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2016 DIGILAW 1768 (GUJ)

State of Gujarat v. Jilubha Jadeja

2016-08-19

B.M.TRIVEDI

body2016
JUDGMENT : B.M. Trivedi, J. 1. Present petition filed by the petitioner-State of Gujarat is directed against the order dated 18.12.2002 passed by the Gujarat Revenue Tribunal (hereinafter referred to as the 'GRT' for short) in Revision Application No. TEN/B.R.1/2001 filed by the Respondent Nos. 2 to 4-applicants under section 38 of the Gujarat Agricultural Lands Ceiling Act, 1960 (hereinafter referred to as "the said Act") whereby, the Tribunal after condoning the delay of about 18 years had allowed the said Revision Application and set aside the order dated 28.06.1982 passed by the Deputy Collector in Appeal Case No. 157/1982 and also the order dated 26.12.1980 passed by the Mamlatdar and ALT in Ceiling No. Lodhika 72/1976. 2. The brief facts leading to filing of the present petition are that the respondent No. 1 Jilubha Kalubha happens to be the father of Respondent Nos. 2 to 4. The Respondent No. 1 had filled in the form declaring his holding under the provisions of the said Act. The Mamlatdar and ALT held that the Respondent No. 1 and his major son Ramdev Jilubha were entitled to two separate units, and that the respondent No. 1 was holding 24 acres and 38 gunthas land out of total holding of 126 acres and 38 gunthas of land as surplus land under the said Act vide the order dated 26.12.1988. Being aggrieved by the said order, the respondent No. 1 had preferred the appeal being No. 157/1982 before the Deputy Collector under section 35 of the said Act, who vide the order dated 28.06.1982 dismissed the said appeal and confirmed the order passed by the Mamlatdar and ALT. It appears that the said order of the Deputy Collector remained unchallenged at the instance of Respondent No. 1, however, the Respondent Nos. 2 to 4 after a lapse of about 18 years challenged the said order of Deputy Collector before the GRT by filing Revision Application in the year 2002 under section 38 of the said Act. The GRT vide order dated 05.08.2002 condoned the said delay on the ground that the order of Deputy Collector was not served to the Respondent Nos. 2 to 4-original applicants. The GRT thereafter decided the Revision Application finally, holding that the Respondent Nos. 1 to 4 did not hold any surplus land, vide the impugned order dated 18.12.2002. 3. The GRT vide order dated 05.08.2002 condoned the said delay on the ground that the order of Deputy Collector was not served to the Respondent Nos. 2 to 4-original applicants. The GRT thereafter decided the Revision Application finally, holding that the Respondent Nos. 1 to 4 did not hold any surplus land, vide the impugned order dated 18.12.2002. 3. It has been sought to be submitted by learned AGP Ms. Jyoti Bhatt for the petitioner-State that the Tribunal without verifying the record had entertained grossly time barred Revision Application filed by the Respondent Nos. 2 to 4 on the ground that the order of the Deputy Collector was not served to them, though there was nothing on the record to suggest that the Respondent No. 1 had strained relationship with his sons i.e. the Respondent Nos. 2 to 4 or that the Respondent Nos. 2 to 4 were not aware about the order passed by the Deputy Collector. She also submitted that the Respondent No. 1 had not produced any evidence to show that his son Indrajitsinh has also become major on the specified date i.e. 01.04.1976 and therefore, he was also entitled to the separate unit. According to Ms. Bhatt, the impugned order passed by the Tribunal being perverse and illegal, the same deserves to be set aside. 4. Learned Advocate Shri Ashish Shah for the Respondent No. 1 and learned Advocate Shri Jinesh Kapadia for the Respondent Nos. 2 to 4 supported the impugned order passed by the Tribunal and submitted that the Respondent No. 4-Indrajit had already become major on 01.04.1976 and therefore, he was entitled to the separate unit under the said Act. Learned Counsels for the respondents also relied upon the affidavit-in-reply filed by the Respondent Nos. 2 to 4 as also the birth certificate dated 19.04.2001 issued by the Talati-cum-Mantri annexed thereto with the said reply. Learned Counsel Shri Kapadia had also submitted that the Deputy Collector had failed to serve any notice to the Respondent Nos. 2 to 4 and therefore, they were not aware about the order passed by the Deputy Collector, which resulted into a delay of 18 years in filing the Revision Application before the Tribunal, which has been rightly condoned by the Tribunal in the interest of justice. 5. 2 to 4 and therefore, they were not aware about the order passed by the Deputy Collector, which resulted into a delay of 18 years in filing the Revision Application before the Tribunal, which has been rightly condoned by the Tribunal in the interest of justice. 5. Having regard to the submissions made by the learned Counsels for the parties and to the orders passed by the concerned Authorities on record as also the affidavit-in-reply filed on behalf of Respondent Nos. 2 to 4, it appears that the Mamlatdar and ALT had given two units to the Respondent No. 1, one for himself and the other for his major son Shivramsinh. The Mamlatdar had held that the Respondent No. 1 was entitled to retain 102 acres of land out of 126 acres and 38 gunthas declared by him, and that the land admeasuring 24 acres and 38 gunthas was surplus land, which was liable to be acquired under Section 21 of the said Act. The said order was challenged by the Respondent No. 1 before the Deputy Collector, who confirmed the said order. As transpiring from the said orders passed by the Mamlatdar as well as by the Deputy Collector, there was no contention taken by the Respondent No. 1 Jilubha that his another son Indrajitsinh had also become major on 01.04.1976 and was entitled to the separate unit. On the contrary it appears that the partition sought to be made by the Respondent No. 1 in the year 1970, was not approved by the Deputy Collector vide his order dated 24.12.1976 on the ground that his sons had not become major. The said order appears to have remained unchallenged at the instance of Respondent No. 1. It is further pertinent to note that the order of Mamlatdar was passed after hearing the learned Advocate appearing for the Respondent No. 1, however, it was not contended on behalf of the Respondent No. 1 that his another son Indrajitsinh had also become major as on 01.04.1976. The said order of Deputy Collector also remained unchallenged by the Respondent No. 1 i.e., the father of Respondent Nos. 2 to 4. However, after 18 years of the said order passed by the Deputy Collector, the Respondent Nos. 2 to 4 challenged the same before the Tribunal by filing the Revision Application. The said order of Deputy Collector also remained unchallenged by the Respondent No. 1 i.e., the father of Respondent Nos. 2 to 4. However, after 18 years of the said order passed by the Deputy Collector, the Respondent Nos. 2 to 4 challenged the same before the Tribunal by filing the Revision Application. Surprisingly, the Tribunal condoned the delay of 18 years on the ground that the order of the Deputy Collector was not served to the Respondent Nos. 2 to 4. 6. The Court fails to understand as to how such a grossly time barred Revision Application, and that too at the instance of the Respondent Nos. 2 to 4, whose interest was already represented by their father i.e. Respondent No. 1 could have been entertained by the Tribunal, when the Respondent No. 1 himself had not chosen to file any Revision Application before the Tribunal. When the Deputy Collector had passed the order after hearing learned Counsel for the Respondent No. 1, it was not necessary for the Deputy Collector to send copy of the order to the sons of Respondent No. 1, who were not party appellants to the proceedings before the Deputy Collector. There is also nothing on the record to suggest that the Respondent No. 1 had strained relationship with his sons i.e. Respondent Nos. 2 to 4. On the other hand it has come on the record that all the respondents were staying together. The very fact that the Respondent No. 1 had supported the case of the Respondent Nos. 2-4 in the Revision Proceedings before the Tribunal, established that they had good relationship with each other. 7. Under the circumstances, the Tribunal has committed an error apparent on the face of record in entertaining the grossly time barred Revision Application at the instance of Respondent Nos. 2 to 4 and allowed the same without verifying the records of the case. Learned Counsel Shri Kapadia for the Respondent Nos. 2 to 4 has placed heavy reliance on the copy of the birth certificate annexed to the affidavit-in-reply filed by the said respondents, however, it is pertinent to note that the said birth certificate was issued on 19.04.2001. 2 to 4 and allowed the same without verifying the records of the case. Learned Counsel Shri Kapadia for the Respondent Nos. 2 to 4 has placed heavy reliance on the copy of the birth certificate annexed to the affidavit-in-reply filed by the said respondents, however, it is pertinent to note that the said birth certificate was issued on 19.04.2001. Apart from the fact that said certificate was not produced before the Mamlatdar or before the Deputy Collector, the said certificate appears to have been obtained from the Talati-cum-Mantri in 2001, only with a view to file the Revision Application before the Tribunal. The veracity of said birth certificate also appears to be highly doubtful. The submission of Mr. Kapadia that the partition was recorded in the mutation entry No. 104 in the year 1970 also cannot be accepted, inasmuch as the said entry was not approved by the Deputy Collector on the ground that the sons of Respondent No. 1 had not become major, as per the findings recorded by the Mamlatdar in his order dated 26.12.1980. The said fact has been suppressed by the Respondent Nos. 2 to 4 in the affidavit-in-reply filed by them before this Court. However, without stretching the matter any-further, suffice is to hold that the impugned order dated 18.12.2002 passed by the Tribunal is highly perverse and illegal, which deserves to be set aside. 8. In that view of the matter, the impugned order dated 18.12.2002 passed by the Tribunal in Revision Application No. TEN/B.R. 1/2001 is hereby set aside. The order dated 28.06.1982 passed by the Deputy Collector in Appeal No. 157/1982 and the order dated 26.12.1980 passed by the Mamlatdar and ALT in Ceiling No. Lodhika 72/1976 are hereby confirmed. The petition stands allowed accordingly. Rule is made absolute.