IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4480 of 2012 For Approval and Signature:
HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 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 ?
========================================================= PATEL DOLABHAI PANABHAI & 1 - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================================= Appearance :
MR NK MAJMUDAR for Petitioner(s) : 1 - 2.
None for Respondent(s) : 1 - 5, 5.2.1, 5.2.2, 5.2.3, 5.2.4, 5.2.5, 5.2.6, 5.2.7,5.2.8 =========================================================
CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI
Date : 04/05/2012 ORAL JUDGMENT
1. By preferring this petition under Article 226 of the Constitution of India, the petitioners have assailed the order dated 26.07.1993, passed by the Deputy Collector, Palanpur, and the order dated 05.03.2001 (17.03.2001), passed by the Joint Secretary (Appeals), Revenue Department, whereby the revision application against the aforesaid order of the Deputy Collector has been rejected.
2. Briefly stated, the facts of the case, as emerging from the record are to the following effect:
Land bearing Survey No.45 admeasuring 12 Acres and 05 Gunthas situated at Village and Taluka: Dhanera, District: Banaskantha, was granted to Bhil Damra Duda, the father of respondents Nos.4 and 5, as Inami land, till such time as he continued in the service of the State. It appears that thereafter, Bhil Damra Duda was paid for services rendered, therefore, the Inami land was forfeited to the State and regranted to him as new tenure land, on permanent basis. It appears that the name of petitioner No.1 was mutated in the revenue record as cultivator of the land in question. Mutation Entry No.655 dated 27.06.1998, was mutated in the revenue record to this effect.
The land in question came under the restrictions of Section 73AA of the Gujarat Land Revenue Code, 1879 (“the Code” for short). According to the petitioners, the land was converted into old tenure land for agricultural purposes by order dated 26.03.1980. On 10.02.1986, the Mamlatdar, Dhanera, passed an order holding the petitioners to be tenants in respect of the land in question and the Purchase Price was also determined by the aforesaid order. Proceedings for breach of Section 73AA of the Code came to be initiated by the Deputy Collector, Himmatnagar, and ultimately, the impugned order dated 26.07.1993 came to be passed, whereby the transfer of the land in favour of the petitioners as tenants was held to be in breach of Section 73AA of the Code, and the land was ordered to be returned back to the original owner. In the year 1997, the petitioners, being aggrieved by the aforesaid order of the Deputy Collector, preferred a revision application against the said order, which came to be rejected by order dated 05.03.2001 (17.03.2001) passed by the Joint Secretary (Appeals), Revenue Department. In the above background, the petitioners have preferred the present petition.
3. Mr.N.K.Majmudar, learned advocate for the petitioners, has submitted that the name of petitioner No.1 was mutated in the revenue record as an agriculturist and cultivator of the land in question, in the year 197576. Thereafter, the petitioners preferred an application before the Mamlatdar for declaring them as tenants, which was allowed by order dated 10.02.1986. It is submitted that the petitioners have paid the purchase price, therefore, the Deputy Collector could not have initiated proceedings for breach of Section 73AA of the Code, especially after a delay of seven years. It is submitted that seven years is an unreasonable period of time and, as has been held by this Court in various judgments, initiation of proceedings after such a gross delay is, in itself, bad in law.
4. It is further submitted that the Deputy Collector did not take into consideration the aspect that the petitioners had paid the purchase price pursuant to the order of the Mamlatdar, therefore, the transfer of land in favour of the petitioners could not have been set aside for breach of Section 73AA of the Code.
5. It is further contended that the impugned order of the Deputy Collector has wrongly been confirmed by the revisional authority, therefore, both orders deserve to be quashed and set aside.
6. The learned advocate for the petitioners has further submitted that the provisions of Section 73AA of the Code came into effect on 01.02.1981, whereas the petitioners were entered as tenants in respect of the land in question before that date, therefore, the provisions of Section 73AA of the Code ought not have been made applicable in the case of the petitioners.
7. Regarding the delay caused in filing the petition, it is submitted by the learned advocate for the petitioners that though the impugned orders of the Deputy Collector and Joint Secretary (Appeals) that are challenged in the petition were passed on 26.07.1993 and 05.03.2001 (17.03.2001), respectively, the petitioners could not prefer a petition immediately, as they are illiterate persons and were not aware of the further course of action. That, it is only when one of their `wellwishers' apprised them of the further course of action that they approached the learned advocate and filed the petition.
8. I have heard the learned advocate for the petitioners, perused the averments made in the petition and the documents on record.
9. The first aspect that emerges from the record is the enormous delay in filing the petition. The petitioners have impugned the order dated 26.07.1993 of the Deputy Collector and the order dated 05.03.2001 (17.03.2001) of the Joint Secretary (Appeals), confirming the aforesaid order of the Deputy Collector. The Deputy Collector, in his order has directed the land to be returned to the original owner, forthwith, which order has been confirmed by the Joint Secretary (Appeals), on 05.03.2001 (17.03.2001). Eleven years have passed after the order of the Joint Secretary (Appeals). By now, the impugned orders may have been implemented. Having accepted the impugned orders for such a long period of time, being aware of the legal implications of the same, the petitioners have filed the present petition, after eleven years from the passing of the order of the Joint Secretary (Appeals). Not only that, a contention has been raised that the initiation of proceedings by the Deputy Collector is bad, as there is a delay of seven years, from the date of mutation of the names of the petitioners in the revenue record. If the petitioners rely upon the aspect of delay in challenging the initiation of proceedings against them, the same legal principles would be applicable to them as well. The petitioners would have to explain the delay caused in filing the present petition, by showing sufficient cause. In Paragraph5 of the petition, it has been averred that the petitioners are illiterate persons and were not aware about the further course of action and filed the present petition after a `well wisher' apprised them of the further course of action. Such averment cannot be termed as a reasonable explanation for the delay. Nor it can be said on the strength of such averment that the petitioners have shown sufficient cause for the delay. In this context, it would be fruitful to advert to certain judicial pronouncements.
10. In Maganlal V.Lodhiya v. Chief Controlling Revenue Authority & Ors. (supra), this Court held that a petition was liable to be dismissed as the petitioner could not offer any explanation for the delay of four years.
11. In Shankara Cooperative Housing Society Limited
v. M.Prabhakar And Others reported in (2011)5 SCC 607, it has been held by the Supreme Court as under:
“46. Delay and laches is one of the factors that requires to be borne in mind by the High Courts when they exercise their discretionary power under Article 226 of the Constitution of India. In an appropriate case, the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his rights taken in conjunction with the lapse of time and other circumstances.”
In Paragraph54 of the said judgment, the Court has enumerated certain principles that should be considered while determining whether delay or laches should be put against a person who approaches the Writ Court under Article 226 of the Constitution of India. The relevant extract of the judgment is as below:
“54. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are:
(1) there is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts.
(2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners.
(3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy.
(4) No hardandfast rule, can be laid down in this regard. Every case shall have to be decided on its own facts.
(5) That representations would not be adequate explanation to take care of the delay.”
(emphasis supplied)
12. Further, in Union of India And Others v. Har Dayal reported in (2010)1 SCC 394, the Apex Court has held as below:
“13. On the facts and circumstances, the judgment of the High Court directing payment of the market value as in 1996 cannot be sustained. The writ petition ought to have been dismissed on the ground of delay and laches. But as the High Court (learned Single Judge and Division Bench) have chosen to exercise the discretion to ignore the delay and entertain the writ petition, we do not propose to interfere with the exercise of discretion.”
(emphasis supplied)
13. In S.Sumnyan And Others v. Limi Niri And Others reported in (2010)6 SCC 791, the Supreme Court has held that a belated petition is liable to be rejected. In that case, a writ petition was filed challenging the seniority position that prevailed ten years ago. In the meanwhile, the senior position became established and further promotions were effected. In this context, the Supreme Court held as below: “38. The challenge appears to us to be belated and in this regard we would endorse the same view as expressed by this Court in the case of L. Chandrakishore Singh v. State of Manipur [(1999) 8 SCC 287] which is extracted hereinbelow: (SCC p.303, para 15) “15. It is now well settled that even in cases of probation or officiating appointments which are followed by a confirmation unless a contrary rule is shown, the service rendered as officiating appointment or on probation cannot be ignored for reckoning the length of continuous officiating service for determining the place in the seniority list. Where the first appointment is made by not following the prescribed procedure and such appointee is approved later on, the approval would mean his confirmation by the authority shall relate back to the date on which his appointment was made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation. In this regard we fortify our view by the judgment of this Court in G.P. Doval v. Govt. of U.P. and Ors. [(1984) 4 SCC 329].”
14. In light of the principles of law enunciated by the Apex Court in the abovementioned judgments, it is clear that the petitioners had accepted the order of the Joint Secretary (Appeals) dated 05.03.2001 (17.03.2001) for eleven long years, till the filing of the present petition. The land has been directed to be returned to the original owner and this order would have been implemented by now as nothing to the contrary has been stated by the petitioners in the petition. The rights of the original owner have now come into effect after the passing of the order by the Deputy Collector, as confirmed by the order of the Joint Secretary (Appeals).
15. The explanation regarding the petitioners being illiterate and unaware of the further course of action after passing of the order dated 05.03.2001 (17.03.2001) by the Joint Secretary (Appeals), is not at all convincing, as the petitioners were represented by a learned advocate before the revisional authority. The submissions made by the learned advocate on their behalf have not only been recorded in the impugned order, but have also been considered by the revisional authority. The petitioners were not bereft of legal assistance, therefore, illiteracy, by itself, cannot be considered to be a reasonable explanation for the delay.
16. From the material on record, it appears that the land in question was granted to the father of respondents Nos.4 and 5, in lieu of services rendered to the State, for which Mutation Entry
land was thereafter taken back to the State Government as the father of respondents Nos.4 and 5 was paid for services rendered by him and was regranted, by charging six times the land revenue. This is evidenced by Mutation Entry No.1021. It is stated in the order dated 05.03.2001 (17.03.2001) of the Joint Secretary (Appeals), that by mutation of Entry No.1363 dated 13.05.1975, the petitioners cannot be considered as tenants of the land in question. Thereafter, Entry No.1687 dated 20.11.1981 has been mutated in the revenue record regarding breach of the provisions of Section 73AA of the Code. It is relevant to note that no objection was taken to this entry by the petitioners at the relevant point of time. It is only after four years of the recording of the said entry that the petitioners filed an appeal before the Deputy Collector. The revenue authorities below have recorded conclusive findings that the land could not have been subjected to tenancy, as it was new tenure land and even if the land was converted to old tenure by order dated 23.06.1980 of the Prant Officer, it would be subject to the restrictions under Section 73AA of the Code. It is relevant to note that Section 73AA of the Code, which deals with restrictions on transfer of occupancy of land granted to tribals without the previous sanction of the Collector, came into effect on 01.02.1981, whereas the order of the Mamlatdar holding the petitioners as tenants was passed on 10.02.1986, i.e. after the provisions of Section 73AA of the Code came into effect. In this view of the matter, it cannot be said that the findings rendered by the revenue authorities below, to the effect that the land in question was subject to the provisions of Section 73AA of the Code, are illegal or erroneous. Both the impugned orders passed by the revenue authorities below are wellreasoned ones, and the findings recorded therein are based upon the material on record.
17. For the aforestated reasons, there is no merit in the petition, which deserves rejection. It is, (sunil) accordingly rejected.
(Smt. Abhilasha Kumari, J.)