NON-REPORTABLE

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  

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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  

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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  

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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  

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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  

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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  

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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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