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2024 DIGILAW 747 (GUJ)

State Of Gujarat v. Sumanbhai Thagabhai Chaudhary

2024-04-03

NIRZAR S.DESAI

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ORDER : 1. By way of both these petitions, the petitioner State has challenged common order dated 20.2.2008 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN/BS/56/2001 and Revision Application No.TEN/BS/58/2001. Though there were two different proceedings, which were decided by a common order therefore, these two separate petitions are preferred to challenge the common order in respect of two different proceedings. 2. By way of this petition, the petitioner has challenged the aforesaid order after a period of seven years. 3. Heard learned Assistant Government Pleader Ms. Shruti Pathak appearing for the petitioner - State and learned senior advocate Mr. Anshin H. Desai with learned advocate Ms. Venu H. Nanavaty appearing for the respondent Nos.1 and 2. 4. Brief facts giving rise to the filing of this petition are stated as under :- 4.1 The present respondents happens to be grandson of one Goja Nanka who had three sons and one daughter namely (i) Bilada Goja (ii) Thagare Goja and (iii) Bhera Goja and (iv) Dudhiben. Thagare Goja had two sons namely Khalpa Thagare and Suman Thagare. The respondents are adivasi and belonging to Schedule Tribe community and are tilling agricultural pieces of land as an agriculturist. In the year 1953, as it is submitted by learned senior advocate Mr. Anshin Desai that the father of the respondent namely Thagare Goja was holding a land bearing Survey No.148, Block No. 185 at Patal Devigam. In the said land name of Khalpa Thagare, the brother of the respondent was also entered from 1955 to 1958 and he continued in the revenue record all throughout. Similarly, the brothers of Thagare Goja i.e. two uncles of the respondent No.1 namely (i) Bilada Goja and (ii) Bhera Goja. Bilada Goja held the land bearing Block No.102/A and land bearing 102/B whereas Bhera Goja held the land bearing Block No.60 bearing Survey No.32. 4.2 On 5.6.1972, the respondent No.1 Suman Thagare Chaudhari purchased the land bearing Survey No.62, Block No.85 at Nandola Gaam, Taluka : Magrol, District : Surat along with Muktanandji Guru Shri Sukhanandji by way of a registered sale deed from Narayanrao Gopalrao Surve and Subhashchandra Gopalrao Surve, for which entry No.482 was mutated in the revenue record. Similarly, another piece of land was purchased by the respondent No.1 in the year 1983 for which entry No.683 was mutated. Similarly, another piece of land was purchased by the respondent No.1 in the year 1983 for which entry No.683 was mutated. For the aforesaid transaction which had taken place on 16.7.1982 in respect of land bearing survey No.65+66/1 of Block No.92 after a period of twenty eight years. 4.3 On 22.9.2000, suo-motu revision proceedings were initiated by exercising suo- motu powers in respect of entry No.482 and entry No. 683, on the basis of proposal made by the Mamlatdar, Magrol that the respondents herein are not agriculturist and notice was issued to the respondents on 22.9.2000 under Section 84(C) of the Tenancy Act. The said show cause notice was replied by the respondents and ultimately vide order dated 20.11.2000, the Mamlatdar and ALT, Choryasi, Surat passed an order against the present respondent. Against which the respondents preferred a Tenancy Appeal No. 19 of 2000 and Tenancy Appeal No.20 of 2000 before the Deputy Collector along with written submissions. On 13.9.2001, the Deputy Collector, Olpad Prant, Surat dismissed both the appeals preferred by the respondents. In the meantime, the Collector, Surat vide order dated 31.7.2001 and 4.9.2000 in suo-motu RTS proceedings No.148 of 2000 and 149 of 2000 cancelled mutation entry No.482 and 683. 4.4 Against the order passed by the Deputy Collector, dated 13.9.2001, the respondent herein preferred a revision application before the Gujarat Revenue Tribunal whereby the respondent had challenged the order dated 20.11.2000 and 13.9.2001 by way of two revision applications No.TEN/BS/56/2001 and TEN/BS/58/2001. Parallelly, the respondents also preferred revision application No. MVV/HKP/ST/37/2000 challenging the order dated 4.9.2000 and 31.7.2001 passed by learned Collector, Surat cancelling the revenue entries No.482 and 683. 4.5 On 20.10.2004, Das Muktanandji Guru Shri Sukhanandji Paramhans expired. Thereafter, on 20.2.2008, the Gujarat Revenue Tribunal allowed both the revision applications preferred by the respondent being Revision Application No.TEN/BS/56/2001 and TEN/BS/58/2001 and quashed and set aside the order passed by the Mamlatdar and ALT, Choryasi dated 20.11.2000 as well as the order passed by the Deputy Collector, Olpad Prant, Surat dated 13.9.2001. However, in parallel proceedings learned Secretary (Appeals), Revenue Department rejected the revision application filed by the respondent vide order dated 6.5.2013. Against which the respondents preferred Special Civil Application No.18342 of 2013 before this Court and challenged the order dated 6.5.2013 and 4.9.2000. However, in parallel proceedings learned Secretary (Appeals), Revenue Department rejected the revision application filed by the respondent vide order dated 6.5.2013. Against which the respondents preferred Special Civil Application No.18342 of 2013 before this Court and challenged the order dated 6.5.2013 and 4.9.2000. In Special Civil Application No.18342 of 2013, this Court had issued notice and stayed both the orders and that petition is still pending as stated by learned senior advocate Mr. Anshin Desai appearing for the respondents. 4.6 It is in this background the State has challenged the order dated 20.2.2008 passed by the Gujarat Revenue Tribunal whereby the Gujarat Revenue Tribunal has quashed and set aside the order passed by the Mamlatdar and ALT and Deputy Collector, by way of the present petitions which was preferred in the year 2015 i.e. after delay of seven years. 5. Learned Assistant Government Pleader Ms. Shruti Pathak made submissions on merit. However, this Court considering the fact that order passed on 20.2.2008 was challenged in the year 2015 and therefore, this Court asked learned Assistant Government Pleader Ms. Shruti Pathak to explain the delay of seven years in filing the petition. In original petition, the delay of seven years is explained in paragraphs No.4.12 and 4.13 which read as under :- "4.12 The petitioners state that the reasons for occurring delay in preferring the present Special Civil Application are purely because of administrative process and as the petitioners are "the state" and seeking condonation of delay "the state" being an impersonal machinery and no one in charge of the matter is directly hit or hurt by the judgment sought to challenge. It is further submitted that the petitioners are not at liberty to take independent decision whether to challenge any judgment or order passed any court of law. The petitioners being "the state" have to pass through the prescribed procedure and the decision to challenge the any judgment or order passed any court of law is a collective decision of all the concerned department and therefore this type of delay occurs. It is submitted that the present case is one of the said example and for the reasons mentioned herein above the delay is occurred and it is humbly prayed that the same may kindly be condoned. It is submitted that the present case is one of the said example and for the reasons mentioned herein above the delay is occurred and it is humbly prayed that the same may kindly be condoned. The petitioners state that in the year 2014, the Revenue Department granted permission to challenge the order of the Tribunal before this Hon'ble court. 4.13 It is further submitted that the Apex Court has also laid down the Principle in the case of Maniben Versus Municipal Corporation Bombay, 2012 5 SSC that the law of limitation is founded on public policy. The Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the Court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the Legislature. At the same time, the Courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation. The expression 'sufficient' cause in Section 5 of the Limitation Act, 1963 and other status is elastic enough to enable the courts to apply the law in a meaningful manner which serve the ends of the justice. No hard and fast rule has been or can be laid down for deciding the application for condonation of delay but over the year this court has advocated that a liberal approach should be adopted in such matters so that substantive rights of the parties were not defeated merely because of delay." 6. Considering the fact that manner in which the delay is explained in the original petition, it cannot be said to be a sufficient explanation about the delay in filing the petition after a period of seven years. Time was requested by learned Assistant Government Pleader Ms. Shruti Pathak to go through the original record and to file further or additional affidavit, if needed. Accordingly, time was granted to learned Assistant Government Pleader Ms. Shruti Pathak and therefore, today an additional affidavit is filed. Original copy of which is in transit as stated by learned Assistant Government Pleader Ms. Shruti Pathak and a photocopy of the affidavit is placed on record. Accordingly, time was granted to learned Assistant Government Pleader Ms. Shruti Pathak and therefore, today an additional affidavit is filed. Original copy of which is in transit as stated by learned Assistant Government Pleader Ms. Shruti Pathak and a photocopy of the affidavit is placed on record. The same is taken on record with a direction to file original affidavit in the Registry of this Court within a period of one week from today. 7. When the petition was filed in the year 2015 except paragraph No.4.12 and 4.13, no averments were made in the petition explaining the delay. By way of this additional affidavit, the State has tried to explain the delay. 8. In six pages affidavit, except two paragraphs, all other paragraphs narrates the history of the matter which is already stated in the petition and even the two paragraphs wherein the State has attempted to explain delay as such there is no explanation for seven years delay. The only paragraphs which are relevant for the purpose of aspect of delay are paragraphs No.3, 5 and 6 of the additional affidavit which reads as under :- "3. The deponent states that after receipt of the copy of the impugned judgment and order dated 20.02.2008, the respondent authority was required to initiate the requisite procedure for the purpose of seeking necessary approval in challenging the order passed by the Hon'ble Gujarat Revenue Tribunal. The dispute in question at the erstwhile time was within the jurisdiction of the office of then Deputy Collector Olpad Prant. However, after the establishment of the Prant Office at Mandvi, the entire records and proceedings pertaining to the present case were transferred to the office of Prant Officer, Mandvi. On account of establishment of the Prant Office at Mandvi which was newly set up, considerable time was lapsed and accordingly, the proceedings with respect to Tenancy Case no.12/2000 as well as 13/2000 were transferred in the year 2011- 2012 to the Prant Office at Mandvi. 5. The Deputy Collector, Land Reforms vide communication dated 03.04.2014 meanwhile, addressed a communication to the Deputy Collector, Olpad Prant, Surat inquiring about the status of petition challenging the judgment and order dated 20.02.2008 passed by the Gujarat Revenue Tribunal. 5. The Deputy Collector, Land Reforms vide communication dated 03.04.2014 meanwhile, addressed a communication to the Deputy Collector, Olpad Prant, Surat inquiring about the status of petition challenging the judgment and order dated 20.02.2008 passed by the Gujarat Revenue Tribunal. The Prant Officer, Olpad, Surat intimated the Deputy Collector, Land Reforms that on account of establishment of office of Prant Officer, Mandvi, the proceedings and records have been forwarded to the office of Prant Office, Mandvi. Since the record was old and on account of transfer of proceedings to Mandvi with establishment of new office, proceedings were required to be undertaken for the purpose of procuring necessary approval and sanction from the Revenue Department as well as Legal Department. 6. Accordingly, Deputy Collector Land Reforms addressed a communication to the Revenue Department vide communication dated 23.12.2014 for the purpose of obtaining necessary approval for the purpose of challenging the order passed by the Gujarat Revenue Tribunal. The proposal was also forwarded to the Legal Department for the purpose of receiving sanction. The Legal Department accorded sanction vide dated communication dated 25.03.2015 addressed to the Office of the Government Pleader. The Office of the Government Pleader thereafter, addressed a communication to the Deputy Secretary, Revenue Department to send the necessary papers for the purpose of preferring Special Civil Application. The Revenue Department, thereafter, vide communication dated 01.05.2015 entrusted the Collector, Surat to take necessary steps for the purpose of preferring Special Civil Application before this Hon'ble Court. Thereafter, the entire record and proceedings along with the details pertaining to the matter were forwarded to the office of the Government Pleader for the purpose of preparation of the memo of Special Civil Application." 9. To cut the long issue short, if paragraph Nos.3 and 6 are considered, the only explanation given for seven years delay is that in the year 2012, the office of the Deputy Collector, Olpad Prant was transferred, as the jurisdiction was transferred to Prant Officer, Mandvi, the entire record from the office of Deputy Collector, Olpad was transferred to office of Deputy Collector, Mandvi, that has happened in the year 2012 and therefore, there is a delay. Further, cumulative reading of paragraphs No.5 and 6 indicates that on the aforesaid account as well as considering the fact that the record was hold on account of transfer of proceedings to Mandvi with the establishment of new office, the proceedings were required to be undertaken for the purpose of procuring necessary approval and sanction from the Revenue Department as well as Legal Department. 10. The affidavit indicates that for the first time the Deputy Collector Land Reforms addressed the communication to the Revenue Department vide communication dated 23.12.2014 for the purpose of obtaining necessary approval for the purpose of challenging the order passed by the Gujarat Revenue Tribunal that was passed in the year 2008. Meaning thereby, though the order was passed in the year 2008, even a proposal was not sent till December, 2014 to challenge that order. 11. On the basis of aforesaid affidavit, learned Assistant Government Pleader Ms. Shruti Pathak tried to justify the delay and submitted that it was a bonafide action and therefore, considering the interest of State involved in the matter, the delay of seven years may be ignored and looking to the fact that the petitioner has a strong case on merit, this Court may overlook the delay of seven years and consider the petition on merit. 12. Except the aforesaid explanation, no other explanation has come forward on record and accordingly learned Assistant Government Pleader Ms. Shruti Pathak prayed that in view of the fact that the land is a precious land and on merit the State has a very strong case as both learned Mamlatdar and ALT as well as the Deputy Collector have held in favaour of the State and against the private respondent, this Court may overlook the aspect of delay of seven years and entertain this petition on merit. 13. Learned Senior advocate Mr. Anshin Desai assisted by learned advocate Ms. Venu Nanavaty vehemently opposed the petition and submitted that the petition is nothing but abuse of process of law as the petitioners have not even move the proposal to challenge the order passed on 20.2.2008 till December, 2014 i.e almost for six years. He submitted that shifting of office has nothing to do with sending a proposal to challenge the order. Learned senior advocate Mr. He submitted that shifting of office has nothing to do with sending a proposal to challenge the order. Learned senior advocate Mr. Anshin Desai submitted that the carelessness on the part of the petitioners in taking prompt action to challenge the order cannot be considered as an explanation on the part petitioners. Learned senior advocate Mr. Anshin Desai submitted that even before the Civil Court, the limitation to file the suit would be of three years. In the instant case, even the proposal is forwarded to the revenue department almost after a period of six years, for which no cogent reasons for such delay are assigned, initially in the memo of the petition and even after this Court gave a chance to file a further affidavit. Even the additional affidavit does not justify the delay of six years and therefore, this Court may dismiss this petition on the ground of delay itself without entering into the merits of the matter. 14. Learned senior advocate Mr. Anshin Desai relied upon a decision of the Hon'ble Supreme Court in case of Union of India and Others Versus N. Murugesan and Others reported in (2022) 2 SCC 25 and more particularly, paragraphs No.20, 21, 24 and 25, which reads as under :- "DELAY, LACHES AND ACQUIESCENCE: 20. The principles governing delay, laches, and acquiescence are overlapping and interconnected on many occasions. However, they have their distinct characters and distinct elements. One can say that delay is the genus to which laches and acquiescence are species. Similarly, laches might be called a genus to a species by name acquiescence. However, there may be a case where acquiescence is involved, but not laches. These principles are common law principles, and perhaps one could identify that these principles find place in various statutes which restrict the period of limitation and create non- consideration of condonation in certain circumstances. They are bound to be applied by way of practice requiring prudence of the Court than of a strict application of law. The underlying principle governing these concepts would be one of estoppel. The question of prejudice is also an important issue to be taken note of by the Court. LACHES: 21. The word laches is derived from the French language meaning “remissness and slackness”. It thus involves unreasonable delay or negligence in pursuing a claim involving an equitable relief while causing prejudice to the other party. The question of prejudice is also an important issue to be taken note of by the Court. LACHES: 21. The word laches is derived from the French language meaning “remissness and slackness”. It thus involves unreasonable delay or negligence in pursuing a claim involving an equitable relief while causing prejudice to the other party. It is neglect on the part of a party to do an act which law requires while asserting a right, and therefore, must stand in the way of the party getting relief or remedy. ACQUIESCENCE : 24. We have already discussed the relationship between acquiescence on the one hand and delay and laches on the other. 25. Acquiescence would mean a tacit or passive acceptance. It is implied and reluctant consent to an act. In other words, such an action would qualify a passive assent. Thus, when acquiescence takes place, it presupposes knowledge against a particular act. From the knowledge comes passive acceptance, therefore instead of taking any action against any alleged refusal to perform the original contract, despite adequate knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter proceeding further, acquiescence does take place. As a consequence, it reintroduces a new implied agreement between the parties. Once such a situation arises, it is not open to the party that acquiesced itself to insist upon the compliance of the original terms. Hence, what is essential, is the conduct of the parties. We only dealt with the distinction involving a mere acquiescence. When acquiescence is followed by delay, it may become laches. Here again, we are inclined to hold that the concept of acquiescence is to be seen on a case-to-case basis." 14.1 By relying upon aforesaid observations, learned senior advocate Mr. Anshin Desai submitted that in similar circumstances, the Hon'ble Supreme Court had considered the principles governing delay, laches and acquiescence followed by approbation and reprobation. The belated challenge by the private respondent was not approved by the Hon'ble Supreme Court. Learned senior advocate therefore prays for dismissal of both the petitions. 15. I have heard learned counsels appearing for the respective parties and perused the record as well as affidavits filed in both the petitions. I have also considered the additional affidavit filed on behalf of the petitioners. 16. Learned senior advocate therefore prays for dismissal of both the petitions. 15. I have heard learned counsels appearing for the respective parties and perused the record as well as affidavits filed in both the petitions. I have also considered the additional affidavit filed on behalf of the petitioners. 16. Considering the fact that the order passed on 20.2.2008 was challenged only in the year 2015 i.e. almost after a period of seven years and as there was no justifiable explanation of delay in the original petition, the petitioners were permitted to file additional affidavit. Even additional affidavit also suggest that there was shifting of office from Olpad to Mandvi and therefore, the record was also shifted, however, that record was shifted in the year 2012 as can be seen from the affidavit. Fact remains that though the order was passed on 15.2.2008, for four years nothing had happened on the part of the petitioners, even after shifting of the office, it took almost two and half years. In December, 2014, for the first time, proposal was sent for filing petition challenging the order dated 20.2.2008 passed by the Gujarat Revenue Tribunal. Except that there is no other explanation in respect of delay of around seven years. The explanation given in paragraph No.4.12 and 4.13 of the petition as well as paragraph Nos. 3, 5 and 6 of the additional affidavit cannot be said to be sufficient explanation. If the petitions are entertained on the basis of such insufficient explanation, explanation given without any cogent evidence, in that case, petition is leverage to the litigants to approach the Court belatedly and therefore, such explanation cannot be accepted. Accordingly, the petition suffers from the vice of delay and therefore, the same is required to be dismissed on the ground of delay itself. The present petitions stand dismissed. Notice is discharged. No order as to costs. Interim relief granted earlier stands vacated.