Shangarba @ Navuba Dipuji Bharthaji through Poa vs Fuliba Punjaji Legal Heir of and Others

J.B. Pardiwala, J.—In this appeal, the Appellants-original Petitioners seek to challenge the judgment and order dated 19.07.2010 passed by the learned Single Judge in Special Civil Application No. 5509 of 2010 whereby the learned Single Judge rejected the petition substantially on the ground that there was inordinate delay in challenging the orders of the Revenue Authorities as well as preferring Special Civil Application No. 5509 of 2010.

The facts relevant for the purpose of deciding this appeal can be summarized as under:

2.1 The land in question bearing Survey No. 377 situated at Mouje: Piplaj, Taluka and District: Gandhinagar admeasuring 1 hector, 46 gunthas, was of the ownership of one Dipuji Bharthaji Vaghela. Dipuji Bharthaji Vaghela was the husband of Appellant No. 1 and father of Appellant Nos. 2 to 5. One Punjaji Ranchhodji Vaghela was declared as a tenant of the said land. Prima-facie, it appears that some time in 1963, the Mamlatdar and ALT, Gandhinagar found that the land in question was in possession of the original owner i.e. Dipuji Bharthaji Vaghela and he was cultivating the land. On this ground, on 01.07.1963, an order was passed deleting the name of Punjaji Ranchhodji Vaghela as tenant of the said land. It also appears that after the said order was passed, an entry was also mutated in this regard showing deletion of the name of the tenant from the land in question.

Record reveals that on 16.01.1996, proceedings u/s 32(o) of the Bombay Tenancy and Agricultural Lands Act, 1948 were initiated and once again the name of Punjaji Ranchhodji Vaghela was mutated in the record of rights showing him as a tenant of the said land.

Record also reveals that in 1986, the Mamlatdar and ALT, Gandhinagar initiated proceedings u/s 32(p)(2) of the Bombay Tenancy and Agricultural Lands Act, 1948. These proceedings concluded into an order dated 22.06.1988 wherein the name of the original owner Dipuji Bharthaji Vaghela and the name of the tenant Punjaji Ranchhodji Vaghela were ordered to be deleted from the record of rights and the land in question came to be vested with the State Government.

It appears that there is No. dispute to the fact that tenant Punjaji Ranchhodji Vaghela has expired and his legal heirs are on record. Even the legal heirs of late Punjaji Ranchhodji Vaghela i.e. the tenant did not raise any objection at the relevant point of time and the order of the Mamlatdar and ALT, Gandhinagar dated 26.02.1988 forfeiting the land in question to the State Government and permanently suspending rights of the tenant came to be challenged by the original land owners i.e. the Appellants herein after a period of about 10 years. The Revision Application came to be rejected by the Secretary (Appeals), Revenue Department, State of Gujarat vide order dated 22.03.2000 confirming the order passed by the Mamlatdar and ALT, Gandhinagar dated 26.02.1988.

It is at this stage that the Appellants herein thought fit to prefer Special Civil Application No. 5509 of 2010 challenging the order passed by the Special Secretary (Appeals), Revenue. It deserves to be noted that the order passed by the Secretary (Appeals), Revenue Department dated 26.02.1988 came to be challenged by the Appellants herein after a period of 10 years. The learned Single Judge taking into consideration all the above referred aspects of the matter thought fit to reject the petition.

Being Aggrieved by the said order of the learned Single Judge, the Appellants are in appeal before us by way of this Letters Patent Appeal.

We have heard learned advocate Mr. Y.N. Ravani appearing for the Appellants.

We are of the view that the learned Single Judge rightly refused to grant any relief to the Appellants as the learned Single Judge found that the order of Mamlatdar and ALT, Gandhinagar of the year 1988 came to be challenged by the Appellants herein before the Secretary (Appeals), Revenue Department, in the year 2000 and not only that but the order passed by the Secretary (Appeals) dated 22.03.2000 came to be challenged by way of Special Civil Application No. 5509 of 2010 after about 10 years i.e. in 2010. There is No. explanation worth the name as regards gross delay at the end of the Appellants in preferring the petition. Not only this, the learned Single Judge also took notice of the fact that the writ petition has been preferred by the Appellants herein through power of attorney holder Hansaben Dineshsinh Chavda. The learned Single Judge took notice of the fact that the land in question is already transferred by the Appellants herein in favour of Hansaben Dineshsinh Chavda. We take notice of the fact that the power of attorney was executed by the Appellants in favour of Hansaben Dineshsinh Chavda on 11.07.2002 and on that day, the land had already been vested with the State Government and the necessary entries were also mutated in this regard in the revenue record showing the name of the Government.

Learned advocate appearing for the Appellants vehemently submitted that the learned Single Judge ought not to have rejected the petition on the ground of delay. He submitted relying on the Supreme Court''s judgment in the case of Haribhai Lakhmanbhai Seedhav v. State of Gujarat and Ors. reported in 2010(2) GLR 953 that delay of 10 years can be overlooked and the learned Single Judge ought not to have rejected the petition on the ground of delay and latches. In the case of Haribhai Lakhmanbhai Seedhav (supra), there was a delay of about 10 years in challenging the impugned order. The facts before the Supreme Court were altogether different. In the case of Haribhai Lakhmanbhai Seedhav (supra), the parties learnt about dismissal of the writ petition filed by the general power of attorney only when they were served with a notice on 30.10.2006 under Rule 10 of the Ceiling Rules by the office of the Mamlatdar. The Supreme Court observed that the Appellant within a reasonable period thereafter has taken steps to file Letters Patent Appeal accompanied by an application for grant of leave to file the appeal and also an application for condonation of delay in filing the appeal. The Supreme Court further observed that in the facts narrated, the High Court ought not to have rejected the Letters Patent Appeal on the ground of delay and latches on the part of the Appellant in approaching the Court nearly after 10 years of passing the impugned order.

We are afraid that this case law, which has been relied upon by the Appellants would not help the Appellants in any manner. The facts of the case before the Supreme Court were altogether different and only on certain set of facts, the Supreme Court thought fit to disturb the order passed by the High Court which had dismissed the Letters Patent Appeal on the ground of delay. In the judgment which has been relied upon the Supreme Court has not said that in all cases where there is a delay of 10 years, High Court can still entertain the appeal.

In this view of the matter, we do not find any error much less any error of law which can be said to have been committed by the learned Single Judge in rejecting the petition. We do not find any merits in the appeal and the same is hereby ordered to be dismissed with No. order as to costs.