Girdhar Popatbhai Ghadia vs State Of Gujarat
2023 Latest Caselaw 1911 Guj

    C/SCA/13446/2015                             JUDGMENT DATED: 27/02/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


              R/SPECIAL CIVIL APPLICATION NO. 13446 of 2015


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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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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                       GIRDHAR POPATBHAI GHADIA
                                 Versus
                       STATE OF GUJARAT & 4 other(s)
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Appearance:
VIRAL K SHAH(5210) for the Petitioner(s) No. 1
MR UM SHASTRI(830) for the Respondent(s) No. 5
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 27/02/2023
                             ORAL JUDGMENT

1.Heard learned advocate Mr. Viral K.Shah for

the petitioner, learned Assistant Government

C/SCA/13446/2015 JUDGMENT DATED: 27/02/2023

Pleader Mr. Jayneel Parikh for the

respondent-State and learned advocate Mr.

U.M.Shastri for respondent No.5.

2.By this petition under Articles 226 and 227

of the Constitution of India, the petitioner

has prayed for the following reliefs:

"A. Your Lordships may be pleased to admit and allow this petition;

B. Your Lordships may be pleased to issue an appropriate writ, order or direction to quash and set aside the order impugned and Annexure A.

C. Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the operation, implementation and execution of the order impugned at Annexure A.

D. Your Lordships may be pleased to grant exparte ad interim relief in terms of para (9)(C).

E. Your Lordships may be pleased to pass such other and further relief in favour of the petitioner, as deemed just and proper, in the facts and circumstances of the case."

C/SCA/13446/2015 JUDGMENT DATED: 27/02/2023

3.Brief facts of the case are as under:

3.1 One Nathubhai Ahir inherited the

lands bearing Survey Nos. 17/3, 177 and 178/2

of Village Miyatra, Taluka & District

Jamnagar. The lands in question were divided

amongst (1) Tapu Nathu (2) Karshan Nathu (3)

Devanand Nathu and (4) Parbat Nathu being the

dated 16.03.1973 came to be mutated to that

effect in the Revenue records. Nathiben

Meraman Chocha daughter of Nathubhai-

respondent No.5 herein has accepted the said

interse family settlement and had let go of

the right over the lands in question.

3.2 Thereafter, the petitioner purchased

the said lands vide registered sale deed

dated 20.08.1977. Entry No. 277 to that

effect came to be mutated on 02.05.1979. The

said entry was also certified.

C/SCA/13446/2015 JUDGMENT DATED: 27/02/2023

3.3 It is the case of the petitioner

that thereafter, on account of a clerical

error occurred at the behest of the Revenue

Officers, the effect of Entry No. 277 was

not given in Form No. 7/12 pertaining to the

lands in question more particularly of lands

173/3 and 178/2 and Entry No. 1264 was

mutated in name of Nathu Kana etc and his

legal heirs. The petitioner therefore

preferred application intimating respondent

No.4-Mamlatdar, Jamnagar (Rural) to take

necessary corrective steps. However, the said

application of the petitioner was not

considered as Entry No. 1264 was certified.

3.4 The petitioner therefore preferred

Appeal No. 76/2013-14 before respondent No.3-

The Deputy Collector, Jamnagar(Rural).

3.5 The Deputy Collector, after condoning

delay and after providing sufficient

C/SCA/13446/2015 JUDGMENT DATED: 27/02/2023

opportunity of hearing to all interested in

the land in question, allowed the appeal in

favour of the petitioner by order dated

21.03.2014.

3.6 Being aggrieved by the same,

respondent No.5 approached Collector-

respondent No.2 with an application to

condone delay. However, Respondent No.2,

without passing any order in the application

to condone the delay, by impugned order dated

05.08.2015 decided the Revision Application

in favour of respondent No.5.

4.At the outset, learned advocate Mr.

U.M.Shashtri raised preliminary objection

with regard to entertainability of the

petition in view of the availability of the

alternative efficacious remedy to challenge

the impugned order passed by the Collector

before the Special Secretary, Revenue

(Appeal) ['SSRD' for short].

C/SCA/13446/2015 JUDGMENT DATED: 27/02/2023

5.Learned advocate Mr. Shah for the petitioner

submitted that the Collector has passed the

impugned order on merits without passing any

order in the application condoning the delay

and therefore, this order passed by the

Collector is challenged directly before this

Court.

6.Be that as it may, after more than 8 years if

the petitioner is relegated to avail

alternative efficacious remedy, it would not

be in the interest of justice as this matter

is pending since 2015 before this Court. The

same is taken up for hearing with the consent

of learned advocate of both the sides.

7.Issue Rule returnable forthwith. Learned

Assistant Government Pleader Mr.Jayneel

Parikh waives service of notice of rule on

behalf of respondent-State and learned

advocate Mr.Shashtri waives service of notice

of rule on behalf of respondent No.5.

C/SCA/13446/2015 JUDGMENT DATED: 27/02/2023

8.It is not in dispute that the impugned order

is passed by the Collector without passing

any order in the application to condone the

delay. It is a settled legal position as per

the decision of this Court in case of

Parshottam Ramaji Rathod vs. Dhirajlal

Dharamshi Mistry reported in 1993 (3) GLR

2079 that without passing an order to condone

the delay, the order on merits cannot be

passed.

9.Only on this short ground without entering

into the merits of the matter, the impugned

order dated 05.08.2015 passed by the

Collector is quashed and set aside and the

matter is remanded back to the Collector,

Jamnagar to pass appropriate order in the

application to condone the delay and

thereafter pass order on merits if the delay

is condoned after giving opportunity of

C/SCA/13446/2015 JUDGMENT DATED: 27/02/2023

hearing to all concerned in accordance with

law. Rule is made absolute to the aforesaid

extent. No order as to costs.

(BHARGAV D. KARIA, J) JYOTI V. JANI