Smt. Abhilasha Kumari, J.@mdashMr. Gaurang H. Bhatt, learned Advocate for the petitioner, prays that he may be permitted to implead the State of Gujarat, through the Secretary (Appeals), Revenue Department, as party-respondent No. 4. Permission to do so, is granted. The amendment be carried out forthwith. Rule. Ms. Nisha M. Thakore, learned Assistant Government Pleader, waives service of notice of Rule for respondents Nos.3 and 4 and Mr. A.B. Gateshaniya, learned Advocate, waives service of notice of Rule for respondent No. 2. Though respondent No. 1 has been served with notice, none appears on his behalf, therefore, it is not considered necessary to issue Rule to him, as the petition is being mainly contested by respondent No. 2.
2. This petition, under Articles 226 and 227 of the Constitution of India, has been preferred, challenging the order dated 12.08.2011 passed by the Additional Secretary (Appeals), Revenue Department, whereby the Revision Application preferred by the petitioner against the order dated 30.05.2002, passed by the Collector, has been rejected on the ground of delay.
3. Briefly stated, the facts of the case, as averred in the petition, are that the petitioner was the owner of land bearing Revenue Survey No. 2315, situated in Wadhwan and was holding the physical possession thereof. Being in dire financial straits, the petitioner borrowed Rs. 10,000/- from respondent No. 2, without clarification regarding the rate of interest to be charged. It was understood between the petitioner and respondent No. 2 that on repayment of the amount, the original documents relating to the land in question would be returned to the petitioner. It is the case of the petitioner that he appended his signature to various papers, including the Power of Attorney Deed, without being permitted to read, or understand, the contents thereof. After some time, the petitioner repaid the borrowed amount. However, respondent No. 2 did not return the documents or the Deed purporting to be the Power of Attorney, in spite of numerous requests by the petitioner, from time to time. Consequently, the petitioner cancelled the Power of Attorney Deed on 07.01.1999. It is averred in the petition that the petitioner is a semi-literate person and has only received a very limited education. The petitioner came to know that respondent No. 1 had transferred all the 12 plots of land belonging to the petitioner, in favour of his brother, by way of sale. No consideration, whatsoever, was paid to the petitioner, who had no knowledge of the said transactions that took place behind his back. The petitioner, therefore, submitted an application dated 03.03.1999, to the Mamlatdar, Wadhwan, raising an objection against the transfer of the 12 plots and requesting, that no entry be mutated in favour of any person, in respect thereof. It is the case of the petitioner that he was not served with the mandatory notice u/s 135-D of the Gujarat Land Revenue Code. Hence, the change of mutation entry from the name of the petitioner to the name of respondent No. 2 was unlawful. The Mamlatdar mutated Entry No. 28787 in the Village Form No. 6 (Record of Rights) on 31.07.1999 in the Register of Disputes and, thereafter, by order dated 17.06.2000, passed in R.R.T. Case No. 11/1999-2000 approved the said entry. Being aggrieved, the petitioner unsuccessfully challenged the order dated 17.06.2000 by filing R.R.T. Appeal No. 6/2000 before the Deputy Collector, Surendranagar. Being aggrieved by the order of the Collector dated 09.11.2001, the petitioner approached the Collector, Surendranagar (respondent No. 3) through R.R.T. Case No. 8/2001-2002. The appeal was rejected by order dated 30.05.2002. Against the impugned order of the Collector dated 30.05.2002, the petitioner preferred a Revision Application before the Additional Secretary (Appeals), Revenue Department, being Revision Application No. MVV/HKP/SNR/42/ 2011. The said Revision Application has been rejected by the impugned order dated 12.08.2011, on the ground of delay, giving rise to the filing of the present petition.
4. Mr. Gaurang H. Bhatt, learned Advocate for the petitioner, has submitted that the Revision Application of the petitioner has been wrongly rejected on the ground that it has been filed after 9 years from the order dated 30.05.2002, passed by the Collector, without considering the cogent explanation rendered by the petitioner in the application for condonation of delay. The petitioner had shown sufficient cause for condonation of delay. The petitioner has stated that his minor daughter was suffering from a serious illness and her treatment was going on for all these years. That the petitioner has produced several medical documents before respondent No. 3 in this regard. It is further submitted that apart from the illness of his minor daughter, his father was also suffering from illness that has ultimately resulted in his death, on 20.03.2007. That the circumstances that have caused the delay were beyond the control of the petitioner and there was no negligence or carelessness on his part, in pursuing litigation. It is contended that the medical evidence or the explanation rendered by the petitioner have not been considered at all, by respondent No. 3 and the application has been mechanically rejected. It is further contended that another reason for rejection of the Revision Application is that the application for condonation of delay was not accompanied by an affidavit. It is urged that the Revisional Authority ought to have granted an opportunity to file a fresh application, or to append an affidavit to the one already filed, and should have considered the grounds advanced by the petitioner for condonation of delay. However, without granting the petitioner an opportunity of doing so, the Revisional Authority has rejected the application on highly technical grounds, without ignoring the explanation of the petitioner, and thereby causing great injustice to him. That, the petitioner has a good prima-facie case on merits, and by rejection of the Revision Application, the legal rights of the petitioner have been defeated, therefore, the impugned order may be quashed and set aside and the matter remanded to the Revisional Authority, for fresh consideration.
5. In support of the above submissions, the learned Advocate for the petitioner has placed reliance upon the following judgments :-
(a) Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others reported in AIR 1987 Supreme Court 1353.
(b) Chhaganbhai Ramabhai and others v. Revaben wd/o. Chhotabhai Laxmidas and others reported in 1994 (1) GCD 663 (Guj.).
(c) Ram Nath Sao alias Ram Nath Sahu and others reported in AIR 2002 Supreme Court 1201.
6. The petition has been strongly resisted by Mr. A.B. Gateshaniya, learned Advocate for respondent No. 2, by submitting that the delay has not been sufficiently explained as the medical documents, in the form of prescriptions, are from the year 2005 onwards. There is no explanation for the delay with effect from 30.05.2002, to the date of the order by the Collector. It is further submitted that if the prescriptions are seen, there is a gap of about one month in between the treatment. Had the petitioner been serious about pursuing the litigation, he could have conducted the matter or instructed his lawyer to do so. It is further contended on behalf of respondent No. 2 that after passing of the order dated 30.05.2002 by the Collector, the petitioner has withdrawn the Civil Suit filed by him in November-2002, on the basis of a compromise between the parties; meaning thereby that the petitioner was not willing to pursue the matter or proceed further with the dispute. That, in any case, even if the Revisional Authority would have entertained the Revision Application after condoning the delay, it would have had no jurisdiction to decide the same, as the subject matter of the Revision Application is within the realm of the Civil Court, therefore, the Revision Application has rightly been rejected. In support of the above submissions, the learned Advocate for respondent No. 2 has relied upon a judgment dated 07.07.2011 rendered in Letters Patent Appeal No. 98 of 2009 in Special Civil Application No. 10753 of 2008, wherein the order of the learned Single Judge rejecting the petition on the ground of 12 years'' delay has been upheld.
7. In rejoinder, Mr. Gaurang H. Bhatt, learned Advocate for the petitioner, has submitted that the case of the petitioner before the Mamlatdar was that no entry be mutated with respect to the land in question, in favour of any person, which is very much within the jurisdiction of the Mamlatdar. The matter has been carried in appeal before the Deputy Collector, and further before the Collector, who is competent to hear the same. It is against the order passed by the Collector that the petitioner has approached the Revisional Authority by filing the Revision Application, and the Revisional Authority has the jurisdiction to entertain the same, as the subject matter of the Revision Application does not pertain to any matter within the realm of the Civil Court. Further the Revision Application has not been rejected on this ground.
8. Ms. Nisha M. Thakore, learned Assistant Government Pleader for respondents Nos.3 and 4, has opposed the prayers made in the application and supported the impugned order made by the Revisional Authority, on the ground that sufficient cause has not been shown for condonation of delay, and submits that no interference is called for from this Court.
9. I have heard the learned Counsel for the respective parties, perused the averments made in the petition, the contents of the impugned order and other documents on record.
10. The only ground on which the Revision Application has been rejected is that it has been preferred after 9 years from the date of the order of the Collector, and, further, no affidavit has been appended to the application for condonation of delay, by the petitioner. From perusal of the impugned order dated 12.08.2011, it is clear that the grounds advanced by the petitioner for condonation of delay, have neither been discussed, nor considered, while rejecting the Revision Application. It has straightaway been rejected on the ground that it is delayed by 9 years. The Secretary has not stated in the impugned order, that the petitioner has failed to show sufficient cause for the delay. It is apparent that the application for condonation of delay has not been taken into consideration at all, on the ground that there is no affidavit in support of the same.
11. In the above factual background, it would be appropriate to refer to the judgments relied upon by the parties, in support of their respective contentions.
12. In the case of Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others (supra), the Supreme Court has elaborately enunciated discussed the principles and guidelines regarding the approach that ought to be adopted, while deciding whether ''sufficient cause'' has been shown, or not. The relevant extract of the judgment is as below :-
3. The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ''merits''. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that;-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day''s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary-is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
13. In the case of Chhaganbhai Ramabhai and others v. Revaben wd/ o. Chhotabhai Laxmidas (supra), this Court held as under :-
7. What should be the approach of the Court in such circumstances has been highlighted by the Apex Court in its ruling in the case of Ram Sumiran and others v. D.D.C. And others reported in AIR 1985 Supreme Court 606. In that case, one writ petition in the Allahabad High Court was ordered to have been abated on the ground that legal representatives of the deceased respondent were not brought on record within time though the petitioners knew about his death and took no steps for nearly six years. I reiterate that the petitioners of the writ petition in that case were guilty of inaction or omission for 6 years in bringing the legal representatives of the deceased on record. In that context, it has been held
"But merely because no application was made by the appellants for bringing the legal representatives of the deceased respondent No. 5 on record we do not think that in the circumstances of the present case that would be a valid ground for refusing to grant the application of the appellants for setting aside the abatement and bringing the legal representatives of the deceased respondent No. 5 on record because the appellants are admittedly from the rural area and in, a country like ours where there is no much poverty, ignorance and illiteracy, it would not be fair to presume that every one knows that on death of a respondent, the legal representatives have to be brought on record with a certain time. The ends of justice require that the application for bringing the legal representatives of the deceased respondent No. 5 should have been granted." (Emphasis supplied]
The aforesaid quotation from the aforesaid ruling of the Supreme Court in the case of Ram Sumiran (supra) is quite self-explanatory and needs no elaboration or elucidation.
The Apex Court has ruled that povery, ignorance and illiteracy prevalent in this country of ours cannot be ignored when the question regarding the belated action is on the anvil.
"12. The binding ruling of the Supreme Court in the case of Hindustan Petroleum Corporation Ltd. v. Yashwant Gajanan Joshi and others reported in AIR 1991 Supreme Court 933 is distinguishable on its own facts. In that case, the delay was not at all satisfactorily explained by the petitioner. In the present case, as pointed out hereinabove, the petitioners have elaborately and sufficiently explained the delay in preferring the main revisional application as transpiring from their delay condonation application at Annexure A to this petition. It is needless to say that it was supported by the affidavit at Annexure B to this petition. It was not the case of the respondents herein before the Tribunal that the delay in preferring the main revisional application was deliberate or was attributable to unexplained gross negligence on the part of the present petitioners. In that case, no justifiable ground existed for not condoning the delay in preferring the main revisional application.
14. In the case of Ram Nath Sao alias Ram Nath Sahu and others (supra), the Apex Court has laid down the following principles of law :-
11. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the Courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the Courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, Courts have to strike'' a balance between resultant effect of the order it is going to pass upon the parties either way.
15. The learned Advocate for respondent No. 2 has relied upon the observations made by a Division Bench of this Court in judgment dated 07.07.2011, rendered in Letters Patent Appeal No. 98 of 2009 in Special Civil Application No. 10753 of 2008. In that case, the petitioner had filed a petition before the High Court after a period of almost 12 years, challenging two orders of the year 1996 and 1998. The petition was rejected by the learned Single Judge on the ground that the gross delay was unexplained, and that a series of misstatements had been made in the petition that could not be ignored as an isolated lapse. Confirming the order of the learned Single Judge, the Division Bench held that as the appellant had failed to furnish any explanation as to why the delay of 11 years had occurred, in challenging the order passed by the Gujarat Revenue Tribunal, especially when he was aware of the said order. In this factual background, the Division Bench held that the petition had rightly not been entertained by the learned Single Judge. This decision would not apply to the facts of the present case as the Revisional Authority has not come to the conclusion that the delay is unexplained, or that the petitioner has made misstatements. On the contrary, the Revisional Authority has not gone into the grounds advanced by the petitioner in the application for condonation of delay, at all.
16. The case of the petitioner may now be viewed in the backdrop of the above quoted judicial pronouncements. It is not disputed that the petitioner has filed the Revision Application after 9 years from the order dated 30.05.2002 passed by the Collector. The Revision Application was accompanied by an application for condonation of delay u/s 5 of the Limitation Act, 1963, in support of which no affidavit appears to have been appended by the petitioner. A copy of the said application has been annexed as Annexure-I to the petition. A perusal thereof reveals that in Paragraph-2, the petitioner has explained the delay, stating, that due to adverse circumstances and the continuous illness of his minor daughter, he could not file the Revision Application within the prescribed period of time, as he had to take his daughter for treatment to Surendranagar and Ahmedabad, where such treatment is still continuing. It has also been stated that during this period, the father of the petitioner had been taken ill, and ultimately passed away, on 20.03.2007. The Death Certificate of his father, and the medical documents pertaining to the illness of his daughter, have been produced by the petitioner along with the application for condonation of delay.
17. The question whether sufficient cause has been shown by the petitioner for condonation of delay, or not, has not even been gone into by the Revisional Authority, as is clear from the impugned order. The Revision Application has been rejected solely on the ground that it has been filed after 9 years and that the application for condonation of delay is not accompanied by an affidavit of the petitioner.
18. Though it has been contended by the learned Advocate for respondent No. 2 that the delay with effect from 30.05.2002 upto 2005 has not been explained, that is not the ground on which the Revision Application has been rejected. Another contention of the learned Advocate for respondent No. 2, to the effect that after passing of the order by the Collector, the petitioner withdrew the Civil Suit, as he was not willing to pursue the litigation between the parties, is a presumptions contention, as the Revisional Authority has not considered the grounds advanced by the rival parties for, or against, condonation of delay. What has not been submitted before the Revisional Authority in the first place cannot be considered by this Court.
19. A perusal of the impugned order makes it clear that no reasons have been advanced for rejection of the Revision Application, except that it has been filed after 9 years and that the application is not supported by an affidavit. The explanation preferred by the petitioner for condonation of delay in Paragraph-2 of the application for condonation of delay has been totally ignored by the Revisional Authority. However, no conclusion has been arrived at in the impugned order, that sufficient cause has not been shown.
20. In the view of this Court, the approach adopted by the Revisional Authority is at total variance with the sound legal principles enunciated by the Supreme Court, and this Court, in the above quoted judgments. The Revisional Authority is bound to consider the grounds advanced in application for condonation of delay, and to decide on the facts and circumstances of the case, whether sufficient cause has been shown by the petitioner, or not. Instead of this, the Revisional Authority has straight away rejected the Revision Application on the ground that it is delayed by 9 years and is not accompanied by an affidavit. This course of action, being highly technical and pedantic, cannot be approved by this Court as it defeats the ends of justice. Acting as a quasi-judicial authority, the Revisional Authority is bound to consider the reasons advanced in the application for condontion of delay, in order to decide whether sufficient cause has been shown, or not. If the Authority was of the view that an affidavit ought to have been filed by the petitioner, it could have permitted the petitioner to file one, or to refile the application along with an affidavit. The cause of the petitioner could, and should not have, been summarily rejected on the ground of non-filing of an affidavit, without considering whether the petitioner has shown sufficient cause. The impugned order passed by the Revisional Authority is, therefore, fundamentally and legally flawed, as it rejects the Revision Application itself on the ground of 9 years delay, without considering the reasons for condonation of delay. Once delay is taken as the basis for rejection of the application, the Revisional Authority is bound to consider, then the aspect whether sufficient cause has been shown or not. By adopting a hyper technical approach, the Revisional Authority has acted in a manner that has eroded the cause of substantial justice, resulting in injustice being caused to the petitioner.
21. The submission advanced by the learned Advocate for respondent No. 2, that even if the Revision Application has been entertained after condoning the delay, the Revisional Authority would not have jurisdiction to decide, as the issue involved ought to be agitated before the Civil Court, cannot be considered by this Court while deciding a petition challenging the rejection of the Revision Application on the ground of delay. Besides, this submission does not seem to have been advanced before the Revisional Authority.
22. For the aforestated reasons, the impugned order dated 12.08.2011 passed by the Secretary (Appeals), Revenue Department, is quashed and set aside. The matter is remanded to the Secretary for fresh hearing of the application for condonation of delay, in accordance with law, after granting the parties an opportunity of hearing. The decision shall be rendered within a period of three months from the date of receipt of a copy of this order. The petition is partly-allowed, in the above terms. Rule is made absolute, to the above extent. There shall be no orders as to costs.
