K.A. Puj, J.
1. The petitioner has filed this petition under Articles 226 and 227 of the Constitution of India challenging the legality, validity and propriety of the impugned judgment and order dated 1-7-1999 and 14-10-1999 passed by the learned Member, Gujarat Revenue Tribunal in Appeal No. TEN. A.S. 3 of 1999 and Restoration Application No. TEN. D.S. 8 of 1999 respectively.
2. This Court has issued notice on 21-6-2000 and petition was admitted on 18-10-2000. On behalf of the respondent Nos. 1 and 2 learned Assistant Government Pleader appeared and affidavit-in-reply is filed by Dy. Collector, Olpad, Surat on 30-10-2000. Despite service of notice and rule nobody appeared on behalf of the respondent No. 3.
3. The brief facts giving rise to the present petition are that the petitioner's grand-father, namely, Shri Premabhai Dhanabhai was the tenant over the land bearing Survey No. 263 admeasuring 2 acres and 16 gunthas situated in Orma. By virtue of will executed by the said Premabhai Dhanabhai, who died on 17-1-1987, the name of the petitioner was entered into the revenue record vide Mutation Entry No. 250- and as such the petitioner was in occupation and possession of the said land bearing Survey No. 263 situated in village Orma, which was the Inam village under the provisions of the Act. On abolition of the Inam of the Inamdar, the proceedings were initiated by the respondent No. 2 herein for the publication of the names of the occupiers over the agricultural lands in the Inam village and the objections were called for under the public notice dated 15-2-1997. The respondent No. 3 raised his objections in the writing under application dated 15-6-1997.
4. It is also the case of the petitioner that he is paying the land revenue for the said land bearing Survey No. 263 situated in village Orma. His name was already shown in the revenue records as occupiers while the name of the respondent No. 3 has not been recorded anywhere in the revenue records, and as such, he has no right, title or interest in the land in question. However, the respondent No. 2 vide his order dated 30-7-1998 declared and held that the mutation in the name of the petitioner was against the provision of the Act and without consent of the lnamdar, therefore he ordered the land in question to be vested in the Government and further directed the Mamlatdar to initiate proceedings under Section 32P of the Bombay Tenancy and Agricultural Lands Act. The respondent No. 2 without having jurisdiction to decide the matter under the Tenancy Act acted beyond the scope of his power under the Act and passed the order on 30-7-1998.
5. Being aggrieved by the said order of the Dy. Collector, the petitioner preferred an Appeal under the provisions of the Act before the Gujarat Revenue Tribunal being Appeal No. TEN. A.S. 3 of 1999 and also prayed for interim stay. The petitioner had also filed a separate application for condonation of delay in filing the said appeal. The learned Member of Gujarat Revenue Tribunal rejected the said application for condonation of delay. The learned Member of Tribunal rejected the delay condonation application on preliminary hearing at preliminary stage and did not entertain the appeal as the delay, was not ordered to be condoned. The petitioner's Advocate was not present at the time of hearing of the preliminary hearing of the appeal on the question of condonation of delay.
6. On coming to know of the order dated 1-7-1999, after seeking legal advice he filed a Restoration Application No. TEN. D.S. 8 of 1999 before the learned Member of Tribunal, since the order dated 1-7-1999 was passed without hearing the petitioner or his Advocate. The said application was also rejected and not entertained on the ground that the said restoration application was not admissible under Regulation 20 as main appeal was not dismissed for default.
7. Being aggrieved by the two orders passed by the Tribunal, the petitioner filed present petition before this Court.
8. Mr. Dhirendra Mehta, learned Advocate appearing for the petitioner has submitted that the petitioner being the agriculturist residing in remote rural area and also for the ignorance of law, could not avail of the remedy of appeal immediately and on receipt of the legal advise when the appeal was filed it was delayed by about 137 days. He has further submitted that there is settled legal position that a meritorious case of the petitioner should not be thrown at the threshold merely on technicalities and it is specially when the person residing in the remote rural area is not expected to be well-versed of the provisions of law. He has further submitted that the appeal preferred by the petitioner on the important issue with regard to the jurisdiction of the Dy. Collector and the finding given by him is required to be considered by the Tribunal. He has further submitted that the delay condonation application was decided by the Tribunal in absence of the petitioner and his Advocate, and hence, the Tribunal ought to have given the opportunity to the petitioner.
9. Mr. Mehta relied on the decision of the Hon'ble Supreme Court in the case of Ram Sumiran and Ors. v. D.D.C. and Ors. reported in : AIR1985SC606 , wherein while setting aside the abatement and permitting to bring the legal representatives of the deceased on record, the Hon'ble Supreme Court has held that the appellants are admittedly from the rural area and in a country like ours where there is so much poverty, ignorance and illiteracy, it would not be fair to presume that everyone knows that on death of a respondent, the legal representatives have to be brought on record within a certain time. The ends of justice require that the application for bringing the legal representatives of the deceased respondent No. 5 should have been granted. These observations are equally applicable to the present case while considering the delay condonation application.
10. Mr. Mehta further relied on the decision of this Court in the case of Bhikhabhai Mavjibhai Patel v. State of Gujarat reported in : (1994)1GLR151 , wherein it is held that this Court has time and again emphasised that Courts dealing with delay condonation application should adopt a liberal approach and not a hyper technical one. The landmark ruling on the point is in the case of Karim Abdulla v. Bai Hoorbai 1975 GLR 835. The sum and substance of that ruling is that, unless the applicant making the application for condonation of delay is guilty of gross unexplained delay or is charged with deliberate delay with some ulterior motive, the application for condonation of delay should normally and ordinarily be accepted. This Court has in terms held that substantial justice lies in deciding the matter on merits rather than disposing it of on technicalities. The Court further held that villagers are often found quite gulliable and poverty-stricken. They are often taken in by what is dished out to them. For them at times the order passed by the competent authority is not worth more than a piece of paper in absence of any proper advice. It is too much to expect from them knowledge of intricacies of law. In the present case also the petitioner was residing in a very remote area and has no knowledge but when he came to know that the land in question is to be entered into revenue records in the name of the Government, he immediately rushed for legal advice and filed appeal before the Tribunal. He has further submitted that the order passed by the Dy. Collector is not tenable at law and the same is without jurisdiction. The Tribunal should have, therefore, condoned the delay and decided the appeal on merits.
11. An affidavit-in-reply is filed by the Dy. Collector. Mr. Dipen Desai, learned Assistant Government Pleader has submitted that there was no proper ground in the delay condonation application therefore the Tribunal has rightly rejected the delay condonation application. The appeal could not be restored because the Tribunal has decided the delay condonation application on its own merit and that application was not rejected for want of prosecution. He has, therefore, submitted that no interference is called for in the order passed by the Tribunal.
12. Having heard learned Advocate appearing for the petitioner and the learned Assistant Government Pleader appearing for the Revenue and having considered the submissions made in the petition as well as authorities cited before the Court, the Court is of the view that the Tribunal has not properly considered the grounds urged by the petitioner for condonation of delay. The Tribunal has proceeded only on the footing that the petitioner could not be said to be illiterate person as he has filed Vakalatnama. However, reasons given by the petitioner for condonation of delay in his delay condonation application have not at all been considered. Even otherwise, delay condonation application was decided by the Tribunal without hearing the petitioner as well as petitioner's Advocate. It is true that two or three opportunities were given to the petitioner. However, time was sought on the ground of ill-health of the petitioner's Advocate and ultimately the delay condonation application was decided in absence of the petitioner's Advocate. Be that as it may, the Court is of the view that this is not the case where the appeal of the petitioner can be thrown out at the very threshold. The delay has been properly explained by the petitioner and the petitioner was prevented by sufficient cause from filing the appeal in time. The legal position is also well settled on this issue and the two judgments discussed above squarely cover the case of the petitioner. Considering the overall view of the matter this Court is satisfied that the petition deserves to be allowed and accordingly it is allowed. Rule is made absolute without any order as to costs.
13. Since, the matter is very old the Tribunal is directed to decide the main appeal as expeditiously as possible, preferably within the period of six months from the date of receipt of writ or receipt of certified copy of this order, which ever is earlier. While deciding the appeal adequate opportunities should be given to the parties.