Back
2010 (1) GCD 866 (Guj)
Hon’ble Mr. Justice D.A. Mehta
Kalpeshbhai Natwarlal Patel
Versus
State of Gujarat & Anr.
Special Civil Application No. 5845 of 2009—Decided on 07-8/07/2009
Held :
It is required to be noted and reiterated that even this order of 31.1.1969 was not challenged for a period of 35 years from the date of the order and the Appeal came to be filed for the first time only on 20.10.2004. For the self same reasons, namely, the gross delay which has occurred in challenging order dated 31.1.1969, the petitioners are not entitled to any relief. In the event deceased Somabhai, against whom the proceedings under Section 32P of the Act were conducted, was aggrieved, he would have himself taken steps to challenge the order made in 1969. In the present case also there are no grounds for explaining the period of delay of as many as 35 years. It is apparent that till order dated 5.4.1963 was in existence, the petitioners could not have challenged order dated 31.1.1969 and therefore only after the order was made on 23.10.2003 by the Deputy Collector the petitioners filed Appeal challenging order dated 31.1.1969 under Section 32P of the Act. Therefore, on this limited count the challenge to this order should fail. Even otherwise, no infirmity exists in the order dated 20.10.2007/14.11.2007. [Para 14]
The submission that deceased Somabhai was the owner of the land in question and could not have been treated as a tenant would have merited consideration provided such a challenge had been raised by deceased Somabhai at an appropriate point of time, i.e. within the period of limitation. With the passage of time stale issues cannot be permitted to be reactivated without the persons raising the issue explaining the delay which has occurred in raising the appropriate challenge. In other words, why the remedy was not invoked within the period of limitation. [Para 16]
Proceedings under Section 32-G of the Act dated 5.4.1963 having attained finality, in absence of challenge within the period of limitation, consequential proceedings under Section 32P of the Act cannot be successfully challenged, and that too without explaining the gross delay which has occurred in challenging both the sets of proceedings, and a finding being recorded by the Appellate Authority first condoning the delay. [Para 18]
Law Laid Down :
If remedy is not invoked within period of limitation no relief can be granted.
D.A. Mehta, J.—This petition challenges order dated 31.1.1969 made by Mamlatdar & ALT, Gandhinagar in proceeding bearing No. 199/32P/Pethapur as well as order dated 20.10.2007 made by Respondent No. 1 Authority in Appeal No. MVV/Ganot/Gadhan/5/04 dated 14.11.2007 (20.10.2007) in the backdrop of following facts and circumstances of the case.
2. The petitioners are legal heirs of deceased Somabhai Bholidas Patel and have preferred this petition through Power of Attorney Holder, one Shri Prakash Sankalchand Patel who has been given Irrevocable General Power of Attorney executed on 10.07.2005. Paragraph No. 4 of the Power of Attorney categorically records that this power is an irrevocable general Power of Attorney with consideration (emphasis supplied). Thus it is apparent that the legal heirs have given up all their rights in favour of Power of Attorney Holder for a consideration. Narration of these facts is necessary for the reasons that shall be recorded hereinafter.
3. It is the say of the petitioners that deceased Somabhai purchased the land bearing survey No. 1270 at Pethapur, District Gandhinagar and deceased was cultivating the said land since 10.4.1956. That revenue record carried the name of one Shri Naranbhai Patel as tenant in the same survey number, though alleged to be on a different parcel of land. That vide order dated 5.4.1963 in proceedings under Section 32G of The Bombay Tenancy And Agricultural Lands Act, 1948 (the Act), the Mamlatdar held that as the tenant was not interested in purchasing the land, the land be resumed by the State Government through the Collector. In the petition it is repeatedly stressed that Shri Naranbhai was not in possession of the land stated to have been purchased by the petitioners, but a different part of the same survey number.
4. On 31.1.1969 the Mamlatdar is stated to have made an order under Section 32P(7)(8) of the Act directing that deceased Somabhai be granted the said land only for the purpose of cultivation.
5. The petitioners challenged the order made on 5.4.1963 by preferring an Appeal before Deputy Collector (Land Reform) Appeal, Gandhinagar on 11.11.2002. The said Appeal came to be allowed and the Deputy Collector quashed order dated 5.4.1963 vide order dated 23.10.2003.
6. The petitioners thereafter, preferred Appeal before Respondent No. 1 Authority on 20.10.2004 challenging order of Mamlatdar & ALT dated 31.1.1969. This Appeal under Section 32-P(9) of the Act came to be dismissed. Hence the petition.
7. Heard learned Advocate for the petitioners. It was submitted that proceedings under Section 32-P of the Act could not have been taken by the Authority, as firstly, there was no tenant on the land in question, and secondly, deceased father of the petitioners was wrongly treated as a tenant by the Revenue Authorities. It was submitted that once order dated 5.4.1963 relating to proceedings under Section 32-G of the Act was quashed and set aside by the Deputy Collector by his order dated 23.10.2003, no proceedings under Section 32-P of the Act could have been initiated, and thus the impugned order made by Mamlatdar & ALT on 31.1.1969 restricting the rights of the petitioners, as confirmed by the Appellate Authority vide order dated 14.11.2007, should be held to be bad in law, the entire proceedings having been based on an incorrect premise, namely, the deceased father of the petitioners being a tenant over the land in question despite the fact that the land had been purchased by the deceased father under a sale-deed before the appointed day under the Act as provided in Section 32 of the Act.
8. The petition does not merit acceptance for the reasons that follow hereinafter. It is an accepted position that both the orders made on 5.4.1963 and 31.1.1969 respectively, under Sections 32-G and 32-P of the Act, were made against deceased Somabhai and though the exact date of death of the said gentleman is not available, the said orders were never challenged by deceased Somabha
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
