1. Heard Mr.Jitendra M.Patel, learned advocate for the petitioners. It is submitted by him that the petitioners have been declared as tenants by order dated 14-04-1976, passed by the Mamlatdar and ALT and purchase price was fixed as per Section 32G of the Gujarat Tenancy and Agricultural Lands Act,1948 ('the Tenancy Act' for short) and a Certificate under Section 32M of the Tenancy Act was issued on 18-06- 1976. That, after 34 years, the heirs of the original owner of the land challenged the order dated 14-04-
1976 and the Certificate issued to the petitioners, without filing an application for condonation of delay. It is further submitted that the Deputy Collector, in his order dated 02-11-2011, has enumerated seven points culled out regarding the merits of the case, and on the basis of the same has held that the application for condonation of delay which was never filed by respondents Nos.1 and 2 (heirs of the original owner of the land), deserves to be allowed. It is submitted that this order was confirmed by the Gujarat Revenue Tribunal by the impugned judgment dated 09-01-2012, on the premise that after allowing the application for condonation of delay, the petitioners would be granted an opportunity for hearing on merits, therefore, they would not be prejudiced, and nor would there be a violation of the principles of natural justice. It is submitted that without calling for the Records and Proceedings of the matter as per Regulations Nos.13 to 15 of the Gujarat Revenue Tribunal Regulations, 1958, and without taking into consideration the grounds raised by the petitioners, the Revision Application preferred by the petitioners has been rejected, at the preliminary stage.
HC-NIC Page 2 of 9 Created On Sat Aug 06 03:16:57 IST 2016 SCA/1837/2012 3/9 ORDER 1.1. The learned counsel for the petitioners has
contended that the orders of the Deputy Collector and the Gujarat Revenue Tribunal have been passed dehors the principles of law laid down in several judgments, as follows:
(1)Pune Municipal Corporation v. State of Maharashtra, 2007(3) GLR 2610 (2)Adambhai Sulemanbhai Desai v.State of Gujarat, 2004(1) GLR 906 (3)Jadav Prabhatbhai Jethabhai v.Parmar Karsanbhai Dhulabhai, 2001(1) GLR 16 (4)Hansaben v. State of Gujarat, 2009(2) GLR 1255 (5)Somabhai Bholidas Patel v. State of Gujarat, 2009(3) GLR 2645 1.2. The learned counsel for the petitioners has urged that an appeal filed without an application for condonation of delay would not be competent, as held by this Court in following judgments: (1)Paschim Gujarat Vij Company Ltd. v. Khemchand Nathabhai Gadhavi, 2011(3) GLR 1867 (2) Civil Application No.12044 of 2000 and Civil HC-NIC Page 3 of 9 Created On Sat Aug 06 03:16:57 IST 2016 SCA/1837/2012 4/9 ORDER Application No.12045 of 2000 in Letters Patent Appeal (St.) No.1684 of 2000 decided on 26-7- 2001.
1.3. Referring to the impugned order passed by the Tribunal and the Deputy Collector, it is further contended that while considering an application for condonation of delay, the merits of the matter cannot be considered. In support of this submission reference has been made to the following judgment:
Commissioner, Nagar Parishad, Bhilwara v. Labour Court, Bhilwara, (2009)3 SCC 525
2. On the basis of the above submissions, it is prayed that the impugned order of the Tribunal be stayed.
3. A Caveat has been filed by respondents Nos.1 and 2, who have also filed an interim affidavit-in-reply. Mr.Nimish M.Kapadia, learned advocate for the Caveators submits that the judgments cited by the learned counsel for the petitioners would not be applicable on the facts and in the circumstances of HC-NIC Page 4 of 9 Created On Sat Aug 06 03:16:57 IST 2016 SCA/1837/2012 5/9 ORDER the present case. It is submitted that the petitioners have played fraud upon the revenue authorities and the genuineness of the order dated 14-04-1976 passed under Section 32G of the Tenancy Act, as well as the Certificate issued under Section 32M of the said Act, by the Mamlatdar and ALT, is doubtful. It is submitted that the authenticity of the order dated 14- 04-1976 is a seriously disputed question and an application for initiating criminal proceedings has been filed. However, the Revision Application against the order passed by the Criminal Court for further investigation is pending before this Court. It is further contended that the signature of the mother of respondents Nos.1 and 2, upon the notice issued under Section 135D is also not genuine. Therefore, respondents Nos.1 and 2 had no knowledge of the proceedings. The learned advocate for the Caveators has submitted that in view of this aspect,there is no delay in initiating the proceedings and, in any case, it is not necessary to file an application for condonation of delay, along with the appeal. In support of this submission, reliance has been placed upon the following judgments:
HC-NIC Page 5 of 9 Created On Sat Aug 06 03:16:57 IST 2016 SCA/1837/2012 6/9 ORDER (a) M/s.Markland Pvt.Ltd. v. State of Gujarat, 1988(1) GLH 167 (b) Dy. Secretary, R & B Department v.Dhanuben Kalidas Nayaka, 1999(1) GLH 666
(c) State of M.P. v. Pradeep Kumar, JT 2000(10)SC 349 3.1 It is further submitted by the learned advocate for the Cavetors that an order regarding condonation of delay is an interlocutory order and if the Gujarat Revenue Tribunal has not interfered with this order, this court may not interfere. In support of this submission, learned advocate for the caveators has cited a judgment dated 24-09-1997 rendered in Special Civil Application No.10492 of 1995.
3.2. It is further submitted that delay is to be seen from the date of knowledge and limitation would begin from this stage, as has been held in GSRTC v. M/s. Patel Automobiles, 1979 GLR 722.
3.3. It is contended on behalf of the caveators that consideration of the merits of the case at the time of deciding an application for condonation of delay would be a valid consideration. In support of this HC-NIC Page 6 of 9 Created On Sat Aug 06 03:16:57 IST 2016 SCA/1837/2012 7/9 ORDER contention, reliance has been placed upon State of Gujarat v. Legal Heirs of Ismali H.Ranza, 1999(2) GCD 1290(Guj).
3.4. It is further urged that a liberal approach ought to to be adopted while dealing with an application for condonation of delay as held in Special Land Acquisition Officer, Godhra v. Lilavatiben Kodar Ranchhod, 2002 (3) GLH 226.
3.5. Referring to the order of the Deputy Collector dated 02-11-2011 it is contended by the learned advocate for the caveators that this order has been passed upon consideration of the inquiry report of the Revenue Inquiry Commissioner and several aspects that have been mentioned in the said order have rightly been considered by the Gujarat Revenue Tribunal. 3.6. In reply to the submission regarding calling for the Record and Proceedings by the Gujarat Revenue Tribunal, the learned advocate for the caveators has submitted that as per Rule 13(4) of the Bombay Revenue Tribunal Regulations, 1958, it is not mandatory upon the Tribunal to call for the Record and Proceedings., HC-NIC Page 7 of 9 Created On Sat Aug 06 03:16:57 IST 2016 SCA/1837/2012 8/9 ORDER It is submitted that as per Regulation No.15, Record and Proceedings can be called for when the appeal is admitted. However, in the present case, the Revision Application has not been admitted by the Tribunal and has been rejected at the preliminary stage,therefore, this Regulation would not apply.
4. Having heard the learned counsel for the respective parties and upon perusal of the record, it prmia facie appears that by the impugned order of the Collector dated 02-11-2011, the application for condonation of delay purportedly filed by respondents Nos.1 and 2 has been allowed after considering the merits of the case, as enumerated in the said order. However, the record does not reveal that such an application had been filed.
5. The order of the Collector has been upheld by the Gujarat Revenue Tribunal and the Revision Application of the petitioners has been rejected at the preliminary stage. It appears from the facts and circumstances of the case that the matter requires deeper consideration.
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6. Hence Rule, returnable on 02-04-2012. Status-quo, as it exists today, shall be maintained, and further proceedings in the matter before the Deputy Collector, shall remain stayed.
Mr.N.M.Kapadia, learned advocate, waives service of notice of Rule for respondents Nos.1 and 2.
Direct service of this order is permitted.
(Smt.Abhilasha Kumari,J) arg HC-NIC Page 9 of 9 Created On Sat Aug 06 03:16:57 IST 2016