Gujarat High Court
Patel Bhagwanbhai Gangaram vs State Of Gujarat on 24 August, 2021
Bench: Sangeeta K. Vishen
C/SCA/12685/2015 JUDGMENT DATED: 24/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12685 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PATEL BHAGWANBHAI GANGARAM & 1 other(s)
Versus
STATE OF GUJARAT & 5 other(s)
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Appearance:
for the Petitioner(s) No. 1.1,1.2
MR. ZALAK B PIPALIA(6161) for the Petitioner(s) No. 1,2
MS.URMILA A. DESAI, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,2,3,4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 5.2,5.3,5.4,6
UNSERVED REFUSED (N)(10) for the Respondent(s) No. 5.1
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 24/08/2021
ORAL JUDGMENT
1. With the consent of the learned advocates for the respective
parties, the present writ petition is being taken up for final disposal.
2. Issue Rule, returnable forthwith. Ms.Urmila A. Desai, learned
Assistant Government Pleader waives service of notice of Rule on
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behalf of respondent No.1.
3. By this petition, inter alia, under Article 226 of the Constitution
of India, the petitioners have prayed for quashing and setting aside
the (i) order dated 03.01.2011 passed by the learned Special
Secretary, Revenue Department (Appeals) (hereinafter referred to
as the 'SSRD'); (ii) order dated 28.12.2010 passed by the learned
Collector and (iii) order dated 17.08.2009 passed by the learned
Deputy Collector, Patan in R.T.S. Case No.68 of 2008.
4. The facts, in nutshell, are as under:
4.1 The petitioners, are the sons of the deceased Patel Gangaram
Bhikhabhai (hereinafter referred to as the 'father of the petitioners')
and the respondent Nos.5.2 to 5.4, are grand children and
respondent No.6, is the daughter of deceased Patel Gangaram
Bhikhabhai i.e. the father of the petitioners. The father of the
petitioners possessed survey nos.464/3, 483 and 105/1/8, Village
Samalpati, Taluka and District Patan (hereinafter referred to as the
'lands in question'). Apart from the said survey numbers, the father
of the petitioners also possessed other lands in Village
Sandesarpati, Taluka and District Patan.
4.2 According to the petitioners, the father of the petitioners, was
having five children namely (i) Patel Dahyabhai Gangaram, (ii) Patel
Naranbhai Gangaram, (iii) Patel Bhagwanbhai Gangaram, (iv) Patel
Ramabhai Gangaram and (v) Patel Menaben Gangaram. Somewhere
in the year 1949, when the petitioners were minor, father passed
away. The elder son namely Patel Dahyabhai Gangaram being major
his name was mutated in the revenue record vide entry no.30, so
far as, the lands in question were concerned.
4.3 According to the petitioners, there was no division or partition
of the land and all the heirs used to cultivate the land jointly.
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Somewhere in the year 1990, Patel Dahyabhai Gangaram passed
away and therefore, the names of his heirs came to be mutated in
the revenue record vide entry no.2998 dated 28.07.1997. The
petitioners requested the respondent Nos.5.1 to 5.4 to mutate their
names in the revenue record but were not mutated; the petitioners
being aggrieved, preferred an appeal before the Deputy Collector,
who vide order dated 17.08.2009, dismissed the appeal on the
ground that heir-ship has been recorded of Patel Dahyabhai
Gangaram, who is the brother of the petitioners and if the
petitioners, have any dispute regarding the heir-ship, the petitioners
may approach the civil court. The appeal was rejected also on the
ground that the dispute has been raised after long delay and is
barred by the limitation.
4.4 Being aggrieved and dissatisfied, the petitioners preferred a
revision application before the Collector, who vide order dated
03.01.2011, rejected the same, inter alia, observing that the
petitioners does not appear to be the heirs of deceased Patel
Dahyabhai Gangaram and therefore, the petitioners have no right to
raise any objection against the entry No.2998 dated 28.07.1997.
Under the circumstances, the Collector did not interfere with the
order dated 17.08.2009 passed by the Deputy Collector. The appeal
before the SSRD, was also dismissed on the ground that it was filed
with a delay of 1177 days. Being aggrieved, the petitioners have
preferred the present writ petition with the aforementioned prayers.
5. Mr.Zalak B. Pipalia, learned advocate appearing for the
petitioners while inviting attention of this Court to the pedigree,
submitted that Patel Gangaram Bhikhabhai was the father of the
petitioners and was having four sons and one daughter. It is
submitted that Patel Dahyabhai Gangaram, was the eldest whereas
the petitioners, were younger siblings and at the time of the death
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of the father they were minor. It is submitted that as per the
practice, the name of the eldest son, was being mutated in the
revenue record and accordingly the entry no.30 was mutated in
village form no.VI recording the name of Patel Dahyabhai Gangaram
with respect to lands in question. It is submitted that since the name
of the eldest son was mutated in the revenue record, after his
death, entry no.2998 came to be mutated on 28.07.1997 recording
the heir-ship of Patel Dahyabhai Gangaram; however, the names of
the petitioners were not recorded.
5.1 It is submitted that the State Government in its Revenue
Department has issued a Resolution dated 01.12.2003. Clause 9 of
the said Resolution, deals with the heir-ship. Sub-clause (d),
provides for mutation of the names. It provides that, with respect to
the new tenure land, if the account holder has expired the name of
elder son/brother shall be mutated as the heir. It is further
submitted that as per the provision of sub-clause a of clause (d), in
the village form nos.VI and 7/12 if the name of eldest son or elder
brother is recorded and if other heirs have also acquired the right
through heir-ship, necessary steps should be taken for mutating
their names in the revenue record. Similarly, sub-clause b of clause
(d), provides that after the death of the elder son/brother, the
names of the rest of brothers and sisters shall be mutated in the
revenue record jointly. It is therefore submitted that the Deputy
Collector disregarding the Resolution dated 01.12.2003 has passed
the order dated 17.08.2009. It is further submitted that it is not in
dispute that the lands in question are the ancestral lands and the
petitioners have equal share; which aspect is not disputed by the
respondent Nos.5.1 to 5.4 and respondent no.6 inasmuch as, they
have not appeared either before the Deputy Collector or Collector or
SSRD. It is also stated at the bar that the respondents, are
supporting cause of the petitioners.
C/SCA/12685/2015 JUDGMENT DATED: 24/08/2021
5.2 It is further submitted that the petitioners, have also filed the
additional affidavit in support of their case to substantiate that the
petitioners were the heirs of Patel Gangaram Bhikhabhai i.e. father.
Accordingly, entry no.271 dated 27.07.1958 was mutated in the
revenue record with respect to the heir-ship of the petitioners and
other brothers. It is further submitted that entry no.271 is with
respect to Survey No.168 of Village Nava Bavahaji, Taluka
Saraswati, District Patan categorically recording the heir-ship,
wherein, the name of Patel Dahyabhai Gangaram as well as the
petitioners have been mutated. Therefore, there is no dispute that
the petitioners are the heirs of Patel Gangaram Bhikhabhai and it
was because of the prevalent practice that the names of the
petitioners were not mutated in the revenue record at the relevant
point of time.
5.3 While adverting to the order of the SSRD, it is submitted that
the revision application was filed with the delay of 1177 days. In the
application for condonation of delay, the petitioners have furnished
sufficient reasons, explaining the delay which caused in preferring
the appeal; however, the SSRD without considering the explanation
offered by the petitioners has rejected the revision application only
on the technical ground of delay. It is submitted that the SSRD did
not properly appreciate the explanation and that is how, a mistake
has been committed by it. It is submitted that it is well settled
proposition of law that every day's delay, is not to be explained and
the requirement is, is there any sufficient explanation offered by the
party concerned and if there is, the authority should condone the
delay. It is submitted that reasons were furnished that the
petitioners were not properly advised. The explanation was offered
to the effect that the petitioners were senior citizens and having
health issues and they being illiterate, could not effectively pursue
the matter. It is only after receipt of the certified copy, somewhere
C/SCA/12685/2015 JUDGMENT DATED: 24/08/2021
in the month of February 2011, the revision application was filed
with a delay of 1177 days. While reiterating, it is submitted that the
SSRD, without considering the explanation offered, straightaway
rejected the application, which order is also against the well settled
principles enunciated by the Hon'ble Apex Court. It is therefore
urged that the order dated 17.08.2009 passed by the Deputy
Collector; order dated 03.01.2011 passed by the Collector and order
dated 30.04.2015 passed by the SSRD deserve to be quashed and
set aside.
6. On the other hand, Ms.Urmila A. Desai, learned Assistant
Government Pleader appearing for the State Government, has
opposed the writ petition. It is submitted that as can be seen, entry
no.2998 was mutated in the revenue record on 28.07.1997
recording the heir-ship of Patel Dahyabhai Gangaram and since the
petitioners were not the heirs of Patel Dahyabhai Gangaram, their
names were not mutated. It is further submitted that entry no.2998
was challenged before the Deputy Collector in the year 2008 with a
delay and therefore the Deputy Collector has not committed any
error in passing the order and rejecting the appeal. The Deputy
Collector after considering the documents available on record with
respect to the entry, has held that the heir-ship has been recorded
of Patel Dahyabhai Gangaram vide entry no.2998 and that the
petitioners were the brothers. If there is any dispute regarding heir-
ship, it is very much open to the petitioners to take recourse of civil
court. Therefore no error has been committed by the Deputy
Collector in passing the order. Similarly, the Collector has also
considered all the aspects; however, the petitioners failed to
produce on record any documents to support that they are the heirs
of Patel Dahyabhai Gangaram. Further, no documents were
produced by the petitioners to substantiate that the lands in
question were of their ancestors so also the evidence that the lands
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in question are in their possession. Under the circumstances, the
Collector, has rightly not interfered with the order dated 17.08.2009
passed by the Deputy Collector.
6.1 It is further submitted that so far as the SSRD is concerned,
the revision application was filed with a delay of 1177 days and it
was not sufficiently explained and therefore, it cannot be said that
the SSRD has committed any error in rejecting the revision
application. It is submitted that clearly, the explanation offered is
not sufficient inasmuch as, it simply says that the petitioners are
aged and unable to walk. Further, the certified copy, was received
by them on 10.02.2011; however, the appeal was not filed within
the limitation period of 60 days and it has been filed with a delay of
1177 days. Therefore, even if, one sees the application, no sufficient
explanation has been provided and in absence of any acceptable
explanation offered by the petitioners, SSRD has rightly rejected the
revision application on the ground that same is barred by the
limitation. While concluding, it is submitted that neither the Deputy
Collector nor the Collector or for that matter the SSRD, committed
any error in passing the orders. It is urged that since no error has
been committed by any of the authorities, the present petition does
not deserve to be entertained.
7. Heard Mr.Zalak B. Pipalia, learned advocate appearing for the
petitioners and Ms.Urmila A. Desai, learned Assistant Government
Pleader appearing for the respondent nos.1 to 4. So far as
respondent Nos.5.2 to 5.4 and respondent no.6 are concerned,
though duly served, have chosen not to contest the petition.
8. The undisputed facts are to the effect that the father of the
petitioners, had five children i.e. four sons and one daughter. The
eldest son was Patel Dahyabhai Gangaram; Patel Naranbhai
Gangaram (now deceased); Patel Bhagwanbhai Gangaram
C/SCA/12685/2015 JUDGMENT DATED: 24/08/2021
(petitioner no.1 - now deceased and represented through legal
heirs); Patel Ramabhai Gangaram (petitioner no.2) and daughter
Patel Menaben Gangaram (respondent no.6). Somewhere in the
year 1941, Patel Gangaram alias Nanubhai Bhikhabhai, passed away
leaving five heirs namely wife Manekben, Dahyabhai, the eldest son,
the petitioners and daughter Menaben. On 27.07.1958, entry no.271
came to be mutated in the revenue record, recording the heir-ship
with respect to Survey No.168 situated at village Nava Bavahaji,
Taluka Saraswati, District Patan which entry, has been certified and
is still in currency. So far as the lands in question are concerned, an
entry no.30 was mutated in the revenue record recording the name
of Patel Dahyabhai Gangaram, on the basis of the partition. It so
happened that after the death of Patel Dahyabhai Gangaram, entry
no.2998 dated 28.07.1997, was mutated recording the heir-ship. By
virture of entry no.2998, the names of heirs of Patel Dahyabhai
Gangaram were mutated in the revenue record with respect to
Survey Nos.464/3, 483 and 105/1/8; however, the names of the
petitioners could not be mutated.
9. At this stage, it is pertinent to make a reference to the
Government Resolution dated 01.12.2003. Clause 9 deals with the
aspect of heir-ship. The relevant provision is indicated in sub-clause
(d), which deals with the mutation of names for ancestral new
tenure land. The Resolution provided that as per the prevalent
practice, despite the land being of the joint ownership the name of
only elder son/brother, is being recorded. It says that this results in
deprivation of the right of the other brothers and sisters, who
otherwise are legally entitled. Only with a view to seeing that the
other brothers and sisters are not deprived of their legal right,
provision has been made to the effect that in the event the name of
the elder brother/son appears in the revenue record, and if the
names of other heirs are left out, then after following the necessary
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procedure, the names of other legal heirs shall be mutated in the
revenue record. Sub-clause b of clause (d) provides that if the
ancestral land is there with the rights of others, and if name of only
elder brother/son appears in the revenue record; in the event of his
death, the names of rest of the brothers and sisters should also be
mutated after following the procedure. Therefore, the Government
Resolution dated 01.12.2003, clearly takes care of the situation of
non-recording of the names of the brothers and sisters in the
revenue record though they have equal right over the property, and
subsequent steps to be taken for mutating their names.
10. As discussed hereinabove, it is not disputed that the
petitioners are the brothers of deceased Patel Dahyabhai Gangaram
and sons of Patel Gangaram Bhikhabhai. It is also not in dispute that
the land bearing Survey Nos.464/3, 483 and 105/1/8, are ancestral
lands. Besides, there is nothing produced on the record that any
partition was effected amongst heirs of Patel Gangaram Bhikhabhai.
Mr.Zalak Pipalia, learned advocate appearing for the petitioners has
submitted and not disputed by the learned Assistant Government
Pleader that the respondent Nos.5.1 to 5.4 and respondent no.6,
have not appeared either before the Deputy Collector, Collector or
SSRD to contest the proceedings or their rights. In the present
proceedings also, as has been recorded, the respondent nos.5.1 to
5.4 and respondent no.6 though duly served, have chosen not to
enter their appearance. The issue therefore is to be decided on the
basis of the documents available on the record.
11. Adverting to the order of the Deputy Collector, it is required to
be noted that he has passed the order dated 17.08.2009 wherein, it
has been recorded that entry no.2998, has been mutated, recording
the heir-ship; however, if the petitioners have any grievance against
the heir-ship, it is open to the petitioners to take recourse of the civil
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court. The Deputy Collector lost sight of the fact that though the
land was an ancestral land, entry no.30 was mutated in the revenue
record in the name of Patel Dahyabhai Gangaram, he being the
eldest son. Since, the revenue record contained the name of Patel
Dahyabhai Gangaram, entry no.2998 came to be mutated recording
the heir-ship whereby, the names of the respondent nos.5.1 to 5.4
came to be mutated in the revenue record. The Deputy Collector
while not considering the provisions of the Government Resolution
dated 01.12.2003, has come to the conclusion that if at all the
petitioners have any grievance, it will be open for them to file a suit
challenging the heir-ship. The Deputy Collector ought to have
considered the contents of the Resolution and on the basis of the
record available, directed the authority concerned to take steps in
accordance with the provisions of the Gujarat Land Revenue Code;
however, instead, straightaway has passed the order.
12. Similarly, the Collector in the proceedings before him has
observed that the petitioners does not appear to be the heirs of
deceased Patel Dahyabhai Gangaram. The Collector, has committed
an error in observing the said fact inasmuch as, Patel Dahyabhai
Gangaram, was the elder brother of the petitioners and therefore,
the petitioners could not have been his heirs. Pertinently, there is no
dispute as regards entry no.30 which, clearly records that the name
of Patel Dahyabhai Gangaram has been recorded as a result of
partition amongst the brothers of the father of the petitioners.
Therefore, the observations of the Collector in the order dated
28.12.2010, cannot be said to be in sync with the evidence and
material available on the record, and therefore perverse.
13. Further, it was the specific case of the petitioners before the
authorities concerned that the land was ancestral land; however,
owing to the prevalent practice and the provisions of the Resolution
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of the Government, the name of the elder brother of the petitioners
was mutated in the revenue record. It was also the case that they
are the legal heirs of Patel Gangaram alias Nanubhai Bhikhabhai
and have been cultivating the fields which was in their possession;
however, disregarding the contents of the entry no.30 so also the
subsequent entries, the authorities concerned have erroneously
concluded that the petitioners, cannot be said to be the heir of Patel
Dahyabhai Gangaram. Thus, the order dated 17.08.2009 passed by
the Deputy Collector and the order dated 03.01.2011 passed by the
Collector deserves to be quashed and set aside.
14. Adverting to the order passed by the SSRD, it is required to be
noted that it has not gone into the merits of the case and the
revision application, has been rejected only on the ground of delay
of 1177 days caused in preferring the application. Pertinently, the
petitioners have filed an application together with the revision
application No.48 of 2014 seeking condonation of delay. The
petitioners, have set out the reasons in paragraph 1. It has been
categorically stated that the petitioners were not advised properly.
Further, the petitioner no.1 was aged 81 years and petitioner no.2
was 69 years and had health issues; also that the petitioners, are
semi-literate and therefore, the revision application could not be
filed within a period of 60 days from the date of the receipt of the
certified copy i.e. 10.02.2011. The learned advocate appearing for
the petitioners has also invited the attention of this Court to the
Circular dated 05.05.2009 issued by the Revenue Department
bringing to the notice of all the Collectors, the judgment of the
Hon'ble Apex Court in the case of Collector, Land Acquisition,
Anantnag v. Mst.Katiji reported in AIR 1987 S.C. 1353, wherein it
has been held that ordinarily a litigant does not stand to benefit by
lodging an appeal late. Further, refusing to condone delay can result
in a meritorious matter being thrown out at the very threshold and
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cause of justice being defeated. As against this when delay is
condoned the highest that can happen is that a cause would be
decided on merits after hearing the parties. The learned advocate
appearing for the petitioners has rightly laid emphasis on the
proposition that it is not the requirement that every day's delay
must be explained; not to mean that a pedantic approach should be
made and the doctrine must be applied in a rational common sense
and in a pragmatic manner. The order dated 30.04.2015 passed by
the SSRD records that there is a delay of 1177 days and the revision
application, came to be rejected.
15. A bare perusal of the proceedings, initiated in succession by
the petitioners, suggests that no sooner, the petitioners came to
know about the mutation of the entry no.2998 in favour of heirs of
Patel Dahyabhai Gangaram, than they have approached the Deputy
Collector; thereafter before the Collector and finally before the
SSRD. Further, it is not that the petitioners have remained dormant
and were not vigilant about their rights. Considering the explanation
offered in paragraphs 1 and 2, it cannot be said that the delay has
not been explained by the petitioners, who are villagers and not
very well versed with the nitty gritty of procedural nuances. This
Court is of the opinion that in the present case, the reasons and
grounds offered are genuine and bonafide and the SSRD failed to
consider the delay explained by the petitioners in its right
perspective.
16. In view of the above discussion, the order dated 30.04.2015 of
the SSRD also deserves to be quashed and set aside and is
accordingly quashed and set aside. Similarly, the order dated
17.08.2009 passed by the Deputy Collector so also the order dated
03.01.2011 passed by the Collector are hereby quashed and set
aside. As a result, the learned Mamlatdar is directed to mutate the
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names of the petitioners in the revenue record for the land bearing
Survey Nos.464/3, 483 and 105/1/8, in accordance with law.
17. The present writ petition succeeds and is accordingly allowed.
Rule is made absolute to the aforesaid extent. No order as to costs.
Sd/-
(SANGEETA K. VISHEN, J)
RAVI P. PATEL
