SCA/5597/2000 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5597 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA Sd/- ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= UMEDBHAI RAIMALBHAI SUTHAR & 4 - Petitioner(s) Versus STATE OF GUJARAT, THROUGH DY SECRETARY (APPEALS) & 3 - Respondent(s) ============================================================== Appearance : MR MEHUL H RATHOD for Petitioner(s) : 1 - 4. MR HH PARIKH, AGP. for Respondent(s) : 1 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 07/07/2008 ORAL JUDGMENT 1 This petition has been preferred by four persons who are the legal heirs of one Shri Raimal Mula Suthar, who is stated to have expired sometime in April,1971. The challenge is to the order dated 22.02.2000 made by respondent No.1 whereunder order SCA/5597/2000 2/7 JUDGMENT dated 10.12.1994 made by respondent No.2, order dated 30.11.1976 made by respondent No.3 and order dated 08.06.1971 made by respondent No.4 have been upheld. 2 It is the case of the petitioners that deceased Raimal Mula Suthar was holding land bearing Survey Nos.1126,1381/2 and 1415 as an owner since 29.03.1969 at the time of promulgation. That despite such a position, on 08.06.1971 respondent No.4 declared the said lands as pasayat land and further ordered to pay occupancy price stated therein before 28.06.1971. That no notice of the proposed action was ever received by the petitioners and the petitioners were not even aware about the said order made by respondent No.4. The action of respondent No.4 was confirmed by respondent No.3 on 30.11.1976 by passing an exparte order whereunder land in question was ordered to be confiscated by declaring the same as khalsa on the ground that the occupancy price was not paid. 3 Respondent No.2 rejected the Revision Appeal on the ground of delay without considering the SCA/5597/2000 3/7 JUDGMENT contentions raised by the petitioners, including non observance of principles of natural justice and lack of opportunity. Respondent No.1 also rejected Revision Application by passing the impugned order on the ground that once the occupancy price had not been paid and the land had been confiscated the appeal was rightly dismissed as being barred by limitation. 4 On behalf of the petitioners it was submitted that the authorities have failed to appreciate the fact that no proceedings were initiated against the petitioners and the proceedings had been initiated against the deceased. That at no point of time any of the authorities had shown from the record that the petitioners were served with any notice of proceedings or served with the orders of respondent No.4 and respondent No.3. Lastly, it was submitted that respondent No.1 authority had accepted that as per revenue record the land in question had been entered in the name of deceased Raimal Mula Suthar by entry No.42 at the time of promulgation and there was no mention of the land in question being held by the deceased as pasayat land. Despite this position the SCA/5597/2000 4/7 JUDGMENT impugned order has been made after recording such a finding. It was therefore urged that the petition is required to be allowed. 5. On behalf of the respondent authorities learned Assistant Government Pleader submitted that the petitioners had not availed of the legal remedy within the period of limitation and hence respondent No.2 had rightly dismissed the appeal as being barred by limitation. That once the appeal was barred by limitation there was no question of anybody making a grievance that there was lack of opportunity. Referring to appeal memo filed before respondent No.2 it was submitted that the petitioners had accepted that the land in question was held by one of the petitioners i.e. widow of the deceased under Pasayat Act and therefore there was no error committed by any of the authorities and the petition was required to be rejected. 6. As can be seen from Village Form No. 6 (Annexure-B) entry No. 42 clearly denotes that at the time of promulgation the land was entered in the name of Raimal Mula Suthar as old khatedar and there is no SCA/5597/2000 5/7 JUDGMENT mention as land being pasayat land. This position has been accepted as correct by respondent No.1 authority in impugned order dated 22.02.2000. Once this fact is accepted it becomes apparent that the entire sequence of events commencing from passing an order dated 08.06.1971 was dehors the facts and without application of mind. It is not the case of the respondent authorities that even if the land was not occupied as a pasayat land the deceased, or the petitioners claiming through the deceased, were required to make payment of any occupancy price. If the deceased was not required to make payment there is no question of respondent No.3 passing an order on 30.11.1976 for confiscating the land in question for alleged non payment. 7. Furthermore, it is not disputed that Mr.Raimal Mula Suthar expired sometime in April,1971 and the proceedings have been initiated in June, 1971 after the death of the said gentleman. In fact the orders dated 08.06.1971 and 30.11.1976 have been admittedly made in the name of the deceased person. Thus, on this count also the proceedings cannot be sustained. SCA/5597/2000 6/7 JUDGMENT 8. Before respondent No.2 in the appeal memo the petitioners had specifically averred that the delay had occurred because the petitioners were never served with any notice of hearing nor were the petitioners served with copy of either order dated 08.06.1971 or order dated 30.11.1976. The appellate authority has failed to deal with the said contention and merely stated that the appeal is barred by limitation without recording any finding on the plea of existence of reasonable cause. The revisional authority has also while passing the impugned order failed to appreciate the said contention and mechanically confirmed the order made by the appellate authority upholding the finding that the appeal was barred by limitation. In absence of any finding by any of the authorities on the contentions pleaded by the petitioners in the appeal and in the revision, it is apparent that the averments made by the petitioners have remained unchallenged. 9. In light of the aforesaid facts which have come on record the request made by the learned Assistant SCA/5597/2000 7/7 JUDGMENT Government Pleader to grant an opportunity to file an Affidavit-in-Reply at this belated stage is not acceptable. Rule was issued as far back as on 19.06.2000. 10. Hence, for the reasons recorded hereinbefore the impugned order dated 22.02.2000 is quashed and set aside. As a consequence orders dated 10.12.1994, 30.11.1976 and 08.06.1971 made by respondent Nos. 2, 3 and 4 respectively are also quashed and set aside. The petition is allowed accordingly. Rule made absolute with no order as to costs. Sd/- (D.A.Mehta, J.) M.M.BHATT