Gujarat High Court
Prakashbhai Jayantilal Vyas vs Special Secretary (Appeals) Revenue ... on 16 January, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/5156/2017 ORDER DATED: 16/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5156 of 2017
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PRAKASHBHAI JAYANTILAL VYAS
Versus
SPECIAL SECRETARY (APPEALS) REVENUE DEPARTMENT & ORS.
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Appearance:
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1
VISHAL S AWTANI(7913) for the Petitioner(s) No. 1
MR ADITYA PATHAK GOVERNMENT PLEADER for the Respondent(s) No. 1,2
MS ROOPAL R PATEL(1360) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 16/01/2025
ORAL ORDER
1. Heard learned advocate Mr. Vimal A. Purohit for the petitioner,
learned AGP Mr. Aditya Pathak for the respondent authority and learned
advocate Mr. Roopal R. Patel for the respondent No.3.
2. Issue Rule returnable forthwith. Learned AGP Mr. Pathak waives
service of Rule on behalf of the respondent No.1 and learned advocate Ms.
Patel waives service on behalf of the respondent No.3. With the consent of
the parties, present petition is taken up for final hearing.
3. By way of this petition, the petitioner has challenged an order dated
25.11.2014 passed by the learned SSRD, whereby the Revision Application
preferred by the present petitioner has been declined to be admitted, more
particularly on the ground of delay.
4. Learned advocate Mr. Purohit for the petitioner would submit that
the petitioner was challenging a notice issued by the respondent No.2 herein
dated 20.12.2014 before the learned SSRD and whereas even before filing of
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the Revision Application before the learned SSRD, the petitioner under an
erroneous impression, had challenged the said notice before the Deputy
Secretary (Appeal) Agriculture and Cooperative Department, by preferring a
substantive Revision Application. It is also pointed out that vide order dated
12.02.2016, the Deputy Secretary concerned had rejected the Revision
Application on the ground that the said authority did not have any
jurisdiction to challenge the notice dated 20.12.2014. It is also pointed that
while the order passed by the Deputy Collector, Agriculture Department,
dated 12.02.2016, immediately i.e. on 20.02.2016, the petitioner had
preferred Revision Application No.54 of 2016 before the learned SSRD.
Learned advocate would submit that notice dated 20.12.2014 had been
challenged by the petitioner before the Deputy Secretary, Agriculture
Department, vide Revision Application filed on 20.02.2016 i.e. well within
time and whereas upon the said authority rejecting the Revision Application
on the ground of lack of jurisdiction, the notice by the respondent No.2 had
been challenged forthwith before the learned SSRD. Learned advocate
would submit that under such circumstances, the learned SSRD had gravely
erred in rejecting the Revision Application preferred by the present
petitioner inter alia on the ground of the Revision Application being delayed
and also on the ground that the present petitioner did not point out any
prima facie case.
5. As against the said submissions, present petition is vehemently
objected by the learned advocate Ms. Patel for the respondent No.3 herein.
Learned advocate would submit that while the petitioner had challenged the
notice issued by the respondent No.2 herein dated 25.11.2014 before the
learned SSRD, the petitioner did not challenge the recovery certificate issued
upon the Board of Nominees passing judgment and award dated
30.06.2003. Learned advocate would submit that under such circumstances,
the Revision Application was rightly not maintained. It is submitted by
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learned advocate that the present petitioner, did not have any right to
challenge the notice, without challenging the recovery certificate and
therefore, the learned SSRD had rightly rejected Revision Application.
6. Learned AGP Mr. Pathak would defend the order passed by the
learned SSRD stating that the same is correct and proper.
7. Having heard the learned advocates for the respective parties and
having perused the documents on record, this Court is of the opinion that
the learned SSRD had erred in not condoning the delay and at the stage of
condoning the delay, not admitting the case on the ground of the petitioner
not being able to make out a prima facie case. To this Court, it would
appear that as far as the delay is concerned, the petitioner had provided a
sufficient cause for condoning the same, more particularly since as noticed
hereinabove, the petitioner had challenged the notice for recovery issued by
the respondent No.2 herein, within less than a period of 30 days before the
Deputy Secretary, Agriculture Department and whereas upon Deputy
Secretary, Agriculture Department, not entertaining the same on the ground
of lack of jurisdiction, the petitioner had again challenged the same notice
within less than a period of 30 days from the date of the order of Deputy
Secretary. The petitioner having approached a wrong forum, the law on the
aspect being very clear, the learned SSRD, in the considered opinion of this
Court, had committed a grave error by not considering that the petitioner
had in fact gone to a wrong forum before approaching the learned SSRD. It
also appears that in the application for condoning delay, the petitioner had
in fact, pointed to the learned SSRD that he had approached a wrong forum
and whereas the said aspect was elaborately explained in the Revision
Application.
8. The learned SSRD, to this Court, having not taken cognizance of the
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said aspect and having not condoned the delay, to this Court, it would
appear that learned SSRD had committed a grave error, which requires
interference.
9. Furthermore, as it would appear that in addition to dismissing the
Revision Application on the ground of the petitioner not making out a
sufficient case, the learned SSRD had also observed that the petitioner had
not made out prima facie case for admission of the Revision Application. As
it is, there is no reason whatsoever as far as the said observation is
concerned, for this Court, to discern as to on what base, the learned SSRD
had reached the conclusion that there was no prima facie merits in the
Revision Application. The said observations without any attendant reasons
to justify the observation also could not be countenanced.
10. In so far as the submissions made by the learned advocate Ms. Patel
that the petitioner without challenging the recovery certificate did not have
any right to challenge the notice for recovery, to this Court, it would appear
that the same is a submission on the merits of the issue, which would have
to be taken up by the appropriate authority i.e. learned SSRD, when the
Revision Application is being heard. To this Court, it would appear that at
the first instance, when a substantive Revision Application was filed along
with application for condoning the delay, then the authority concerned
ought to have focused and decided the application for condoning delay only
and whereas it is only thereafter that the authority could have delved into
the aspect of merits. The said proposition squarely applies to the
submissions made by learned advocate Ms. Patel that until and unless the
delay was condoned, the authority would not have been justified in going
into the merits of the issue and whereas while to this Court, it would appear
that the petitioner may or may not have a good case on merits, it is for the
petitioner to make out an appropriate justification before the authority
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concerned, but as far as aspect of delay is concerned, it would clearly appear
that the revisional authority was completely unjustified in not condoning the
delay, more particularly when it was clearly pointed out that the petitioner
had challenged the order in question before a different forum well within
time.
11. Having regard to the above discussions, observations and
conclusions, to this Court, the present petition requires interference. Hence,
to this Court, the following directions would suffice the interest of justice.
(a) The order dated 25.11.2014 passed by the learned SSRD is
quashed and set aside.
(b) The learned SSRD is directed to hear and decide the
application for condoning delay in Revision Application
preferred by the petitioner challenging the notice dated
20.12.2014. The application for condoning delay shall be
heard and decided by the learned SSRD as expeditiously as
possible, but not later than a period of two months from the
date of receipt of this order.
(c) Upon the learned SSRD taking an appropriate decision in
the said application, the learned SSRD shall thereafter,
consider the Revision Application on merits i.e. for the
aspect of admission and interim relief, if any, after hearing
and granting appropriate opportunity to all concerned.
With the above observations and direction, the present petition
stands disposed of as allowed.
(NIKHIL S. KARIEL,J)
Y.N. VYAS
