Gujarat High Court
Shardaben Gopabhai Alias Gopalbhai ... vs State Of Gujarat on 1 April, 2024
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/CA/1619/2024 ORDER DATED: 01/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO.
1619 of 2024
In F/MISC. CIVIL APPLICATION NO. 8813 of 2024
With
F/MISC. CIVIL APPLICATION NO. 8813 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 20288 of 2022
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SHARDABEN GOPABHAI ALIAS GOPALBHAI ZALAVADIYA & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR JAYRAJSINH CHAUHAN for MR DASHRATH N PATEL(2813)
for the Applicant(s) No. 1,2,3,4,4.1,4.2,4.3
for the Respondent(s) No. 2,3,4
MS KRUSHITA DAVE ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 01/04/2024
ORAL ORDER
1. There can not be a better example of abuse and
misuse of process of law than the present
application. The father of the petitioner had
failed in original litigation which had gone
upto the Hon'ble Supreme Court and after failing
upto the Hon'ble Supreme Court and despite
knowing that, the present petitioners had
preferred main Special Civil Application
No.20288 of 2022 before this Court which was
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dismissed with a cost of Rs.50,000/- by a
reasoned order.
2. Despite the aforesaid order, the petitioners
have made one more attempt to abuse and misuse
the process of law by way of this Miscellaneous
Civil Application for Review, wherein by way of
Civil Application No.1 of 2024, the petitioners
are seeking to condone delay of 61 days in
preferring Misc. Civil Application.
3. The entire review application as well as
application for condonation of delay are filed
on the basis of absolute vague averments to meet
with the aspect of 61 days delay all that it was
submitted by learned advocate Mr. Jayrajsinh
Chauhan for learned advocate Mr. Dashrath Patel
appearing for the petitioners is that there were
some documents of the year 1986, which were not
available at the relevant point of time when the
petition was decided vide order dated 13.12.2023
and thereafter, those documents are made
available to the petitioners and that is how the
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review is preferred after delay of 61 days. In
the application for condonation of delay, the
applicant has in paragraphs No. 4 to 10, the
grounds canvassed by the petitioners read as
under :-
"4. It is stated that the order came to be
passed on 13.12.2023 by the Hon'ble Court.
Thereafter there was winter vacation in
the Hon'ble Court, However, order was
communicated to the applicants
subsequently. After receipt of the order,
the applicants were advised to secure
documentary evidence to show that Town
Planning Scheme came to be implemented in
the year 1988 and also it was advised to
procure the Form filled in under Section
6(1) of the ULC Act and various other
documents as mentioned in the memo of
Appeal.
5. It is stated that some time has spent
in procuring the documentary evidence from
the offices of the Competent Authority
under the ULC Act as well as from the
office of Rajkot Development Urban
Authority because they were 30-35 years
old documents, sometime has elapsed which
is beyond the control of present
applicants.
6. It is further submitted that the
deposition, which was recorded by the
authority pursuant to Form filled in under
Section 6(1) was also not available with
the applicants and same was recently
provided to the applicants.
7. It is submitted that the applicants
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have suffered financial constrained in
gathering the finance to meet with
litigation and that is the cause that some
has elapsed in arranging the financial
assistance and therefore, there is genuine
difficulties, which be considered
sympathetically in condoning the delay.
It is further submitted that on account of
illness of father of the advocate on
record, he was not readily available at
the office at Ahmedabad. It is stated that
thereafter, father of advocate who was
looking after the matter Mr. Rajendrasinh
has expired and therefore, the advocate
was not readily available and therefore
also, on account of lack of communication,
the applicants were not in a position to
file an appeal within stipulated time so
prescribed under the Gujarat High Court
Rules. The said aspect is beyond the
control of the applicants and therefore,
there is no lethargy or ill-action on the
part of the applicants.
9. It is stated that there is some delay
in preferring the aforesaid Misc. Civil
Application, but in view of aforesaid
facts and circumstances, liberal approach
is required to be taken in condoning the
delay, because, there is no ill-intention
and lethargy on the part of the applicants
in preferring the Misc. Civil Application.
10. It is also submitted that some time
has elapsed in gathering the funds to meet
with expenses in preparing the
applications and therefore, in view of
aforesaid, delay, if any, be condoned by
taking lenient view."
4. On perusal of the above averments made by the
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petitioners, it would indicate that the
petitioners have tried to explain the delay by
assigning every single possible excuses or
reasons available at the command of the
petitioners but without any basis. All averments
are absolutely vague and not once a single
specific date is mentioned by the petitioners to
justify 61 days delay.
5. Further, though I have observed in the order
dated 13.12.2023 passed in the main petition
i.e. Special Civil Application No. 20288 of 2022
that the issue had reached upto the Hon'ble
Supreme Court and after having failed up to the
Hon'ble Supreme Court, one more attempt was made
before this Court to start a new round of
litigation. Considering the fact that Civil
Appeal preferred by the petitioners was
dismissed by the Hon'ble Supreme Court by a
reasoned order dated 5.9.2022, judgment of which
was not placed on record by learned advocate Mr.
Chauhan, the Hon'ble Supreme Court dismissed the
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appeal preferred by the father of the
petitioners and subsequently was pursued by the
legal heirs of the petitioner and therefore,
when the dismissal of main Special Civil
Application No.20288 of 2022 was based upon the
earlier round of litigation where the petitioner
had failed upto Hon'ble Supreme Court, when the
Hon'ble Supreme Court did not accept the case of
the petitioner. Ideally the petitioner was
required to file a review application before the
Hon'ble Supreme Court.
6. At the time of making submissions, learned
advocate Mr. Chauhan was appraised about the
aforesaid facts but despite that learned
advocate Mr. Chauhan insisted that this Court
must hear the review application on merit as the
documents which were not available to the
petitioner goes to the root the matter.
7. The approach to insist the hearing of the review
application filed in the subsequent petition
which is dismissed on the basis of a reasoned
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decision of the Hon'ble Supreme Court is
absolutely unreasonable. Further, even after the
aforesaid facts having been pointed out to the
learned advocate for the applicants that proper
course would be to file a review application
before the Hon'ble Supreme Court as the order
passed by the Hon'ble Supreme Court has attained
finality and the dismissal of the petition is on
the basis of rejection of petitioners challenge
concurrently by this Court as well as by the
Hon'ble Supreme Court. Therefore it would not be
proper if this Court entertains this review
application despite the entire failure of the
petitioners before the Hon'ble Supreme Court.
8. Further, considering the fact that the delay of
61 days is not explained properly and no case
for condonation of delay in filing review
application is made out, further the present
application for review is also required to be
dismissed.
9. Considering the fact that the petitioners are
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well aware about the fact that the petitioners
have failed in the challenge to the impugned
order upto the Hon'ble Supreme Court and
thereafter, before me also as Special Civil
Application No.20288 of 2022 was dismissed vide
order dated 13.12.2023, the present review
application is nothing but abuse and misuse of
process of law and the same is required to be
dismissed with heavy costs. Accordingly, the
present application is dismissed with heavy cost
of Rs.2,00,000/- (Rupees Two Lacs) and the same
may be deposited with the Registry of this Court
within a period of twelve weeks from today. No
case for condonation of delay is made out as the
delay has not been sufficiently explained nor
any case for review is made out by the present
applicants and hence, application for
condonation of delay as well as main application
for review is required to be dismissed and the
same is dismissed accordingly.
(NIRZAR S. DESAI,J)
Pallavi
