C/SCA/13446/2015 JUDGMENT DATED: 27/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13446 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
GIRDHAR POPATBHAI GHADIA
Versus
STATE OF GUJARAT & 4 other(s)
==========================================================
Appearance:
VIRAL K SHAH(5210) for the Petitioner(s) No. 1
MR UM SHASTRI(830) for the Respondent(s) No. 5
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
==========================================================
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 27/02/2023
ORAL JUDGMENT
1.Heard learned advocate Mr. Viral K.Shah for the petitioner, learned Assistant Government Page 1 of 8 Downloaded on : Mon Mar 06 20:30:30 IST 2023 C/SCA/13446/2015 JUDGMENT DATED: 27/02/2023 Pleader Mr. Jayneel Parikh for the respondent-State and learned advocate Mr. U.M.Shastri for respondent No.5.
2.By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs:
"A. Your Lordships may be pleased to admit and allow this petition;
B. Your Lordships may be pleased to issue an appropriate writ, order or direction to quash and set aside the order impugned and Annexure A.
C. Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the operation, implementation and execution of the order impugned at Annexure A.
D. Your Lordships may be pleased to grant exparte ad interim relief in terms of para (9)(C).
E. Your Lordships may be pleased to pass such other and further relief in favour of the petitioner, as deemed just and proper, in the facts and circumstances of the case."Page 2 of 8 Downloaded on : Mon Mar 06 20:30:30 IST 2023
C/SCA/13446/2015 JUDGMENT DATED: 27/02/2023
3.Brief facts of the case are as under:
3.1 One Nathubhai Ahir inherited the lands bearing Survey Nos. 17/3, 177 and 178/2 of Village Miyatra, Taluka & District Jamnagar. The lands in question were divided amongst (1) Tapu Nathu (2) Karshan Nathu (3) Devanand Nathu and (4) Parbat Nathu being the sons and the deemed survivors. Entry No. 255 dated 16.03.1973 came to be mutated to that effect in the Revenue records. Nathiben Meraman Chocha daughter of Nathubhai-
respondent No.5 herein has accepted the said interse family settlement and had let go of the right over the lands in question.
3.2 Thereafter, the petitioner purchased the said lands vide registered sale deed dated 20.08.1977. Entry No. 277 to that effect came to be mutated on 02.05.1979. The said entry was also certified.Page 3 of 8 Downloaded on : Mon Mar 06 20:30:30 IST 2023
C/SCA/13446/2015 JUDGMENT DATED: 27/02/2023 3.3 It is the case of the petitioner that thereafter, on account of a clerical error occurred at the behest of the Revenue Officers, the effect of Entry No. 277 was not given in Form No. 7/12 pertaining to the lands in question more particularly of lands 173/3 and 178/2 and Entry No. 1264 was mutated in name of Nathu Kana etc and his legal heirs. The petitioner therefore preferred application intimating respondent No.4-Mamlatdar, Jamnagar (Rural) to take necessary corrective steps. However, the said application of the petitioner was not considered as Entry No. 1264 was certified. 3.4 The petitioner therefore preferred Appeal No. 76/2013-14 before respondent No.3- The Deputy Collector, Jamnagar(Rural). 3.5 The Deputy Collector, after condoning delay and after providing sufficient Page 4 of 8 Downloaded on : Mon Mar 06 20:30:30 IST 2023 C/SCA/13446/2015 JUDGMENT DATED: 27/02/2023 opportunity of hearing to all interested in the land in question, allowed the appeal in favour of the petitioner by order dated 21.03.2014.
3.6 Being aggrieved by the same, respondent No.5 approached Collector- respondent No.2 with an application to condone delay. However, Respondent No.2, without passing any order in the application to condone the delay, by impugned order dated 05.08.2015 decided the Revision Application in favour of respondent No.5.
4.At the outset, learned advocate Mr. U.M.Shashtri raised preliminary objection with regard to entertainability of the petition in view of the availability of the alternative efficacious remedy to challenge the impugned order passed by the Collector before the Special Secretary, Revenue (Appeal) ['SSRD' for short].
Page 5 of 8 Downloaded on : Mon Mar 06 20:30:30 IST 2023 C/SCA/13446/2015 JUDGMENT DATED: 27/02/2023
5.Learned advocate Mr. Shah for the petitioner submitted that the Collector has passed the impugned order on merits without passing any order in the application condoning the delay and therefore, this order passed by the Collector is challenged directly before this Court.
6.Be that as it may, after more than 8 years if the petitioner is relegated to avail alternative efficacious remedy, it would not be in the interest of justice as this matter is pending since 2015 before this Court. The same is taken up for hearing with the consent of learned advocate of both the sides.
7.Issue Rule returnable forthwith. Learned Assistant Government Pleader Mr.Jayneel Parikh waives service of notice of rule on behalf of respondent-State and learned advocate Mr.Shashtri waives service of notice of rule on behalf of respondent No.5. Page 6 of 8 Downloaded on : Mon Mar 06 20:30:30 IST 2023 C/SCA/13446/2015 JUDGMENT DATED: 27/02/2023
8.It is not in dispute that the impugned order is passed by the Collector without passing any order in the application to condone the delay. It is a settled legal position as per the decision of this Court in case of Parshottam Ramaji Rathod vs. Dhirajlal Dharamshi Mistry reported in 1993 (3) GLR 2079 that without passing an order to condone the delay, the order on merits cannot be passed.
9.Only on this short ground without entering into the merits of the matter, the impugned order dated 05.08.2015 passed by the Collector is quashed and set aside and the matter is remanded back to the Collector, Jamnagar to pass appropriate order in the application to condone the delay and thereafter pass order on merits if the delay is condoned after giving opportunity of Page 7 of 8 Downloaded on : Mon Mar 06 20:30:30 IST 2023 C/SCA/13446/2015 JUDGMENT DATED: 27/02/2023 hearing to all concerned in accordance with law. Rule is made absolute to the aforesaid extent. No order as to costs.
(BHARGAV D. KARIA, J) JYOTI V. JANI Page 8 of 8 Downloaded on : Mon Mar 06 20:30:30 IST 2023