Lakhmanbhai Seedhav Vs. State of Gujarat & Ors.  INSC 1696 (5
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
No. 11281 of 2006
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 1 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.
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
Sri Gelabhai Bhagwanbhai (hereinafter referred to as `Gelabhai'),
resident of Village Adariyana, Taluka : Dasada, District :
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 2 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.
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:
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.
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 3 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.
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.
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.
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.
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.
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.
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.
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.
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 7 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.
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.
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.
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.
In view of the above discussion, we cannot sustain the impugned
order passed by the Division Bench of Gujarat High Court.
In the result, the appeal is allowed. The impugned order is set
matter is remitted back to the High Court, with a request to 11 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.
No. 11368 of 2006 Leave granted.
of the judgment in the above said 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 ]
November 05, 2009.