Dharmendrakumar Tulsidas Doriwala vs State Of Gujarat
2024 Latest Caselaw 1302 Guj

Gujarat High Court

Dharmendrakumar Tulsidas Doriwala vs State Of Gujarat on 14 February, 2024

Author: Nirzar S. Desai

Bench: Nirzar S. Desai

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       C/SCA/2403/2024                             ORDER DATED: 14/02/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 2403 of 2024

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                  DHARMENDRAKUMAR TULSIDAS DORIWALA
                                Versus
                          STATE OF GUJARAT
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  Appearance:
  DR BALRAM D JAIN(3146) for the Petitioner(s) No. 1
  for the Respondent(s) No. 2,3,4,5,6,7,8
  MR. JAY TRIVEDI, AGP ON ADVANCE COPY SERVED TO GOVERNMENT
  PLEADER/PP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                              Date : 14/02/2024

                                ORAL ORDER

1. By way of this petition, the petitioner has challenged the order dated 27.01.2009 passed in RTS Revision Application No. MVV/HKP/ST/03/2003 (Dasu)

2. The prayer made in the petition itself is suggestive of the fact that the petitioner is challenging the order dated 28.01.2009 by way of this petition filed on 22.01.2024 before the Registry of this Court i.e. after a delay of 15 years.

3. When the matter was called out today, the first question that was paused to learned advocate Mr. Balram Jain was about how the delay of 15 years is explained. All that was stated by learned advocate Mr. Jain was the fact that the petitioner was never heard and virtually the impugned order is an ex-parte order and therefore,

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C/SCA/2403/2024 ORDER DATED: 14/02/2024

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the same is passed in violation of principles of natural justice.

4. Learned advocate Mr. Jain for the petitioner submitted that the petitioner has never received the notice from Special Secretary, Revenue Department informing the petitioner that the hearing of the matter is fixed on 06.05.2008. When the matter was adjourned to 21.10.2008, the parties were informed by R.P.Ad and thereafter, when the matter was adjourned to 06.01.2009 at that point of time also, the parties were informed by R.P.Ad. The order indicates that despite the parties having been informed by R.P.Ad, no-one remained present at the time when the matter was heard and therefore, vide order dated 28.01.2009 the revision application was rejected. According to learned advocate Mr. Jain, the petitioner has never received any notice and therefore, when the notice is not received by the petitioner, the order passed dismissing the revision application on the ground of absence of the petitioner, without examining the merits of the matter is required to be quashed and set aside as the case of the petitioner has not been examined on merits. According to learned advocate Mr. Jain, the limitation would start from the date of knowledge as per the catena of decisions of Hon'ble Apex Court as well as this Court and according to learned advocate Mr. Jain, the petitioner came to know about the order dated 28.01.2009 only recently and therefore, as such there is no delay, if the delay is considered from the date of knowledge. According to learned advocate Mr. Jain, the petitioner is a poor agriculturist who is not well versed with the legal procedure and

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C/SCA/2403/2024 ORDER DATED: 14/02/2024

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therefore, he was not aware about the order dated 28.01.2009 and therefore, there is a delay in preferring the petition whereby the order of the year 2009 is challenged in the year 2024, as very recently the petitioner came to know about the same.

5. Learned AGP Mr. Jay Trivedi appearing for the respondent - State vehemently opposed the petition and submitted that the defense of the petitioner that the petitioner has never received the notice, despite the fact that the notices were issued by R.P.Ad not once but twice, is nothing but an excuse to cover up the delay. Learned AGP Mr. Trivedi submitted that the petitioner is trying to cover up his inaction by stating that very recently, he came to know about the order dated 28.01.2009. He further submitted that whether the petitioner has received the notice or not is a disputed question of facts and when the order dated 28.01.2009 specifically states that not once but twice the notices are sent to the petitioner intimating the petitioner about the next date of hearing through R.P.Ad, this is the best any quasi judicial authority or Tribunal can do to ensure that the petitioner is informed about the next date of hearing. The petitioner also could have inquired about the outcome of his revision application which was preferred in the year 2003 either by filing an appropriate application before Special Secretary, Revenue Department or by trying to know the status of his case as even the online status is also available in respect of cases pending before the Special Secretary, Revenue Department. Learned AGP Mr. Trivedi submitted that the petitioner as can be seen from the arguments

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C/SCA/2403/2024 ORDER DATED: 14/02/2024

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advanced by learned advocate Mr. Jain that the petitioner has set idle all throughout for 15 years and all of a sudden the petitioner has woken up and preferred this petition without sufficiently explaining the delay and therefore, the petitioner is not entitled to any discretionary relief by this Court.

6. Learned AGP Mr. Trivedi in support of the submission that the petitioner is not entitled to any discretionary relief when there are delay, latches and acquiescence which can be attributed to the petitioner, relied upon the paragraph no. 20, 21 and 22 of judgment of Hon'ble Supreme Court in the case of Union of India V/s. N Murugesan reported in 2022 2 SCC 25. By relying upon the aforesaid judgment, learned AGP prayed for dismissal of this petition on the ground of 15 years unexplained delay.

7. Learned advocate Mr. Jain in rejoinder submitted that the delay can be considered depending upon the facts of the case and facts are different in the aforesaid case in case of Union of India V/s. N Murugesan relied upon by learned AGP as the same judgment is in respect of service law and therefore, submitted that this Court may exercise the discretionary powers and issue notice to the respondents, considering the fact that the petitioner's case has not been decided by considering the merits of the matter by Special Secretary, Revenue Department.

8. I have heard learned advocates for the respective parties and

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C/SCA/2403/2024 ORDER DATED: 14/02/2024

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perused the record. On perusal of the record, I find that in the impugned order dated 28.01.2009, it is specifically observed by the Special Secretary, Revenue Department that the petitioner was informed about the date of hearing i.e. 06.05.2008 in writing. Thereafter, on few occasions, the matter was adjourned and when the matter was adjourned to 21.10.2008, the parties were informed about the next date of hearing by R.P.Ad. Once again despite the fact that the parties were informed about the next date of hearing through R.P.Ad., none remained present and thereafter, when the matter was adjourned to 06.01.2009 and parties were informed through R.P.Ad, despite that no-one remained present before the Special Secretary, Revenue Department. Further on perusal of petition, the petitioner has tried to explain the delay of 15 years in paragraph no. 3.18 only which reads as under:-

It is submitted that the res. no. 2 has neither issued a notice to the petitioner nor given an opportunity of hearing and false observations are made in the impugned order dtd: 27/1/2009 because no such notice is issued on 6/5/2008, 27/5/2008, 22/7/2008, 9/9/2008, 21/10/2008, 6/1/2009 and then 27/1/2009, for all these dates of hearing no notice is issued to the petitioner and therefore the res. no.2 arbitrarily rejected the revision application of the petitioner which violates the basic and fundamental principles of natural justice and also cause delay in challenging the impugned order before the Higher Forum. On 20/10/2023 the petitioner came to know that the res. no.2 has rejected the revision application by order dtd :

27/1/2009, the petitioner immediately applied for certified copy of the impugned order to approach the higher forum on 23 /10/2023.

9. The aforesaid averments made by the petitioner in the petition are

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C/SCA/2403/2024 ORDER DATED: 14/02/2024

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the only averments whereby the petitioner has tried to justify the delay of 15 years in approaching this Court for challenging the order passed in the year 2009.

10.Considering the fact that the delay has not been sufficiently explained by the petitioner, the petition is required to be dismissed on the ground of delay itself. Further the argument made by learned advocate Mr. Jain that the petitioner is a poor agriculturist and he is not well versed with the legal procedure also cannot be accepted for the reason that there is no material in the petition which would indicate that the petitioner has never tried to even inquire about the status of revision application of the year 2003 pending before the Special Secretary, Revenue Department. Today when technology has developed to a great extent and even status and order of proceedings before Special Secretary are also available on their website, it is impossible to believe that the petitioner did not make any effort or the petitioner was unaware about the order passed in the year 2009.

11.Be that as it may, the record indicates that after filing the application in the year 2003, the petitioner did not make any effort even to inquire about the status or outcome of revision application and therefore, in the meantime, in the year 2009, the impugned order is passed. Even thereafter, also within a span of 15 years, its hard to believe that a person would not try to inquire about the status of matter which is filed before number of years, before 2009.

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     C/SCA/2403/2024                            ORDER DATED: 14/02/2024

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Therefore, considering the aforesaid aspects as well as after taking into consideration the explanation in respect of delay given by the petitioner in paragraph no. 3.18 of the petition, I do not see any reason to entertain this petition as the 15 years long delay has not been sufficiently explained by the petitioner. Resultantly, the petition is required to be dismissed and the same is dismissed.

(NIRZAR S. DESAI,J) VARSHA DESAI