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2005 DIGILAW 216 (GUJ)

HEIRS OF AHMAD ISAK BHANA v. STATE OF GUJARAT

2005-03-24

JAYANT PATEL

body2005
JAYANT PATEL, J. ( 1 ) HEARD Mr. B. J. Jadeja, learned counsel for the petitioners and Mr. M. R. Mengdey, learned Assistant Government Pleader for the respondent nos. 1 and 2. ( 2 ) THE short facts of the case are that the petitioners are the legal heirs of deceased Ahmad Isak Adam Bhana (hereinafter referred to as the deceased), who has expired on 16. 12. 1988. It appears that the deceased was holding agricultural land at village Kosamba. The proceedings under Gujarat Agricultural Land Ceiling Act, 1960 (hereinafter referred to as the Act) were conducted and it was registered as Ceiling Case No. 24 of 1976 before the Mamlatdar and ALT. It appears that before the Mamlatdar and ALT, there were two certificates of Canal Officer; one was dated 07. 07. 1982 and another was dated 26. 12. 1982. In the earlier certificate dated 07. 07. 1982, it was mentioned that the lands bearing Survey Nos. 524, 525, 561, 562, 564 and 565 are non-irrigated lands; whereas in the subsequent certificate, it was mentioned that all the lands are fully irrigated. It appears that the Mamlatdar allowed two units and relied upon the the former certificate that the lands are non-irrigated and discharged the notice and dropped the proceedings. It appears that the matter was taken up in Revision by the Deputy Collector being Revision Case No. 57 of 1988. The Deputy Collector in the proceedings of the Revision Application called upon the details in respect to the canal certificates and found that the lands were irrigated lands. The pertinent aspect is that the deceased had remained present and he also agreed for treating 12% of the land as fully irrigated and the land admeasuring 20 acres 0 guntha is a seasonally irrigated land and the deceased further agreed to surrender the land bearing Block No. 524. It appears that thereafter on 30. 11. 1988, the Deputy Collector passed the order and declared the land admeasuring 14 acres and 8 guntha as surplus land. It is the case of the petitioners that thereafter the deceased expired on 16. 12. 1988 and the Revision could not be preferred before the Tribunal. It appears that thereafter on 30. 11. 1988, the Deputy Collector passed the order and declared the land admeasuring 14 acres and 8 guntha as surplus land. It is the case of the petitioners that thereafter the deceased expired on 16. 12. 1988 and the Revision could not be preferred before the Tribunal. However, in the proceedings of the Revision, which was preferred by the legal heirs of the deceased before the Tribunal against the order of the Deputy Collector, it is recorded by the Tribunal that after the order of the Deputy Collector, the Power of Attorney of the deceased has given in writing to the Mamlatdar and ALT to surrender the land and the possession of the land is taken over on 14. 06. 1990. It appears that the said Revision was also delayed and the Tribunal examined the matter on merits and found that on merits there is no case of the petitioner and as the Revision is barred by limitation, the Revision is dismissed. It is under these circumstances, the petitioners have approached this Court by preferring this petition. ( 3 ) MR. JADEJA, learned counsel for the petitioners, raised the contention that the delay ought to have been condoned and the Tribunal ought to have remanded the matter to the Mamlatdar, since on merits the Deputy Collector could not have taken evidence in the proceedings of the Revision. He submitted that after the order of the Deputy Collector as the deceased had expired on 16. 12. 1988, it could not be said that there was no sufficient ground for condonation of delay and he further submitted that the declaration given by the Power of Attorney could not be said to be valid; more particularly, after the death of the deceased on 16. 12. 1988. He also submitted that during the proceedings before the Deputy Collector in Revision as the deceased was on the death bed, he was represented through the Power of Attorney and, therefore, the statement recorded of the Power of Attorney cannot be said binding to the deceased, who was holder of the land, and therefore, he submitted that the order passed by the Tribunal as well as the Deputy Collector deserves to be quashed. ( 4 ) IT appears that even if the delay is leniently viewed on account of the death of the deceased on 16. 12. ( 4 ) IT appears that even if the delay is leniently viewed on account of the death of the deceased on 16. 12. 1988, after the order passed by the Deputy Collector, such delay had altered the position and the rights of State Government inasmuch as after the order passed by the Deputy Collector, the land is voluntarily surrendered by the Power of Attorney of the deceased; and not only that but the possession is also taken over on 14. 6. 90. Thereafter, the Revision is preferred on 20. 08. 1990 by the legal heirs of the deceased. Therefore, if the rights of the parties on account of delay have not altered, the delay can be viewed leniently for the purpose of condonation but if the rights are altered during the period when the delay is caused, the delay cannot be leniently condoned because if such things are permitted, it may result into allowing party to take benefit of its own wrong. The attempt made by Mr. Jadeja, learned counsel for the petitioners, that such statement was by the Power of Attorney holder of the deceased and not by the legal heirs of the deceased, cannot be accepted because no such contention is raised before the Tribunal by the petitioners on the said aspects. The only ground raised before the Tribunal was that the legal heirs of the deceased had come to know about the order only when the representative of the Mamlatdar came for taking over the possession and, therefore, merely because the deceased had expired and the declaration for surrendering the land and the possession was handed over by the Power of Attorney holder, cannot be ignored; more particularly, when the Tribunal has relied upon and has examined the record. ( 5 ) IT is not necessary that in every case the Power of Attorney would come to an end the moment the author dies. It depends on the character of Power given and if the Power of Attorney is holding the power as irrevocable against consideration, even after the death of the author, the power would continue. ( 5 ) IT is not necessary that in every case the Power of Attorney would come to an end the moment the author dies. It depends on the character of Power given and if the Power of Attorney is holding the power as irrevocable against consideration, even after the death of the author, the power would continue. Had such contention raised by the petitioners, the Tribunal could have examined the same but the petitioner in the petition under Article 227 of the Constitution of India cannot be allowed to raise the contention for the first time that the Power of Attorney had no authority to make declaration and/or the Power of Attorney had come to an end on account of the death of the deceased. When it is mixed question of fact and law, such a contention for the first time in the petition under Article 227 of the Constitution of India cannot be allowed to be raised nor the same can be entertained by this Court. It also appears that even if such contention is considered for the examination, the same does not appear to be genuine inasmuch as the Power of Attorney has not only given declaration but he has acted upon the power by physically handing over of the possession of the land in question. It has also been recorded by the Tribunal that when the Panchnama was prepared, the same was signed by Yakub Musa. Therefore, when the actual physical possession of the land is already taken over, in pursuance of the declaration given by the Power of Attorney, such a contention raised on behalf of the petitioners, does not appear to be genuine or bona fide. ( 6 ) MR. JADEJA, learned counsel for the petitioners, also raised the contention that the evidence could not have been recorded in the proceedings of the Revision before the Deputy Collector and, therefore, the order passed by the Deputy Collector is bad in law and the Tribunal ought to have interfered with the same. ( 6 ) MR. JADEJA, learned counsel for the petitioners, also raised the contention that the evidence could not have been recorded in the proceedings of the Revision before the Deputy Collector and, therefore, the order passed by the Deputy Collector is bad in law and the Tribunal ought to have interfered with the same. It appears that while dealing with the said contention, the Tribunal has found that after the certificate of the Canal Officer, the statement of the holder of the land is also produced and the holder has not objected to the production of the certificate of the Canal Officer and, therefore, the Tribunal has found that on merits the order passed by the Deputy Collector is legal and valid. As such, the perusal of the order passed by the Deputy Collector shows that there is an agreement recorded for the certificate and further the holder of the land has shown willingness to surrender the land from Block No. 524. Therefore, if the Deputy Collector in the proceedings of the Revision has taken additional material and evidence, which is not objected by the holder of the land, and is with the consent of the holder of the land or parties to the proceedings, it cannot be said that the order would be rendered illegal, since such an additional evidence was taken in the proceedings of the Revision. Therefore, the said contention of Mr. Jadeja cannot be accepted. ( 7 ) IN view of the above, it appears that when on merits the Tribunal found that the order of the Deputy Collector does not call for interference and if the Revision is dismissed since it was filed after the period of limitation, it cannot be said that the Tribunal has committed any jurisdictional error nor can it be said that the discretion exercised by the Tribunal is so perverse which deserves to be interfered with in exercise of powers under Article 227 of the Constitution of India. ( 8 ) IN view of the above, the petition fails and, hence, the same is dismissed. Rule discharged. Interim relief granted earlier stands vacated. Considering the facts and circumstances of the case, there shall be no order as to costs. .