Kumbhar Maviben Wd/o Naranbhai Meghabhai v. State of Gujarat
2022-10-06
SANGEETA K.VISHEN
body2022
DigiLaw.ai
ORDER : By this petition, the petitioners, are challenging the order passed by the learned Secretary, Revenue Department (Appeals) (hereinafter referred to as the ‘learned Secretary’) dated 29.7.2016 whereby, the order passed by the Collector, Banaskantha, confirming the order of the Assistant Collector, Tharad of not interfering with the entry no.109 of the year 1961 and entry no.134 of the year 1966, has been confirmed. 2. The factual matrix, as can be culled out from the petition memo is that the petitioners, are the heirs of Kumbhar Megha Mula, who was granted land by the Manager of Tharad State. According to the petitioners, as per the old revenue record, the subject land was designated as “kumbharvalu” and was in the name of Kumbhar Megha Mula, the ancestor of the petitioners. 2.1 As per the endorsement dated 6.9.1954, in the revenue record, namely, vagdapatrak, and as per the order dated 16.6.1943 passed by the Manager of Sabarkantha as well as the order dated 4.9.1944 passed by the Manager of Tharad State, kumbhar was given vethiyu farm. 2.2. According to the petitioners, from the khetvar patrak prepared in the year 1956, the subject land, is shown in the name of Kumbhar Megha Mula; however, according to the petitioners, intentionally and by committing mischief, the name of State Government, has been recorded. In the year 1954, at the time of promulgation, new revenue revenue record was prepared, including village form no.6 by gathering the details; despite there being ownership right available of the ancestor of the petitioners, the revenue officers, erroneously recorded that before 50 years, the subject land was given to Patel Savdas Mansang on condition to pay some amount. According to the petitioners, to the reasons best known to it, the subject land was given a new survey number and Patel Savdas Mansang was shown as occupier and after correcting the revenue record, the land, has been shown as government land vide entry nos.109 and 134. 2.3. It is the case of the petitioners that the authorities, have erroneously recorded entry nos.109 and 134 and shown the subject land of the ownership of the ancestor of the petitioners as a government land. No notice was served, no proceedings have been initiated, and no orders are passed. In absence thereof, entry nos.109 and 134, could not have been recorded. 2.4.
No notice was served, no proceedings have been initiated, and no orders are passed. In absence thereof, entry nos.109 and 134, could not have been recorded. 2.4. The petitioners being illiterate innocent villagers, preferred an appeal before the Assistant Collector, with a request to quash and set aside the entry no.109 dated 8.6.1961 as well as entry no.134 dated 2.2.1969. The Assistant Collector, rejected the appeal of the petitioners on the ground that entry no.109 has been posted in the year 1961 and entry no.134, has been posted in the year 1966 and therefore, there is a delay of almost 48 years in filing the appeal and hence, cannot be entertained. 2.5. Being aggrieved, the petitioners, preferred a revision application before the Collector who, vide order dated 17.12.2013, rejected the same and confirmed the order of the Assistant Collector dated 30.9.2010. The learned Secretary in revision, confirmed the order of the Collector dated 17.12.2013 on the ground that the proceedings, after the delay of 48 years, cannot be entertained as, the law helps the vigilant and hence, the present writ petition with the aforementioned prayers. 3. Mr Rakesh R. Patel, learned advocate appearing for the petitioners has submitted that the subject land, was granted in favour of grandfather of the petitioners rightfully by the erstwhile government and the same, was running in his name. The said factum, is strengthened by the measurement field-book wherein, the name of grandfather – Kumbhar Megha Mula, is shown. It is submitted that, however, in the khetvar patrak prepared in the year 1956, to be precise on 21.9.1956, along with the name of grandfather, the name of State Government, was also entered. It is submitted that such endorsement in the khetvar patrak of the year 1956, is erroneously made and without offering any opportunity to the petitioners or their grandfather. 3.1. It is further submitted that as is clear from entry no.109 of the year 1961, there is no reference of the subject land and on the basis of entry no.109, that entry no.134, was posted. If while recording entry no.109, the subject land was not forming part, it could not have also found place while mutating the entry no.134. It is submitted that in entry no.134, various parcels of land belonging to the private individuals, have been entered.
If while recording entry no.109, the subject land was not forming part, it could not have also found place while mutating the entry no.134. It is submitted that in entry no.134, various parcels of land belonging to the private individuals, have been entered. So far as the subject land is concerned, the same, is mentioned against item no.88 as government waste land, and survey no.4, is also recorded as the government land. This entry, was erroneous and without the knowledge of the petitioners. It is submitted that as per the endorsement made in entry no.134, it clearly appears that survey no.4 is stated to be covered by taking the reference of entry no.109; however, on plain reading of entry no.109, it clearly appears that reference of survey no.4, is missing and therefore, entry no.134, is erroneous, illegal and nullity. 3.2. It is submitted that the learned authorities, completely ignored the facts and submissions of the case on merits and dismissed the application on the ground of delay. It is submitted that the petitioners being illiterate and rustic villagers, were unaware about the consequences and therefore, considering the status of the petitioners, the application, ought not to have been rejected only on the ground of delay. It is submitted that the petitioners, have acquired the right of subject land, by virtue of grant in favour of the grandfather before the year 1956. The grandfather of the petitioners being the rightful owner and the petitioners being successor in interest, the entry nos.109 and 134 deserve to be quashed and set aside. It is submitted that the petitioners, are in uninterrupted possession of the subject land since last more than seven decades. 4. On the other hand, Mr J.K. Shah, learned Assistant Government Pleader, appearing on advance copy, has opposed the entertainment of the writ petition. It is submitted that it is not in dispute that the subject matter of challenge, is entry nos.109 and 134 of the years 1961 and 1966 respectively. It is difficult to believe that the petitioners and were not aware about the intricacies of the legal proceedings inasmuch as, in the year 2010, the petitioners themselves, have preferred an appeal before the Assistant Collector; however, the petitioners could not place on record any justification or explanation as to why there was a delay on their part in approaching the authorities concerned.
The proceedings against the order of the Assistant Collector, was initiated before the Collector and thereafter, before the learned Secretary, unsuccessfully. 4.1. The learned Secretary, in the year 2016, confirmed the order of the Collector. Even after the dismissal of the revision application, the petition, has been filed as late as in the year 2022, may be on the advise given by the learned advocate; however, in absence of any explanation justifying or substantiating the delay, the petition, may not be entertained. It is submitted that the limitation, has a crucial role to play and it is only with a view to giving a quietus to the litigation that the limitation is provided and if the party, is not vigilant enough, it has to suffer the consequences. The learned Secretary, has rightly concluded that the law helps the vigilant and not the dormant. It is therefore, urged that petition be not entertained and dismissed in limine. 5. Heard learned advocates appearing for the respective parties and perused the documents available on the record. 6. Mr Rakesh R. Patel, learned advocate, has fairly conceded that there is a delay in challenging the entry nos.109 and 134, for which there is no explanation. However, it is urged that considering the status of the petitioners; rights in their favour, that the petitioners have sought to challenge the entry nos.109 and 134. Such stand of the learned advocate for the petitioners, cannot be accepted for, the petitioners, claim to be the heirs of Kumbhar Megha Mula who, appears to have been allotted the subject land prior to the year 1956. Thereafter, it appears from the revenue record, which was prepared by surveyor, namely, the khetvar patrak, the name of the State Government, has been shown. It appears that an order was passed which, records that the subject land was given to Patel Savdas Mansang on his paying 1/6th of the amount. The said factum is also recorded in village form no.7/12 of the years 1949-50 to 1953-54, that continued from 1954-55 to 1964-65; the record of the year 1960 is missing. Thereafter, in village form no.7/12 of the years 1976-77 to 1985-86, the name of the panchayat, has been shown; possibly, by virtue of entry nos.109 and 134.
The said factum is also recorded in village form no.7/12 of the years 1949-50 to 1953-54, that continued from 1954-55 to 1964-65; the record of the year 1960 is missing. Thereafter, in village form no.7/12 of the years 1976-77 to 1985-86, the name of the panchayat, has been shown; possibly, by virtue of entry nos.109 and 134. As per village form no.7/12, in the column of cultivation, the endorsement indicates that it is a waste land and no crops are shown to have been standing. The case of the petitioners that they are in possession and cultivating the land, does not stand justified on the basis of the endorsement shown in the village form no.7/12. 7. Pertinently, entry nos.109 and 134 were posted in the revenue record in the years 1961 and 1966 respectively. Entry no.134 records that the measurement has been undertaken and as per the statement provided by the Mamlatdar and comparing the possession of the persons occupying, that the entry has been mutated. Names of various individuals have been shown against the respective survey numbers; however, so far as the subject land is concerned, it is shown against item no.88 under the head of government waste land. It also records that vide entry no.109, the land has been designated in favour of the panchayat. The said entry, covers the subject land, i.e. survey no.4 admeasuring 10 acres and 18 gunthas; however, there is not a single document placed on record after the year 1956, to suggest or substantiate that the land, was running in the name of grandfather of the petitioners. 8. Clearly, the grandfather, during his lifetime, has not challenged the entry nos.109 and 134. It was only in the year 2010 that the petitioners have sought to challenge the entry nos.109 and 134 before the Assistant Collector who, while taking note of the revenue record as well as various entries, has recorded that the survey number, has been vested in the State Government and shown as government waste land and the possession, is with the panchayat. With this, the Assistant Collector, rejected the appeal on the ground that there is a delay of 48 years. Similarly, in the revision application before the Collector, it confirmed the order of the Assistant Collector on the ground that there is a delay in approaching the authorities.
With this, the Assistant Collector, rejected the appeal on the ground that there is a delay of 48 years. Similarly, in the revision application before the Collector, it confirmed the order of the Assistant Collector on the ground that there is a delay in approaching the authorities. Similarly, learned Secretary also, did not interfere and confirmed the order of the Collector. 9. Learned advocate for the petitioners has not been able to point out as to how, the findings recorded by all the authorities, are erroneous, perverse or based on no evidence. The only argument, which has been canvassed by the learned advocate, is that the grandfather had the right over the land in question and the petitioners, being successor in interest, have the right of continuing in possession. There is not a semblance of explanation put-forth in the petition to substantiate delay on the part of the petitioners in approaching the Assistant Collector, challenging entry nos.109 and 134. 10. It is true that the petitioners, are villagers and might not be aware about the intricacies; however, the fact remains that in the year 2010, the petitioners, had approached the Assistant Collector, Collector and the learned Secretary. Even after the order of the learned Secretary, there is a delay of close to 6 years, in filing the captioned writ petition. Therefore, this Court, in absence of any justification provided by the petitioners, justifying the delay, is of the opinion that no error has been committed by the Assistant Collector, Collector and the learned Secretary in passing the orders. It is by well settled that if there are concurrent findings of facts arrived at by all the authorities, that the Court in a petition under Articles 226 and 227 of the Constitution of India, would be loath to interfere as the scope of interference, would be limited. 11. Under the circumstances and in view of the fact that the petitioners are unable to substantiate or point out any error having been committed by the Assistant Collector, Collector and the learned Secretary, no interference is called for. 12. The petition is dismissed in limine. No order as to costs.