1. The petitioners in this petition preferred under Articles 14, 16 and 226 of of the Constitution of India has challenged the legality and validity of the order dated 28.2.2012 passed by respondent No.1-State of Gujarat while exercising the powers under the provisions of Bombay Land Revenue Cod, 1890. ( “the Code” for short) in the Revision application preferred by the petitioners.
2. It would be profitable to reproduce the facts in a capsulized form.
2.1 The petitioners are the heirs of deceased Hansrajbhai Devjibhai Patel, who owned two parcels of land bearing Revenue Survey No.177/1 admeasuring 6 acres and Revenue Survey No.3 admeasuring 7 acres situated at Jamnagar. These lands were transferred in the name of petitioners No.2 to 5 during the life time of Mr. Hansraj Patel. Entry was mutated on 1.1.2000 being Entry No.354.
3. An application was submitted by deceased Hansranbhai on 12.12.1999 to Talati, Jamnagar inter alia stating that he has no male child but has four daughters, whose names should be entered as his legal heirs. Entry No.428 was mutated on 27.12.2001 by deleting the name of the deceased from the land in question. Respondent No.2 Gangdasbhai Keshavji Patel approached the office of Mamlatdar, Jamnagar to enter his name in the revenue record of Survey No.177/1 in pursuance of a family settlement. On 5.2.2008, an application was moved along with the documents and this was allowed vide communication dated 26.2.2008 by the Mamlatdar informing respondent No.2 that he has remedy to file the Revision Application.
4. Appeal No.103/07-08 was preferred by the respondent No.2 under Rule 108(5) of the Bombay Land Revenue Rules before the Deputy Collector, Jamnagar for revision of Entry No.354 and 428 in respect of land being Revenue Survey No.177/1. Present petitioners were not parties in the said appeal but only Mamlatdar, Jamnagar city was the party respondent. Deputy Collector without joining the petitioners and without issuing them the notices as also without affording any opportunity of hearing to them allowed the appeal filed by the respondent, setting aside the Entries No.354 and 428. The Deputy Collector vide his order dated 21.11.2008 also directed to make fresh entry after verifying necessary evidence.
5. Subsequent to this order, Revenue authority issued notice under Section 135D of the Code on 18.9.2009 to the petitioners and at this stage, the petitioners came to know about the order passed by the Deputy Collector in Appeal No.103/07-08. The said order dated 21.11.2008 of Deputy Collector came to be challenged before the Collector, Jamnagar by preferring an appeal being Appeal No. 31 of 2008-09. Stay was granted against the operation of the order on 5.5.2009. However, on 26.10.2009 appeal came to be rejected, confirming the order of 21.11.2008. Therefore, the petitioner approached respondent No.1- State by preferring Revision Application No.16 of 2009.
On 10.11.2009 respondent No.2 approached the office of Mamlatdar to enter his name in the Revenue record. Notice was issued under Section 135D on 18.11.2009 in pursuance of the application filed by respondent No.2. Written objections and submissions were filed and the matter was adjourned from time to time and lastly on 26.2.2010 and on that day an application was moved by petitioner No.2 to grant time as she was not keeping good health. Such application came to be rejected and Entry No.657 was certified in favour of respondent No.2 on 17.11.2009 in the Revenue record. It is stated by the petitioner that during the pendency of the Revision Application as well as the application for stay, before the respondent No.1 authority, the Mamlatdar passed the order and mutated the name of respondent No.2 in the Revenue record.
Respondent No.2 requested on 3.3.2010 to delete the names of the petitioners in Survey No.177/1. Again, notice under Section 135D of the Code was issued on 29.3.2010.
6. The petitioner No.5 Manjuben Hansrajbhai Patel filed Special Civil Suit No.54 of 2010 before the Principal Senior Civil Judge, Jamnagar for partition of the property challenging family settlement dated 25.1.2008.
7. In the meantime, in the Revision Application before respondent no.1, interim stay application came to be rejected on 20.3.2010. The petitioners approached this Court by filing Special Civil Application No.5189 of 2010 and this Court (Coram: Ms. Justice Abhilasha Kumari, J. ) disposed of this petition on 4.5.2010 directing the parties to maintain status quo in respect of the Entries in respect of the land in question.
8. On merits, the petitioners challenged the order dated 26.2.2010 before the Deputy Collector by filing Appeal No.134 of 2009/10 and despite the pendency of the Revision application the Deputy Collector decided the appeal No.134/09-10 on 31.3.2011. This came to be challenged by approaching the Collector by preferring appeal and the said appeal is pending.
9. Respondent No.1 eventually dismissed the Revision Application preferred by the petitioners on the ground that the order of Deputy Collector, Jamnagar has already been implemented and the same has already been confirmed by the Collector, Jamnagar and, therefore, the Revision Application was held to be infructuous.
This order dated 28.2.2012 is challenged by preferring present petition on the various grounds raised in this petition. Prayers sought in the petition are as follows:-
“24.(A) Your Lordships will be pleased to quash and set aside the impugned notice dated 14.9.2012 purported to be issued under section 135-D of the Code at Annexure-B to this petitioner;
(B) Pending admission and final disposal of this application, Your Lordships will be pleased to stay the execution, operation and implementation of the impugned notice dated 14.9.2012 purported to be issued under section 135-D of the Code at Annexure-B to this application;”
10. It is also necessary to make a mention of Civil Application No.11220 of 2012 preferred on 27.9.2012 seeking to quash and set aside the notice dated 14.9.2012 issued under section 135D of the Code. It appears that during the pendency of this petition, Office of Mamlatdar, Jamnagar issued notice under Section 135D on 14.9.2012 for showing cause as to why the names of the applicants-petitioners should not be deleted from Entry No.657 dated 17.11.2009.
The Office of Mamlatdar also mutated the Entry No.751 by implementing order dated 28.2.2012 passed in Revision Application No.16 of 2009.
11. It is submitted that order dated 28.2.2012 since is subjudice in this petition, the impugned notice dated 14.9.2012 under section 135D of the Code was not required to be issued as the petition otherwise would become infructuous, rendering the petitioners remedyless.
12. The affidavit-in-reply to this Special Civil Application has been filed by the respondent No.2 denying all allegations and averments as well as contentions raised in the Civil Application. It is contended that the main petition itself is not maintainable on the ground that the same is filed against the notice as contemplated under Section 135D of the Gujarat Land Revenue Code. It is further contended that under Section 135D read with Rule 106 to 108 of the Gujarat Land Revenue Rules, sufficient opportunity is made available to the petitioners herein and if the petitioners choose to raise any objections, the same would be dealt with by the concerned authorities in accordance with the scheme of the Code. Appeal as well as revision lie as per the scheme envisaged under Rule 108 of the Rules and therefore, when the alternative efficacious remedy is available, the petition is not maintainable.
It is also further contended that the applicants have challenged the concurrent findings of the facts. The Deputy Collector’s order dated 21.11.2008 came to be confirmed by the Collector on 26.10.2009 as well as by the Revisional Authority on 28.2.2012. That has been acted upon and heirship Entry No.657 is also mutated as well as certified by the Revenue authorities. It is further contended that in view of the family arrangements between the parties, memorandum of understanding was arrived at by and between the parties on 25.1.2008 and pursuant thereto on 9.4.2008 affidavit was executed as well. The petitioners having consented about the right, title and interest of the respondent No.2, the authorities have relied upon this family arrangement for passing the aforementioned orders. It is also the say of the respondent that objections were raised by the petitioners while heirship Entry NO.657 was posted, the same was considered and detailed order dated 26.1.2010 came to be passed. It is also the say of the respondent that the family arrangement is not challenged either on the ground of its non-existence or forgery. On the contrary by preferring Special Civil Suit No.54 of 2010 before the competent Civil Court, the petitioners have challenged the said family arrangement dated 25.1.2008 but no interim relief is passed in favour of the petitioners. A pencil Entry No.751 in respect of Revenue Survey No.177/1 is said to be rightly posted by respondent No.5 in as much as the respondent No.2 is the sole owner and occupier as per the said family arrangement.
It is the say of the respondent that Entry No.657 was challenged by the petitioners before the Deputy Collector under Rule 108(5) of the Rules, which was rejected on 31.3.2011 and aggrieved by such order of Deputy Collector, the appeal is also filed before the Collector, which is pending. The entire harping on the part of the respondent is upon two documents, namely, family arrangement (memorandum of understanding) dated 25.1.2008 and affidavit dated 9.4.2008 pursuant to such family arrangement. It is therefore urged that these documents which are challenged before the competent Civil Court, unless, interfered with by the Civil Court, shall continue to hold the field.
It is further contended that the petitioners herein have not produced the affidavit dated 9.4.2008, executed by the petitioners while giving consent for mutating the entry with respect to the land in question in favour of the respondent No.2 at the time of filing of the main petition and this suppression should not entitle the petitioners to get any equitable relief.
12. Learned counsels of both the sides have been heard extensively, who have presented their respective versions in connection with the main petition as well as Civil Application. It would not be necessary to record their submissions in detail, suffice would be to enumerate the decisions given to support their respective versions.
13. Learned Senior Advocate Mr. B.B. Naik appearing with Mr. Premal Joshi for the petitioners have relied upon the following authorities:-
1. Ragho Singh vs. Mohan Singh and other reported in (2001) 9 SCC 717.
2. Rama Dubey vs. Deputy Director or Consolidation reported in AIR 1995 SC 1010.
3. Sneh Gupta vs. Devi Sarup and other reported in
(2009) 6 SCC 194.
4. (Dr.) Jayantilal Mohanlal Desai and others vs. State of Gujarat and others reported in 1997(1)
G.L.H. 336.
5. The Purtabpore Co., Ltd. vs. Cane Commissioner of Bihar and others reported in 1969 (1) SCC 308.
6. Ishwar Singh vs. Kuldip Singh and others reported in 1995 Supp (1) SCC 179.
7. Bhagwanti and others vs. Subordinate Services Selection Board, Haryana and another reported in 1995 Supp (2) SCC 663.
8. Ram Swarup and others vs. S.N. Maira and others reported in (1999) 1 SCC 738.
9. M/s. R.B. Shreeram Durga Prasad and Fatehchand Nursing Das vs. Settlement Commission (IT & WT) and another reported in (1989) 1 SCC 628.
10. Judgment passed by this Court in the case of Heirs of Kashiram Khodabhai, Mahendrabhai Kashibhai and others vs. State of Gujarat and others in Special Civil Application No.2399 of 2009.
Learned Senior Advocate Mr. Mihir Joshi appearing with Mr. Satyam Chhaya presented the following authorities in favour of respondent No.2.
1. Laxmichand Mafatlal Heruwala vs. State of Gujarat and others reported in 1996 (3) GLR 510.
2. Dalip Singh vs. State of Upper Pradesh and others reported in (2010) 2 SCC 114.
3. Prestige Lights Ltd. vs. State Bank of India reported in (2007) 8 SCC 449.
4. Eastern Coalfields Limited vs. Dugal Kumar reported in (2008) 14 SCC 295.
5. Bharat Sanchar Nigam Limited and another vs. Motorola India Private Limited reported in (2009) 2 SCC 337.
6. Ajmera Housing Corporation and another vs. Commissioner of Income Tax reported in (2010) 8 SCC 739.
7. State of Karnataka and another vs. Sangappa Dyavappa Biradar and others reported in (2005) 4 SCC 264.
14. Learned Assistant Government Pleader Mr. Shah appearing for the State and other respondents have supported the version set out by learned Senior Advocate Mr. Joshi.
15. Before adverting to the facts in this case, it would be apt to deal with the law points on the subject.
The authorities pressed into service by learned Senior Counsel Mr.B.B.Naik mainly deal with the law of limitation and principle of natural justice.
Law of Limitation and Principles of Natural Justice
The case of Ragho Singh vs. Mohan Singh and other(supra) contemplates that the appeal preferred before the Additional Collector beyond the stipulated time period would be liable to be dismissed in absence of any application preferred under Section 5 of the Limitation Act for condoning the delay. The Apex Court has held that the Board of Revenue made a patently erroneous order when it condoned the delay without the application of condonation of such delay.
In the case of Rama Dubey vs. Deputy Director or Consolidation(supra),before the Apex Court, the appellant had initiated proceedings in the year 1971 to mutate her name in the record of rights in respect of 11 plots bequeathed to her jointly under the gift deed of the year 1960. The Court noted that the notice though was served on him personally, he did not question the claim made by the appellant in consolidation proceedings. The respondent who sought to act as a legal representative was held not to have a higher right then the owner himself had. The Apex Court held that when the proceedings before the Consolidation Officer had not been allowed to become final, it was not open to the respondent to file after years an application under Section 5 of the Limitation Act to condone the delay and to ask for benefit of hearing. It upheld the order of consolidation officer in refusing the condonation of delay and did not find interference of High Court justifiable.
In case of Sneh Gupta vs. Devi Sarup and other(supra), it was held that even if the order/ decree is void or voidable, the same must be set aside and there is no law that the decree if is void, no period of limitation for setting aside the same shall be attracted at all. In a matter before the Apex Court, the compromise decree was required to be set aside after a period of 4 years of passing of the same, the same was held barred by law of limitation under Article 123 of the Limitation Act. The Court held thus:-
“53. There cannot be any doubt that even if an order is void or voidable, the same must be set aside, as has been held by this Court in M.Meenakshi v. Metadin Agarwal and Sultan Sadik v. Sanjay Raj Subba. xxx xxx xxx xxx xxx xxx 58. If the compromise has been accepted in absence of all the parites, the same would be void. But if the same having resulted in grant of a decree, the decree based on compromise was required to be set aside. The compromise may be void or voidable but it is required to be set aside by filing of the suit within the period of limitation. (See Mohd. Noorul Hoda v. Bibi Raifunnisa.).
xxx xxx xxx xxx xxx xxx 67. We are concerned herein with a question of limitation. The compromise decree, as indicated hereinbefore, even if void was required to be set aside. A consent decree, as is well known, is as good as a contested decree. Such a decree must be set aside if it has been passed in violation of law. For the said purpose, the provisions contained in the Limitation Act, 1963 would be applicable. It is not the law that where the decree is void, no period of limitation shall be attracted at all. In State of Rajasthan v. D.R> Laxmi this Court held. (SCC p.453, para 10) “10. The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order may not be exercised in such circumstances. It is seen that the acquisition has become final and not only possession had already been taken but enhancing the compensation was also accepted. The order of the acquisition proceedings having become final and the compensation determined also having become final, the High Court was highly unjustified in interfering with and in quashing the notification under Section 4(1) and declaration under Section 6. ”
In the case of (Dr.) Jayantilal Mohanlal Desai and others vs. State of Gujarat and others(supra), this Court has held that the authority, whether judicial or quasi judicial, when undertakes adjudication process must adhere to the principles of natural justice and himself give a reasonable opportunity of being heard to the person, who is interested or likely to be affected by the order to be passed or against whom the order is sought.
“ Many are under the belief that alike in U.K. And U.S.A,. the administrative authority is not bound to given the opportunity to submit if there is no statutory provision, as in that case it is not regarded as a sine qua non of natural justice. In short, the person is not entitled to the opportunity of being heard in administrative matter in the absence of conferment of the right by the Statute, but such belief is not congruous with law. In appeal, examining the merits of the order passed or decision taken by City Survey Officer, necessary order is passed which is the quasi-judicial act, and so the principle or audi alteram partem even if the same being not specifically covered in Statute will come into play. Even if it is considered to be the administrative act, the doctrine of natural justice must be held to be applicable only if it involved civil consequences, because in every administrative order principle of natural justice would not be applicable and those who are likely to be prejudicially affected should be given the opportunity of being heard so as to have fairness and check insidiousness, or collusion or arbitrariness or unreasonableness, capriciousness or irregularity or unjust exercise of powers or injury to others. Now the question that arises is whether the petitioners have a right to claim the opportunity of being heard. The answer to the question whether their interest is prejudicially affected is the decisive factor.”
In the case of The Purtabpore Co., Ltd. vs. Cane Commissioner of Bihar and others,the question before the Apex Court was that the powers of the State Government and those of the Cane Commissioner and whether such proceedings before the Cane Commissioner were quasi judicial in nature. It would be profitable to refer to some of the tests adopted by the Court while deciding these issues :-
16. The impugned orders are similar to orders revoking or modifying licences. It would not be proper to equate an order revoking or modifying a licence with a decision not to grant a licence. Therefore, Shri Chagla is not right in his contention that in this case we are called upon to deal with a privilege and not a right. As observed by S. A. De Smith in his Judicial Review of Administrative Action (2nd Edn.) at p. 211:
"To equate a decision summarily to revoke a licence with a decision not to grant a licence in the first instance may be still more unrealistic. Here the 'privilege' concept may peculiarly be inapposite; and its aptness has not been enhanced by the manner in which it has been employed in some modern cases. It is submitted that the Courts should adopt a presumption that prior notice and opportunity to be heard should be given before a licence can be revoked. The presumption should be rebuttable in similar circumstances to those in which summary interference with vested property rights may be permissible. That the considerations applicable to the revocation of the licences may be different from those applicable to the refusal of licences has indeed been recognised by some British statutes and a number of judicial decisions in other Commonwealth jurisdictions."
17. In Province of Bombay v. Kusaldas S. Advani, 1950 SCR 621 at p. 725 = (AIR 1950 SC 222 at p.
260), Das J. formulated the following tests to find out whether a proceeding before an authority or tribunal is a quasi-judicial proceeding:-
"(i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi- judicial act; and (ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially."
18. These tests were adopted by this Court in Shivji Nathubhai v. Union of India, (1960) 2 SCR 775 = (AIR 1960 SC 606). Therein this Court was considering the validity of cancellation in review by the Central Government a mining lease granted by the State Government. In that context this Court held that even if the act of the State Government in granting a mining lease was an administrative act, it was not correct to say that no right of any kind passed to the lessee until the review was decided by the Central Government where a review had been applied for. Rule 52 of the rules framed under the Mines and Minerals (Regulation and Development) Act No. 53 of 1941 which gives the aggrieved party the right to review created a lis between him and the lessee and, consequently, in the absence of anything to the contrary either in Rule 54 or the statute itself there could be no doubt that the Central Government is required to act judicially under Rule 54.
19. This court is Board of High School and Intermediate Education, U. P., Allahabad v. Ghanshyam Das Gupta, (1962) Supp (3) SCR 36 = (AIR 1962 SC 1110), held that where the statute in question is silent as to the manner in which the power conferred should be exercised by the authority acting under it, the exercise of power will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of disposal provided the objective criteria, if any, to be adopted, the effect of the decision on the persons affected and other indicia afforded by the statute. The mere fact that Act in question or the relevant Regulations do not make it obligatory on the authority to call for an explanation and to hear the persons concerned is not conclusive on the question whether the authority has to act as a quasi-judicial body when exercising its power under the statute.”
In yet another authority of Ishwar Singh vs. Kuldip Singh and others(surpa), one of the necessary parties had not been served nor was heard. The Apex Court, upheld the order of the High Court, which had quashed the selection and appointments on the finding that the interviews held were neither fair nor proper on the ground of violation of principles of natural justice.
In the case of Bhagwanti and others vs. Subordinate Services Selection Board, Haryana and another (supra), the selection and appointment by the respondent Board was challenged before the High Court on a failure to implead the party likely to be affected. The Supreme Court set aside the order of the High Court as it was passed without impleading the party, which was party concerned.
In the case of Ram Swarup and others vs. S.N. Maira and others(supra), the Apex Court did not find High Court’s order justifiable in interfering with the Revisional order on the ground that the persons affected were not the parties as also on the ground that the provision of Section 12(3) of the Harayana Ceiling of Land Holdings Act,1972 had not been correctly interpreted.
In the case of M/s. R.B. Shreeram Durga Prasad and Fatehchand Nursing Das vs. Settlement Commission (IT & WT) and another(supra) rule of audi alterem parte and its is the nature and extent has been discussed at length. It was held by the Apex Court that quasi judicial order denying right to be heard by violating the rule of audi alterem partem is null and void. It would be relevant to reproduce some of the vital findings.
“7. We are definitely of the opinion that on the relevant date when the order was passed, that is to say, 24th Aug. 1977 the order was a nullity because it was in violation of principles of natural justice. See in this connection, the principles enunciated by this Court in State of Orissa v. Dr. (Miss.) Binapani Dei, (1967) 2 SCR 625 : (AIR 1967 SC 1269) as also the observations in Administrative Law by H.W.R. Wade, 5th Edition, pages 310-311 that the act in violation of the principles of natural justice or a quasi- judicial act in violation of the principles of natural justice is void or of no value. In Ridge v. Baldwin, 1964 AC 40 and Anisminic Ltd. v Foreign Compensation Commission, (1969) 2 AC 147 the House of Lords in England has made it clear that breach of natural justice nullifies the order made in breach. If that is so then the order made in violation of the principles of natural justice was of no value. If that is so then the application made for the settlement under S. 245C was still pending before the Commission when the amendment made by the Finance Act of 1979 came into effect and the said amendment being procedural, it would govern the pending proceedings and the Commission would have the power to overrule the objections of the Commissioner. Dr. V. Gauri Shankar, appearing for the Revenue, did not seriously contest that position. He accepted, the position that the law as it is, after the amendment authorises the Commission to consider and overrule the Commissioner's objections. He also very fairly, in our opinion, rightly accepted the position that the appellant was entitled to be heard on the Commissioner's objections. It appears to us, therefore, if that is the position then, in our opinion, the appellant was entitled to be heard on the objections of the Commissioner. As mentioned hereinbefore, the only short ground which was sought to be canvassed before us was whether after the amended Act the order had been rightly set aside and whether the appellant had a right to be heard on the objections of the Commissioner. Mr. Harish Salve, counsel for the appellant contends that it had a right to be heard. On the other hand, Dr. V. Gauri Shankar, learned counsel for the respondents submitted that the order proceeded on the assumption that the objections had been heard. He did not, in fairness to him it must be conceded, contest that in a matter of this nature the appellant had a right to be heard. Reading the order, it appears to us, that though the appellant had made submissions on the Commissioner's objections but there was no clear opportunity given to the appellant to make submissions on the Commissioner's objections in the sense to demonstrate that the Commissioner was not justified in making the objections and secondly, the Commission should not accept or accede to the objections in the facts and circumstances of the present case. We are of the opinion that in view of the facts and circumstances of the case and in the context in which these objections had been made, it is necessary as a concommitant of the fulfilment of natural justice that the appellant should be heard on the objections made by the Commissioner. It is true that for the relevant orders for the years for which the Commissioner had objected the concealment had been upheld in the appeal before the appropriate authorities. But it may be that in spite of this concealment it may be possible for the appellant to demonstrate or to submit that in disclosure of concealed income for a spread over period settlement of the entire period should be allowed and not bifurcated in the manner sought to be suggested for the Commissioner's objections. This objection the appellant should have opportunity to make. In exercise of our power of judicial review of the decision of the Settlement Commission we are concerned with the legality of procedure followed and not with validity of the order. See the observations of Lord Hailsham in Chief Constable of the North Wales Police v. Evans, (1982) 1 WLR 1155. Judicial Review is concerned not with the decision but with the decision making process.”
In the case of Heirs of Kashiram Khodabhai, Mahendrabhai Kashibhai and others vs. State of Gujarat and others (surpa),this Court has held that the period of limitation is separately prescribed within which the appeal is required to be filed and if the appeal is not filed within the said stipulated period, the discretion is vested in the appellate authority to condone the delay and admit the appeal after recording the reasons in writing, if the appellant makes out sufficient cause for delay. It is also further held that the appeal cannot be decided on merit by an authority without first condoning the delay, after exercising its discretion and recording the reasons in writing for such condonation. In this decision, the Court relied upon the aforementioned authorities to reach to such conclusion.
Essential thrust of learned counsel for the petitioners thus was that without preferring the application for condonation of delay, when the entry made in the Revenue records came to be challenged, no such petition could have been entertained without first adjudicating upon the application of condonation of delay and while so doing it, the persons concerned, who were likely to be affected by such order were bound to be heard. Any decision without affording them the opportunity must make their action fail. At the time of considering the factual matrix of this case, employment of these ration to the facts of the instant case shall be discussed further.
Suppression, Doctrine of Merger and Waiver
Learned counsel for the respondent No.2, emphasized on not to exercise powers of this Court in the writ jurisdiction in the instant case. In case of Laxmichand Mafatlal Heruwala vs. State of Gujarat and others(supra), the disputed land was a municipal street land and the respondent decided that the same could have been granted in favour of the petitioner. The order was made remanding the matter to the respondent for making enquiry and to decide the fate of applicant’s application. The Court held that the order of such remand called for no interference by this Court either under Article 226 or 227 of the Constitution of India.
It is urged that when substantive petition is yet being decided, in an alternative efficacious remedy, no interference is desirable at this stage.
Suppression and deceiving litigants
In the case of Dalip Singh vs. State of Upper Pradesh and others(supra), the party had approached the Court suppressing the material facts and thereby misleading the Court. It was held not entitled to be heard on merits invoking extraordinary jurisdiction under Articles 226 and 136 of the Constitution of India. The Court deprecated the new creed of dishonest litigants and denial of relief to such persons has been emphasized in this judgment.
In the case of Prestige Lights Ltd. vs. State Bank of India(supra), the Supreme Court held thus:-
“24. An order passed by a competent court- interim or final- has to be obeyed without any reservation. If such order is disobeyed or not complied with, the court may refuse the party violating such order to hear him on merits. We are not unmindful of the situation that refusal to hear a party to the proceeding on merits is a “drastic step” and such a serious penalty should not be imposed on him except in grave and extraordinary situations, but sometimes such an action is needed in the larger interest of justice when a party obtaining interim relief intentionally and deliberately flouts such order by not abiding by the terms and conditions on which a relief is granted by the court in his favour.
xxx xxx xxx xxx xxx xxx 26. That, however, does not mean that in each and every case in which a party has violated an interim order has no right to be heard at all. Nor will the court refuse to hear him in all circumstances. The normal rule is that an application by a party will not be entertained until he has purged himself of the contempt. There are, however, certain exceptions to this rule. One of such exceptions is that the party may appeal with a view to setting aside the order on which his alleged contempt is founded. A person against whom contempt is alleged must be heard in support of the submission that having regard to the meaning and intendment of the order which he is said to have disobeyed, his actions did not constitute a breach of it.”
This authority also speaks of unscrupulous litigants who abuse the process of law by deceiving the Court.
“33. It is thus clear that though the appellant Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter.”
The Apex Court held thus:-
“34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R.v. Kensington Income Tax Commrs., in the following words:
“[I]t has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court to obtain relief on a ex parte statement he should make a full and fair disclosure of all the material facts-facts, not law. He must not misstate the law if he can held it- the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the court enforces that obligation is that if it finds out that the facts have not bee fully and fairly stated to it, the court will set aside, any action which it has taken on the faith of the imperfect statement.” ( emphasis supplied) 37. For the foregoing reasons, we hold that by dismissing the petition in limine, the High Court has neither committed an error of law nor of jurisdiction. The appellant company is not entitled to any relief. Though the respondent Ban is right in submitting that the appellant has suppressed material facts from this Court as also that it has not complied with interim order passed by the Court and it has, therefore, no right to claim hearing on merits, we have considered the merits of the matter also and we are of the considered view that no case has been made out for interference with the action taken by the respondent Bank or the order passed by the High Court.”
It is submitted to this Court that vital aspects of family arrangement and affidavit have been suppressed by the petitioner and hence no relief is desirable.
In the case of Eastern Coalfields Limited vs. Dugal Kumar (supra), when there was delay and latches on the part of the petitioner the Apex Court held that the party should come to the Court at the earliest reasonable opportunity. Any inordinate delay in preferring writ is indeed an adequate ground for refusing the exercise of discretion in favour of such applicant.
In yet another decision of Bharat Sanchar Nigam Limited and another vs. Motorola India Private Limited (supra), the Court held that pursuant to Section 4 of Arbitration and Conciliation Act, 1996, the party which knows that the requirement under the arbitration agreement ought to have been complied with and still proceeds with the arbitration without raising any objection, in fact, waives its right to object. The Apex Court also held that the High Court appointed Arbitrator in response to the petition filed by the appellants and the matter at that point was closed. If any objections were to be made, they ought to have been made prior to first arbitration hearing. No such objection had been raised by the appellant and, therefore, it was held that it failed to meet the stated requirement to object to the arbitration without delay and as such their right to object was deemed to be waived.
In the case of Ajmera Housing Corporation and another vs. Commissioner of Income Tax(supra), when the assessee did not press the point of maintainability of writ petition before the High Court, it was not permitted to resile from its earlier stand and raise the same issue before the Apex Court.
In the case of State of Karnataka and another vs. Sangappa Dyavappa Biradar and others (supra), the award was passed under the Land Acquisition Act and on consent of the parties, on adjudication of rival claims. The Apex Court held that it was not necessary to comply with the provision of Article 299 of the Constitution of India for the purpose of passing the consent award. It held thus:-
“14. The Respondents having accepted the award without any demur were estopped and precluded from maintaining an application for reference in terms of Section 18 of the Act. It is also trite that by reason of such agreement, the right to receive amount by way of solatium or interest etc. can be waived.
xxx xxx xxx xxx xxx xxx
17. Assam Railways and Trading Co.Ltd. (supra) whereupon Ms. Suri placed reliance is not applicable to the fact of the present case. Therein negotiations had taken place between the parties whereupon the Railway Administration became prepared to pay Rs.2500/- per bigha towards the sale price of the land but the transaction was not completed, having regard to the fact that under the State Railway Rules, land from private parties could be acquired only by taking recourse to acquisition proceedings.Thereafter, in the land acquisition proceedings, an award was made by the Land Acquisition Collector allowing compensation at the rate of Rs.1000/- per bigha. It is in that situation, the negotiation between the parties was highlighted stating that although the same did not fructify into a binding contract, there was at least a "gentleman's agreement" regarding the price which indicated what a willing purchaser was ready to pay for the land. In the factual backdrop of that case this Court observed :
"......Assuming this was an agreement which bound the parties, the Collector had still the jurisdiction to determine the market value of the land. "
18. Keeping in view the fact that the condition precedent for maintaining application for reference under Section 18 is non-acceptance of the award by the awardee, in our considered opinion, the Division Bench acted illegally and without jurisdiction in passing the impugned judgment. The learned single Judge was right in concluding that the writ petitions were not maintainable.”
16. The question that essentially needs to be addressed is as to whether the first order passed by the Deputy Collector on 21.11.2008 in Appeal No.103 of 2007 in respect of the Entry No.354 and 428, mutated on 1.1.2000 and 27.12.2001 respectively upheld by both the Collector, Jamnagar and SSRD respectively on 26.10.2009 and 28.1.2012 can be held sustainable or not particularly when breach of principles of natural justice is alleged? Whether in wake of family settlement and the affidavits pursuant thereto, Revenue authorities are faultless in their action?
In the factual background detailed hereinabove, it can be noted that deceased Hansraj Devjibhai Patel had no son begotten out of the wedlock with petitioner No.1 herein and the entry which was mutated during his life time in respect of the land in question bearing Survey No.177/1 firstly on 1.1.2000 being Entry No.354. Pursuant to such entry, which was certified on 1.1.2000 an application was submitted on 12.12.1999 to Talati-cum- Mantri, Jamnagar in the version of Hansrajbhai, inter alia stating that he is having four daughters and their names need to be entered as his heirs. He also specifically contended that he does not have any male child.
Subsequently, on 27.12.2001 the name of deceased Hansrajbhai Patel was deleted from the land in question vide Entry No.428 and from then onwards, the names of these petitioners continued without any murmur.
17. It was for the first time respondent No.2 approached the office of Mamlatdar, Jamnagar city pursuant to the family arrangement reduced into writing on 5.2.2008. An application came to be made on the basis of such family settlement and the order came to be passed by respondent No.2 on 21.11.2008, deleting these entries being No.354 and 428. He also directed while deleting these entries to issue notices to the present petitioners and thereafter mutate entry after verifying necessary evidence from respondent No.2 and pursuant to such an order, Revenue authority issued notice under Section 135D on 18.9.2009.
This order of Mamlatdar came to be challenged by filing an appeal No.31 of 2008-09 before Collector, Jamnagar, which initially granted stay against such order, but, later rejected the appeal confirming the order dated 21.11.2008, as noted hereinabove.
When this was challenged before the SSRD, it also confirmed the order of both the revenue authorities. It also made note of the fact that pencil entry has already been made on 17.11.2009 and that entry since was challenged in accordance with law, therefore, it did not deem it fit to set aside the said orders. It also was of the opinion that Special Civil Suit No.204 of 2010 is pending before the competent Civil Court and the order of the Deputy Collector had already been acted upon and, therefore there was no need of interfering at the stage at which the revision was preferred.
Admittedly, first time when respondent NO.2 made a challenge to both the entries before the Deputy Collector, none of the present petitioners was impleaded as the party opponents. As noted hereinabove, the major emphasis is on non-joinder of the necessary parties right at a time when the first time challenge was made to both the entries, which were mutated way back in the year 2000-2001. It also emphasized that after 7 years of mutation of such entires, without preferring application for condonation of delay and without any order thereon under Rule 108(5) of the Rules appeal was preferred and the same was entertained. Learned counsel for the respondents had emphasized that substantive challenge is still feasible in as much as pencil entry has been made on 17.11.2009 and thereafter also such order came to be challenged before the Mamlatdar and who passed an order on 26.2.2010. Of course, in this order of challenging such pencil entry, Mamlatdar noted the entire details and also held that both the entires mutated being Entry Nos.
354 and 428 are of years 2000 and 2001 and when Entry No.657 has been mutated on 17.1.2009 on the strength of the family arrangement is dated 25.1.2008, which has signatures of all the heirs and in such family arrangement affidavits of all the petitioners herein indicate that the said property bearing Survey No.177/1 is bequeathed upon on present respondent No.2. However, it is further noted by the Deputy Collector that by mutating this Entry No.657, he has not asked for any separate demand as the heir and the names of the petitioners herein would continue and, therefore right of the present petitioners would not be defeated. The objections raised by the petitioners herein, therefore, had not been accepted. Subsequently, also as can be noted, this order was challenged before the Deputy Collector, who dismissed the petitions of the present petitioners on 21.3.2011. If one closely peruses this order of the Deputy Collector, it again reiterates all that the Mamlatdar has noted that giving effect to this Pencil entry would not mean deleting the entries by which the names of the present petitioners have been entered in the Revenue Record. It also noted that this entry would mean the inclusion of the name of respondent No.2 who also is one of the heirs, in wake of family settlement and, therefore, no prejudice is likely to happen to the rights of the present petitioners and thus, it concurred with the findings of the Mamlatdar.
18. It appears that this eventually came to be challenged before the Collector, Jamnagar and such appeal is pending till the date. In the appeal before the Collector, present petitioner Jiviben Hansraj Patel has disputed the factum of respondent NO.2 being her adopted son. She has emphasized that neither in facts nor under the law respondent No.2 can have any right of being an adopted son. He is, in fact, the nephew of the deceased husband of her, being the son of his real brother. However, there is no rituals performed for adopting him as the son nor has the parents given him as an adoptee son.
At this stage, it would be apt to note that Civil Application No.11220 of 2012 came to be preferred on 27.9.2012 by the petitioners herein in as much as the notice came to be issued under Section 135D of the Code on 14.9.2012 to show cause as to why the names of the present petitioners should not be deleted from Entry No.657 mutated on dated 17.11.2009. It is much emphasized by the petitioners that when the order of SSRD is in challenge before this Court and the matter is sub-judice, the Mamlatdar ought not to have issued the notice whereby right of the present petitioners are going to be seriously jeopardized. It would be worthwhile to touch, at this stage, the family settlement made on 25.1.2008. This document produced before this Court contains signatures of the present petitioners as well as those of respondent No.2 and others. With regard to the land in question, it mentions that the land of Survey No.177/1 is to be given to respondent No.2 and he becomes the sole and independent owner of the said land. In the Revenue Record wherever there is a requirement of mutating the names, objection would not be raised by the present petitioners for mutating his name as the present respondent NO.2 is said to be one of the heirs of the deceased Hansrajbhai Devjibhai. This has been notarized and also attested before the Executive Magistrate. Village Form No.7/12 also is reflective of the name. This prima facie is indicative of arrangement was made by family members in respect of the properties of the deceased Hansrajbhai. Although this family arrangement has been challenged by way of preferring Special Civil Suit No.204 of 2010 before the Principal Senior Civil Judge, Jamnagar, injunction application till the date has not been decided. Essentially challenge to this family arrangement is made in the Civil Suit and it has been noted by Revenue Authorities also that till such document is set aside by the competent Civil Court, challenge made to the entry by the petitioners herein would not be sustainable.
19. From the entire gamut of facts, which have emerged, it can be clearly noted that the entries which were made in the year 2000-2001 were upturned in the year 2008 by the order of the Deputy Collector when challenge was made by respondent No.2 without impleading the present petitioners. It is a matter of record that impugned entry when challenged before the Collector in appeal, by its order dated 26.10.2009 it chose not to intervene though at that stage, petitioners herein had already come to know about the ex parte order made by the Deputy Collector, mainly on the ground that this is not going to affect the right of the present petitioners because the entry cancelled by the Deputy Collector vide its order dated 21.11.2008 were held to be the entires mutated suppressing the true facts that respondent No.2 was also an adopted son of the deceased Hansrajbhai. The affidavits made by petitioners on 9.4.2008 indicated the family arrangement. It also further noted that as per the record of rights, once again after getting the evidence from respondents such mutation required to be done and, therefore basing its order on family settlement and in absence of any order of the competent Court of holding such family settlement untenable say of respondent No.2 was upheld. In the opinion of this Court, from beginning the challenge of both Entries No.354 and 428 dated 1.1.2000 and 27.12.2001 was made without impleading the proper parties. Admittedly, these entries were in the name of present petitioners and they were mutated at the time when deceased Hansrajbhai Devjibhai was alive. The entries, which were mutated about 7 years back, came to be deleted on the basis of the version setforth by respondent No.2 without any application and without any specific order of condoning the delay or without impleading the necessary parties. That base order, of course,was to subsequently mutate the entry in the name of respondent No.2 after verifying the evidence after giving opportunity to present petitioners.
Entry No.657 came to be mutated as a pencil entry and, therefore, SSRD chose not to interfere with the order of Collector dated 26.10.2009 as substantive challenge according to the SSRD is available with the petitioners.
The petitioners are absolutely justified in objecting to such conduct on the part of the Revenue authorities and particularly when it objects fervently to the conduct of the Deputy Collector, who chose to unilaterally decided to delete the valid entries of 354 and 428 without condoning the delay of 7 years as the period for challenging such entries in the appeal is of 60 days. If the respondent No.2 was aggrieved by the fact that his name was missing in those entires, he is within his right to challenge the same, if permissible under the law. However, seeking condonation of delay was utmost necessary and it cannot be said to be a mere formality which would also necessitate impleading the parties concerned. Not only the preference of application for condonation of delay was a must but hearing the present petitioners even at the stage of such application for condonation of delay was inevitable. Moreover, while deciding in favour of respondent No.2 and against present petitioners while discussing the details as to how those entires were mutated and also accepting the challenge made by respondent No.2 of illegality of those two entries, the Deputy Collector could not have decided such challenge in absence of the parties concerned. It is flagrant violation of basic principles of natural justice where the parties concerned have been condemned unheard. Evidently, the basic order of Deputy Collector suffers from this vice of accepting the version against the present petitioners in their absence. The party, which has been impleaded in this proceedings was the Mamlatdar who recorded both the entries, mutated way back in the year 2000-2001.
The Deputy Collector though held that both the entires were duly mutated and there was no question of refusing those entries and it still accepted the version of respondent No.2 that he was an adopted son holding for which there is no requirement of any formal writing for the said purpose and this could happen on performing religious rituals. Order also notes that in presence of Hansrajbhai, Entry No.354 had been mutated where names of all the four daughters have been entered in the Revenue Record and while mutating Entry No.428, the name of Hansrajbhai had been deleted and consent of petitioner No.2 wife of Hansrajbhai, Jiviben Hansrajbhai had been taken and thus, the Deputy Collector strangely held distribution of HUF property incorrect and illegal and hence, there was need to cancel those entries which were mutated years ago.
It is totally dumbfounding as to how the entries, which were already there on the Revenue Record for so many years could be deleted behind the back of the parties. Concerned authorities before accepting the version put forth by respondent No.2 herein ought to have afforded opportunity to the petitioners.
20. It is a fact that the base order of 21.11.2008 directed the entry to be made after verifying evidence from the parties concerned and on their adducing relevant material or evidence in support thereof and, thereafter pencil entry No.657 came to be noted where the factum of family arrangement and the pendency of Special Civil Suit are some of the vital grounds mentioned by the concerned authorities in mutating the Entry No.657 and thus there is substantive entry made by way of Entry No.657, and therefore, this Court can choose not to interfere with such challenge by upholding the contention of respondent that the substantive right of petitioners herein can be agitated before the Collector as well as thereafter before SSRD, if either side is still aggrieved by the order of the Collector. However, for two reasons, that Course is not to be adopted, negating such contention of respondent No.2 and would choose to interfere with the order impugned of SSRD, which upheld the order of Deputy Collector dated 21.11.2008.
Firstly, as discussed and held hereinabove order which deleted both Entries NO.354 and 428 in violation of those basic principles of natural justice is not restricted to entering the name of respondent No.2, but, fresh show cause notice issued on 14.9.2012 indicates as to why the names of the applicants should not be deleted from Entry No.657 dated 17.11.2009. Thus, firstly on giving effect to the order of Deputy Collector dated 21.11.2008, Entry dated 17.11.2008 came to be mutated where the name of respondent NO.2 was introduced and the names of other heirs continued. However, instead of waiting for the outcome of Special Civil Suit where these petitioners have challenged the family settlement as well as the version of the respondent being adopted son, the Revenue Authorities have chosen to proceed with the deletion of the names of present petitioners, which would have serious prejudice to the rights of the petitioners in respect of the land in question.
21. It must be noted specifically, at this stage, that the issues which are at large before the competent Civil Court are not to be adjudicated upon as it would otherwise amount to causing prejudice to the rights of the either side, who are to adduce evidence before the trial Court and get the issues adjudicated in accordance with law. Whether family settlement has been arrived at is a question, which is truthfully devolving the right in respect of the land in question upon respondent No.2 and whether such family settlement and the affidavits filed in respect thereof would be binding to the parties concerned and whether these documents are genuine and not concocted, are the questions to be determined by the competent Civil Court. However, without addressing to any of the substantive challenge and issues, it would be sufficient to note at this stage, that the first order of Deputy Collector dated 21.11.2008 cannot remain on record for the same having been passed in clear violation of principles of natural justice. It would be apt to to refer to some of the judgments of the Apex Court at this stage concerning this very issues.
In the case of State of H.P. And others vs. Gujarat Ambuja Cement Ltd. and another reported in (2005) 6 SCC 499, the Apex Court held and observed as under:-
“ There are two well-recognised exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. Moreover, where the proceedings itself are in abuse of process of law the High Court in an appropriate case can entertain a writ petition.”
22. It would also be apt to recall the decision of Ragho Singh vs. Mohan Singh and other (supra), where in absence of any application under Section 5 of the Limitation act for condoning the delay, additional Collector beyond the stipulated time period had entertained the application without any application for condonation of delay. The Apex Court has held this action of Revenue as a patent error in allowing such application as, not only there was a necessity for condoning the delay, but, this authority pressed the need for making an application for condonation of delay.
23. Likewise in the case of Rama Dubey vs. Deputy Director or Consolidation(supra), the Apex Court insisted upon impleading the heirs and when the proceedings before the Consolidation Officer was not finalized by preferring an application for condonation of delay and after affording an opportunity of hearing.
Again in case of Sneh Gupta vs. Devi Sarup and other (supra), a compromise decree which was alleged to be void was required to be set aside. The Court held that even if the order is void, the party if does not approach the Court, within a reasonable time the discretion is required to be exercised in a reasonable manner.
In case of (Dr.) Jayantilal Mohanlal Desai and others vs. State of Gujarat and others (supra), it is emphasized that any authority, which is either judicial or quasi judicial when undertakes adjudication process, it is incumbent upon it to adhere to the principles of natural justice and afford reasonable opportunity of hearing to the parties concerned, who are interested or likely to be affected by the order to be passed or against whom the order is sought.
In this case the principle audi alteram partem has been reiterated by holding that even if the same is not provided under the statute, the same will come into play. The Apex Court went to an extent of saying that even if it is an administrative act, if there are several consequences emerging on account of such act, the doctrine of principles of natural justice would have to be employed while answering to the question as to whether the petitioners would have a right to claim the opportunity of being heard in such cases. Decisive factor for such principle to come into play is the prejudice caused to the interest of the person concerned.
24. In light of this discussion, it can be clearly held that any change in the entries No.354 and 428 has affected directly the rights of petitioners and consequently, several consequences also have arisen on account of the same and, therefore, the act of Deputy Collector while passing the order on 21.11.2008 cannot simply be said to be an administrative act. That in fact affected substantive right of the petitioner and thus the act necessitated the applicability of the principles of audi alteram partem. And, therefore, non-grant of opportunity to the petitioners herein while passing the order impugned dated 21.11.2008, in the opinion of this Court is in clear violation of these salutary principles and, therefore, the order shall need to be quashed.
Alleged non-disclosure of details of family arrangement and of affidavits filed by petitioners and binding ration of all the judgments on this issue would also have no bearing on the outcome of this petition as these aspects can be agitated before the competent Court and the Revenue authorities at an appropriate time, however, allowing the order impugned on record would amount to upholding ex facie illegal action of authority.
The base order when goes, the order of Collector dated 26.10.2009 and the one passed by SSRD on 28.2.2012 also shall need to be quashed. When SSRD decided on 28.2.2012, the order of the Deputy Collector was already given effect to, and a pencil entry No.657 was mutated and that was one of the reasons why it chose not to entertain the appeal. However, neither the order dated 21.11.2008 nor the subsequent orders of the appellate and the revisionist authorities can be sustained for suffering the vice of sustaining the order passed in clear violation of the principles of natural justice. The order must be held to be arising from the act of unreasonableness and devoid of fairness. Having been passed in complete breach of rule of natural justice it is a nullity and has no value therefore in the eyes of law.
25. With regard to the Entry made being No.657 on 17.11.2009 and challenge to the substantive proceedings, which right now has culminated into the appeal before the Collector and the notice dated 14.9.2012 sought to insist upon, during the pendency of this petition deleting names of all the petitioners as a result of allowing this petition shall follow consequences that may ensue.
Petition is disposed of accordingly.
CIVIL APPLICATION NO. 11220 of 2012 in SPECIAL CIVIL APPLICATION NO. 3535 of 2012
In view of the order passed in the main petition, Civil Application is also disposed of.
SUDHIR (MS SONIA GOKANI, J.)