PATEL HIRABEN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this petition under Article 227 of the Constitution of India, the petitioners have prayed for an appropriate writ, direction and order quashing and setting aside the order dated 8.1.1998 passed by the Gujarat Revenue Tribunal in Revision Application No.747 of 1991 (Annexure D); order dated 15.10.2008 passed by the Gujarat Revenue Tribunal in Restoration Application No. TEN.BA 8 of 2008 (Annexure G) and the order dated 28.7.2009 passed by the Gujarat Revenue Tribunal in Miscellaneous Application No.1 of 2009 (Annexure I).

(2.) That being aggrieved and dissatisfied with order passed by the Deputy Collector (LR), Mehsana dated 8.8.1991 in Tenancy Appeal No.96 of 1990, the petitioners preferred revision application being No. TEN.BA 747 of 1991. That the said revision was admitted by the Tribunal and the Tribunal also granted stay of the orders passed by the lower authorities by its order dated 1.10.1991. It appears that the aforesaid revision application came up for hearing in the year 1997 and at that time it was found that one of the respondent-tenant Patel Nathalal Viramdas died and no steps were taken for joining heirs of deceased Patel Nathalal Viramdas on record and therefore, the Tribunal vide its order dated 8.1.1998 dismissed the said revision application as abated as a whole. It is the case of the petitioners that as such they were not aware about the order dated 8.1.1998 of the Tribunal dismissing the said revision application as abated as a whole, however they came to know when they received notice of hearing of suo motu revision application no.2 of 2008. That thereafter, immediately the petitioners preferred Restoration Application TEN.BA No.8 of 2008 with an application to condone the delay under Section 20 of the Bombay Revenue Tribunal Regulation under some misconception that that matter was dismissed for non prosecution. That the Tribunal by an order dated 15.10.2008 dismissed the said application on the technical ground that application was preferred on the wrong regulation. The Tribunal was of the opinion that instead of submitting the application for setting aside the abatement under Regulation 28, the petitioners have submitted the application for restoration under Regulation 20. It appears that thereafter having realized the mistake, the petitioners submitted another application being Miscellaneous Application No.1 of 2009 before the Tribunal for setting aside the abatement under Regulation 28 of the Bombay Revenue Tribunal Regulation, however the said application came to be dismissed by the Tribunal by order dated 28.7.2009 only on the ground of delay. Being aggrieved and dissatisfied with the aforesaid three orders inclusive of the original order passed by the Tribunal dated 8.1.1998 in dismissing the revision application being TEN.BA No. 747 of 1991 as abated as a whole, the petitioners have preferred the present Special Civil Application under Article 227 of the Constitution of India.

(3.) Shri Trilok Patel, learned advocate for the petitioners-original revisionist has vehemently submitted that the Tribunal has taken too technical view while dismissing the application submitted by the petitioners for setting aside the abatement. It is submitted that as such there was no mala fide intention on the part of the petitioners in not submitting the application to bring the heirs of original respondent no.3 on record and/ or subsequently to submit the appropriate application for abatement. It is submitted that as soon as they came to know about dismissal of the revision application as having become abated as a whole, they submitted the application however under the misconception that the revision application was dismissed for non prosecution, the application was submitted under Regulation 20, which came to be rejected by the Tribunal on technical ground that application ought to have made under Regulation 28. It is submitted that having realized the mistake the petitioners submitted the application for setting aside the abatement under Regulation 28 which is rejected solely on technical ground of delay. It is submitted that petitioners are ready and willing to pay the cost. It is submitted that as held by the Hon'ble Supreme Court as well as this Court in catena of decisions, the party should be given an opportunity to contest the case on merits rather than non suiting the litigants on the technical ground of delay. It is submitted that to complete and substantial justice, the application submitted by the petitioners for setting aside the abatement be allowed on imposing reasonable cost. Therefore, it is requested to allow the present Special Civil Application.