State Of Gujarat vs Hiteshbhai Lalitchandra Laywala
2021 Latest Caselaw 18433 Guj

    C/SCA/12367/2021                                  ORDER DATED: 15/12/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 12367 of 2021

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                          STATE OF GUJARAT
                                 Versus
                   HITESHBHAI LALITCHANDRA LAYWALA
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Appearance:
MR. SHIVAM DIXIT, AGP (1) for the Petitioner(s) No. 1,2,3
for the Respondent(s) No. 1,2,3,4,5,6
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 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                              Date : 15/12/2021

                                ORAL ORDER

1. By way of the present petition, the petitioners have prayed for the following reliefs:-

A. This Hon'ble Court may be pleased to admit this Special Civil Application.

B. This Hon'ble Court may be pleased to quash and set aside the Judgment and order dated 19.04.2005 passed by the Ld. Gujarat Revenue Tribunal, Ahmedabad in Revision Application TEN BS No.183 of 2004.

C. This Hon'ble Court may be pleased to stay the implementation of the Judgment and order dated 19.04.2005 passed by the Ld. Gujarat Revenue Tribunal, Ahmedabad in Revision Application No. TEN BS No.183 of 2004.

D. Grant such other and further relief/s as may be deemed just and proper in the circumstances of the case.

2. Heard learned AGP Mr. Shivam Dixit for the petitioners.

3. Before considering the submissions made by the learned AGP Mr. Shivam Dixit for the petitioners- State, facts of this case is

C/SCA/12367/2021 ORDER DATED: 15/12/2021

required to be stated which are as under:-

Land bearing Survey No. 97 of mouje:- Gaviyar, Taluka: Mujra, District:- Surat admeasuring Acre 1-10 Gunthas being a new tenure agriculture land with restriction. Aforesaid land was running in the revenue record in the name of father of the respondents no. 4 to 6 herein namely Chhaganbhai Babarbhai Patel. The said Chhaganbhai Babarbhai Patel transferred the aforesaid land in the year 1983 by way of will dated 22.12.1983 in favour of the respondent no. 2 herein.

As the land was transferred in favour of the respondent no. 2 by way of will, though respondent no. 2 was not an agriculturist as he was neither successor nor relative of Chhaganbhai Babarbhai Patel. Notice under section 84 (C) of the Tenancy Act was issued to the respondent no. 2 for violation of Sections 43 and 63 of the Tenancy Act and Tenancy Case No. 77 of 1991 was registered. However, learned Additional Mamlatdar and ALT, Choryasi dismissed the notice vide order dated 03.03.1991 and held that there is no violation of the provisions of the Tenancy Act. The aforesaid order was carried in the revision before the Learned Deputy Collector, Land Reforms (Appeals) by way of Tenancy Revision Case No. 85 of 1991. Even the Deputy Collector Land Reforms (Appeals) also confirmed the order passed by the Mamlatdar and ALT dated 03.03.1991 by way of an order dated 20.10.1991 passed in Tenancy Revision Case No.85 of 1991. Vide order dated 20.10.1991 was challenged by the State Government after delay of 13 years before the Gujarat Revenue Tribunal by way of a Revision Application No. TEN/ BS/183 of 2004.

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Even that revision application was dismissed by the Gujarat Revenue Tribunal vide order dated 19.04.2005. While dismissing the revision application preferred by the State Government, the Gujarat Revenue Tribunal considered the aspect of delay of 13 years. Merits of the matter was also considered and after considering the fact that decision of this Court in the case of Gopiraj Dedraj Agrawal (Gopiram Tudraj Agrawal) V/s. State of Gujarat reported in 2004 (1) GLR 237 on the ground that since the agricultural land if bequeathed by will would not amount to transfer within the meaning of either of section 63 or section 43 of the Act which shows that Gujarat Revenue Tribunal dismissed the revision application preferred by the petitioner on the ground of the delay of 13 years as well as by considering the merits of the matter.

Gujarat Revenue Tribunal dismissed the revision application preferred by the petitioner being Revision Application No.TEN/BS/183 of 2004 vide order dated 19.04.2005 which is now in the year 2021 is sought to be challenged by way of the present petition.

4. Learned AGP Mr. Shivam Dixit for the petitioners submits that very recently the Hon'ble Supreme Court in the case of Vinodchandra Sakarlala Kapadia V/s. State of Gujarat and others reported in AIR 2020 SC 5138 has held that such transfer of agricultural land in favour of a non agriculturist by way of will is not permitted and hence, on the basis of the aforesaid judgment, learned AGP Mr. Shivam Dixit has prayed for quashing and setting aside the impugned order 19.04.2005 passed by the Gujarat Revenue Tribunal.

5. One cannot lose sight to the fact that the order under challenge

C/SCA/12367/2021 ORDER DATED: 15/12/2021

was passed on 19.04.2005 by the Gujarat Revenue Tribunal whereas the present petition is filed after delay of almost 16 years. Even before the Gujarat Revenue Tribunal, the revision application was preferred by the State Government challenging the order dated 28.10.1991 passed by the Deputy Collector, Land Reforms, Surat after delay of almost 13 years whereas original transfer of land was pursuant to a will dated 22.12.1983. In the entire petition the delay of 16 years has not been explained.

6. The matter was adjourned from time to time upon request made by the learned AGP, as the sufficient opportunity was provided to the learned AGP to explain the delay. The matter was first time listed on 07.09.2021 and was adjourned to 27.09.2021 upon the request made by the learned AGP. On 27.09.2021 once again the matter was adjourned to 14.10.2021 upon the request made by the learned AGP. On 22.11.2021, once again the matter was adjourned to 29.11.2021 at the request of learned AGP. On 29.11.2021 also the matter was again adjourned to 08.12.2021 upon request of learned AGP. On 08.12.2021 once again request was made by the learned AGP to adjourn the matter and hence, the matter is listed today before this Court.

7. The aforesaid details about the adjournments sought by learned AGP would indicate that inspite of the fact that time and again the matter was adjourned at the request of learned AGP, the delay of 16 years has remain unexplained. In absence of any explanation about the delay caused in filing the present petition whereby the order dated 19.04.2005 is challenged, it would be appropriate to issue notice.

C/SCA/12367/2021 ORDER DATED: 15/12/2021

8. Even before the Gujarat Revenue Tribunal when the revision application was preferred by the State Government, the same was preferred after delay of 13 years. However, Gujarat Revenue Tribunal dismissed the revision application on the ground of delay as well as considering the merits of the matter. Even thereafter this petition is preferred after unexplained delay of 16 years which would indicate that if this petition is entertained, in that case it would amount to allowing the petitioners to challenge the order of year 1991 passed by the Deputy Collector, Land Reforms (Appeals) against the present petitioners.

9. In fact, the learned Gujarat Revenue Tribunal has while dismissing the revision application preferred by the petitioners has relied upon the judgment which was holding field at that relevant point of time, and was reported in 2004 (1) GLR 237 in the case of Dedraj Agrawal (Gopiram Tudraj Agrawal) V/s. State of Gujarat and by passing a reasoned order the revision application was rejected by the Gujarat Revenue Tribunal.

10. Today, when the mater was called out, learned AGP could not explain the delay of 16 years, nor he could point out the error committed by the Gujarat Revenue Tribunal while passing the order dated 19.04.2005. He merely relied upon the judgment in the case of Vinodchandra Kapadia and submitted that in view of the recent judgment, the present petition be entertained.

11. It is not worthy that when the Gujarat Revenue Tribunal passed the order dated 19.04.2005, the Gujarat Revenue Tribunal dismissed the application on the basis of the law

C/SCA/12367/2021 ORDER DATED: 15/12/2021

prevailing at that point of time. Judgement i.e. relied upon by the present petitioners has come after almost 15 years thereafter. When the delay of 16 years as remain unexplained, despite number of chances given to the petitioners, the petitioners cannot be permitted to have the benefit of the judgment which was delivered in the year 2020. Hence, the present petition is required to be dismissed as the petitioners have not explained the delay sufficiently and also on the ground that there is no error committed by the Gujarat Revenue Tribunal while passing the impugned order dated 19.04.2005 and therefore, the petition is required to be dismissed and the same is dismissed. No order as to costs.

(NIRZAR S. DESAI,J) VARSHA DESAI