NATHABHAI MALANDBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Learned A.G.P. waives service for respondent No. 1.

(2.) The petitioners have called into question order dated 8-9-2009 of the Secretary (Appeals) in the Revision Application filed by the original petitioner, who is now no more, under Sec. 211 of the Land Revenue Code, whereby the revision application was dismissed only on the ground of delay which was not condoned. It is observed by the Secretary in the impugned order that the revision was preferred from order dated 25-1-2005 of the Collector, after delay of three years and three months even as a copy of that order was served upon the original petitioner by Registered Post A.D. The original petitioner, who is now substituted by heirs, had contented that he was suffering from serious disease of kidney and he had submitted prescription of doctors in support of his plea for condoning delay. However, since the prescription or medical report was in respect of the treatment taken in the year 2006, the authority concluded that there is no reason to condone delay for the period subsequent to the year 2006.

(3.) It was argued by learned Counsel, Mr. M. S. Shah, appearing for the petitioners, that the condition of the original petitioner only deteriorated after the disease of the kidney was aggravated, and in fact, the original petitioner died on 6-11-2009. He also submitted that the Deputy Collector had taken more than three years in making the original order, and thereafter, the original petitioner's application had taken five years before being decided by the Collector. In those facts, the delay caused by terminal sickness of the petitioner ought to have been treated as a sufficient ground for condoning delay. Learned Counsel relied upon judgment of this Court in State of Gujarat v. Natvarlal Mohanlal Shah, 2007 1 GLR 3, wherein it was observed that where the Court finds on merits that serious injustice was caused to a party, the Court would not reject the petition only on the ground of delay, particularly when rights of the parties have not been altered during the period of delay. He also relied upon judgment of the Apex Court in N. Balakrishnan v. M. Krishnamurthy, 1998 AIR(SC) 3222 to submit that in every case of delay there can be some lapse on the part of the litigant concerned; but that alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not putforth as part of a dilatory strategy the Court must show utmost consideration to the suitor.