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2022 DIGILAW 258 (GUJ)

State of Gujarat v. Magansinhji Medatia

2022-02-10

A.P.THAKER

body2022
JUDGMENT : A.P. Thaker, J. 1. This is an application preferred by the original petitioner-applicant State of Gujarat for condonation of delay of 3578 days in preferring application for bringing legal heirs of the deceased on record. 2. It is submitted by the learned advocate for the applicant that along with the above captioned Special Civil Application, many other Special Civil Applications of the same parties are pending. In present petition, the State is the petitioner and in other matters private parties are the petitioners. It is stated that so far as the petitions preferred by the private respondents are concerned, their legal heirs have already been brought on record. It is also contended that all the petitions were kept together and heard together and, therefore, practically since heirs of private petitioners are already brought on record in the respective petitions, the heirs of the respondents here may be technically brought on record. 2.1. It is also submitted that at the given point of time series of Civil Applications and restoration applications were filed and some were allowed and only formality now requires is to get the delay condoned to bring legal heirs on record. While explaining the delay, it has been contended that Misc. Civil Application (ST) No. 2193 of 2014 in CA (ST) No. 1837 of 2014 with MCA (ST) No. 2194 of 2014 in CA No. 2604 of 2014 came to be disposed of by order dated 19.6.2015 and thereafter the same were brought to the attention of the department. It is further stated that with effect from 1.5.2016, the Raigarh Range in whose jurisdiction Jamla village lies, has been brought under the administrative control of Sabarkantha Forest Division from the Aravalli Forest Division (earlier known as Sabarkantha South Division). It is averred that thereafter office of the deponent came to know regarding the said proceedings and, therefore, on 12.4.2016, the Range Forest off icer Raigarh had made communication to Talati-cum-Mantri, Jamla Gram Panchayat seeking the death certificate and Pedigree. It has received communication from Talati-cum-Mantri vide 21.9.2016 along with death certificate and Pedigree and it was informed that in view of the new Circular dated 14.5.2014, only parties can give declaration and only pursuant to such declaration of legal heirs of Pedigree can be prepared and provided. It is contended that private respondent did not provide any details to the Talati-cum-Mantri. It is contended that private respondent did not provide any details to the Talati-cum-Mantri. It is contended that in Special Civil Application No. 14382 of 2003, 14383 of 2003, 14384 of 2003, legal heirs of the respondents came to be brought on record. It is contended that since private parties did not provide the details to the Talati-cum-Mantri and ultimately applicant did not get required information about the heirs of the deceased respondents, delay has occurred and, therefore, it is prayed to condone the delay of 3578 days caused in preferring Civil Application for bringing legal heirs. 3. This application has been opposed by the proposed heirs of the deceased Magansingh Mulsinh Metadia (sole respondent). It is contended that the original party respondent has died as back as on 6.9.2006 and fact of his such death and the names of all his surviving legal heris were communicated by their advocate to the office of the Government Pleader vide letter dated 16.4.2007 which was accepted by them on 23.4.2007. That in this way, the applicant was quite aware of the fact of such death of deceased Magansingh Mulsinh Metadia on and from 23.4.2007. 3.1 It is also contended that not only that, but in respect of the very dispute land situated at Village Jamla, the deceased himself had also filed Writ Petition being Special Civil Application No. 10573 of 2000, it was this Court during his life time Civil Application No. 12682 of 2007 was filed therein by the legal heirs of the deceased including the deponent, for their impleadment as party petitioner in place of their father. That the State Government was already served with copy of such Civil Application at that time in the year 2007 itself wherein names and addresses of all the legal heirs of the deceased respondents were duly described and the Hon'ble Court had allowed such application after hearing the State Government in that regard. Thus, it is stated that the Government was well within the knowledge of the death of the deceased respondent and also the names of the heirs way back in year 2007. Thus, it is stated that the Government was well within the knowledge of the death of the deceased respondent and also the names of the heirs way back in year 2007. It is also contended that not only advocate of the heirs but even the Court has also granted time to the State Government for taking necessary legal steps for bringing legal heirs of the respondent on record within time, but all these years they have not done anything till 2007 i.e. almost 7 years and there is no explanation whatsoever. It is also contended that there is no justification or sufficient cause given by the State for condonation of huge delay. 3.2. It is also contended that the government filed Civil Application for the first time in the year 2014 only and that too without fling any application for condonation of delay which came to be dismissed for want of prosecution. That thereafter the government had filed another application for restoration which were also not in time and further another Misc. Application for condonation of delay in fling such restoration application. It is contended that though the Hon'ble Court has condoned the delay of 3 days, the main Civil Application for bringing legal heirs came to be dismissed having become redundant vide order dated 19.6.2015. It is also contended that vide this order, the Court has granted 14 days period for bringing afresh application inspite of that, the government had failed to take any kind of legal steps, in this case, for a period of more than 1 year, from such order dated 19.6.2015 though they were having all the particulars regarding the date of death of the original respondent, his death certificate, names and addresses of the legal heirs. 3.3. It is also contended that even in 2007, in the Special Civil Application filed by the private respondent, Civil Application for bringing heirs were brought on record and all particulars regarding heirs were made available and after hearing State Government, the Court has granted those Civil Application and thus the State Government whose within knowledge of the heirs and, therefore, there is no justifiable ground for condonation of huge delay. According to him, the writ petition has in fact stood abated in the eyes of law and, therefore, this application at this belated stage is clearly untenable at law and time barred and deserves to be dismissed. According to him, the writ petition has in fact stood abated in the eyes of law and, therefore, this application at this belated stage is clearly untenable at law and time barred and deserves to be dismissed. On all this grounds, has prayed to dismiss the application. 4. Heard learned AGP Ms. Moxa Thakkar for the State and Mr. Solanki, learned advocate for the proposed heirs of the deceased at length. Perused the material placed on record. 5. Ms. Moxa Thakkar, learned AGP for the State has vehemently submitted same facts which are narrated in the petition and has also submitted that if the delay is condoned and heirs are brought on record, no prejudice is caused to the proposed heirs as the lis could be decided after affording opportunity of being heard to both the sides. She has also submitted that delay has been well explained as there was no information regarding the heirs of the sole respondent, and therefore, delay occurred in getting information and on account of administrative basis, and therefore, delay may be condoned. 5.1. Ms. Moxa Thakkar, learned AGP has submitted to condone the delay as in the petition filed by the sole respondent, heirs have already been brought on record. She has submitted that delay occurred on the part of the Government may be liberally viewed. She has relied upon the following decisions and has prayed to allow the application: (1) In the case of Sureshbhai Suvalal Jayswal and 1 v. State of Gujarat and 12, delivered in Civil Application (Condonation of delay) No. 6953 of 2014 in CA (ST) No. 3769 of 2014 in SCA No. 1611 of 2013 with CA No. 1525 of 2015 in CA (ST) No. 574 of 2015 dated 28.8.2015; (2) In the case of Executive officer Antiyur Town Panchayat v. G. Arumugam (Dead) By Legal Representatives, reported in (2015) 3 SCC 569 ; (3) In the case of State of Assam and Others v. Susrita Holdings Pvt. Ltd., reported in AIR 2014 SC 2307 . She has also submitted that there is a disputed legal question involved in the matter and therefore, if the delay is not condoned, the valuable right of the petitioners in regard to the law point would be frustrated. She has prayed to allow the application. 6. Per contra, Mr. She has also submitted that there is a disputed legal question involved in the matter and therefore, if the delay is not condoned, the valuable right of the petitioners in regard to the law point would be frustrated. She has prayed to allow the application. 6. Per contra, Mr. Solanki learned advocate for the proposed heirs has vehemently submitted same facts which are narrated in the affidavit, referred to hereinabove. 6.1. Mr. Solanki learned advocate has submitted that original respondent has died on 6.9.2006 and no steps has been taken to bring legal heirs of him on record for decades. He has also submitted that he himself has informed the off ice of the Government Pleader regarding the death of the original respondent and along with particulars of his heirs, in the year 2007, and the same was within the knowledge of the State Government and yet no steps were taken. He has also submitted that in the year 2014 also i.e. after 7 years, the State has filed application for bringing heirs of the deceased on record wherein also there was a delay which was allowed by this Court but the application for bringing the legal heirs was dismissed by observing that it has become redundant. He has submitted that though the Court has dismissed the application, the Court has granted two weeks time to the State Government to prefer appropriate fresh application for bringing legal heirs and yet the government did not moved forward. He has also submitted that even the restoration application came to be dismissed way back in the year 2015. He has also submitted that though the Court has granted two weeks time, this application has been preferred after 1 year and 4 months of the order dated 19.6.2015 without any proper explanation. He has also submitted that even the restoration application came to be dismissed way back in the year 2015. He has also submitted that though the Court has granted two weeks time, this application has been preferred after 1 year and 4 months of the order dated 19.6.2015 without any proper explanation. While relying upon the following decisions, he has submitted to dismiss the present application: (1) In the case of Commissioner, Nagar Parishad, Bhilwara v. Labour Court, Bhilwara, reported in (2009) 3 SCC 525 ; (2) In the case of Basawaraj and Another v. Special Land Acquisition officer, reported in (2013) 14 SCC 81 ; (3) In the case of State of Uttar Pradesh through Executive Engineer and Another v. Amar Nath Yadav, reported in (2014) 2 SCC 422 ; (4) In the case of Post Master General and Others v. Living Media India Limited and Another, reported in (2012) 3 SCC 563 ; (5) In the case of Balwant Singh (Dead) v. Jagdish Singh and Others, reported in (2010) 8 SCC 685 ; (6) In the case of N. Lokanadham v. Telecom Commission, reported in (2008) 5 SCC 157; (7) In the case of Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, reported in (2012) 5 SCC 157 ; (8) In the case of Lanka Venkateshwarlu (Dead) by LRS. v. State of Andhra Pradesh and Others, reported in (2011) 4 SCC 363 ; (9) In the case of State of Gujarat v. Dinesh Keshavlal Maheta, reported in (2007) 2 GLH 615 . (10) In the case of Puran Singh and Others v. State of Punjab and Others, reported in AIR 1996 SC 1092 ; (11) In the case of Isa Bhattacharya v. Managing Committee, reported in AIR 2013 SCW 6158 . 7. While considering the observation made in Sureshbhai Suvalal Jayswal and 1 v. State of Gujarat and 12 (Supra), she has submitted that since the petition is under Article 227, there is no need of any application for condonation of delay and has submitted that there is no special application be made but it can be incorporated even in the application for bringing the legal heirs on record. She has also submitted that it is always open for the applicant to explain delay or laches occurred in fling the application for bringing legal heirs of the deceased as party on the record of the petition. 7.1. She has also submitted that it is always open for the applicant to explain delay or laches occurred in fling the application for bringing legal heirs of the deceased as party on the record of the petition. 7.1. The Hon'ble Court has made following observation in Paras-7, 8 and 9 of the aforesaid order, which read as under: "7. In the case of Ram Kala and Others v. The Assistant Director, Consolidation of Holdings, Punjab, Rohtak and Others, AIR 1977 P&H 87 : (1977) 1 ILR (P&H) 699, a Full Bench of three Judges held that Article 137 of the Schedule to the Limitation Act does not apply to an application for adding or substituting a party to a petition under Article 226 of the Constitution. It was also held that Section 141 of the Code cannot be pressed into service for applying the provisions including Order 22 of the Code in a petition under Article 226 of the Constitution. Later a Full Bench of five Judges of the same Court, in the case of Teja Singh v. Union Territory of Chandigarh and Others, AIR 1982 P&H 169 : (1982) 1 ILR (P&H) 383 and Har 169) (supra) held that in view of Rule 32 of the Writ Rules framed by the High Court under Article 225 of the Constitution which provided that in all matters in which no provision had been made by those Rules, the provisions of Civil Procedure Code shall apply mutatis mutandis in so far as they were not inconsistent with those Rules. It was held that the explanation which had been added to Section 141 of the Code by the aforesaid Amending Act, did not in any way nullified the effect of Rule 32 of the Writ Rules. Rule 32 of the Writ Rules is as follows:-- "32. In all matters for which no provision is made in these rules, the provisions of the Code of Civil Procedure, 1908, shall apply mutatis mutandis insofar as they are not inconsistent with these rules". 8. On a plain reading, Section 141 of the Code provides that the procedure provided in the said Code in regard to suits shall be followed "as far as it can be made applicable, in all proceedings". 8. On a plain reading, Section 141 of the Code provides that the procedure provided in the said Code in regard to suits shall be followed "as far as it can be made applicable, in all proceedings". In other words, it is open to make the procedure provided in the said Code in regard to suits applicable to any other proceeding in any Court of civil jurisdiction. The explanation which was added is more or less in the nature of proviso, saying that the expression "proceedings" shall not include any proceeding under Article 226 of the Constitution. The necessary corollary thereof shall be that it shall be open to make applicable the procedure provided in the Code to any proceeding in any Court of Civil jurisdiction except to proceedings under Article 226 of the Constitution. Once the proceeding under Article 226 of the Constitution has been excluded from the expression "proceedings" occurring in Section 141 of the Code by the explanation, how on basis of Section 141 of the Code any procedure provided in the Code can be made applicable to a proceeding under Article 226 of the Constitution? In this background, how merely on basis of Writ Rule 32 the provisions of the Code shall be applicable to writ proceedings? Apart from that, Section 141 of the Code even in respect of other proceedings contemplates that the procedure provided in the Code in regard to suits shall be followed "as far as it can be made applicable". Rule 32 of Writ Rules does not specifically make provisions of Code applicable to petitions under Articles 226 and 227 of the Constitution. It simply says that in matters for which no provision has been made by those rules, the provisions of the Code shall apply mutatis mutandis in so far as they are not inconsistent with those rules. In the case of Rokyayabi v. Ismail Khan and Others, AIR 1984 Kar 234 , in view of Rule 39 of the Writ Proceedings Rules as framed by the Karnataka High Court making the provisions of Code of Civil Procedure applicable to writ proceedings and writ appeals, it was held that the provisions of the Code were applicable to writ proceedings and writ appeals. 9. 9. We have not been able to appreciate the anxiety on the part of the different Courts in judgments referred to above to apply the provisions of the Code to Writ Proceedings on the basis of Section 141 of the Code. When the Constitution has vested extraordinary power in the High Court under Articles 226 and 227 to issue any order, writ or direction and the power of superintendence over all Courts and tribunals throughout the territories in relation to which such High Court is exercising jurisdiction, the procedure for exercising such power and jurisdiction, have to be traced and found in Articles 226 and 227 itself. No useful purpose will be served by limiting the power of the High Court by procedural provisions prescribed in the Code. of course, on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for granting relief to persons, who have invoked the jurisdiction of the High Court. It need not be impressed that different provisions and procedures under the Code are based on well recognised principles for exercise of discretionary power and they are reasonable and rational. But at the same time, it cannot be disputed that many procedures prescribed in the said Code are responsible for delaying the delivery of justice and causing delay in securing the remedy available to a person who pursues such remedies. The High Court should be left to adopt its own procedure for granting relief to the persons concerned. The High Court is expected to adopt a procedure which can be held to be not only reasonable but also expeditious". 8. In the case of Executive officer Antiyur Town Panchayat v. G. Arumugam (Dead) By Legal Representatives, (supra) delay was occasioned only on account of deliberate lapse on the part of the Executive officer of the Panchayat at the relevant time. In that view of the matter, it was observed that if the Court is convinced that there had been an attempt on the part of the government officials or public servants to deny justice by causing delay, the Court, in view of the large public interest, should take lenient view in such situation, condone the delay, howsoever huge may be the delay and have the matter decided on merits. In that case, delay of 1373 days in fling Second Appeal was condoned. 9. In that case, delay of 1373 days in fling Second Appeal was condoned. 9. In the case of State of Assam and Others v. Susrita Holdings Pvt. Ltd. (Supra), considering the facts of that case, it was observed that the malfunctioning of the State Government regarding the unpardonable lackadaisical attitude towards pursuing matter in the court of law cannot be the reason for loss of public property, which involves public money and causes loss to the public exchequer. The Apex Court has condoned the delay however it has specifically observed that this case should not set a precedent to justify inordinate delays on the part of the State Government to file appeals or any other legal proceedings required to be filed within the period of limitation prescribed in law. 10. Regarding the order passed in Sureshbhai Suvalal Jayswal and 1 v. State of Gujarat and 12 (Supra), learned advocate Mr. Solanki for the proposed heirs has submitted that this is a matter wherein registry necessitated for fling separate application for delay as the proceeding is filed under Article 226 and 227 of the Constitution of India. According to him, therefore, the Court has observed that there is no need of any separate application and such delay can be explained in application filed for bringing legal heirs. He has submitted that now in the present case, the application is already filed and therefore it needs to be adjudicated upon under the provisions of Section 5 of the Limitation Act. 11. Now it is well settled from catena of decision in regard to the approach of the Courts while considering the application under Section 5 of the Limitation Act, 1963. Section 5 of the Limitation Act gives the Courts discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood: the words "sufficient cause" receiving a legal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafides is imputable to the parties concerned. It is also well settled rules of limitation are not meant to destroy the rights of the parties. They are meant to see that the parties do not resort to dilatory tactics, but seeking remedy promptly. The decisive factor in condonation of delay, is not the length of the delay but sufficiency of satisfactory explanation. It is also well settled rules of limitation are not meant to destroy the rights of the parties. They are meant to see that the parties do not resort to dilatory tactics, but seeking remedy promptly. The decisive factor in condonation of delay, is not the length of the delay but sufficiency of satisfactory explanation. The extent or degree of leniency to be shown by the Court depends on the nature of the application and facts and circumstances of each case. 12. Now, having considered the averments of both the sides coupled with the material placed on record and the well settled principles regarding the consideration of application under Section 5 of the Limitation Act, as referred to above, it reveals from the record that the sole respondent herein has died way back in 2006. It also appears that learned advocate for the deceased respondent has specifically reiterated to the Government Pleader on 16.4.2007 regarding the death of the deceased in village Jamla on 6.9.2009 along with names of legal heirs and representatives of the deceased. Thus, the factum of death of the deceased was well within the knowledge of the State Government since 16.4.2007. It also reveals that the deceased has also filed separate Special Civil Applications against the State wherein his heirs has already been brought on record in the year 2010 and the application moved by the heirs in those Special Civil Applications, one of which is Special Civil Application No. 14383 of 2003 even the learned AGP was heard and on 22.6.2006, the legal heirs of the deceased was brought on record of the petitions filed by the deceased respondent. Thus, the names and addresses of the legal heirs were within the knowledge of the State in the year 2010. At this juncture, it is pertinent to note that earlier the State had come up with Misc. Civil Application (Stamp) No. 2193 of 2014 In Civil Application (Stamp) No. 1837 of 2014 with MCA (Stamp) No. 2194 of 2014 in CA No. 2604 of 2014, which came to be dismissed having become redundant as the State has not come up with names of the heirs as per the order dated 19.6.2015 passed by this Court (Coram: Hon'ble Mr. Justice K.J. Thaker). The said order reads as under: "ORDER IN CIVIL APPLICATION NO. 2642/2014 IN SPECIAL CIVIL APPLICATION NO. 10491/2000 1. Justice K.J. Thaker). The said order reads as under: "ORDER IN CIVIL APPLICATION NO. 2642/2014 IN SPECIAL CIVIL APPLICATION NO. 10491/2000 1. This Civil Application is filed with the following main prayer:- "(b) To allow the Gujarat Revenue Tribunal, Laldarwaja, M.S. Building, Ahmedabad to join as a Respondent No. 2 in Special Civil Application No. 10491 of 2000." 2. For the reasons stated in the application, the Civil Application is allowed and the prayers made therein are granted. ORDER IN CIVIL APPLICATION NO. 9454/2014 IN MISC. CIVIL APPLICATION (STAMP NUMBER) NO. 2193/2014 1. This Civil Application is filed with the following main prayer:- "B. The Hon'ble Court may kindly be pleased to condone the delay of 3 days caused in preferring the present Misc. Civil Application." 2. For the reasons stated in the application, the Civil Application is allowed and the delay is condoned. ORDER IN CIVIL APPLICATION NO. 9455/2014 IN MISC. CIVIL APPLICATION (STAMP NUMBER) NO. 2194/2014 1. This Civil Application is filed with the following main prayer:- "B. The Hon'ble Court may kindly be pleased to condone the delay of 3 days caused in preferring the present Misc. Civil Application." 2. For the reasons stated in the application, the Civil Application is allowed and the delay is condoned. ORDER IN MISCELLANEOUS CIVIL APPLICATION (STAMP NUMBER) NO. 2193/2014 IN CIVIL APPLICATION (STAMP NUMBER) NO. 1837/2014 WITH MISCELLANEOUS CIVIL APPLICATION (STAMP NUMBER) NO. 2194/2014 IN CIVIL APPLICATION NO. 2604/2014 1. The above Miscellaneous Civil Applications (Stamp Number) have become redundant as the State has not come up with the name of the heirs. Therefore, there is no question of joining heirs. 2. In view of the above, these Miscellaneous Civil Applications (Stamp Number) stand dismissed. However, a liberty is reserved to the State authorities to file a fresh application for condonation of delay and for bringing the heirs of the sole surviving respondent-Magansinhji Medatia Jamla within a period of 14 days from today, as the approach of the State authorities is deprecated". 13. Thus, opportunity was given to the State to file fresh application for condonation of delay and for bringing heirs of the sole respondent within a period of 14 days from 19.6.2015. Thus, the time has already expired in the year 2015. Now, the present application is moved in the year 2016. 13. Thus, opportunity was given to the State to file fresh application for condonation of delay and for bringing heirs of the sole respondent within a period of 14 days from 19.6.2015. Thus, the time has already expired in the year 2015. Now, the present application is moved in the year 2016. Thus, the time granted by this Court earlier has also not been adhered to by the State. There is no sufficient explanation regarding the delay occurred in fling the application for bringing legal heirs. The knowledge of the death of sole respondent and names and addresses of the legal heirs was within the knowledge of the State since 2007 and yet no steps were taken in this regard for bringing the legal heirs on record and even delay occurred has not been properly explained. 14. Therefore, in the facts and circumstances of this case, the application deserves to be dismissed. Accordingly it is dismissed. No order as to costs.