him
is required to be considered by the Tribunal. He has further
submitted that the delay condonation application was decided by the
Tribunal in absence of the petitioner and his advocate and hence the
Tribunal ought to have given the opportunity to the petitioner.
Mr. Mehta relied on the
decision of the Hon’ble Supreme Court in the case of Ram
Sumiran and others Vs. D.D.C. and others, reported in AIR 1985 SC
606, wherein while setting aside the abatement and
permitting to bring the legal representatives of the deceased on
record, the Hon’ble Supreme Court has held that the appellants are
admittedly from the rural area and in a country like ours where
there is so much poverty, ignorance and illiteracy, it would not be
fair to presume that everyone knows that on death of a respondent,
the legal representatives have to be brought on record within a
certain time. The ends of justice require that the application for
bringing the legal representatives of the deceased respondent No. 5
should have been granted. These observations are equally applicable
to the present case while considering the delay condonation
application.
Mr. Mehta further relied
on the decision of this Court in the case of Bhikhabhai
Mavjibhai Patel Vs. State of Gujarat, reported in 1994(1) GLR 151,
wherein it is held that this Court has time and again emphasised
that Courts dealing with delay condonation application should adopt
a liberal approach and not a hyper technical one. The landmark
ruling on the point is in the case of Karim Abdulla Vs. Bai Hoorbai,
1975 GLR 835. The sum and substance of that ruling is that, unless
the applicant making the application for condonation of delay is
guilty of gross unexplained delay or is charged with deliberate
delay with some ulterior motive, the application for condonation of
delay should normally and ordinarily be accepted. This Court has in
terms held that substantial justice lies in deciding the matter on
merits rather than disposing it of on technicalities. The Court
further held that villagers are often found quite gulliable and
poverty-stricken. They are
often taken in by what is dished out to them. For them at times the
order passed by the competent authority is not worth more than a
piece of paper in absence of any proper advice. It is too much to
expect from them knowledge of intricacies of law. In the present
case also the petitioner was residing in a very remote area and has
no knowledge but when he came to know that the land in question is
to be entered into revenue records in the name of the Government, he
immediately rushed for legal advice and filed appeal before the
Tribunal. He has further submitted that the order passed by the Dy.
Collector is not tenable at law and the same is without
jurisdiction. The Tribunal should have, therefore, condoned the
delay and decided the appeal on merits.
An affidavit-in-reply
is filed by the Dy. Collector. Mr. Dipen Desai, learned Assistant
Government Pleader has submitted that there was no proper ground in
the delay condonation application therefore the Tribunal has rightly
rejected the delay condonation application. The appeal could not be
restored because the Tribunal has decided the delay condonation
application on its own merit and that application was not rejected
for want of prosecution. He has, therefore, submitted that no
interference is called for in the order passed by the Tribunal.
Having heard learned
advocate appearing for the petitioner and the learned Assistant
Government Pleader appearing for the Revenue and having considered
the submissions made in the petition as well as authorities cited
before the Court, the Court is of the view that the Tribunal has not
properly considered the grounds urged by the petitioner for
condonation of delay. The Tribunal has proceeded only on the
footing that the petitioner could not be said to be illiterate
person as he has filed Vakalatnama. However, reasons given by the
petitioner for condonation of delay in his delay condonation
application have not at all been considered. Even otherwise, delay
condonation application was decided by the Tribunal without hearing
the petitioner as well as petitioner’s advocate. It is true that
two or three opportunities were given to the petitioner. However,
time was sought on the ground of ill-health of the petitioner’s
advocate and ultimately the delay condonation application was
decided in absence of the petitioner’s advocate. Be that as it may,
the Court is of the view that this is not the case where the appeal
of the petitioner can be thrown out at the very threshold. The
delay has been properly explained by the petitioner and the
petitioner was prevented by sufficient cause from filing the appeal
in time. The legal position is also well settled on this issue and
the two judgments discussed above squarely cover the case of the
petitioner. Considering the overall view of the matter this Court
is satisfied that the petition deserves to be allowed and
accordingly it is allowed. Rule is made absolute without any order
as to costs.
Since the matter is
very old the Tribunal is directed to decide the main appeal as
expeditiously as possible, preferably within the period of six
months from the date of receipt of writ or receipt of certified copy
of this order, which ever is earlier. While deciding the appeal
adequate opportunities should be given to the parties.
(K.
A. PUJ, J.)
kks
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