Savitaben WD/O Jashubhai Somabhai v. State of Gujarat
2011-07-27
J.B.PARDIWALA, S.J.MUKHOPADHAYA
body2011
DigiLaw.ai
JUDGMENT : J.B. Pardiwala, J. The present Civil Application No.4011 of 2011 has been preferred by the applicants praying for condonation of delay of 3472 days (more than 10 years) in preferring Civil Application No.4052/2011 i.e. for bringing legal heirs on record in Letters Patent Appeal No.565/2011 seeking to challenge the judgment and order passed by the learned Single Judge dated 20/6/2000 in Special Civil Application No.5902/1988. 2. The facts relevant for the purpose of deciding the aforesaid applications are as under :- 2.1 The applicants herein are legal heirs of Late Jasubhai Somabhai Patel - original petitioner of Special Civil Application No.5902/1988. Late Jasubhai Somabhai Patel preferred Special Civil Application No.5902/1988 raising the question of legality and validity of the order passed by the Revenue Authorities, cancelling the entry mutated in the Revenue Record in his favour with respect to a parcel of land after a period of almost 21 years. Before the learned Single Judge his case was that in the Revenue Record his name has been mutated as occupier of the land in disputes. He redressed the grievance before the learned Single Judge that the daughters relinquished their rights in the land in dispute and almost after a period of 21 years after the posting of the entry, the other side raised voice and that is how the Revenue Authorities cancelled the entry. Late Jasubhai Somabhai Patel redressed grievance before the learned Single Judge that the proceedings for corrections of entry in the revenue record were wholly misconceived as the respondents have also filed Civil Suit in this regard. The learned Single Judge rejected the petition confirming the orders passed by the Revenue Authorities cancelling the entry which was mutated in the name of Late Jasubhai Somabhai Patel on the premise that the relinquishment of right in the immovable property by an unregistered document is of no value. The learned Single Judge also took the view that so far as the delay is concerned, the right of daughters in the land of the mother cannot be divested or allowed to be defeated only on the basis of delay. The learned Single Judge also took the view that the mother of respondent nos.2, 3 and 4 expired after coming into force of Hindu Succession Act, 1956 and this right which has been conferred to the daughters cannot be taken away on a technical plea of delay.
The learned Single Judge also took the view that the mother of respondent nos.2, 3 and 4 expired after coming into force of Hindu Succession Act, 1956 and this right which has been conferred to the daughters cannot be taken away on a technical plea of delay. In the result, the learned Single Judge rejected the petition. 3. It deserves to be noted that the learned Single Judge dismissed the petition preferred by Late Jasubhai Somabhai Patel on 20th June, 2000. Late Jasubhai passed away on 14/6/2001. Till the time original petitioner Jasubhai passed away, he did not deem fit to challenge the order passed by the learned Single Judge rejecting his petition. Almost after period of 11 years the legal heirs of Late Jasubhai have preferred Letters Patent Appeal No.565/2011 in Special Civil Application No.5902/1988. For this purpose Civil Application No.4011/2011 has been preferred praying for condonation of delay of 3472 days in bringing the legal heirs on record so as to enable the legal heirs to file LPA. 4. Having heard the learned counsel appearing for the applicants, and having considered the grounds as urged in the application for condonation of delay, we are of the view that no sufficient cause has been assigned by the applicants to get a delay of 3472 days condoned. Except the averments that the applicants are not conversant with the law and they have no knowledge about the intricacies of legal proceedings and as the possession of the land is also with the applicants, nothing substantial has been brought on record to enable this Court to exercise its discretion for condoning a delay of 3472 days. Mere ignorance of law is no ground to condone the delay of 3472 days. There is a distinction between ignorance of law and mistake of law. Mistake of law is mistake in establishing those rights by, for instance, going to one Forum instead of another. The party knows his rights he want to assert them, and establish them, but through mistake in understanding the provisions of law, goes to a wrong Forum instead of going to the Forum which the law has set up for the determination of his rights.
The party knows his rights he want to assert them, and establish them, but through mistake in understanding the provisions of law, goes to a wrong Forum instead of going to the Forum which the law has set up for the determination of his rights. In cases where there is a mistake of law, the Courts have almost uniformly taken the view that the time taken up by asserting the right in wrong Court or wrong Forum should be excused and the Courts have largely been influenced by the principle underlying Section 14 of the Limitation Act, but ignorance of law has been held to be not only no excuse but also no sufficient cause for failing to assert a party's rights in the Forum established by law. We therefore hold that ignorance of law resulting in inaction on the part of the litigant to assert his rights of which he has no knowledge as a result of such ignorance does not constitute sufficient cause for the purpose of condonation of delay. In a recent pronouncement of the apex Court in the case of Tamil Nadu Housing Board v. M. Meiyappan and ors. reported in 2010 AIR SCW 7130, the Supreme Court in paragraph 18 held as under:- "18. Similarly, in Tridip Kumar Dingal & ors. v. State of West Bengal & ors. (to which one of us (D.K. Jain, J.) was a party), this Court had observed as under:- "56. We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches. 57. If the petitioner wants to invoke jurisdiction of a writ court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction.
57. If the petitioner wants to invoke jurisdiction of a writ court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime." 5. In this view of the matter, we do not find any merit in the application and the same is hereby rejected with no order as to cost. As we have rejected the Civil Application no.4011/2011 for condonation of delay no orders are now required to be passed in Civil Application No.4052/2011 and Letters Patent Appeal No.565/2011. Application rejected.