1) By this petition under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the order dated 13.11.1998 passed by the Gujarat Revenue Tribunal, Ahmedabad in Revision Application No.TEN.B.A.911/91, whereby the revision application filed by the petitioner has been rejected and the order dated 5.10.1991 passed by the Deputy Collector, Land Reforms (Appeal), Gandhinagar in Tenancy/Appeal/S.R. No.63 of 1990 has been confirmed. By the said order, the Deputy Collector had confirmed the order dated 15.2.1961 passed by the Mamlatdar & Agricultural Land Tribunal, Gandhinagar in Tenancy Case No.366 of 1960.
2) The facts stated in brief are that the petitioner, an agriculturist, was the original owner of land bearing survey No.1875, admeasuring 2-25 gunthas situated at village Kolvada, Taluka and District: Gandhinagar (hereinafter referred to as “the subject land”). It is the case of the petitioner that he is in possession of the subject land which was an ancestral property belonging to the petitioner’s grandfather Shri Amtharam Purohit. It is further the case of the petitioner that the petitioner's maternal uncle Shri Mahasankar Purohit was the Karta of the Hindu Undivided Family and was managing and looking after the HUF. The father of the respondent No.4 Shri Shankarji Khodaji was engaged by the Karta of the HUF for labour work in the year 1955-56. However, the members of the HUF, including the petitioner, were personally cultivating the said land and possession was never handed over to the father of the fourth respondent. Even today, the petitioner is personally cultivating the subject land since the last forty three years.
3) In the year 1960, the office of the Mamlatdar, Gandhinagar made inquiries and recorded statements of Shri Shankarji Khodaji (the so called tenant), Shri Mahasankar Amthalal (the petitioner's uncle and Karta of the HUF) and Bai Hariganga (mother of Hiralal Ranchhod) on 15.2.1961, wherein the tenant stated that he was not in possession of the subject land and that he does not want the possession of the said land. The statements of the land owners were also recorded, wherein they had stated that they were personally cultivating the subject land and that the tenant was not in possession thereof. On the basis of such statements recorded on 15.2.1961, by the impugned order dated 15.2.1961 the respondent No.1, in exercise of powers under section 32G of the Bombay Tenancy & Agricultural Lands Act, 1948 (hereinafter referred to as “the Act”) held that the possession of the subject land was taken over by the land owners unauthorisedly from the tenant in the year 1956-57 and since the tenant had not applied for taking back the possession, the proceedings for purchase of the land by the tenant were ineffective. It is the case of the petitioner that the tenant was not in possession of the subject land on tillers day, that is, 1.4.1957. Therefore, the deeming provision of having purchased the subject land would not be applicable in the present case. However, proceedings under section 32G of the Act came to be initiated, which culminated into the impugned order dated 15.2.1961. It is further the case of the petitioner that he was totally unaware of the impugned order on the basis of which entries came to be made in the revenue record, inasmuch as, the same were never communicated to the petitioner or his family members and, therefore, remained unchallenged. In the year 1966, heirs of Shri Amtharam Purohit distributed the HUF property and the subject land came to the share of the petitioner and necessary entries came to be made in the record of rights pursuant to such distribution of the land. Pursuant to the order dated 15.2.1961, proceedings came to be taken under section 32P(2) of the Act. By an order dated 12.2.1988, the subject land came to be vested in the State Government free from all encumbrances under sub-section (4) of section 32P of the Act and it was further ordered that the rights of the tenant be terminated and the possession of the subject land be taken over on behalf of the Government and the tenant be removed from the subject land.
4) Upon being informed about the said order dated 12.2.1988, the petitioner challenged the same by way of appeal under section 74 of the Act before the Deputy Collector, Gandhinagar. Having regard to the fact that appellate powers were vested in the State Government under sub-section (9) of section 32P of the Act, the said appeal came to be transferred to the State Government and came to be registered as Appeal No.14 of 1988. By an order dated 17.10.1988, the appeal came to be partly allowed by directing the petitioner to file an appeal against the impugned order under section 74 of the Act within a period of one month.
5) Upon receipt of a certified copy of the said order dated 17.10.1988, the petitioner preferred an appeal under section 74 of the Act before the Deputy Collector, Land Reforms (Appeal), Gandhinagar, being Appeal No.244 of 1998 challenging the order dated 15.2.1961. It appears that the learned advocate for the petitioner did not remain present in the proceedings before the Deputy Collector and despite efforts having been made by the petitioner to contact his advocate; the learned advocate was not available. By an order dated 21.1.1991, the appeal ultimately came to be rejected on the ground that the certified copy of the impugned order was not supplied and the appeal memo contained insufficient information, despite sufficient opportunities having been granted to the petitioner.
6) It is the case of the petitioner that he was not aware about the pendency of the proceedings as well as the impugned order dated 21.1.1991 and that he was also not aware as to whether or not his lawyer had filed the appeal before the Appellate Authority challenging the order dated 15.2.1961. The petitioner, therefore, engaged another lawyer for challenging the impugned order dated 15.2.1961, whereupon he was asked by the learned advocate to furnish a certified copy of the said order. The petitioner applied for a certified copy of the impugned order on 11.7.1990 and the same was made available to him on 23.7.1990. Thereafter, the appeal under section 74 of the Act came to be filed before the Deputy Collector, Land Reforms (Appeal), Gandhinagar on 1.8.1990, which was numbered as Tenant/Appeal/S.R.No.63/90. It appears that though the earlier appeal and the subsequent appeal had been filed before the same authority, the same were not heard together.
7) Appeal No.63/90, that is, the subsequent appeal came to be heard by the second respondent, that is, the Deputy Collector, Land Reforms (Appeal). The said appeal came to be rejected only on the ground that there was a delay of thirty years in challenging the impugned order dated 15.2.1961. Against the said order, the petitioner maintained a revision application before the third respondent, which came to be rejected by the impugned order dated 13.11.1998 on the ground of delay. Being aggrieved, the petitioner has filed the present petition challenging the said order.
8) Mr. H. R. Prajapati, learned advocate for the petitioner drew the attention of the court to the order dated 15.2.1961 to point out that the revisional authority had mainly rejected the revision on the ground that the appeal preferred by the petitioner before the Deputy Collector was barred by limitation. The attention of the court was invited to the previous order dated 17.10.1988 passed by the revisional authority, whereby the petitioner had challenged the order dated 12.2.1988 vesting the subject land in the State Government. It was pointed out that the revisional authority had observed therein that if the petitioner was aggrieved by the earlier order passed by the Mamlatdar & Agricultural Land Tribunal under section 32 of the Act, it was open for him to prefer an appeal within a period of one month thereof, before the Deputy Collector under section 74 of the Act. It was submitted that thus, by virtue of the order passed by the revisional authority, the petitioner was granted permission to challenge the impugned order within a period of one month thereafter. It was submitted that immediately upon obtaining a copy of the said order directing the petitioner to prefer an appeal under section 74 of the Act; the petitioner had taken necessary steps in this regard. However, on account of negligence on the part of the advocate, the appeal, though filed, was not prosecuted properly and that instead of challenging the impugned order dated 15.2.1961, the learned advocate had preferred an appeal against the order dated 12.2.1988 made by the Mamlatdar & Agricultural Land Tribunal. It was submitted that the petitioner, thereafter, engaged another advocate to institute proceedings against the impugned order, whereupon he was asked to furnish a copy of the order dated 15.2.1961 and upon such order being made available, he had immediately preferred the appeal under section 74 of the Act before the Deputy Collector, Land Reforms (Appeal), Gandhinagar. It was, accordingly, submitted that the initial delay in challenging the order dated 15.2.1961 could not have been taken into consideration by the authorities below, inasmuch as, the revisional authority had, by the order dated 17.10.1988, permitted the petitioner to challenge the impugned order. Under the circumstances, the period prior to the said order could not be taken into consideration while computing the delay caused in preferring the appeal. Therefore, both, the Deputy Collector as well as the revisional authority were not justified in holding that the application was barred by limitation as having been filed after a period of thirty years from the date of the impugned order.
9) On the other hand, Mr. Rahul Dave, learned Assistant Government Pleader opposed the petition by placing reliance on the averments made in the affidavit-in-reply filed on behalf of the respondent No.1 wherein it has been submitted that pursuant to the order dated 15.02.1961, a mutation entry bearing No.6969 came to be made in the revenue record on the basis of an order dated 29.04.1976 and on the basis of such entry the order dated 12.02.1988 came to be passed. It has further been submitted that the order dated 15.02.1961 is in favour of the present petitioner and that the petitioner is required to challenge the order dated 29.04.1976 whereby the purchase has been shown to be ineffective in the revenue record.
10) From the facts noted hereinabove, it is apparent that the petitioner was never informed about the order dated 15.2.1961 passed under section 32 of the Act and, as such, was not aware of the same. Under the circumstances, he could not have challenged the same at the relevant time. The petitioner came to know about passing of the said order only when the order dated 12.2.1988 came to be passed by the Mamlatdar & Agricultural Land Tribunal under section 32P of the Act for vesting the land in the State Government. At that point of time, the petitioner immediately preferred an appeal before the Deputy Collector, which came to be transferred to the State Government as it was the competent authority to decide such appeals. By the order dated 17.10.1988, the learned Additional Chief Secretary permitted the petitioner to challenge the impugned order dated 15.02.1961, within a period of one month from the date of the said order. Under the circumstances, the delay in challenging the order dated 15.2.1961 stood condoned for the period permitted by the State Government vide the order dated 17.10.1988. Subsequent thereto, it is apparent that there was some delay on the part of the petitioner in challenging the said order. However, for the reasons stated in paragraph 8 and 9 of the petition, there was some delay in filing the appeal under section 74 of the Act before the Deputy Collector. As can be seen from the impugned orders dated 5.10.1991 and 13.11.1998, both the authorities below have considered that there is a delay of thirty years in preferring the appeal and have, therefore, not entertained the appeal overlooking the fact that by the order dated 17.10.1988, the petitioner had been permitted to challenge the order dated 15.02.1961 and as such the delay for period prior thereto stood condoned. Hence, while considering the question of delay, the authorities could have only considered the subsequent period up till 31.7.1990 when the appeal came to be preferred by the Deputy Collector.
11) As regards the contention raised on behalf of the respondents that the order dated 15.02.1961 was in favour of the petitioner and that the petitioner was required to challenge the order dated 29.04.1976 pursuant to which mutation entry came to be made in the revenue record, the said contention is misconceived, inasmuch as, a perusal of the said mutation entry clearly shows that it is the order dated 15.02.1961 which forms the basis of the order dated 29.04.1976. Hence, if the order dated 15.02.1961 is interfered with, the order dated 29.04.1976 would be rendered ineffective and a fresh mutation entry would be required to be made.
12) Examining the merits of the impugned orders, having regard to the facts and circumstances of the case as noted hereinabove, this court is of the view that the delay caused in preferring the appeal under section 74 of the Act is not thirty years as held by both the authorities below, a considerable part of the delay having already been condoned by the revisional authority. Insofar as the remaining period is concerned, the petitioner has sufficiently explained the same and as such, the authorities below were not justified in dismissing the appeals on the ground of the same being barred by limitation.
13) In the aforesaid premises, the petition deserves to be allowed by condoning the delay caused in preferring the appeal under section 74 of the Act, before the Deputy Collector.
14) In the light of the aforesaid discussion, the petition succeeds and is, accordingly, allowed. The impugned order dated 13.11.1998 passed by the third respondent in Revision Application No.911 of 1991, as well as, the order dated 5.10.1991 passed by the second respondent, are hereby quashed and set aside. Consequently, the appeal under section 74 of the Act shall stand restored to the file of the second respondent. The delay caused in filing the said appeal is hereby condoned. Accordingly, the second respondent shall hear and decide the said appeal on merits, in accordance with law, after affording the petitioner a reasonable opportunity of hearing. Rule is made absolute accordingly, with no order as to costs.
(HARSHA DEVANI,J.) Vahid