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Gujarat High Court
Judgename :Y.B.BHATT
PARSHOTTAM RAMAJI RATHOD - Appellant
Versus
DHIRAJLAL DHARAMSHI MISTRY - Respondent
S.C.A. 1788 of 1999
Decided On : 06/24/1999
The Collector rejected the said appeal by order dated 27th October, 1996 by holding that the said appeal was time barred, and beyond the period of limitation, as having been filed 27 years after the certification of the original entry in the years 1968.
[Para 2.4]
Against the order of the Collector the petitioners preferred a revision being Revision Application No. 4/97 before the Additional Chief Secretary (Appeal).This revision was also dismissed by order dated 13th November 1998.
[Para 2.5]
The present petition under Art. 227 of the Constitution of India (although styled as the petition under Art. 226 read with Art. 14 of the Constitution of India) does not disclose any error apparent on the face of the record, neither is there any indication that the same suffers from any fundamental jurisdictional error. This petition is, therefore, liable to be rejected on this ground alone.
[Para 3]
Learned Counsel for the petitioner seeks to overcome this hurdle by contending that where the subject matter of challenge in the appeal viz. the entries in question are themselves void ab initio, the very concept of limitation cannot apply. This submission is fallacious for the simple reason that if the relevant entries in question were, in the opinion of the petitioners, null and void ab initio, it was open to the petitioners to ignore their existence since according to the petitioners, they had no effect in law. It was also open to the petitioners, if their so-called rights were challenged in any proceedings before in any forum, to contend that their rights cannot be challenged on the basis of any entry which is in itself null and void and ab initio. However, the petitioners have not adopted this course. What the petitioners have chosen to do is to approach the appropriate forum specifically for declararation that the entries are null and void. The petitioners, therefore, have approached the forum for a specific declaration, sought on various grounds including the grounds that such entries are null and void. However it cannot be overlooked that the petitioners are seeking to exercise a statutory right of appeal for the purpose of obtaining such a declaration. Obviously such a declaration could not possibly be obtained by the petitioners except by exercising such statutory right. Once this statutory right is sought to be exercised, as explained hereinabove, such right must be exercised within the period of limitation. It can not, then be contended that although the right is sought to be exercised beyond the period of limitation, the concept of limitation becomes irrelevant merely because one of the grounds of challenge to the entries is that they are null and void.
[Para 7]
( 1 ) THIS is a petition under Art. 227 of the Constitution of India wherein the petitioners challenge the order of the Collector rejecting their appeal, and the order of dismissal passed by the Additional Chief Secretary (Appeal) in a revision arising from the aforesaid appeal.
( 2 ) THE relevant and pertinent facts leading upto the present petition are as under :2. 1 The petitioners contend that the agricultural lands in question stood in the name of Ghela Khima who was a predecessor of the present petitioners at least upto the year 1964. Thereafter, when the said Ghela Khima died, the lands were entered in the name of first respondent as the heir of the deceased Ghela Khima. The relevant entry whereby the name of the first respondent was entered is entry No. 1182. The kachha entry was made on 22/07/1968, and after following the due procedure, the said entry was certified on 17/09/1968. Thereafter, in conformation of the aforesaid entry No. 1182, the Deputy Collector, after following the due procedure, promulgated a consequential entry No. 272 on 29/05/1978, whereby the holding of the lands in question was confirmed in favour of the first respondent. Thereafter, the first respondent, as a holder of the said land, sold the same to respondent No. 2 by registered sale deed. 2. 2 It is pertinent to note here that the sale deed executed on 14/02/1994 has been challenged by the petitioner No. 1 by filing Special Civil Suit No. 93 of 1995 before the civil Court, which is still pending. It is also common ground that after the second respondent became the holder of the said land, an application was made to the Collector for conversion of the same into non-agricultural use, which was granted by order dated 12/07/1994. 2. 3 Thereafter, as late as on 12/10/1995, after 27 years the petitioners challenged the entry Nos. 1182 and 272 before the Collector by filing what is called revision Application No. 37 of 1995. It is an admitted fact that although the said proceeding was styled as revision, it was in fact an appeal because only an appeal would lie. It is also conceded that the Collector has treated the same as an appeal and has dealt with the same accordingly. 2. 4 The Collector rejected the said appeal by order dated 27/10/1996 by holding that the said appeal was time-barred, and beyond the period of limitation, as having been filed 27 years after the certification of the original entry in the year 1968. 2. 5 Against the order of the Collector the petitioners preferred a revision being revision Application No. 4 of 1997 before the Additional Chief Secretary (Appeal ). This revision was also dismissed by order dated 13/11/1998. 2. 6 The petitioners have, therefore, in the present petition challenged the aforesaid orders under Art. 227 of the Constitution of India.
( 3 ) SUFFICE it to say, that the present petition under Art. 227 of the Constitution of India (although styled as the petition under Art. 226 read with Art. 14 of the constitution of India) does not disclose any error apparent on the face of the record, neither is there any indication that the same suffers from any fundamental jurisdictional error. This petition is, therefore, liable to be rejected on this ground alone.
( 4 ) LEARNED Counsel for the petitioners, however, contends that both the original appeal before the Collector as also the consequential revision have been rejected basically on the ground that the appeal was time-barred and beyond the period of limitation. In this context, it is submitted that the original entries which are the subject-matter of the appeal were null and void ab initio and that therefore the very concept of limitation would not apply.
( 5 ) WITH a view to substantiate this proposition, learned Counsel for the petitioners seeks to place reliance upon a decision of this Court in the case of govindbhai Somabhai Nai v. State of Gujarat and Ors. , reported at 1987 (2) GLR 760. 5. 1 With a view to take support from the said decision
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