Gujarat High Court
Zala Krishnaben Nensinh Alias Nansinh vs Collector, Sabarkantha on 6 December, 2023
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/1599/2016 JUDGMENT DATED: 06/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.1599 of 2016
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-
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1. Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2. To be referred to the Reporter or not ? YES
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
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ZALA KRISHNABEN NENSINH ALIAS NANSINH
Versus
COLLECTOR, SABARKANTHA & 5 others
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Appearance :
JIGER K MEHTA for the Petitioner.
MR ADITYASINH JADEJA, AGP for the Respondent Nos.1 to 4.
MS G R VIJAYALAKSHMI for the Respondent No.6.
NOTICE SERVED for the Respondent No.5.
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 06/12/2023
ORAL JUDGMENT
1. I have heard Mr. Jiger Mehta, learned advocate for the Page 1 of 8 Downloaded on : Fri Dec 08 20:40:18 IST 2023 NEUTRAL CITATION C/SCA/1599/2016 JUDGMENT DATED: 06/12/2023 undefined petitioner, Mr. Adityasinh Jadeja, learned Assistant Government Pleader for respondent Nos.1 to 4. Learned advocate Ms. G. R. Vijayalakshmi who represents respondent No.6 is not present when the matter was called out. The respondent No.5, though served, has chosen not to appear before this Court.
2. Rule. Learned AGP waives service of rule on behalf of respondent Nos.1 to 4. With the consent of learned advocates appearing for the parties, the petition is taken up for final disposal today itself.
3. By way of this petition, the petitioner has challenged (i) the order dated 6.8.2015 passed by the Secretary, Revenue Department (Appeals) in Revision Application No.MVV/HKP/SBR/65 of 2009, (ii) the order dated 6.7.2009 passed by the Collector, Sabarkantha in RTS/Revision/Dasu/Case No.46 of 2009.
4. As per the case of the petitioner, there were four parcels of land i.e. Survey No.570/2 (Old Survey No.601/2), Survey No.571/2 (Old Survey No.602 paiki), Survey No.572/1 (Old Survey No.603/1) and Survey No.572/2 (Old Survey No.603/2) situated at village Derol, Tal. Himmatnagar, Dist. Sabarkantha which were purchased by the petitioner from respondent No.5 for which relevant mutation entries were recorded in the revenue record. However, once the relevant revenue entries were mutated in the revenue record, the respondent No.6 objected to the said entries and ultimately, Mamlatdar, Himmatnagar vide order dated 21.7.2007 passed in RTS Case No.29 of 2007 allowed the objection of respondent No.6 and cancelled Entry No.2728 by observing that respondent No.5 was not an agriculturist and the land bearing Page 2 of 8 Downloaded on : Fri Dec 08 20:40:18 IST 2023 NEUTRAL CITATION C/SCA/1599/2016 JUDGMENT DATED: 06/12/2023 undefined Revenue Survey No.570/2 was granted as a new tenure land.
5. The petitioner challenged the said order by filing RTS Appeal No.72 of 2007 before the Deputy Collector, Himmatnagar who vide order dated 27.2.2008 rejected the said appeal.
6. Being further aggrieved, the petitioner preferred Revision Application being RTS/Revision/Dasu/Case No.46 of 2009 before the Collector, Sabarkantha who vide order dated 6.7.2009 rejected the revision application of the petitioner on the ground of delay though by stating that the order of the Deputy Collector, Himmatnagar was sent to the petitioner on 3.3.2008 vide outward register index No.38 and, therefore, it was expected to be received by the petitioner within 4 - 5 days thereafter.
7. Being further aggrieved, the petitioner preferred Revision Application No.MVV/HKP/SBR/65 of 2009 before the Secretary, Revenue Department (Appeals) who after keeping the said revision application for six years, vide order dated 6.8.2015 rejected the said revision application and confirmed the order dated 3.3.2008 passed by the Collector, Sabarkantha.
8. Being aggrieved and feeling dissatisfied by the said two orders (i) the order dated 6.8.2015 passed by the Secretary, Revenue Department (Appeals) in Revision Application No.MVV/HKP/SBR/65 of 2009, (ii) the order dated 6.7.2009 passed by the Collector, Sabarkantha in RTS/Revision/Dasu/Case No.46 of 2009, the petitioner has preferred the present petition.
9. Mr. Jiger Mehta, learned advocate appearing for the Page 3 of 8 Downloaded on : Fri Dec 08 20:40:18 IST 2023 NEUTRAL CITATION C/SCA/1599/2016 JUDGMENT DATED: 06/12/2023 undefined petitioner drew attention of the Court that Deputy Collector, Himmatnagar vide order dated 27.2.2008 rejected the appeal of the petitioner. Immediately thereafter, the petitioner preferred revision application before the Collector, Sabarkantha in the year 2009 challenging the order of the Deputy Collector. He also pointed out from the contents of the order dated 6.7.2009 of the Collector that he has specifically observed that revision application of the petitioner was received by the Collector office on 13.4.2009 and, therefore, though the revision application was preferred after about one year, the Collector, Sabarkantha looked at the delay with microscopic approach and by assuming that the order of the Deputy Collector was sent to the petitioner on 3.3.2008 vide outward Register index No.38 must have been received by the petitioner within 4 to 5 days thereafter, rejected the revision application on the ground of delay rather than considering the case of the petitioner on merits.
9.1 Mr. Mehta further submitted that similarly, for such small issue, even the Secretary, Revenue Department (Appeals) has kept the revision application pending for six years and ultimately by order dated 6.8.2015 rejected the order of the Collector, Sabarkantha. He further submitted that the order passed by learned SSRD nowhere mentions that the order of the Deputy Collector, Himmatnagar was at any point of time sent to the petitioner through RPAD and there is no proof that the petitioner has received the said order at a particular date and despite that, instead of deciding the controversy in question on merits, the Collector only by assuming that the petitioner must have received the order of the Deputy Collector within 4 to 5 days after its posting, approached the Collector belatedly and dismissed the Page 4 of 8 Downloaded on : Fri Dec 08 20:40:18 IST 2023 NEUTRAL CITATION C/SCA/1599/2016 JUDGMENT DATED: 06/12/2023 undefined revision application on the ground of delay. He further submitted that immediately thereafter, without wasting any time, the petitioner preferred revision application before the Secretary, Revenue Department (Appeals) and for such a small issue, even the Secretary rejected the revision application and confirmed the order of the Collector, Sabarkantha. He further submitted that the observations in the order of the Secretary, Revenue Department (Appeals) does not have any basis and when the petitioner has tried to approach the authority prescribed under the Act, for redressal of his grievance, the petitioner's version about delay was not believed by the authorities without there being any basis for the same that there was anything on record to indicate that the order of the Deputy Collector was served upon the petitioner. In absence of any material to indicate that the impugned order of the Deputy Collector was served upon the petitioner through RPAD and the said order was actually received by the petitioner, merely on the basis of assumptions, the petitioner could not have been held guilty of delay. He, therefore, prayed to allow the present petition.
10. Mr. Adityasinh Jadeja, learned Assistant Government Pleader appearing for respondent Nos.1 to 4 despite his best efforts to defend the impugned orders, could not defend the orders by pointing out anything from the impugned orders that except the assumptions, there was any material to indicate that actually there was delay on the part of the petitioner in filing revision application before the Collector, Sabarkantha. He also could not point out anything either from the impugned orders or by way of any material to indicate that the order of Deputy Collector was received by the petitioner on any particular day.
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11. I have heard learned advocates appearing for the respective parties and perused the record. I am of the view that what is most unfortunate thing is that the Government in many proceedings initiates the proceedings belatedly expecting that the delay on their part would be considered and looked into liberally and delay would be condoned, but in the present case, the petitioner who belongs to a lower strata of society, against whom there is no material to indicate that at any point of time, the order of the Deputy Collector, Himmatnagar was ever received by him and when he approached the Collector, Sabarkantha, the Collector started looking at the aspect of delay with a microscopic approach rather than looking at the aspect of delay liberally. The Collector could have decided the revision application on merits rather than entering into the technicalities about the delay when the delay was at the best was about of a year. Further, what is more shocking is that the illegality committed by the Collector, Sabarkantha was allowed to be perpetuated by the Secretary, Revenue Department (Appeals) by keeping such a small issue pending for six years as the issue in the revision application was whether the Collector, Sabarkantha was justified in rejecting the revision application on the ground of delay which is also for a period of one year only, and the Secretary, Revenue Department (Appeals) while confirming the order of the Collector, Sabarkantha shown mechanical approach and hence the said approach on the part of the Secretary (Appeals) is unacceptable. Not only that, while confirming the order of the Collector, Sabarkantha, the Secretary, Revenue Department (Appeals) went a step further and discussed the merits of the matter which was not even the case of the petitioner before the Secretary, Revenue Department (Appeals). Such over enthusiasm would also lead to hardship of the common man and, therefore, on Page 6 of 8 Downloaded on : Fri Dec 08 20:40:18 IST 2023 NEUTRAL CITATION C/SCA/1599/2016 JUDGMENT DATED: 06/12/2023 undefined account of such orders, litigants are unnecessarily dragged into litigation.
12. Therefore, the present petition stands allowed. The impugned (i) order dated 6.8.2015 passed by the Secretary, Revenue Department (Appeals) in Revision Application No.MVV/HKP/SBR/65 of 2009, (ii) as well as the order dated 6.7.2009 passed by the Collector, Sabarkantha in RTS/Revision/Dasu/Case No.46 of 2009 are quashed and set aside. RTS/Revision/Dasu/Case No.46 of 2009 is remanded back to the Collector, Sabarkantha for adjudicating the same on merits without raising any objection about the delay in approaching the Collector, Sabarkantha considering the fact that though the petitioner approached the Collector, Sabarkantha as back as in the year 2009, ultimately, the Secretary, Revenue Department (Appeals) decided the issue in 2015 and thereafter when the petitioner preferred this petition before this Court and notice was issued by this Court on 3.2.2016, till today, the State Government did not find even time to file reply or to concede that such approach was uncalled for on the part of the revenue authorities. Therefore, the petition is allowed with cost. The State Government is directed to pay a cost of Rs.10,000/- to the petitioner within a period of four weeks from today. Rule is made absolute to the above extent.
13. When the dictation was over, it was pointed out by learned advocate Mr. Jiger Mehta that though coordinate Bench vide order dated 10.7.2019 directed the revenue authorities not to alter the entries mutated in the revenue records with regard to the property in question till further orders, the revenue authority has altered the mutation entry. A copy of alteration of mutation entry Page 7 of 8 Downloaded on : Fri Dec 08 20:40:18 IST 2023 NEUTRAL CITATION C/SCA/1599/2016 JUDGMENT DATED: 06/12/2023 undefined is placed on record. In view of that, the revenue authorities are directed to maintain status-quo in respect of revenue entries with regard to the property in question till the Collector, Sabarkantha decides revision application of the petitioner afresh.
Sd/-
(NIRZAR S. DESAI,J) SAVARIYA Page 8 of 8 Downloaded on : Fri Dec 08 20:40:18 IST 2023