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Apex court condoned the 10 years delay in filing ..= In our opinion, in view of the facts narrated by us, the High Court has erred in rejecting the Letters Patent Appeal on the ground of delay and latches on the part of the appellant in approaching the court nearly after 10 years of passing the impugned order. 16) The High Court has also rejected the Letters Patent Appeal, on the ground that the wives of the original declarant Gelabhai had no right over the land and, therefore, they could not have executed any Will in favour of the applicant bequeathing the lands in question. This reasoning of the Division Bench of the High Court is also not correct in view of the orders passed by Mamaltdar, who had recognized the rights of the wives of the original declarant, who had died during the pendency of the proceedings before him and that finding has become final, since the respondents have not questioned the same before any superior forums. The impugned order is set aside. The matter is remitted back to the High Court, with a request to 11

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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7365 OF 2009
(Arising out of SLP(C) No. 11281 of 2006)

 

Haribhai Lakhmanbhai Seedhav ……….Appellant

Versus

State of Gujarat & Ors. ……..Respondents

WITH

CIVIL APPEAL NO. 7366 OF 2009
(Arising out of SLP(C) No. 11368 of 2006)

Bhavanbhai Lakhmanbhai Seedhav ……….Appellant

Versus

State of Gujarat & Ors. ……..Respondents

JUDGMENT

H.L. Dattu,J.

S.L.P(C) No. 11281 of 2006

Leave granted.

2) This appeal has been filed against the judgment of Gujarat High

Court dated 17.4.2006 in MCA No. 892 of 2006 in Letters Patent

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Appeal No. 832 of 2006, wherein and whereunder, the application

for grant of leave to prefer Letters Patent Appeal is dismissed,

firstly, on the ground that the wives of the original declarant had no

right, title or interest over the land and, therefore, the Will executed

by them in favour of the appellant would not give him any right in

the land, secondly, on the ground of delay and latches in filing the

appeal nearly after ten years from the date of the judgment and order

passed in the writ petition by the learned Single Judge.

3) This case has a chequered history. Reference to all those

proceedings may not be necessary for the disposal of this appeal.

Suffice to notice the events and the orders passed by the authorities

under Gujarat Agricultural Land Ceiling Act, 1960 and the High

Court on or after the year 1986.

4) Sri Gelabhai Bhagwanbhai (hereinafter referred to as `Gelabhai’),

resident of Village Adariyana, Taluka : Dasada, District :

Surenderanagar, Gujarat, was an agriculturist and was owning large

extent of agricultural lands at Adariyana Village. During his life

time, he had filed an application on 27.9.1976, under Section 8 of

the Gujarat Agricultural Land Ceiling Act, 1960, (hereinafter

 

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referred to as `the Act’) before the competent authority under the

Act. The order passed under the Act was the subject matter of

several rounds of litigations before various forums under the Act.

During the pendency of these proceedings, the original declarant,

Gelabhai expired on 17.1.1979, leaving behind his two wives. He

had no sons or daughters. After the death of Gelabhai, the property

vested with the wives. The two widows of Gelabhai, Smt. Samuben

and Smt. Puriben expired on 18.6.1991 and 7.7.2000 respectively,

but during their life time, they had executed General Power of

Attorney in favour of Parmabhai Bhagwanbhai, resident of Village:

Adariyana, Taluka: Dasada, District: Surendranagar, Gujarat. Both

the widows before their demise had also executed a Will in favour of

their nephew, Sri Sindhav Bhavanbhai Laxmanbhai, who is the

appellant in this appeal.

5) Pursuant to the order passed by the Revenue Tribunal dated

21.1.1986 in Revision Application TEN/BA No. 1254 of 1984, the

Mamlatdar and Agricultural Land Tribunals, Patdi, by his order

dated 1st day of August, 1986, declared that the legal heirs of the

original declarant are entitled to hold 54.00 Acres of unirrigated

lands out of the total extent of 89.04 Acres and the excess lands of

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nearly 35.04 Acres is to be treated surplus land and requires to be

surrendered to the State Government from the date of the order free

from all encumbrances, however, subject to provisions of Section

21(2) and Section 19 and Chapter 8 of Land Ceiling Act. The

Mamlatdar also recognized that the heirs of the original declarant

were entitled to hold the highest ceiling of one unit of land.

6) Dissatisfied with the order passed by the Mamlatdar dated 1.8.1996,

the appellant had filed Ceiling Appeal No. 1/90-91 before the

Deputy Collector, Dhangdhra Sub-Division, Dhangdhra. The

Deputy Collector rejected the Ceiling Appeal vide order dated

30.3.1991, holding that the order of the Mamlatdar declaring land

measuring 35 Acres 04 Gunthas to be surplus, was in consonance

with the provisions of the Act.

7) Being aggrieved by the said order dated 30.3.1991, the legal heirs of

the original applicant had filed Revision Application No.

TEN.BA/404/91 before the Gujarat Revenue Tribunal as provided

under Section 38 of the Gujarat Agricultural Lands Ceiling Act,

1961. The Tribunal vide its order dated 14.6.1993, partly allowed

the revision application by holding that “except transfer in respect of

 

4
Sy. No. 276 (A.5 Gs. 28-3/4), the rest of the transfers are to be

ignored in accordance with Sections 7 and 8 of the Act”. As a result

of such order, the land measuring 5 Acres 28-3/4 Gs., was ordered to

be excluded from the holding of Gelabhai and the matter was

remanded back to the Mamlatdar for declaration of net area of

surplus land and further a direction was issued to the Mamlatdar to

give an opportunity to the declarant/landholders to exercise their

option regarding selection of the surplus land to be surrendered and

then to take possession of the surplus land.

8) Being aggrieved by the order dated 14.6.1993, the legal heirs of

Gelabhai along with others filed a writ petition before the High

Court in Special Civil Application No. 806 of 1993. The High Court

by its order dated 4.4.1996 dismissed the Writ Petition.

9) The office of the Mamlatdar addressed a letter dated 29.9.2004 to

the Power Attorney holder of legal heirs of the deceased Gelabhai

and requested him to inform the latest status of Special Civil

Application No. 8064 of 1993. It is apparent that even the State

Government was not aware of the order dated 4.4.1996 passed by

the High Court. The Power Attorney holder by his letter dated

 

5
11.10.2004, informed the Mamlatdar that with the demise of both

the legal heirs of Gelabhai, he had ceased to be their Power Attorney

holder and had nothing to do with the dispute pending before various

forums.

10) The appellants and others were served with a notice dated

30.10.2006, under Rule 10 of the Ceiling Rules by the office of the

Mamlatdar, whereby they were informed that they were in

possession of some lands which had been declared surplus land

under the Ceiling Act in the hands of Gelabhai and they were

directed, apart from others, to submit any objections or suggestions

with regard to the surplus lands within one month from the receipt of

the notice; to select such part or such parts which they wish to

continue to possess; and to submit the details of the land selected

within one month.

11) The appellant who claims to be the beneficiary under the Will, said

to have been executed by both the wives of the original declarant,

filed Letters Patent Appeal, inter alia, challenging the order passed

by learned Single Judge in SCA No. 8064 of 1993, along with an

 

6
application for leave to appeal being MCA No. 892 of 2006 and also

an application for condonation of delay in filing the appeal.

12) The Division bench of Gujarat High Court vide its order dated

17.4.2006, dismissed the application MCA No. 892 of 2006, inter

alia, holding that the wives of Gelabhai had no right over the land

and, if any Will was executed in favour of the appellant, no right

over the land could have been conferred by such a will and, lastly,

leave to file appeal cannot be granted against an order dated

4.4.1996 after a lapse of 10 years.

13) We have heard Sri L. Nageshwar Rao, learned Senior Counsel for

the appellant and Smt. Hemantika Wahi, learned counsel for the

respondent. Learned Senior Counsel for the appellant submitted

that the High Court was in error in rejecting the application filed by

the appellant for grant of leave to file the appeal against the order

passed by the learned Single Judge on the ground of delay and

laches on the part of the appellant in approaching the court nearly

after ten years from the date of passing the impugned order and,

secondly, the wives of late Gelabhai, the original declarant, had no

title, right or interest over the land and even, if any, Will was

 

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executed in favour of the appellant, the same did not confer any

right over the land in view of the provisions of the Ceiling Act. The

learned counsel for the respondent justifies the impugned order

passed by the High Court.

14) We do not propose to go into the question on the merits of the main

appeal, in view of the course, we propose to adopt while disposing

of this appeal, which is primarily against the order passed by the

Division Bench of the High Court rejecting the application filed for

leave to appeal against the order passed by the learned Single Judge

in SCA No. 8064 of 1993 dated 04.04.1996.

15) The first issue is, whether there was any delay in filing the

application for grant of leave to prefer Letters Patent Appeal in the

facts and circumstances of the case. The original declarant Gelabhai

Bhagwanbhai expired on 17.1.1979, leaving behind his two wives

Smt. Samuben and Smt. Puriben who had inherited the property of

the declarant. Since they did not have their own sons and daughters,

they had executed the General Power of Attorney in favour of Shri

Parambhai Bhagwanbhai and others, not only to manage the affairs

of vast extent of agricultural lands, and also several litigations

 

8
pending before various forums including the authorities under the

Land Ceiling Act. The facts which are not in dispute and which

cannot be disputed would reveal that the Power of Attorney holders

were prosecuting the lis before various forums diligently. They had

also filed SCA No. 8064 of 1993 before the learned Single Judge of

Gujarat High Court challenging the order passed by the Gujarat

Revenue Appellate Tribunal. It has also come on record, that,

during their life time, they had executed a Will in favour of their

nephew Sri Sindhav Bhavanbhai Laxmanbhai, and they were not

aware of the execution of the Will in their favour till the year 2002

and, therefore, they could not take possession of the lands in

question till 2002. These details, in our view, may not be crucial

factors for deciding these appeals, but they are noticed only for

narration of completion of factual matrix. The question is whether,

the appellants who claim that they have some interest, right and title

in the land were not aware of the disposal of the SCA No. 8064 of

1993 dated 4.4.1996. The answer to this issue is not a vexed issue,

since, firstly, appellant was not a party to the proceedings before the

High Court nor was aware of the proceedings pending before the

High Court, since the affairs of litigation of the ceiling proceedings

 

9
of the lands in question was taken care of by the General Power

Attorney holders of the wives of the original owner of the lands. It

is the case of the applicant that after the demise of the wives of the

declarant, the General Power of Attorney holder had not participated

in the pending proceedings before the High Court. It is also brought

on record the letter from the office of Mamlatdar dated 29.9.2004,

addressed to the Power of Attorney holder of the legal heirs of

Gelabhai to inform them the status of the proceedings pending

before the High Court. It only demonstrates that even the

respondents were not aware of the dismissal of the writ petition,

though they were parties in the writ petition. If this was the state of

affairs, what to say about the applicant who was not even a party to

any of the proceedings either before the Revenue authorities or

before the High Court. Therefore, the assertion made, that they

came to know the dismissal of the writ petition filed by General

Power of Attorney holder, only when they were served with notice

dated 30.1.2006 under Rule 10 of the Ceiling Rules by the office of

Mamlatdar. The applicant/appellant within a reasonable period

thereafter has taken steps to file Letter Patent’s appeal accompanied

by an application for grant leave to file the appeal and also an

 

10
application for condonation of delay in filing the appeal. In our

opinion, in view of the facts narrated by us, the High Court has erred

in rejecting the Letters Patent Appeal on the ground of delay and

latches on the part of the appellant in approaching the court nearly

after 10 years of passing the impugned order.

16) The High Court has also rejected the Letters Patent Appeal, on the

ground that the wives of the original declarant Gelabhai had no right

over the land and, therefore, they could not have executed any Will

in favour of the applicant bequeathing the lands in question. This

reasoning of the Division Bench of the High Court is also not correct

in view of the orders passed by Mamaltdar, who had recognized the

rights of the wives of the original declarant, who had died during the

pendency of the proceedings before him and that finding has become

final, since the respondents have not questioned the same before any

superior forums.

17) In view of the above discussion, we cannot sustain the impugned

order passed by the Division Bench of Gujarat High Court.

18) In the result, the appeal is allowed. The impugned order is set aside.

The matter is remitted back to the High Court, with a request to

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restore the Letters Patent Appeal No. 832 of 2006 on its board and

decide the appeal on merits. In the facts and circumstances of the

case, parties are directed to bear their own costs.

S.L.P.(C) No. 11368 of 2006

 

Leave granted.

In view of the judgment in the abovesaid Civil Appeal No……../2009

 

arising out of S.L.P.(C) No. 11281 of 2006 pronounced today by us, the

appeal is allowed and the parties are directed to bear their own costs.

 

…………………………………J.
[ D.K. JAIN ]

 

…………………………………J.
[ H.L. DATTU ]

New Delhi,
November 05, 2009.

 

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