Bilalbhai Abrambhai Memon vs State Of Gujarat
2021 Latest Caselaw 4975 Guj

           C/SCA/5674/2021                                       ORDER



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 5674 of 2021
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                         BILALBHAI ABRAMBHAI MEMON
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR ALINAVAZ A VAKIL(10191) for the Petitioner(s) No. 1
for the Respondent(s) No. 10,2,3,4,4.1,5,5.1,6,7,8,8.1,8.2,8.3,8.4,8.5,9
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                               Date : 01/04/2021

                                ORAL ORDER

1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:­

(A) To allow this petition with cost

(B) To quash and set aside the orders dated 09/05/2017, Annexure 'D', order dated 25/9/18 Annexure ' C ' and order dated 27/1/2020 Annexure 'B' by ordering thereby to condone the delay of 59 years in preferring an appeal against the disputed revenue entry No. 507.

(C) To direct the Resp. No. 3, to hear and decide the appeal filled by the present petitioner challenging the disputed revenue entry No. 507 before him on merits of the case.

(D) To issue an interim injunction/stay by directing the Respondents and their subordinates not to make any changes in any manner regarding the revenue records of agricultural Land Survey no. 4 paiki 1 admeasuring acres 3 and gunthas 24 locasted at Village Devli, Taluka Talaja,Dist: Bhavnagar pending the hearing and finaldisposal of this petition.

(E) ............."

2. Learned advocate Mr. A.A. Vakil for the petitioner has submitted that the transaction in question based upon the entry which has been

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made is behind the back of the petitioner as the petitioner was away from the town. Further, while making the entry, no procedure as required under the Gujarat Land Revenue Code was observed and no notice was given to the petitioner. Further, it has been submitted that as soon as the petitioner came to know about the mischief which has been done with the petitioner, he immediately approached the authority and therefore, the authority ought to have ignored the delay of 59 years, which is tried to be explained before the authority. It has further been submitted there are catena of decisions delivered by the High Court in which, it has been held that whenever there is delay, normal circumstance is to give liberal approach and therefore, considering the plight of the petitioner, the impugned order deserves to be corrected as substantially, the same has been passed on account of the alleged unexplained delay of 59 years and ultimately, after referring to this submission, a request is made to give one chance, at least to convince the authority.

3. As against the aforesaid submissions, learned Assistant Government Pleader Mr. Krutik Parikh has submitted that there is a gross delay of 59 years which has not been explained by the petitioner. If the petitioner is having any interest over the land in question, he could have been vigilant enough and could not have waited for such years. Mr. Parikh has further submitted that the authority has rightly not exercised the jurisdiction in view of the well known case of State of Gujarat Vs. Patil Raghav Natha. Mr. Parikh has further submitted that this view of Raghav Natha (supra) is reiterated by later judgments of the Supreme Court and considering the proposition, this enormous delay of 59 years has rightly not been given any weightage and the delay was rightly not condoned by the authority. In addition to this, it has been submitted that the authorities while passing the impugned order have applied their mind and after examining and scrutinizing the relevant documents, arrived

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at a conclusion by assigning proper and valid reasons and therefore, when such exercise has been undertaken, the view taken by the authority may not be substituted in exercise of the extraordinary jurisdiction.

4. Having heard learned advocates for the parties and having gone through the material on record, it appears to this Court from the reasons assigned by the authorities below while passing the impugned order that the same have been passed with due and proper application of mind and it is not the case of the petitioner that there was any lack of jurisdiction with the authority. That be so, when the authorities have taken decision after categorical analysis of the material and after keeping in view the well settled proposition of law, this Court is not inclined to exercise the extraordinary jurisdiction after this much unreasonable period. It appears that the authority has rightly not exercised the jurisdiction in favour of the petitioner. It appears from the record that the order passed by the authority is also based upon the relevant material, and the same has been passed after examining the aspects in proper perspective and it is visible from the record that this gross delay of 59 years is not cogently explained and as such, keeping in view the principle laid down by catena of decisions that the revenue authority must exercise the jurisdiction within the reasonable period, orders have rightly been passed. This Court is therefore not inclined to substitute the finding. In addition to this, there is no material irregularity nor any perversity is reflecting looking to the reasons which are assigned at length and therefore, this is not a fit case in which any equitable consideration is given to the petitioner.

5. The Court has kept in mind the well propounded principle of law in the case of Raghav Natha (supra) decided by the Apex Court and further it has been reiterated in the case of Telangana Housing Board Vs. Azamunnisa Begum (Died) Through Legal

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Representatives and others reported in (2018) 7 SCC 346, and is not inclined to interfere with the order which has been passed by the authority. Since the Court has considered the relevant observations of the Apex Court in the afore­mentioned decision, the Court would like to incorporate the same in the present order, as under:­

"59. It is now well settled that where no time­limit is specified, whatever is required to be done should be within a reasonable period. In Collector v. P. Mangamma7it was held in paragraphs 5 and 6 as follows:

"5. A reasonable period would depend upon the factual circumstances of the case concerned. There cannot be any empirical formula to determine that question. The court/authority considering the question whether the period is reasonable or not has to take into account the surrounding circumstances and relevant factors to decide that question.

6. In State of Gujarat v. Patel Raghav Natha it was observed that when even no period of limitation was prescribed, the power is to be exercised within a reasonable time and the limit of the reasonable time must be determined by the facts of the case and the nature of the order which was sought to be varied.........". Reasonable, being a relative term is essentially what is rational according to the dictates of reason and not excessive or immoderate on the facts and circumstances of the particular case."

60. Similarly, in Joint Collector Ranga Reddy District v. D. Narsing Rao 9 the exercise of revisional jurisdiction where no time­limit is specified was considered and it was held in paragraph 31 of the Report as follows:

"31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third­party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the

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exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority."

6. It is further a settled position that the revenue entries are not creating any right, title or interest in the property and they are having merely a fiscal value and therefore, the petitioner ought to have availed the other remedy which is available in case the transaction in question is behind the back of the petitioner. The Court is not expressing any opinion on such, but merely recorded the same upon the request made by learned advocate for the petitioner.

7. Keeping in view the aforesaid overall consideration, when there is a gross delay on the part of the petitioner, this Court is not inclined to exercise any equitable jurisdiction. Hence, no case is made out by the petitioner. Accordingly, the petition stands DISMISSED with no order as to cost.

(ASHUTOSH J. SHASTRI, J) OMKAR