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Gujarat High Court · body

2016 DIGILAW 1223 (GUJ)

Kamlaben Babarbhai Solanki v. State of Gujarat

2016-07-01

B.M.TRIVEDI

body2016
JUDGMENT : B.M. Trivedi, J. 1. The present petition filed by the petitioner under Article 227 of the Constitution of India is directed against the order dated 27.03.2008 passed by the respondent No. 2- Collector in N.A. Case No. 19 of 2007-08, as well as against the order dated 03/05.03.2012 passed by the respondent No. 1 in Revision Application No. 18 of 2010. Learned Advocate Mr. Nishit Gandhi for Mr. P.P. Majmudar after arguing for sometime, does not press for the prayer for setting aside the order dated 27.03.2008 at this juncture, and confines his challenge to the order dated 3/5.03.2012 passed by the respondent No. 1, by which the application of the petitioner seeking condonation of delay in filing the Revision Application has been rejected. 2. The present petitioner had sought to challenge the order dated 27.03.2008 passed by the respondent No. 2 granting NA permission to the respondent Nos. 3 and 4 under the provision contained in Gujarat Land Revenue Act (hereinafter referred to as "the Act"), by filing Revision Application under Section 211 of the said Act before respondent No. 1. The petitioner alongwith the said Revision Application had also filed an Application seeking condonation of delay, which had purportedly occurred in filing the Revision Application. The application seeking condonation of delay has been dismissed by the respondent No. 1 resultantly the Revision Application has been dismissed vide the impugned order, against which the present petition is filed. 3. It is sought to be submitted by Mr. Nishit Gandhi, learned advocate for the petitioner that there is no period of limitation prescribed under Section 211 of the said Act for filing the Revision application, however the office of the respondent No. 1 as a matter of practice is insisting the party-applicant to file application for condonation of delay, if the applicant had challenged the impugned order of the lower authority one year after passing of the same. He also submitted that in the instant case the petitioner was called upon by the respondent No. 1 for the hearing of the application for condonation of delay, however the respondent No. 1 has dismissed the Revision application, while dismissing the application for condonation of delay. He also submitted that in the instant case the petitioner was called upon by the respondent No. 1 for the hearing of the application for condonation of delay, however the respondent No. 1 has dismissed the Revision application, while dismissing the application for condonation of delay. Relying upon the decisions of this court in case of R.M. Patel v. State of Gujarat reported in 2015(2) GLR 1242 and of the Supreme Court in case of Roop Chand v. State of Punjab & Anr., reported in AIR 1963 SC 1503 , he submitted that the Revision application could be filed by the private party under Section 211 of the said Act. He has also relied upon the decision of this Court in Muman Habib Nasir Khanji v. State of Gujarat reported in 1970 GLR 307 , to submit that there is no period of limitation prescribed for filing the Revision Application under Section 211 and, therefore, the respondent No. 1 has committed an error of law in dismissing the revision application, while considering the application for condonation of delay. 4. Learned Senior Counsel Mr. Shalin Mehta appearing for the respondent Nos. 3 and 4, however, submitted that Revision petition filed by the petitioner under Section 211 of the said Act was not maintainable, and that the petitioner was required to file Appeal under Section 203 of the said Act, before the State Government through the Secretary which is the superior authority of the Collector. He also submitted that it is only the State Government suo moto and not the private person who could invoke the revisional power under Section 211 of the said Act. In any case, runs the submission of Mr. Mehta, the petitioner was required to invoke the Revision jurisdiction within a reasonable time and that having not been done by the petitioner, the respondent No. 1 has rightly rejected her application for condonation of delay. 5. In the opinion of the court, the three fold contentions raised by the learned Sr. Counsel Mr. Mehta for the respondent Nos. 3 and 4 are answered by the Division Bench of this Court in case of Muman Habib Nasir Khanji v. State (Supra). The contention with regard to filing of appeal under Section 203 of the Code has been dealt with in Para-17 thereof, which reads as under:- "17. Counsel Mr. Mehta for the respondent Nos. 3 and 4 are answered by the Division Bench of this Court in case of Muman Habib Nasir Khanji v. State (Supra). The contention with regard to filing of appeal under Section 203 of the Code has been dealt with in Para-17 thereof, which reads as under:- "17. This section provides for an appeal against the order of a revenue officer whether passed under the Bombay Land Revenue Code or under any law for the time being in force to that officers immediate superior. Secondly such an appeal lies against original as well as appellate decision. The question which arises for our consideration is:- what is the meaning of the phrase to that officers immediate superior? It is true that the words immediate superior officer have not been used in sec. 203 but only the words immediate superior have been used. Looking to the context in which they have been used the words immediate superior connote immediate superior officer. Since the word officer has already been used immediately before the words immediate superior it has not been repeated after those words. Mr. Shelat contends that the phrase immediate superior means immediate superior authority. He therefore further proceeds to content that if the words immediate superior are construed so as to mean immediate superior authority sec. 203 will permit an appeal from the decision of the Collector even under sec. 211 of the Code to the State Government. We are unable to accept this contention of Mr. Shelat for several reasons. Firstly it appears to us that reading sec. 203 as a whole and reading the words immediate superior in the context in which they have been used it is very clear that they have been used to connote and mean immediate superior officer. Since the words immediate superior are immediately preceded by the word officer as stated above the Legislature has thought fit not to repeat it after them. If it was the intention of the Legislature that immediate superior must mean immediate superior authority nothing would have been easier for it then to use the words immediate superior authority instead of only using the words immediate superior. A word can be left to be understood in the context of the language if it occurs in the earlier part of a sentence. A word can be left to be understood in the context of the language if it occurs in the earlier part of a sentence. An altogether new word which has not occurred anywhere earlier in a sentence ordinarily will not be left to be understood in the context. It therefore appears to us that the word officer has been left to be understood after the phrase immediate superior. In this view of the matter it appears to us that sec. 203 contemplates an appellate hierarchy of revenue officers from the lowest to the highest. Now the State Government is not and cannot be superior officer Under the Constitution of India and also under the earlier Constitution Acts it has been an ultimate executive authority in respect of the matters assigned to it. Therefore the State Government is not an immediate officer within the meaning of sec. 203." 6. In view of the aforesaid observation made by the Division Bench, the submission of Mr. Mehta that the petitioner was required to file appeal under Section 203 of the said Act, cannot be accepted. So far as the contention with regard to non-maintainability of the Revision Application under section 211 at the instance of Private party is concerned, it has been specifically held in the said decision that it is open to the State Government under Section 211 to exercise revisional powers either suo moto or otherwise and to examine the order or decision of the Collector to find out whether it is legal and proper. On plain reading of Section 211, it clearly transpires that it is a residuary section in the sense that an officer empowered by that section on his own motion or otherwise can correct or set-aside an erroneous decision of the subordinate officer. This power could be exercised by the State government or revenue officer at the instance of any person, even if he is not the aggrieved party. There is nothing in the said Section to suggest that it could be invoked suo moto only and not at the instance of the aggrieved or private party. The court therefore does not find any substance in the submission of Mr. Mehta that the Revision Application at the instance of the petitioner was not maintainable before the respondent No. 1. 7. The court therefore does not find any substance in the submission of Mr. Mehta that the Revision Application at the instance of the petitioner was not maintainable before the respondent No. 1. 7. So far as the issue with regard to the period of limitation is concerned, the Division Bench in the aforestated case has relied upon the ratio of the decision laid down by the Supreme Court in case of State of Gujarat v. Patel Raghav Natha, AIR 1969 SC 1297 , in which it has been held as under:- "It is true that there is no period of limitation prescribed under sec.211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised." 8. From the aforestated legal position, there is no room of doubt that no period of limitation is prescribed for exercising the powers under Section 211, however, the same should be exercised within reasonable time. Since there is no period of limitation prescribed, the question of condoning delay also would not arise. It is needless to say that the powers conferred upon the State Government and the officers mentioned therein to revise the orders of the subordinate officers are discretionary in nature and therefore the State Government may, if it deems fit, not entertain the Revision application on the ground of delay, laches and acquiescence etc., however, in absence of any specific time limit prescribed in the said Section 211, the same could not be rejected on the ground that it has been preferred after the prescribed period of limitation. The insistence of the respondent No. 1 or its office directing the parties to file application for condonation of delay, if the order under challenge was passed one year or more prior to filing of the Revision Application, therefore totally unjustified. 9. The insistence of the respondent No. 1 or its office directing the parties to file application for condonation of delay, if the order under challenge was passed one year or more prior to filing of the Revision Application, therefore totally unjustified. 9. As stated hereinabove, the respondent No. 1 or the officers mentioned in the section on the preliminary hearing of the Revision Application may refuse to exercise its discretion on the ground of delay, however, could not insist that party applicant must file application for condonation of delay, much less the respondent No. 1 could reject the Revision application on the ground that it was filed after the period of limitation, when there is no period of limitation prescribed in any of the provisions of the said Revenue Act. 10. In the instance case, court had called for record of the case and found that the respondent No. 1 had fixed the hearing on the application for condonation of delay only, which was resisted by the respondent Nos. 3 and 4 by filing the reply. The Revision Application was not heard on merits and the same has been rejected on the ground that it was preferred after two years and seven months. As held earlier, the insistence of the office of the respondent No. 1 for filing application for condonation of delay being totally unjustified, it is expected that such practice or insistence if any existing, shall be stopped from now onwards. 11. In that view of the matter, the impugned order passed by the respondent No. 1 deserves to be set-aside and is hereby set aside. The matter is remanded to respondent No. 1 for deciding the same afresh on merits and in accordance with law. It is clarified that this court has not expressed any opinion on the merits of the case. The petition stands allowed accordingly.