SCA/1146920/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11469 of 2008 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= CHHAGANBHAI SHIVRAMBHAI DARJI - Petitioner(s) Versus ANJANA MOTI MULJI & 5 - Respondent(s) ========================================================= Appearance : MR BN PATEL for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.3.1, 1.3.2,1.3.3 None for Respondent(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5,1.2.6 - 2, 2.2.1, 2.2.2,2.2.3 - 3, 3.2.1,3.2.2 - 4, 4.2.1, 4.2.2, 4.2.3, 4.2.4, 4.2.5, 4.2.6, 6, - for Respondent(s) : 0.0.0 ========================================================= CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 15/09/2008 ORAL JUDGMENT 1. Heard Mr. B.N. Patel, learned advocate for the petitioners. SCA/1146920/2008 2/8 JUDGMENT 2. By this petition under Article 226 of the Constitution of India, the petitioners have challenged the order dated 31st July, 2008 passed by the Gujarat Revenue Tribunal (the Tribunal) in Revision Application No.TEN.BA 111/2008, filed by the petitioners affirming the order dated 31st December, 2007 passed by the Assistant Collector, Palanpur, whereby the appeal preferred by the petitioners under section 74 of the Bombay Tenancy and Agricultural Lands Act, 1948 (the Act) against the order dated 7th November, 1974 passed by the Mamlatdar and Agricultural Lands Tribunal had been dismissed. 3. By order dated 5th December, 1964 the Mamlatdar and Agricultural Lands Tribunal, fixed the purchase price of the lands bearing survey No.172 Block No.162 of Lunva, Taluka Palanpur on restricted tenure under section 43 of the Act and vide order dated 5th November, 1974 Mutation Entry No.322 came to be made in the Record of Rights. On 2nd January, 2007, after a period of more than 33 years, the petitioners preferred an appeal against the order dated 5th SCA/1146920/2008 3/8 JUDGMENT November, 1974 before the Assistant Collector, Palanpur under section 74 of the Act being Tenancy Appeal No.1 of 2007. By the impugned order dated 31st December, 2007, the Assistant Collector, dismissed the appeal. The petitioners carried the matter in revision before the Gujarat Revenue Tribunal being Revision Application No.TEN. B.A.111/2008. By the impugned order dated 31st July, 2008 the Tribunal rejected the revision application, which has given rise to the present petition. 4. The learned advocate for the petitioners has submitted that the application made before the Tribunal clearly shows that there is no delay in filing of the revision application. In the circumstances, the Tribunal was not justified in rejecting the application on the ground of limitation. Insofar as the impugned order passed by the Assistant Collector is concerned, it was submitted that it appears that there is no order dated 5th November, 1974 in existence in view of the fact that the Mamlatdar vide communication dated 19th June, 2007 has informed the petitioners that the SCA/1146920/2008 4/8 JUDGMENT record of the case is not traceable, hence, he is not in a position to furnish a copy of the order dated 5.11.1974. It is accordingly submitted that it appears that there is no such order in existence and that the mutation entry has fraudulently been made in the record of rights. It is further submitted that the petitioners are daughters of the deceased Panabhai Talsibhai and taking undue advantage of the fact that they were not residing in the village, fraudulent mutations have been made without notice under section 135-D of the Bombay Land Revenue Code. It is further submitted that the respondents No.1 to 4 who were shown to have purchased the lands in question as tenants under the provisions of the Act belong to different families and were holders of agricultural lands on their own, hence, they possibly could not have been tenants. It is urged that in the circumstances, the authorities below were not justified in dismissing the appeal and the revision application without deciding the same on merits. 5. As can be seen from the impugned order dated 31st December, 2007, the Assistant Collector has dismissed SCA/1146920/2008 5/8 JUDGMENT the petitioners’ appeal on three grounds: firstly on the ground that the petitioners have challenged the mutation entry of 1974 after a period of 33 years and that no reasonable cause has been shown for such delay; secondly on the ground that the appeal is not tenable even on the technical ground that the appellant has not annexed a certified copy of the order which is subject matter of challenge with the appeal memo; and lastly that from the arguments advanced before him, nothing specific is pointed out as to what grounds the impugned order of 1974 is illegal. 6. The fact that no copy of the impugned order dated 5th November, 1974, either simple or certified has been annexed with the appeal memo in the appeal preferred before the Assistant Collector, is not disputed. On behalf of the petitioners it is stated that the petitioners had made an application for a certified copy of the said order before the concerned Mamlatdar, however, the Mamlatdar by a communication dated 19th June, 2007 had informed them that upon carrying out search for the said documents, presently SCA/1146920/2008 6/8 JUDGMENT the same could not be traced, hence it is not possible to furnish a copy of the same. It is, accordingly contended that it appears that no such order is in existence. The said contention is misconceived, inasmuch as merely because the concerned authority after a period of more than 33 years since the passing of the order, at present is not in a position to trace out the record so as to furnish a copy to the petitioners does not mean that the said order was never in existence. In the circumstances, the learned Assistant Collector was justified in holding that the impugned order cannot be challenged in absence of a copy thereof. It is settled legal position that a party who seeks to challenge an order has to place the same on record for the perusal of appellate authority. In absence of the order under challenge it would be next to impossible for the higher authority to pronounce on the validity of the same. 7. Besides from the facts noted hereinabove, it is apparent that the Mamlatdar and ALT had fixed the purchase price of the lands in question by order SCA/1146920/2008 7/8 JUDGMENT dated 5th December, 1964 which does not appear to have been challenged. It appears that the mutation entry No.322, which came to be certified on 5th November, 1974 merely records the said transaction. Moreover as recorded by the learned Assistant Collector, on behalf of the petitioners no submission has been advanced on the merits of the said order as to on what ground the same is invalid. 8. The question of delay has also not been answered by the petitioners. The inordinate delay of 33 years in challenging the impugned order, without any sufficient cause being shown, is accordingly a just and proper ground for not entertaining the appeal filed by the petitioner. In the circumstances, there is no infirmity in the impugned order passed by the learned Assistant Collector. 9. Insofar as the impugned order passed by the Gujarat Revenue Tribunal is concerned, it is true that there was no delay in the filing of the revision application before the Tribunal. However, the Tribunal has not dismissed the revision application SCA/1146920/2008 8/8 JUDGMENT only on the ground of delay in filing the revision application but also on the ground that the appeal which had been filed before the Assistant Collector was filed after an inordinate delay of 33 years. In the circumstances, and more particularly in view of the fact that this Court has not found any infirmity in the order passed by the Assistant Collector which was subject matter of challenge before the Tribunal, no case is made out for any intervention by this Court. 10. For the foregoing reasons, this Court finds no merit in the petition. The same is accordingly dismissed, in limine. (HARSHA DEVANI, J.) shekhar/-