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CA/8061/2009 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 8061 of 2009
In
MISC.CIVIL
APPLICATION No. 2101 of 2004
In
SPECIAL
CIVIL APPLICATION No. 8478 of 1990
With
CIVIL
APPLICATION No. 8062 of 2009
In
MISC.CIVIL
APPLICATION No. 2103 of 2004
In
SPECIAL
CIVIL APPLICATION No. 8474 of 2009
With
CIVIL
APPLICATION No. 8464 of 2009
In
MISC.CIVIL
APPLICATION No. 2102 of 2004
In
SPECIAL
CIVIL APPLICATION No. 8477 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
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 ?
=========================================================
STATE
OF GUJARAT - Petitioner(s)
Versus
TARLIKABEN
WD/O SAMIR MAHENDRAPRASAD TRIPATHI & 7 - Respondent(s)
=========================================================
Appearance :
GOVERNMENT
PLEADER for
Petitioner(s) : 1,
MR JITENDRA M PATEL for Respondent(s) : 1,
1.2.1, 1.2.3, 1.2.4, 1.2.5, 1.3.1,1.3.2
None for Respondent(s) :
1.2.2
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 27/01/2010
ORAL
JUDGMENT
Rule.
Shri Jitendra M.Patel, learned advocate waives service of notice of
rule on behalf of private respondents herein in each of the
applications. With the consent of learned advocates appearing for
the respective parties, all these applications are heard finally
today. As the common question of law and facts arise in all the
three applications, they are being disposed of by this common
judgment and order.
In
all these applications, respective applicants-State of Gujarat has
prayed for an appropriate order to condone the delay in preferring
the applications to recall the order passed by the learned Single
Judge in special civil application Nos.8478 of 1990, 8474 of 1990,
8477 of 1990 and to restore the same to the file, which were
dismissed as having been abated by the learned Single Judge in view
of the repeal of Urban Land Ceiling Act observing that the
possession of land in question was not taken over by the State
Government.
Shri
Mengdey, learned AGP has submitted as such, the possession of the
land in question was already taken over by the State Government
which were declared as excess surplus land under the provisions of
the Urban Land Ceiling Act after following necessary procedure and
the notifications under Section 10(5) of the Urban Land Ceiling Act
and after drawing necessary panchnama and even the factum of taking
over the possession was also recorded in the revenue record. It is,
therefore, submitted that the order passed by the learned Single
Judge dismissing the main special civil application(s) as having
been abated in view of the repeal of Urban Land Ceiling Act
observing that the possession of the land in question was not taken
over by the Sate Government is on factually wrong premise. It is
submitted that as such, through oversight and for whatever the
reason, the correct position was not pointed out by the learned AGP
at the relevant time, who appeared in the aforesaid petitions. It is
submitted that delay caused in preferring restoration applications
and/or to review the order passed by the learned Single Judge is
sufficiently explained in the applications. It is submitted that the
respective applicants-State of Gujarat, has a meritorious case and
there are chances in succeeding the Misc. Civil Applications and
therefore, it is requested to allow the present applications by
condoning the delay in preferring the respective applications to
review and/or recall the order passed by the learned single Judge in
main special civil applications.
Shri
Mengdey, learned AGP has relied upon the order passed by this Court
dated 11.10.2005 passed in Civil Application for Condonation of
delay No.9103 of 2005 in Misc. Civil Application No.2222 of 2005
which came to be confirmed upto the Hon’ble Supreme Court by which,
in a similar set of circumstances the delay in preferring the
application to review / recall the order passed by the learned
single Judge by which, similar type of order was passed by the
learned Single Judge disposing of / dismissing the special civil
applications as having been abated in view of the repeal of Urban
Land Ceiling Act on the ground that possession of the land in
question was not taken over by the State Government and which was
disputed by the State Government, delay came to be condoned. By
making above submissions, it is requested to allow the present
applications.
All
these applications are opposed by Shri Jitendra M.Patel, learned
advocate appearing on behalf of private respondents. It is submitted
that there is a gross negligence on the part of the applicants in
preferring the applications to review and/or recall the order passed
by the learned Single Judge belatedly. It is submitted that for the
negligence on the part of the State Government and/or its officers,
the private respondents should not be made to suffer. It is
submitted that even the applications for Condonation of delay were
not submitted along with the Misc. Civil Applications and they have
been filed after period of 4 (four) years. Therefore also, it is
requested to dismiss the present applications. Shri Jitendra
M.Patel, learned advocate appearing on behalf of the private
respondents has relied upon the following decisions of the Hon’ble
Supreme Court as well as this Court.
State
of Gujarat & Anr. V/s. Duda Megha reported in 1995 (2)
GLH (UJ) 19;
State
of Gujarat & Anr. V/s. Urban Land Tribunal & Ors.
reported in 1998 (1) GCD 237 (Guj);
Collector
V/s. Maganlal Karshandas Katakpara vide Civil Application
No.6481 of 1998, dated 19.8.1998;
The
State of West Bengal V/s. The Administrator, Howrah Municipality and
Others reported in AIR 1972 SC 749;
P.K.Ramachandra
V/s. State of Kerala reported in AIR 1998 SC 2276;
Ajit
Singh Thakur Singh and Another V/s. State of Gujarat reported in
AIR 1981 SC 733;
Budha
Ram V/s. The State and Others reported in AIR 1999 Rajasthan
249;
Principal
V/s. V.M.Joshi vide Civil Application No.12044 of 2000 and
cognate matter dated 26.7.2001.
Relying upon the aforesaid decisions
and making above submissions, it is requested to dismiss the present
applications.
Shri
Jitendra M.Patel, learned advocate appearing on behalf of private
respondents has stated that if this Court is inclined to condone the
delay in that case, he does not invite any further reasoned order as
it might prejudice to the case of the private respondents in the
main applications.
Heard
the learned advocates appareling on behalf of the respective
parties.
It
is to be noted that respective Misc. Civil Applications have been
preferred by the State Government to review and recall the order
passed by the learned Single Judge dismissing the said special civil
applications as having been abated on the repeal of Urban Land
Ceiling Act and by observing that the possession of the respective
lands in question having not taken over by the State Government and
the case on behalf of the Sate Government is that as such,
possession of the lands in question, which were declared as excess
surplus land under the provisions of Urban Land Ceiling Act were
taken over by the State Government. However, the same has not been
considered by the learned Single Judge and the orders have been
passed in wrong premise. In back ground of the above, present
applications are required to be considered. Considering the
averments in the applications, as such, State Government has tried
to explain the delay sufficiently. It also appears that
applicant-State of Gujarat has reasonably prima-facie good case on
merits and there are all chances in succeeding in Misc. Civil
Applications. It is the contention on behalf of the private
respondents that there is gross negligence on the part of the State
Government in preferring the applications belatedly. However, it is
to be noted that for the negligence on the part of the officers for
whatever the reasons, the State should not be made to suffer. In the
facts and circumstances of the case, this Court is of the opinion
that the State is to be given one opportunity to submit the case on
merits in the Misc. Civil Applications.
It
is to be noted that it is not the case on behalf of the private
respondents that there is a deliberate delay on the part of the
applicants in preferring respective Misc. Civil Applications within
the period of limitation and/or preferring the applications
belatedly. It appears to the Court that if the delay is condoned, no
prejudice to be caused to the parties, more particularly, private
respondents in the respective Misc. Civil Applications and
respective Misc. Civil Applications will be heard on merits and the
respective private respondents shall have an opportunity to submit
the case on merits. On the other hand, if the delay is not condoned,
in that case, applicants would be deprived of submitting the case on
merits.
Considering
the aforesaid facts and circumstances of the case and the dispute
involved in the respective Misc. Civil Applications, this Court is
of the opinion that delay be condoned and the respective applicants
be given an opportunity to submit the case on merits by condoning
the delay.
In
view of the above and the request made by Shri Patel learned
advocate appearing on behalf of the private respondents, this Court
is not assigning any further reasons and discussing the judgments
cited on behalf of the respective parties. Suffice is to say that in
the facts and circumstances of the case narrated herein above, delay
deserves to be condoned.
In
view of the above and for the reasons stated above, delay caused in
preferring Misc. Civil Applications to review and recall the order
passed in main special civil application Nos.8478 of 1990, 8477 of
1990 and 8474 of 1990 is hereby condoned. Rule is made absolute in
each of the applications. In the facts and circumstances of the
case, there shall be no order as to costs.
(M.R.SHAH,
J.)
(ashish)
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