Gujarat High Court
Patel Kashibhai Tarshibhai vs State Of Gujarat on 30 March, 2021
Bench: A.C. Rao
C/SCA/22361/2006 JUDGMENT
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/SPECIALCIVILAPPLICATIONNO. 22361of 2006
With
CIVILAPPLICATION(FORBRINGINGHEIRS) NO. 1 of 2018
In R/SPECIALCIVILAPPLICATIONNO. 22361of 2006
FORAPPROVALANDSIGNATURE:
HONOURABLEMR. JUSTICEA.C. RAO Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
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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PATELKASHIBHAITARSHIBHAI
Versus
STATEOF GUJARAT& 6 other(s)
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Appearance:
URMIH RAVAL(8361)for the Petitioner(s)No. 1
MS DIVYANGANAJHALAAGP(1) for the Respondent(s)No. 1,2,3,4,5
MRVIKRAMJ THAKOR(2221)for the Respondent(s)No. 6.1,6.2,6.3
SERVEDBY AFFIX.(R)(67)for the Respondent(s)No. 7
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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.22361 of 2006, has been preferred by the original petitioner -
Patel Kashibhai Tarshibhai, who has expired on 25.5.2008.
C/SCA/22361/2006 JUDGMENT
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) This Hon'ble Court be pleased to join the applicants No.1.1
& 1.2 as the legal heirs and representatives of the original
petitioner in special civil application no.22361 of 2006;
(C) This Hon'ble Court be pleased to condone 3709 days delay
if any in preferring the said application;"
4. Short facts, leading to filing of the civil application, in
applicants own words are that, the original petitioner - Patel
Kashibhai Talshibhai had preferred above captioned special civil
application challenging the legality and validity of order dated
18/11/9.2006 rendered by the respondent no.2. In revision
application no.15/2001, petitioner had also preferred the above
mentioned petition praying for restoration of the order dated
5/29.12.2000 rendered by the collector Kheda bearing
RTS/RA/71/99 AND 72/99. The applicants had preferred civil
application No.11808 of 2016 before this Hon'ble Court wherein
this Hon'ble had passed order on 27.3.2017.
4.1 That the original petitioner, Patel Kashibhai Talshibhai
expired on 25.5.2008, during pendency of above mentioned
petition. The wife of the original petitioner also expired on
31.3.1988. The applicants submit that the original petitioner as
well as his wife expired leaving behind no class-1 legal heirs. The
applicants submit that the only legal heir is the brother of the
original petitioner one Shri Patel Mohanbhai Talshibhai as well
as his wife Ramilaben Mohanbhai Patel expired on 26.1.2015
and 4.3.2004 respectively. The applicants submit that the
C/SCA/22361/2006 JUDGMENT
applicants are the only legal heirs of the original petitioner. In
light of above facts, the applicants pray that they may be
permitted to be joined as legal heirs and representatives of the
original petitioner in Special Civil Application No.22361 of 2006.
5. Learned advocate for the applicants has submitted that the
original petitioner as well as his wife expired on 25.5.2008 and
31.3.1988 respectively and also the brother of the original
petitioner Shri Mohanbhai Talshibhai Patel and his wife too,
expired on 26.1.2015 and 4.3.2004 respectively. Therefore, the
applicants herein may be permitted to be joined as the heirs and
legal representatives of the original petitioner in the writ petition
and it is also prayed that the delay of 3709 days caused in late
filing the application may also be condoned.
6. Per contra, on behalf of learned advocate Mr. Vikram
Thakore for the respondents it is contended that the application
is barred by limitation. It is also contended that the applicants
herein are not the heirs of the original petitioner, but they are
second class heirs and that therefore, they should not be
permitted to be joined as legal heirs and representatives of the
original petitioner in Special Civil Application No.22361 of 2006.
It is also contended that there is inordinate delay in preferring
the application and that therefore, the same may be rejected.
7. Ms. Jhala, learned AGP has adopted the arguments made
on behalf of Mr. Thakore, learned advocate for the respondents
and also reiterated that since there is inordinate delay in
bringing the heirs on record, the application may be rejected.
8. In reply to aforesaid submissions by learned counsel for
C/SCA/22361/2006 JUDGMENT
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.
"
9. 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.
9.1 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:-
C/SCA/22361/2006 JUDGMENT
"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 ."
9.2 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,
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
C/SCA/22361/2006 JUDGMENT
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.
9.3 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
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.
9.4 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 petitioner, as indicated above.
Therefore, in the considered opinion of this Court, the heirs and
legal representatives of the aforesaid deceased petitioner cannot
C/SCA/22361/2006 JUDGMENT
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.
9.5 In the result, the prayer for substitution made on behalf of
the petitioner or the proposed heirs and legal representatives of
the deceased petitioners with respect to deceased petitioner,
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.
Sd/-
(A. C. RAO,J)
KAUSHIKD. CHAUHAN
