Hemangiben D/O Pravinbhai Doshi ... vs State Of Gujarat
2023 Latest Caselaw 4393 Guj

     C/SCA/2583/2022                              JUDGMENT DATED: 13/06/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 2583 of 2022


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE                            No
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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 ?                          No

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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    HEMANGIBEN D/O PRAVINBHAI DOSHI W/O VASANTBHAI HIRPARA
                            Versus
                      STATE OF GUJARAT
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Appearance:
MR K S CHANDRANI(6674) for the Petitioner(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2,3
MR ASHUTOSH DAVE AGP for the Respondent(s) No.1,2,3
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    CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
                     Date : 13/06/2023
                     ORAL JUDGMENT

The present Special Civil Application has been filed praying

for the following reliefs:-

"11(A) YOUR LORDSHIPS may be pleased to admit and allow this petition;

(B) YOUR LORDSHIPS may be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ,

C/SCA/2583/2022 JUDGMENT DATED: 13/06/2023

order or direction by quashing and setting aside the impugned Order at Annexure-A dated 15/09/2021 passed by Ld. Gujarat Revenue Tribunal in Revision Application No. TIN/AA/7/2021 in the interest of justice;

(C) YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction quashing and setting aside the impugned Order at Annexure-A dated 15/09/2021 passed by Ld. Special Secretary, Revenue Department (Appeals) in Revision Application No. TIN/AA/7/2021 and further be pleased to condone the delay of 2 years and 4 months in filing the Revision application before the Learned Gujarat Revenue Tribunal and remand the matter for fresh consideration to Learned Gujarat Revenue Tribunal so as to decide the same in accordance with law and on its own merits in the interest of justice;

(D) Pending admission, hearing and final disposal of this petition, YOUR LORDSHIPS may be pleased to:

(i) Stay the implementation, operation and execution of the impugned order at Annexure-A dated 15/09/2021 passed by Gujarat Revenue Tribunal in Revision Application No. TIN/AA/7/2021 in the interest of justice;

(ii) Stay the implementation, operation and execution of the impugned order at Annexure-B dated 01 /08/2018 passed by the Learned Collector, Surendranagar in the interest of justice;

(iii) Remand the matter back to Ld. Special Secretary, Revenue Department (Appeals) so as to decide the matter on merits and in accordance with law;

2. The factual matrix in the present case is that the father of

the petitioner herein was allotted land bearing Survey No.191

C/SCA/2583/2022 JUDGMENT DATED: 13/06/2023

paiki Plot Nos.1 and 2 admeasuring 7,610 sq. mts. at Bamanbor,

Taluka Chotila, District Surendranagar by order dated 3.6.1980

vide order No.Land-2/Audhyo/95/79. That thereafter, the father

of the petitioner paid the requisite amount and the possession of

the land was handed over to him on 28.10.1980. That,

thereafter, the father of the petitioner also submitted the lay out

plan for construction of the industry which came to be

sanctioned on 27.3.1981. That the father of the petitioner

expired on 30.12.1996. It is the case of the petitioner that after

his death, they came to know that their father was holding the

said industrial land and therefore, they filed an application for

succession certificate in the Court of learned Principal Civil

Judge, Chotila and by order dated 3.5.2014, they were granted

certificate of heirship. That thereafter on 2.3.2015, the petitioner

made the payment of the outstanding dues towards the said

industrial land. That on 24.4.2015, the petitioner made an

application to the Collector, Surendranagar for sale of such land

allotted to their father. That thereafter the Collector,

Surendranagar initiated proceedings for breach of conditions

and, accordingly, a show-cause notice came to be issued to the

petitioner as to why the land should not be taken back by the

State Government in view of breach of conditions committed by

C/SCA/2583/2022 JUDGMENT DATED: 13/06/2023

the father of the petitioner. That the petitioner thereafter replied

to the show-cause notice. The Dy. Collector & Prant Officer,

Chotila also submitted his report dated 7.7.2015 in respect of

the land in question. By order dated 1.8.2018, the Collector,

Surendranagar was pleased to pass an order directing that the

land be resumed by the Statement Government in view of the

breach of the condition Nos.3, 8, 11 and 12 in the allotment

order. That thereafter the petitioner herein challenged the said

order dated 1.8.2018 before the learned Gujarat Revenue

Tribunal ["GRT" for short] in March 2021. Along with the said

revision application, the petitioner also filed application for

condonation of delay of 2 years and 7 months in filing the

revision application. By the impugned judgment and order dated

15.9.2021, the learned GRT was pleased to reject the said delay

condonation application.

Aggrieved, the petitioner has preferred the present Special

Civil Application.

3. Mr. K.S.Chandrani, learned advocate for the petitioner,

submitted that the learned GRT ought not to have dismissed the

delay condonation application on the technical ground. He

submitted that the petitioner was married and was residing at

C/SCA/2583/2022 JUDGMENT DATED: 13/06/2023

her matrimonial home; she was unaware of any transactions

carried out by her late father. Thereafter, when she came to

know about the land held by her father, she initiated appropriate

proceedings. It was submitted that since the petitioner is not

aware of her rights and the procedure to be followed, there was

some time consumed which has resulted in delay. He submits

that the petitioner in her application for condonation of delay

has stated that she is coming from lower strata of the society

and is not financially sound; that she has to make arrangement

for funds and collect necessary documents to hand over the

same for filing the revision application before the learned GRT. It

is submitted that all this procedure took some time. It is further

submitted that there was no intention to prolong or delay the

proceedings. It is further submitted that because of COVID

pandemic in the year 2020, the petitioner could not take

necessary steps during the said period till the filing of the

revision application in March 2021. It is submitted that the

petitioner has a good case on merits and the learned GRT ought

to have taken a lenient view and condoned the delay. He

submitted that if the revision application is dismissed on the

ground of delay, the petitioner will have to suffer great financial

loss and the same ought to have also taken into consideration by

C/SCA/2583/2022 JUDGMENT DATED: 13/06/2023

the learned GRT while adjudicating the application for

condonation of delay. He, therefore, submitted that the present

Special Civil Application be allowed and the delay in filing the

revision application before the learned GRT be condoned and the

revision application be heard on merits.

In support of his submissions, he has relied upon the

judgments of this Court in Special Civil Application No.12685 of

2015 dated 24.8.2021 [para 14 and 15], Appeal from Order

Nos.941 of 2020 and 3989 of 2020 dated 15.2.2022 [para 2, 3, 6,

8, 9, 10 and 14], in case of Dahyabhai Laldas (Decd.) through His

Heirs & Legal Representatives Bhikhubhai Dahyabhai Patel v.

State of Gujarat [1997 (2) GLH 633][para 7 and 8] and judgment

of Hon'ble Supreme Court in case of Collector, Land Acquisition,

Anantnag v. MST Katiji [1987 (2) SCC 107].

4. Heard learned advocate for the petitioner and perused the

documents on record.

5. It would be beneficial at this juncture to reproduce Section

5 of the Limitation Act:-

"5. Extension of prescribed period in certain cases. --Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908),

C/SCA/2583/2022 JUDGMENT DATED: 13/06/2023

may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.-- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."

6. Bare reading of the provisions of Section 5 would entail

that the party seeking condonation of delay has to show

sufficient cause which prevented the party from approaching the

higher forum. The proof of sufficient cause is a condition

precedent while exercising extraordinary discretion vested in the

Court. It is well settled that what would constitute sufficient

cause cannot be laid down by any hard and fast rules. The

sufficient cause has to be adjudicated in the facts and

circumstances of each case. The discretion given by Section 5

cannot be defined or crystallized so as to convert such discretion

into a rigid rule of law. A party to the litigation is expected to

explain the delay as has been caused in approaching the higher

forum. It is for the party to show that such circumstances which

caused the delay would constitute sufficient cause so as to

prevent it from approaching the higher forum within the period

of limitation. The expression "sufficient cause" therefore has to

C/SCA/2583/2022 JUDGMENT DATED: 13/06/2023

be considered with pragmatism. The Court is required to

examine the correctness of the explanation given.

7. The decisive factor while deciding the application for

condonation of delay is not the length of the delay, but the

sufficiency of the satisfactory explanation as given by the

litigant. Therefore, in a particular case whether the explanation

as stated in the delay condonation application would constitute

"sufficient cause" or not, will be dependent on the facts of each

case. There cannot be any straight jacket formula for accepting

or rejecting the application as furnished for the delay caused in

taking the steps.

8. The Hon'ble Supreme Court in Civil Appeal No.7696 of

2021 decided on 16.12.2021 - Majji Sannermma @ Sanyasirao v.

Reddy Sridevi & Ors. has held as under:-

"7. At this stage, a few decisions of this Court on delay in filing the appeal are referred to and considered as under:

7.1 In the case of Ramlal, Motilal and Chhotelal (supra), it is observed and held as under:

In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decreeholder to treat the decree as

C/SCA/2583/2022 JUDGMENT DATED: 13/06/2023

binding between the parties. In other words, when the period of limitation prescribed has expired the decreeholder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decreeholder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. 269, "s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant."

7.2 In the case of P.K. Ramachandran (supra), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously.

7.3 In the case of Pundlik Jalam Patil (supra), it is observed as under:

"The laws of limitation are founded on public policy.

 C/SCA/2583/2022                                          JUDGMENT DATED: 13/06/2023




             Statutes     of      limitation    are   sometimes      described         as

"statutes of peace". An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim "interest reipublicae ut sit finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time- limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy."

7.4 In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient cause" cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.

   7.5       In the case of Pundlik Jalam Patil (supra), it is observed by this






      C/SCA/2583/2022                                   JUDGMENT DATED: 13/06/2023

Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and "do not slumber over their rights".

9. That the Hon'ble Supreme Court in Civil Appeal arising out

of SLP(C) No.15793 of 2019 & 15848 of 2019 decided on

31.1.2023 - Ajay Dabra v. Pyare Ram & Ors. has held as under:-

"10. This Court, while emphasizing the scope of Section 5 of the Limitation Act, in the case of Mahant Bikram Dass Chela versus Financial Commissioner, Revenue, Punjab, Chandigarh And Others has held:

"21. Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every day's delay. These and similar considerations which influence the decision of Section 5 applications are out of place in cases where the appeal itself is preferred within the period of limitation but there is an irregularity in (1977) 4 SCC 69 presenting it. Thus, in the instant case, there was no occasion to invoke the provisions of Section 5, Limitation Act, or of Rule 4, Chapter I of the High Court Rules. If the Division Bench were aware that Rule 3 of Chapter 2-C is directory, it would have treated the appeal as having been filed within the period of limitation, rendering it inapposite to consider whether the delay caused in filing the appeal could be condoned."

This Court in the case of Basawaraj and Another versus Special Land Acquisition Officer8 while rejecting an application for condonation of delay for lack of sufficient cause has concluded in Paragraph 15 as follows:

C/SCA/2583/2022 JUDGMENT DATED: 13/06/2023

"15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the (2013) 14 SCC 81 condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."

Therefore, we are of the considered opinion that the High Court did not commit any mistake in dismissing the delay condonation application of the present appellant."

10. In the present case, the facts are that the father of the

petitioner was allotted land for industrial use on 3.6.1980. The

said land never came to be used for the said purpose and no

construction whatsoever was also done on the said land. The

petitioner's father expired in the year 1996. Thereafter, the land

was lying unused till the petitioner approached the respondents

for transferring the said allotment in her name by paying the

C/SCA/2583/2022 JUDGMENT DATED: 13/06/2023

outstanding dues on 2.3.2015. In the present case, the petitioner

is seeking permission to sell the land so allotted to her father.

The respondents sought a report and found that there was

violation of the conditions of allotment order since the land was

not used for the purpose it was allotted from the year 1980 till

passing of the order dated 1.8.2018 and thus reverted the land

back to the State Government. In the present case, the petitioner

has no intention of using the land for the purpose it was allotted

to her father. The intention is only to sell the said land with the

due permission of the authorities after getting it allotted in her

name. The petitioner in her application for condonation of delay

has given an explanation that she resides in her matrimonial

home; she is not financially sound; her husband was not

keeping well and therefore, the delay of 2 years and 7 months

has been caused in preferring the revision application before the

learned GRT.

11. In the facts and circumstances of the present case, this

Court is of the opinion that the explanation as given by the

petitioner in her application for condonation of delay before the

learned GRT is no explanation, much less sufficient or

satisfactory explanation, which can be said to constitute

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"sufficient cause" which prevented her from filing the revision

application before the learned GRT for a period of 2 years and 7

months. This Court is not inclined to exercise its discretion to

condone such a huge delay as such a discretion has to be

exercised judiciously. The explanation for delay is also not

substantiated by any document and are just bare averments.

12. In view of the aforesaid observations, this Court is of the

view that the impugned judgment and order passed by the

learned GRT dismissing the application for condonation of delay

requires no interference. The present Special Civil Application is

devoid of merits. Accordingly, the present Special Civil

Application stands dismissed. No order as to costs.

Sd/-

(ANIRUDDHA P. MAYEE, J.) KAUSHIK D. CHAUHAN