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2021 DIGILAW 953 (GUJ)

STATE OF GUJARAT v. CHANDUBHAI DESAIBHAI

2021-10-20

ARAVIND KUMAR, MAUNA M.BHATT

body2021
ORDER : ARAVIND KUMAR, J. 1. The order of learned Single Judge dated 24.04.2013 passed in Special Civil Application No. 18414 of 2011 has been challenged in Letters Patent Appeal No. 14952 of 2020. On account of there being delay of 2618 days, Civil Application No. 2068 of 2020 has been filed seeking condonation of the same. The said application has been resisted to by the contesting respondents by filing detailed statement of objections. 2. In order to examine as to whether the delay deserves to be condoned, incidentally we called upon the learned Assistant Government Pleader to address the arguments on main matter also, and having heard the learned Assistant Government Pleader, Mr. Tirthraj Pandya appearing for the appellants, Mr. Deven Parikh, learned Senior Advocate appearing with Mr. S.P. Majmudar for the respondent No. 3.1 and learned advocate Mr. Nishit Gandhi appearing for the respondents Nos. 4.1.2 to 4.1.4, we are of the considered view that even delay deserves to be condoned, on merits appeal deserves to be dismissed and by condoning the delay and admitting the appeal would only be an exercise in futility for the reasons indicated herein below. 3. The land bearing Survey No. 177/1 admeasuring Hectares 0-16-19 square metres of Mouje Manjalpur, Taluka & District Vadodara, which was the subject matter of proceedings before all the authorities including the learned Single Judge, was owned by one Shri Manjibhai Nathabhai and Bhaijibhai Nathabhai, who sold the same under a registered sale deed dated 30.06.1958 in favour of the predecessor-in-title of respondents Nos.1 to 3 pursuant to which, the revenue records came to be mutated and entries came to be confirmed. On premise that said land was a tenanted land since the revenue records for the period 1951-52 to 1955-56 was reflecting the name of the tenant, suo-moto proceedings came to be initiated which resulted in an order being passed on 25.07.1980 which was challenged by respondent Nos. 1 to 3 ultimately before the Tribunal resulting in accepting the said appeal and the order dated 25.07.1980 came to be set aside. 1 to 3 ultimately before the Tribunal resulting in accepting the said appeal and the order dated 25.07.1980 came to be set aside. Being aggrieved by the said order, the State preferred Special Civil Application No. 18414 of 2011 before the learned Single Judge who has dismissed the said application by confirming the order passed by the Gujarat Revenue Tribunal dated 16.06.2009 and has set aside the order dated 30.04.2005 passed by the Deputy Collector, Land Reforms, Vadodara in Tenancy/Appeal/Case No.37/2004 as well as order dated 25.07.1980 passed by the Mamlatdar & Agricultural Lands Tribunal under section 32(1)(b) of the Gujarat Tenancy and Agricultural Lands Act, 1948 (for short ‘Act’) in Tenancy Case No.3050. 4. The prime contention of the learned AGP is : Order dated 25.07.1980 ought not to have been set aside by the Tribunal that too after a lapse of 24 years, particularly when the revenue records clearly reflected the name of the tenant for the period 1951-52 to 1955- 56 and, as such, proceedings initiated under section 32(1)(b) of the Act by the Mamlatdar was correct and justified. Hence, he has assailed the order passed by the Tribunal which has set aside the order of the Deputy Collector. The learned Senior counsel appearing for the respondent is correct and justified in contending that statutory provision under section 32 itself is not attracted or inapplicable for the reason that said provision would be attracted in respect of a land which is a tenanted land and only on section 32 being attracted, suo-moto proceedings could have been initiated. The expression and language employed in section 32 is clear, explicit and unambiguous. The expression and language employed in section 32 is clear, explicit and unambiguous. It reads thus : - “32 (1) (a) - xxxxxx ” (1) (b) such tenant is not a permanent tenant but cultivates the land leased personally; and (i) the landlord has not given notice of termination of his tenancy under section 31; or (ii) notice has been given under section 31, but the landlord has not applied to the Mamlatdar on or before the 31st day of March, 1957 under section 29 for obtaining possession of the land; or (iii) the landlord has not terminated his tenancy on any of the grounds specified in section 14, or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of March, 1957 under section 29 for obtaining possession of the land:” 5. A plain reading of the above section would clearly indicate that from the first day of April, 1957, every tenant who is tilling the land, is deemed to have purchased the said land from his landlord free of all encumbrances subsisting thereon on the said day, the land held by him as a tenant, in case of such tenant is a permanent thereof and in case of not being a permanent tenant but cultivates the land leased personally under section 32(1)(b). Though a valiant attempt has been made by the learned Assistant Government Pleader to contend that the revenue records clearly reflected the name of the tenant and on such suo-moto power vested with the Mamlatdar under section 32(1B) has been exercised by passing an order on 25.07.1980 (Annexure B) cannot be accepted and said contention recedes to backdrop or it pales to insignificance inasmuch as said provisions would get attracted if it is a tenanted land. In the instant case, tenant himself has appeared before the revenue authorities and has contended or admitted that he is not cultivating the said land; he is not a tenant under the owner of the land; and he is not seeking any conferment of his status as a tenant. Thus, any presumption arising under the Act with reference to the revenue entries had stood rebutted and it is this precise finding which came to be recorded by the Revenue Tribunal which was unsuccessfully challenged by the State before the learned Single Judge. 6. Thus, any presumption arising under the Act with reference to the revenue entries had stood rebutted and it is this precise finding which came to be recorded by the Revenue Tribunal which was unsuccessfully challenged by the State before the learned Single Judge. 6. The very initiation of the proceedings under section 32(1B) by the Mamlatdar was found not justified by the Tribunal, and rightly so since the said proceedings could have been initiated only against a tenant who was in possession of the land on the appointed day as a tenant and who on account of his being either dispossessed of such land or any part thereof by the landlord at any time before the specified date, otherwise than in the manner provided under section 29 or any other provision of the Act or is not in possession of such land or any part thereof or the said land was not put to a non-agricultural use on or before said date, then only Mamlatdar would get power to initiate proceedings either on an application or suo-moto and not otherwise. 7. Section 32(1B) came into operation with effect from 03.03.1973. Proviso thereto was incorporated by Act No. 30 of 1977. A plain reading of the proviso would clearly indicate that Section 32(1B) applies in cases where possession of land either continues with the landlord or his successor-in-interest. The expression “successor-ininterest” is defined by explanation to mean a person who acquires the interest by testamentary disposition or devolution on death. Undisputedly, the respondents had purchased the land under registered sale deed. Thus, when neither the original landlord nor the successor-ininterest was in possession on the specified date i.e. 03.03.1973, it cannot be gainsaid by the State that Section 32(1B) would be attracted to the facts on hand. 8. Even otherewise, section 32(1B) would apply to the cases where possession is taken over by the landlord or the tenant otherwise than following the procedure prescribed by Bombay Tenancy and Agricultural Lands Act, but the cases in which there is no tenancy on the hand in question, applicability of Section 32(1VB) does not arise. 9. 8. Even otherewise, section 32(1B) would apply to the cases where possession is taken over by the landlord or the tenant otherwise than following the procedure prescribed by Bombay Tenancy and Agricultural Lands Act, but the cases in which there is no tenancy on the hand in question, applicability of Section 32(1VB) does not arise. 9. In the instant case, as noticed hereinabove, tenant himself has appeared before the revenue authorities and reiterated his stand that he is not a tenant of the land and he has not been dispossessed and pleaded his ignorance with reference to the revenue entries, no presumption could have been raised which was done by the revenue authorities and not accepted by the Tribunal rightly so. As such, going into merits of the case would be an exercise in futility and even if delay is condoned and appeal is taken up for consideration, it would not serve any purpose or ultimately appeal has to be dismissed on merits. 10. While considering an application for condonation of delay, it is not the length of delay but the cause for delay which will have to be looked into. If the cause shown is sufficient or would fall within the four corners of “sufficient cause” as indicated in section 5 of the Limitation Act, 1963, it would suffice to condone the delay, irrespective of the length of delay. However, if the delay is short and cause shown is insufficient, such delay cannot be condoned. When technicalities are pitted against substantial justice, necessarily such technicalities will have to kneel down before substantial justice. No litigant would stand to benefit by approaching the Court belatedly. It is in this background, the Hon’ble Apex Court has held that where cause shown is in the proximity of acceptance, delay can be condoned. It has also been held that certain amount of latitude is to be extended to the State and its officers, and delay deserves to be condoned. In the matter of Collector Land Acquisition, Anantnag & Anr. Versus Mst. Katiji and others, reported in AIR 1987 SC 1353 , the Hon’ble Apex Court has illustratively defined a contours of consideration of an application for condonation of delay. It has been held- “3. In the matter of Collector Land Acquisition, Anantnag & Anr. Versus Mst. Katiji and others, reported in AIR 1987 SC 1353 , the Hon’ble Apex Court has illustratively defined a contours of consideration of an application for condonation of delay. It has been held- “3. The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is con- doned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an evenhanded manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinary (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant non grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore. set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides. 4. Appeal is allowed accordingly. No costs.” 11. The order of the High Court dismissing the appeal before it as time barred, is therefore. set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides. 4. Appeal is allowed accordingly. No costs.” 11. Infact the Apex Court in the case of State of Nagaland versus Lipok AO & Others reported in (2005) 3 SCC 752 , has held that the Courts should decide the matters on merits unless the case is hopelessly without merit. It has been further held that no separate standards to determine the cause laid by the State vis-a-vis private litigant could be prescribed to prove strict standards of sufficient cause. It has been further held that the Government decisions are taken by officers/agencies proverbially at a slow pace and encumbered process of pushing the files from table to table and keeping it on the table for considerable time causing delay - intentional or otherwise - is routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore, it has been held certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default, no person is individually affected but in the ultimate analysis, public interest suffers. It is in the background of aforesaid authoritative principle laid down by the Hon’ble Apex Court, we have examined the prayer of the State for condonation of delay of 2618 days in filing Letters Patent Appeal. The cause shown for delay is traceable to paragraph 4, 5 and 6 of the Civil Application No. 2068 of 2020 and it reads : - “4. That the certified copy of the said oral order dated 24.04.2013, passed by this Hon’ble Court was not received by the office of Deputy Collector (Land Reform) Vadodara along with legal opinion from the office of Government Pleader. Thereby vide letter no. Tenancy / appeal/Vashi/5202/2013, dated 12.12.2013, the Mamlatdar & ALT, Vadodara was instructed to collect the certified copy. Here with annexed and marked as Annexure A is the copy of the said letter dated 12.12.2013. The record reveals that vide letter dated 18.07.2014 and 04.08.2014, the office of Government Pleader, was requested to provide the certified copy of the said order. Tenancy / appeal/Vashi/5202/2013, dated 12.12.2013, the Mamlatdar & ALT, Vadodara was instructed to collect the certified copy. Here with annexed and marked as Annexure A is the copy of the said letter dated 12.12.2013. The record reveals that vide letter dated 18.07.2014 and 04.08.2014, the office of Government Pleader, was requested to provide the certified copy of the said order. Here with annexed and marked as Annexure – B (colly) is the copy of said letter dated 18.07.2014/04.08.2014. However, thereafter the officers deputed have changed and being engaged in various duties entrusted to them from time to time, delay had occurred. 5. It may kindly be noted that no entry was made as regards the order passed by this Hon’ble Court as the petitioners or their erstwhile owners have failed to communicate the said order to the state authorities. In such circumstances, when the NA permission application was processed by the office of Collector, Vadodara and while submitting the opinion by the application no. 1 herein, the record was examined by the office of applicant no. 1 herein whereby the fact about passing of the order dated 24.04.2013 was noted. 6. The office of Collector, Vadodara had sent darkhast to the State for guidance, whereby the State Government had called for opinion of the Assistant Government Pleader vide letter dated 27.02.2020 and 09.06.2020. Herewith annexed and marked as Annexure-C (colly) is the copy of the said letter dated 27.02.2020 and 09.06.2020, of the State Government. That in reference to the same, the office of Government Pleader was requested to provide legal opinion and upon receipt of the said legal opinion dated 12.06.2020, the office of Collector, Vadodara has vide letter dated 15.06.2020, sought permission to prefer Letters Patent Appeal before the Hon’ble High Court, for the reasons stated in therein. Herewith annexed and marked as Annexure -D is the copy of the said letter dated 15.06.2020. That the State Government has submitted darkhast to the Legal Department for necessary sanction to file appeal, which was pending approval. Thereafter, the Legal Department has called for various details and having examined the same had granted permission to prefer appeal before the Hon’ble High Court of Gujarat, vide communication dated 4th July, 2020. Herewith annexed and marked as Annexure – E is the copy of said letter dated 4th July, 2020 granting permission to file appeal. Thereafter, the Legal Department has called for various details and having examined the same had granted permission to prefer appeal before the Hon’ble High Court of Gujarat, vide communication dated 4th July, 2020. Herewith annexed and marked as Annexure – E is the copy of said letter dated 4th July, 2020 granting permission to file appeal. That the same was communicated by the Revenue Department, to the office of Government Pleader vide letter dated 6th July, 2020. Thereafter, copy of the petition was send through email for drafting of appeal on 13th July, 2020. That by 18th July, 2020, draft appeal and other related applications were send through email to the office of applicant. Thus, delay has taken place in presenting appeal before this Hon’ble Court and hence application seeking condonation of delay.” 12. Infact, in the instant case there is delay at two (2) stages namely : (i) Delay in filing Special Civil Application No. 18414 of 2011 – 2½ years (ii) Delay in filing Letters Patent Appeal (Filing) No. 14952 of 2020 – 2168 days 13. Special Civil Application No. 18414 of 2011 came to be filed on 19.12.2011 by the State challenging the order dated 16.06.2009 passed by the Gujarat Revenue Tribunal i.e. after 2½ years and no explanation is forthcoming from the averments made in the Special Civil Application and it is bereft of any material particulars. Infact respondent No. 3 submitted an application before the revenue authorities for deleting the name of the State immediately after order came to be passed by the Tribunal on 16.06.2009. As the order of Tribunal was not given effect to respondents filed Special Civil Application No. 106 of 2011 and after issuing notice it was dismissed on 07.03.2011 on the ground that aggrieved party has an alternate remedy, which is challenged by the respondent Nos. 1 to 3 herein in Letters Patent Appeal No. 687 of 2011, wherein notice had been ordered on 09.12.2011 and it has been served on appellate / State on 19.11.2011 and they have appeared before Court and sought for adjournment on 09.12.2011. 1 to 3 herein in Letters Patent Appeal No. 687 of 2011, wherein notice had been ordered on 09.12.2011 and it has been served on appellate / State on 19.11.2011 and they have appeared before Court and sought for adjournment on 09.12.2011. Thus, as on disposal of Special Civil Application No. 106 of 2011 on 07.03.2011, appellant / State was aware of the order passed by Revenue Tribunal on 16.06.2009 and yet did not challenge the same and as observed hereinabove, it came to be challenged on 19.12.2011 in Special Civil Application No. 18414 of 2011. Thus, delay of 2½ years in filing of Special Civil Application No. 18414 of 2011 has not been explained. Even cause shown for delay in filing present Letters Patent Appeal is insufficient. No details of 2168 days delay is explained. In a casual & cavalier manner delay is sought to be explained namely contending administrative lapses that too without details. Hon’ble Apex Court in the case of Office of the Chief Post Master General & Ors. versus Living Media India Ltd. & Anr. reported in (2012) 3 SCC 563 , has held law of limitation binds everybody equally including government. It has been further held that: - “25. We have already extracted the reasons as mentioned in the "better affidavit" sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of the Division Bench of the High Court in Office of the Chief Postmaster v. Living Media India Ltd. as 11.09.2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied only on 08.01.2010, i.e. after a period of nearly four months. 26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The fact remains that the certified copy was applied only on 08.01.2010, i.e. after a period of nearly four months. 26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps. 27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. 28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 29. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. 30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay.” 14. Thus, keeping the aforesaid authoritative principles in mind when the case papers are perused, it would clearly indicate that delay which has occurred at two (2) stages as noticed hereinabove, has not been explained and there is no cause muchless sufficient cause if shown. 15. That apart even on merits, we find there is no good case made out by the State for the reasons already indicated hereinabove. As such, admitting the present Appeal and keeping it pending and ultimately dismissing on merits would only be escalating the pendency of cases which would not be in the interest of justice. As such we are of the considered view that case on hand would not call for condoning the delay and as such we dismiss Civil Application No. 2068 of 2020 and consequently dismiss the Appeal on merits also. 16. In view of the dismissal of the main Appeal, all pending Civil Applications are also dismissed. Costs made easy.