Gujarat High Court
Ismail Ahmed Patel vs State Of Gujarat Thro.Secretary on 30 March, 2021
Bench: A.C. Rao
C/SCA/4532/2007 JUDGMENT
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/SPECIALCIVILAPPLICATIONNO. 4532of 2007
With
CIVILAPPLICATION(FORBRINGINGHEIRS) NO. 1 of 2018
In R/SPECIALCIVILAPPLICATIONNO. 4532of 2007
FORAPPROVALANDSIGNATURE:
HONOURABLEMR. JUSTICEA.C. RAO
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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 ?
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ISMAILAHMEDPATEL& 2 other(s)
Versus
STATEOF GUJARATTHRO.SECRETARY& 1 other(s)
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Appearance:
MRDHIRENDRAMEHTA(458)for the Petitioner(s)No. 1,2,3
MS DIVYANGANAJHALAAGP(1) for the Respondent(s)No. 1
RULESERVED(64)for the Respondent(s)No. 2
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CORAM: HONOURABLE MR. JUSTICE A.C. RAO
Date: 30/03/2021
ORALJUDGMENT
Heard learned advocates for the respective parties.
2. The main writ petition, being Special Civil Application
No.4532 of 2007, has been preferred by the original petitioners,
C/SCA/4532/2007 JUDGMENT
the petitioner No.1 has expired on 1.9.2006 and petitioner No.2
has expired on 5.3.2012. Therefore, Civil Application No.1 of
2018 has been preferred so as to bring his heir(s) on record.
3. In the application for bringing the heirs on record,
following prayers are made:-
(B) to condone the delay of 2235 days in filing the present Civil
Application for bringing heirs on record of original petitioner no.1
- Ismail Ahmed Patel;
(C) to permit the applicants No.1/1 to 1/5 to bring them on
record of the Special Civil Application No.4532 of 2007 as
petitioners Nos.1/1 to 1/5 as heirs and legal representatives of
Ismail Ahmed Patel;
(D) to delete the name of Havaben, Wd/o Ahmed Ismail Patel,
original petitioner No.2, in the cause title of the Special Civil
Application No.4532 of 2007;"
4. Short facts, leading to filing of the civil application, in
applicants own words are that, the applicant Nos.1 to 5 are the
heirs and legal representatives of the deceased Ismail Ahmed
Patel, who filed captioned petition along with his mother
Havaben and a sister Fatmaben (applicant no.2) to challenge the
legality, validity and propriety of the impugned judgment and
order dated 14.2.2006 passed by the Gujarat Revenue Tribunal
in revision application No.TEN.B.S.9 of 1993 in exercise of
revisional powers and jurisdiction under the Act. That during the
pendency of the petition, Ismail Patel original petitioner No.1 had
died on 1.9.2006, while Havaben had died on 5.3.2012.
4.1 It is submitted that Ismail Ahmed Patel was managing the
affairs of the suit land and pursuing the matter against the
impugned order, having common cause and interest in the suit
agricultural land. Fatmaben is residing at U.K. since long and
C/SCA/4532/2007 JUDGMENT
she had executed a document of power of attorney in favour of
her brother Ismail Ahmed Patel. The applicants had no
knowledge of the captioned petition filed by their father and
therefore, could not inform the lawyer of the fate of death of
Ismail Ahmed Patel. However, thereafter, Havaben original
petitioner had also died, but on account of having no knowledge
with regard to pending petition, the applicants could not inform
or contact their lawyer.
4.2 It is submitted that recently the matter was placed for final
hearing, it was intimated by the advocate for the original
petitioners to their local lawyer Shri Amulbhai and Nikhilbhai
Desai or Navsari, who in turn, informed the applicants about the
pendency of the matter and on coming to know of that two
petitioners have already died, it is advised to take necessary
steps immediately for brining the heirs of deceased petitioners on
record in the petition. Except one daughter of Ismailbhai, other
applicants are residing at U.K. and therefore reasonable time to
procure Vakalatnama and other details, the time is consumed in
filing the present application. Accordingly, the applicants after
deriving knowledge of the pending petition have at the earliest
filed the present application. The applicants submitted that there
is no inaction much less deliberate inaction or negligence much
less culpable negligence on their part for filing the present
application beyond the prescribed period of limitation.
5. Learned advocate for the applicants has submitted that the
original petitioners have expired and that therefore, the
applicants herein may be permitted to be joined as the heirs and
legal representatives of the original petitioners in the writ
petition and it is also prayed that the delay of 2235 days caused
C/SCA/4532/2007 JUDGMENT
in late filing the application may also be condoned.
6. Per contra, learned AGP Ms. Jhala, contended that the
application is barred by limitation and that therefore, the
applicants should not be permitted to be joined as legal heirs
and representatives of the original petitioners in Special Civil
Application No.4532 of 2007. It is also contended that there is
inordinate delay in preferring the application and that therefore,
the same may be rejected.
7. In reply to aforesaid submissions by learned counsel for
the respondents, learned advocate for the applicants placed
reliance on the decision of this Court in case of Sureshbahi
Suvalal Jayswal vs. State of Gujarat [2016(1) GLR 477]
wherein it is held that:-
"7.
It was however, brought to the notice of the Court that Rule
of the Gujarat High Court Rules provides for making of separate
application seeking condonation of delay if occurred in filing the
application for bringing heirs of deceased party on record. The
Court,
however, finds that Rule 67 of the said Rules cannot be applied to
the
proceedings filed under Articles 226 and 227 of the Constitution
of
India.
8.
In view of above, it was not required of the applicants to
prefer
separate application to seek condonation of delay occurred in
filing
the application to bring heirs of the deceased party on record of
the
proceedings of the main petition filed under Article 226/227 of
the
Constitution of India. It is always open for the applicants to
explain
delay or laches occurred in filing the application for bringing heirs
of
the deceased party on record of the petition.
C/SCA/4532/2007 JUDGMENT
"
8. This Court has taken into consideration the submissions
made by learned counsel for the respective parties as well as the
decision relied on by the learned counsel for the applicants.
8.1 In order to appreciate the rival submissions and the
issues raised on behalf of the parties, it would be
appropriate to reproduce Paragraph 12 of the judgment in
the case of Puran Singh v. State of Punjab, (AIR 1996 SC
1092) (supra), which reads as follows:-
"As such even if it is held that Order 22 of the Code is not
applicable to writ proceedings or writ appeals, it does not mean
that the petitioner or the appellant in such writ petition or appeal
can ignore the death of the respondent if the right to pursue
remedy even after death of the respondent survives. After the
death of the respondent it is incumbent on the part of the
petitioner or the appellant to substitute the heirs of such
respondent within a reasonable time. For purpose of holding as to
what shall be a reasonable time, the High Court may take note of
the period prescribed under Article 120 of the Limitation Act for
substituting the heirs of the deceased defendant or the
respondent. However, there is no question of automatic abatement
of the writ proceedings. Even if an application is filed beyond 90
days of the death of such respondent, the Court can take into
consideration the facts and circumstances of a particular case for
purpose of condoning the delay in filing the application for
substitution of the legal representative. This power has to be
exercised on well-known and settled principles in respect of
exercise of discretionary power by the High Court. If the High
Court is satisfied that delay, if any, in substituting the heirs of the
deceased respondent was not intentional, and sufficient cause has
been shown for not taking the steps earlier, the High Court can
substitute the legal representative and proceed with the hearing of
the writ petition or the writ appeal, as the case may be. At the
same time the High Court has to be conscious that after lapse of
time a valuable right accrues to the legal representative of the
deceased respondent and he should not be compelled to contest a
claim which due to the inaction of the petitioner or the appellant
has become final ."
8.2 It would be relevant to mention here that in Puran Singh v.
State of Punjab, (AIR 1996 SC 1092) (supra) the facts of that
case have been noticed in paragraph 2 of the said judgment,
C/SCA/4532/2007 JUDGMENT
from perusal of which it is apparent that one Bir Singh,
respondent No.2 of that case, died on 9.12.1971 and steps for
substitution were not taken till 14.3.1975 by the petitioner.
Therefore, learned single Judge of Punjab and Haryana High
Court had dismissed the writ petition. In the said case, steps for
substitution were not taken for a period of 3 years 3 months
(approximately) and on that ground alone, the matter was not
considered on merit and the writ petition was dismissed by the
learned single Judge of Punjab and Haryana High Court. Letters
Patent Appeal filed against the said order was also dismissed by
a Division Bench with an observation that since the appellant
did not take steps for bringing the legal representatives of
deceased Bir Singh on record, therefore, the writ petition had
abated. The Hon'ble Apex Court has laid down the principles in
paragraph 12 of the aforesaid judgment, reproduced above,
affirming the judgment of the learned single Judge as also the
L.P.A. Court. The Hon'ble Apex Court has held that if death
takes place of a party in a proceeding under Article 226 of the
Constitution of India, then steps are required to be taken within
a reasonable time for substitution of the heirs and legal
representatives of the deceased.
8.3 A question arises as to what would be the reasonable time
for taking steps for substitution. Article 120 of The Limitation
Act, 1963 provides a period of 90 days for substitution of the
legal representatives under the Code of Civil Procedure. It is true
that the provisions of the Code of Civil Procedure cannot be
strictly applied in a proceeding under Article 226 of the
Constitution of India, in view of the provisions contained in
Section-141- Explanation of the C.P.C., but benefits of the
C/SCA/4532/2007 JUDGMENT
principles can be taken and analogy of the provisions of the
C.P.C. can be drawn in a proceeding under Article 226 of the
Constitution of India.
8.4 In view of discussions made above, and in view of law laid
down by the Hon'ble Apex Court in Puran Singh v. State of
Punjab, (AIR 1996 SC 1092) (supra), it cannot be said that steps
for substitution were taken within a reasonable period of time
with respect to deceased petitioners, as indicated above.
Therefore, in the considered opinion of this Court, the heirs and
legal representatives of the aforesaid deceased petitioners cannot
be permitted to prosecute this litigation any further and cannot
be compelled to contest their claims, which have become final in
their favour, due to abatement of the aforesaid writ petition.
8.5 In the result, the prayer for substitution made on behalf of
the petitioners or the proposed heirs and legal representatives of
the deceased petitioners with respect to deceased petitioners,
whose death has taken place more than three years earlier from
the date of filing of the application, is rejected. Consequently, the
main writ petition stands dismissed.
In the result, both the petitions fail and are hereby
dismissed. No costs.
(A. C. RAO,J)
KAUSHIKD. CHAUHAN
