1. This petition, under Article 226 of the Constitution of India, has been preferred, with the following prayers:
"(A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to appropriate writ, order or direction quashing and setting aside the impugned order dated 12/3/2012 (Annexure-A) passed by the respondent no.4 in Revision Application No.MVV/HKP/VDD/33/2000.
(C) During the pendency and till final disposal of this petition, by way of interim relief, Your Lordships may be pleased to stay the implementation, execution and operation of the impugned order Annexure-A dated 12?3/2012 passed by the respondent no.4 in Revision Application No.MVV/HKP /VDD/33/2000, and all the respondent may be directed by way of an interim relief to maintain the status quo so far as the title, possession and revenue record of the s.no.76/1 of village hetampura, dist: vadodara.
(D) Any other relief deemed just and proper may please be granted in the interest of justice."
2. At the outset, Mr. Mihir Joshi, learned Senior Advocate with Mr.Y.V. Vaghela, learned advocate for the petitioners, has submitted that the impugned order dated 27.02.2012 (12.03.2012) passed by the Additional Secretary (Appeals), Revenue Department, is an order against the dead person as the sole revision petitioner-Shri Vitthalbhai Fogatlal Kansara expired on 23.02.2010, as per the Death Certificate annexed at Annexure-H to the petition. It is further submitted that no notice appears to have been issued by the Additional Secretary before the final hearing of the Revision Application. Had notice been issued, it could have been discovered that the sole revision petitioner is dead. It is contended that the hearing also and did take place at Ahmedabad, but was conducted on circuit, at Vadodara, and only the learned advocate for the respondents was heard before passing the impugned order. Referring to the provisions of Order-XXII, Rule-3, it is contended that where an application to bring on record the heirs and legal representatives of the deceased-petitioner is not made within the period of time stipulated in the said provision, the proceedings shall abate. As the deceased-revision petitioner is survived by his heirs and legal representatives, namely, the petitioners herein, the right to sue survives. As they had not been brought on the record of the case before passing the impugned order, the proceedings before the Additional Secretary (Appeals) have already abated upon the death of the father of the petitioners. In support of the above submissions, the learned Senior Advocate has brought to the notice of this Court a judgment in Heirs of Deceased-Bhikhabhai H. Patel Vs. Heirs of Deceased Parsottambhai Z. Patel reported in 2001(1) GLH 565, wherein it has been held that a decree passed by the Appellate Authority without bringing the heirs and legal representatives on record, is a nullity.
3. Mr.Neeraj Soni, learned Assistant Government Pleader has appeared for respondents Nos.1 to 4 on supply of an advance copy of the petition, Mr.R.C. Jani, learned advocate, has appeared on behalf of respondents Nos.5 to 8, on Caveat.
4. Neither the learned Assistant Government Pleader nor Mr.R.C. Jani, on behalf of the Caveators could successfully dispute the legal position enunciated in Heirs of Deceased-Bhikhabhai H. Patel Vs. Heirs of Deceased Parsottambhai Z. Patel (supra).
5. It is stated by Mr.R.C.Jani, learned advocate, upon instructions from respondents Nos.5 to 8, that they have no objection, if the impugned order passed by the Additional Secretary (Appeals) is quashed and set aside and the matter is remanded to the Additional Secretary, for fresh hearing.
6. Mr.Mihir Joshi, learned Senior Advocate, states that the petitioners shall file an application to bring them on the record of the Revision Application, as heirs and legal representatives of the deceased-revision petitioner, and the Additional Secretary may be directed to decide the said application before hearing the Revision Application.
7. In view of the consensus arrived at between the learned counsel for the respective parties and the legal position as indicated hereinabove, the following order is passed:
The impugned order dated 27.02.2012 (12.03.2012) passed by the Additional Secretary (Appeals), is hereby quashed and set aside. The matter is remanded to the Additional Secretary (Appeals), for fresh hearing of Revision Application No.MVV/HKP/VDD/33/2000. The petitioners may file an application for being brought on record as heirs and legal representatives of the deceased-revision petitioner-Shri Vitthalbhai Fogatlal Kansara. In the event that the application is made within a period of four weeks from today, the Additional Secretary (Appeals) shall decide the same before taking up the proceedings of Revision Application. The Revision Application shall then be heard and decided, within a period of six months from the date of decision of the application preferred by the petitioners, in accordance with law. The parties shall cooperate in the hearing of the Revision Application and shall maintain status-quo till the final decision of the Revision Application.
8. The petition is disposed of, in the above terms, without entering into the merits of the case.
Direct Service of this order, is permitted.
(Smt.
Abhilasha Kumari, J.) rakesh/ Top