IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 617 of 2016 ========================================================== SAMJUBEN VALLABHBHAI KATHROTIYA & 6....Petitioner(s) Versus STATE OF GUJARAT & 5....Respondent(s) ========================================================== Appearance: MS MAMTA R VYAS, ADVOCATE for the Petitioner(s) No. 1 7 MR SHIRISH GOHIL, AGP for the Respondent(s) No. 1 4 ========================================================== CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 05/10/2016
1. Heard Ms. Mamta Vyas, learned counsel for the petitioners.
2. By way of this petition under Article 226 of the Constitution, the petitioners have challenged the order dated 30.11.2015 passed by the learned Secretary, Revenue Department (Appeals) in Revision Application No. MVV/HKP/AMAM/31/2014, whereby the order dated 30.01.2014 passed by the learned Collector, Amreli, in Revision 108(6) Case No.137/13 is confirmed.
3. The facts which arise from the record of the petition are as under: 3.1 That the present petitioners are heirs of Vallabhbhai Vaghjibhai Kathrotiya, who as per the record, expired on 10.02.2010. The respondent no.5 herein is the real brother of deceased Vallabhbhai. The petitioners claim that their predecessor deceased Vallabhbhai Kathrotiya was owner and occupier of land bearing Survey No.999/1k part at Amreli, total admeasuring 8 acres 15 gunthas. The record indicates that out of 8 acres and 15 gunthas of land, Vallabhbhai parted with 3 acres and 15 gunthas of land in favour of his elder brother respondent no.5 Girdharbhai Vaghjibhai for which entry being Entry No.10929 was mutated on 23.12.1997 and the same was certified on 19.03.1998. On the sad demise of Shri Vallabhbhai on 12.02.2010, when the petitioners as heirs of Vallabhbhai, went for mutation of their names, they came to know for the first time that 3 acres and 15 gunthas of land bears the name of respondent no.5. 3.2 The said entry being entry no.10929 came to be challenged before the Deputy Collector, Amreli under Rule 108(5) of the Rules, being Revenue Case No.11/13, which was rejected by the Deputy Collector vide order dated 07.09.2013. Being aggrieved by the order of the Deputy Collector, the petitioners herein filed a revision under Rule 108(6) of the Gujarat Land Revenue Rules, 1972, before the District Collector, Amreli, which came to be rejected vide order dated 30.01.2014 against which the petitioners preferred revision application before the learned secretary under rule 108(6)(a) being Revision Application No. MVV/HKP/AMAM/31/2014. The said revision was also dismissed by the learned Secretary by an order dated 30.11.2015. All the three orders are impugned before this Court.
4. Ms. Mamta Vyas, learned counsel for the petitioners has raised the following contentions
1) That the record of 135(d) notice bears bogus signature of Vallabhbhai.
2) Relying upon the signatures made by Vallabhbhai during his life time in the year 1996 in the vakalatnama as well as in the application for reference under section 18 of the Land Acquisition Act, 1894, it was contended that the method and manner in which Vallabhbhai has signed those papers and the section 135(d) notice as well as sammati reply are different and therefore, they are bogus.
3) It was contended that though there is a delay, the petitioners came to know about the same only on sad demise of Shri Vallabhbhai on 12.02.2010 and when the petitioners made effort to get their names mutated.
4) It was also contended that the petitioners are in possession of the land in question and are actually tilling the land. It was also further contended that as it was a self acquired property of Vallabhbhai, there is no question of any family arrangement and transfer in favour of respondent no.5 who happens to be elder brother of Shri Vallabhbhai. It was therefore contended that the matter requires consideration.
5. Mr. Shirish Gohil, learned AGP has supported the impugned orders and has submitted that no interference is called for.
6. No other or further submissions are made by the learned counsel appearing for the parties.
7. At the outset it may be stated that during the lifetime of Shri Vallabbhai, he has never raised objection to the entry in question being Entry No.10929 mutated on 23.12.1997. It appears that notice under 135 (d)(1) of the Bombay Land Revenue Code was issued and both Shri Girdharbhai and Shri Vallabhbhai have given their reply before the competent authority which is forming part of the record.
8. There is nothing on record to show that the land in question was self acquired property of Vallabhbhai. It is also an admitted position that for the first time, in 2012, the objections were raised by the present petitioners by way of filing an appeal as provided under rule 108 of the rules. On perusal of the order passed by the learned Deputy Collector, it appears that the Deputy Collector has considered that there is a delay of 16 years which has not been explained and therefore, the appeal was not entertained. Similarly, on perusal of the order passed by the learned District Collector, it appears that the District Collector has also confirmed the findings arrived at by the Deputy Collector and has further observed that the grounds which are raised by the petitioners should have been gone to the competent Civil Court. The learned Secretary has also in the order impugned, while confirming the concurrent findings, has noted the said facts. It is an admitted position that the entry was mutated on 23.12.1997 and certified on 19.03.1998 when Shri Vallabhbhai was alive. Shri Vallabhbhai expired after 14 years from the date of certification of the said entry and during his life time, he has not raised any objection. Secondly, the contention raised by Ms. Mamta Vyas that signatures defer and therefore, the proceedings before the competent authority while mutating the entry no.10929 is based on bogus signature is not only a belated contention but is without any proof as mere comparison would not mean that the signatures are bogus. The niceties which Ms. Mamta Vyas has tried to canvass that the signatures are different in land acquisition proceedings where deceased Vallabhbhai has signed as Vallabhbhai ni sahi whereas in reply given before the competent authority, while mutating entry no.10929, it is only Vallabhbhai is not only farfetched but without any basis that too after a lapse of 16 years as rightly observed by the learned Deputy Collector and confirmed by two concurrent findings by Collector as well as the Secretary. The Hon'ble Division Bench of this Court in LPA No.139/16 by an order dated 03.03.2016, while considering the aspect of delay, while considering the ratio laid down by the Apex Court in the case of State of M.P. vs. Bhailal reported in 1964 AIR 1006 has held that writ jurisdiction can be invoked not beyond limitation of filing suit, namely, for 3 years and within reasonable time period.
9. Ms.Vyas, learned counsel for the petitioners has candidly agreed that limitation provided for filing a suit is 3 years and admittedly, there is delay of 16 years and therefore, in opinion of this Court, the petitioners cannot be permitted to now reopen the same and as it was never objected by Vallabhbhai during his lifetime by challenging the mutation entry.
10. In light of the aforesaid therefore, the present petition is devoid of any merits and there is no error apparent on the face of the record which warrants interference by this Court under Article
226 of the Constitution to the three concurrent findings arrived at by the authorities. The petition is therefore liable to be dismissed and is hereby dismissed in limine. However, there shall be no order as to costs. (R.M.CHHAYA, J.) bjoy