SABURBHAI MEGHABHAI TADVI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellants herein are petitioners in Special Civil Application No.10752 of 2011, which is rejected by the learned Single Judge on 6.9.2011. Such order of rejection is challenged herein.

(2.) BEFORE entering into the factual details of the case, it would be appropriate to recollect that the issue involved in the matter, more particularly, in view of the observation and decision by the learned Single Judge in the impugned order, is well settled and there is a direct decision of this Court in the case of Babubhai Bhagwanji Mehta & Ors. Vs.State of Gujarat Special Secretary (Appeals) & Ors. reported in 2004(1) GLR 532. In such reported case, it has been decided that in the cases like the present one, the Authorities below ought not to have thrown out the case on the ground of delay only, more particularly, when the order of cancellation of mutation entry was passed behind the back of the concerned persons. It was made clear that such mutation entry is clear violation of principle of natural justice and, therefore, ought to have been quashed and set-aside. Coming to such conclusion, the Division Bench of High Court has relied upon the judgment of the Hon ble Supreme Court in the case of Collector, Land Acquisition, Anantnag Vs.Mst.Katiji reported in AIR 1987 SC 1353 wherein the Hon ble Apex Court has held that refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is con- doned the highest that can happen is that a cause would be decided on merits after hearing the parties. It is also observed by the Hon ble Apex Court in such case that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. In such case of Babubhai (Supra), the delay of 14 years was condoned with an opinion that the period of limitation would start only from the date of knowledge when Authorities had straightway cancelled the mutation entry without affording any opportunity of hearing to the concerned person.

(3.) IT is submitted by the appellants that in revenue record, name of their predecessor was shown till 1991, and from 1991, name of Bhima Somla was entered without their knowledge and without serving them notice for said mutation. Therefore, if mutation entry is certified without notice to all concerned, then, such illegal act cannot be confirmed only on technical ground like delay.