SUKHIBEN WD/O NATHUBHAI GOPALBHAI Vs. THE WEST

JUDGEMENT

(1.) The challenge in this petition filed under Article 226 of the Constitution of India is to the order dated 10.07.2009 passed by the Special Secretary (Appeals) Revenue Department and also order dated 19.05.2004 passed by the Taluka Development Officer, Choryasi, Surat. By order dated 10.07.2009, the application preferred by the petitioners herein before the Special Secretary [Appeals], Revenue Department to condone the delay of 4 years came to be dismissed as the petitioner could not show sufficient cause to condone the delay and the order dated 19.05.2004 was passed by the Taluka Development Officer, Choryasi whereby correction was sought for in the measurement of the subject land. It appears from the record that by order dated 19.05.2004 the authority has corrected the measurement of the area from 23555.15 square meters to 28500 square meters.

(2.) Before the revisional authority in respect of condonation of delay the applicants have mainly contended that they had not received copy of the order of the Taluka Development Officer dated 19.05.2004 and that order was passed without issuing notice to the affected party viz. father of the applicants who according to learned advocate for the petitioners are not original owners and occupiers of the land and their names appeared in the revenue record. One more reason while explaining the delay, it was stated that in Tenancy Appeal No.34 of 2005 the respondents had produced copy of the order dated 19.05.2004 passed by the Taluka Development Officer, which was not given to the applicants - petitioners and later applied for certified copy and only on 02.08.2008 applicants - petitioners made an attempt to fetch the copy. The Special Secretary [Appeals] upon adverting to such submissions made by the petitioners for explanation of delay, noticed that against the order dated 26.09.2005 passed in Tenancy Case No.171 of 2004 by the Mamlatdar &ALT, Appeal No.34 of 2005 was preferred before the Deputy Collector, Choryasi, Surat and in the order dated 29.04.2008 passed by the Deputy Collector reference was already made to the order dated 19.05.2004, and therefore, unawareness or ignorance, if any, of the applicants - petitioners of the order dated 19.05.2004 was not believed. The above fact is also stated in the application, and therefore, belated knowledge of order dated 19.05.2004 passed by the Taluka Development Officer was not found to be sufficient cause to exercise discretion in favour of the applicants petitioners.

(3.) Mr. Jigar Raval, learned counsel for the petitioners, would contend that delay as such attributed to the petitioners is not deliberate or due to any negligence, but the fact remains that the Taluka Development Officer had passed order without issuing notice to the father of the affected parties since father of the applicants petitioners had expired. In addition to the above it is submitted that on merit since the petitioners are owners and the original landlords and certain proceedings were initiated, the very basis of passing the order on 19.05.2004 by the Taluka Development Officer, Choryasi without hearing the affected parties/- persons, the said Secretary [Appeals] ought to have considered that sufficient cause did exist and further delay was properly explained and attempt is also made to address this Court on merit of other proceedings initiated by the petitioners. It is accordingly submitted that that the petition be allowed by quashing and setting the impugned order.