MEHBOOB GULAM JARBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THOUGH this Letters Patent Appeal is listed for admission, wherein there is an order to maintain status-quo in respect of the land in question till date, Ld. Counsel for the parties requested to take up the appeal for final disposal. Hence Admit. Ms. Krina Calla, Ld. AGP waives service of notice of admission for respondent no. 1 and Mr. Harshadray A Dave, Ld. Counsel waives service of notice of admission for respondent nos. 2 to 5.

(2.) PRESENT Letters Patent Appeal is preferred against the judgment and order dated 15/6/2012 passed in Misc. Civil Application No. 386/2012 by the Ld. Single Judge, for review of the judgment and order dated 11/12/2008 passed in Special Civil Application No. 4546/2001. By judgment and order dated 11/12/2008 passed in Special Civil Application No. 4546/2001, the Ld. Single Judge has disposed of the matter with certain directions, thereby order dated 29/3/2001 passed by the Collector, Surat was partly set aside so far as it pertains to entry no. 2768 dated 1/12/1994, upholding the rest part of the order. In order dated 29/3/2001 by the Collector, Surat was passed in revision under rule 108 [6] of the Gujarat Land Revenue Rules [Annexure-C to the main petition being Special Civil Application No. 4546/2001], there are in-all five respondents including predecessor in title of the present appellant, namely Gulam Rasul Jarbhai being respondent no. 2. The entry no. 2768, which is set aside by the Ld. Single Judge in above referred judgment, was pertaining to the land bearing Block No. 311, which was owned by said Gulam Rasul Jarbhai. Such entry was set aside by the Collector and such decision has been dragged to this Court by way of present appeal.

(3.) RESPONDENT no. 5 has filed affidavit-in- reply on 26/4/2012 before this Court wherein it is no-where pleaded that present appellant is not legal heir of Gulam Rasul Jarbhai, on the contrary, in para 4 [c] it is contended that pursuant to deletion of original respondent no. 2 [Gulam Rasul Jarbhai], the respondent no. 2 does not remain to be party to the proceedings and, therefore, present appellant [being legal heir of Gulam Rasul Jarbhai] has no locus to prefer such application. In para 5-B, it is further contended that the land in question was transferred by respondent no. 2 by a gift-deed and it is also stated that the interest of the present appellant or original respondent no. 2 was protected by the Court and, therefore, no prejudice has been caused to the appellant or the respondent no. 2 [Gulam Rasul Jarbhai] by the impugned order. In para 5-D, it is further contended that the appellant as well as original respondent no. 2 through his heirs does not possess locus-standi to prefer such application for recalling the order passed in the petition preferred by him along with respondent nos. 2 to 4 as the same would be barred by the principle of constructive res-judicata since original respondent no. 2 [Gulam Rasul Jarbhai] had denied to accept the notice and had chosen not to remain present before this Court. Surprisingly, if we read this reply with the contentions in the Special Civil Application itself, as stated hereinabove, in Misc. Civil Application the same person, namely Ashfaque Mohiuddin Araf has contended that Gulam Rasul Jarbhai has no issue and, therefore, land in question was vested in respondent nos. 2 to 4 herein under family settlement. Moreover, the statement in reply is not correct for the simple reason that if Gulam Rasul Jarbhai has refused to accept the notice, then in that case, Special Civil Application could have been decided in his of provisions of The Transfer of Properties Act as well as Registration Act while confirming the entry no. 2768 whereby the land in question was transferred from Gulam Rasul Jarbhai to present respondent no. 5 - Ashfaque Mohiuddin Araf and thereby the revenue authorities have specifically mentioned in its order that validity of transaction is the real issue since there is breach of legal provisions and relied upon the judgment in Special Civil Application No. 267/1997 that there cannot be bar of limitation in setting aside illegal orders. The Ld. Single Judge has given a benefit of initiating proceedings at belated stage so far as second entry No. 2933 is concerned. If the entry no. 2933 dated 4/10/1998 can be set aside on the ground of lapse of time, how entry no. 2768 dated 1/12/1994 can be allowed to be confirmed only on the ground of delay in initiating suo-motu proceedings by the revenue authority, more particularly when revenue authority has specifically observed in its order dated 29/3/2001 that validity of such transaction is illegal and that if at all such transaction is there, then it is sale transaction, which is not permissible under the law. 7 In general, the settled legal position is clear that no order can be passed against a person without providing him proper and reasonable opportunity. Whereas in the present case, the Ld. Single Judge has by order dated 11/12/2008 confirmed the entry no. 2768 wherein the interested person is Gulam Rasul Jarbhai though he was not litigant in such Special Civil Application as his name was deleted and to that extent, the finding arrived at by the Ld. Single Judge in Misc. Civil Application No. 386/2012 by the impugned judgment and order dated 15/6/2012 that since by such an entry gift was recorded, present appellant was not necessary party, is not tenable and needs to be quashed and set aside. 8 In view of the aforesaid, present Letters Patent Appeal is allowed, thereby the judgment and order dated 15/6/2012 passed in Misc. Civil Application No. 386/2012 and order dated 11/12/2008 passed in Special Civil Application No. 4546/2001 are hereby quashed and set aside and Special Civil Application No. 4546/2001 is remanded back to the Ld. Single Judge for deciding afresh in accordance with law, after giving reasonable opportunity to the present appellant. Civil Application for stay also stands disposed of accordingly.