Gujarat High Court
State Of Gujarat & vs Kamuben Wd/O. Dlpatbhai Durlabhbhai ... on 28 January, 2015
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/CA/7054/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR STAY) NO. 7054 of 2014
In LETTERS PATENT APPEAL NO. 775 of 2014
In
SPECIAL CIVIL APPLICATION NO. 3119 of 2003
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STATE OF GUJARAT & 1....Applicant(s)
Versus
KAMUBEN WD/O. DLPATBHAI DURLABHBHAI PATEL & 1....Respondent(s)
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Appearance:
MR. P.K. JANI, LEARNED ADDITIONAL ADVOCATE GENERAL WITH MR.
RAKESH R. PATEL, LEARNED AGP for the Applicant(s) No. 1 - 2
MR. Y.N. OZA, LEARNED SENIOR ADVOCATE WITH MR. RAJESH
SAVJANI, LEARNED ADVOCATE for the respondent....
MR. S.I. NAVAVATI, LEARNED SENIOR COUNSEL WITH MR. SANJIV
DAVE, LEARNED ADVOCATE for the respondent
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 28/01/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. RULE. Mr. Savjani, learned advocate waives service of notice of Rule on behalf of the respondent No.1 and Mr. Dave, learned advocate waives service of notice of Rule on behalf of the respondent No.2.
2. By way of this application, the applicants have prayed for the following reliefs:-
(A) Your Lordships may be pleased to admit the Letters Page 1 of 8 C/CA/7054/2014 ORDER Patent Appeal.
(B) Your Lordships may be pleased to allow the present Civil Application by way of quashing and setting aside the order dated 15.07.2013, passed by the learned Single Judge of this Hon'ble Court ( Coram: Hon'ble Ms. Justice Harsha Devani ) in Special Civil Application No.3119 of 2003.
(C ) Pending, admission and final disposal of this petition Your Lordships may be pleased to stay the order dated 15.07.2013 passed by the learned Single Judge of this Hon'ble Court ( Coram: Hon'ble Ms. Justice Harsha Devani ) in Special Civil Application No.3119 of 2003.
(D) Your Lordships may be pleased to pass such other and further order or relief as may be deemed just, proper in the interest of justice.
3. Mr. P.K. Jani, learned Additional Advocate General appearing with Mr. Rakesh Patel, learned AGP for the applicants has contended that the learned Single Judge has committed error in allowing the petition and in quashing order dated 25th February, 2003 (Annexure- D to the petition). He drew our attention to the fact that the power of attorney holder of Kamuben-respondent No.1 herein, is the original petitioner and submitted that pending this appeal if the order of the learned Single Judge is not stayed, the order dated 25th February, 2003 will not come into operation and No Objection Certificate is required to be granted in favour of the original petitioner-respondent No.2 herein. Therefore, he urged that this Court may allow this application and stay Page 2 of 8 C/CA/7054/2014 ORDER the order of the learned Single Judge.
4. Mr. S.I. Nanavati, learned senior advocate appearing with Mr. Sanjiv Dave, learned advocate for the respondent No.2 has contended the alleged possession of the land in question was taken on 16th October, 1996, which is required to be viewed very seriously since the same is contrary to the decisions of the Apex Court. He invited our attention to paragraph No.6 of the impugned judgment and order passed by the learned Single Judge, which reads as under:-
" 6. In rejoinder, Mr. Sanjanwala submitted that if it is the case of the respondents that they have taken possession of the land declared excess vacant, they are required to show that such possession has been taken over by following due procedure in accordance with law. It was submitted that in the facts of the present case, no notice has been issued either to the petitioner or her predecessor either under section 10(5) of the ULC Act or section 10(6) of the ULC Act. Under the circumstances, paper possession, if any, taken over by the respondents cannot be said to be lawful possession as contemplated under the ULC Act. In support of his submission, the learned counsel placed reliance upon an unreported decision of the Supreme Court in the case of Vinayak Kashinath Shilkar v. Deputy Collector & Competent Authority and others, wherein the State Government had not been able to establish that possession of vacant land had been taken over and the Supreme Court held that mere vesting of vacant land with the State Government by operation of law without actual possession is not sufficient for operation of section 3(1)(a) of the Repeal Act. Reliance was also placed upon the decisions of the Supreme Court in the case of Raghbir Singh Sehrawat v. State of Haryana and Others, (2012) 1 SCC 792 and in the case of Ritesh Tewari and Another vs. State of Uttar Pradesh and Others, (2010) 10 SCC 677, wherein the court has held thus:
15. We find full force in the submissions so made by Shri Jayant Bhushan to a certain extent, and hold Page 3 of 8 C/CA/7054/2014 ORDER that all proceedings pending before any court/authority under the 1976 Act, stood abated automatically on coming of the 1999 Act into force, provided the possession of the land involved in a particular case had not been taken by the State. Such a view is in consonance with the law laid down by this Court in Pt. Madan Swaroo Shrotiya Public Charitable Trust v. State of U.P.; Ghasitey Lal Sahu v. Competent Authority; Mukarram Ali Khan v. State of U.P. and Sulochana Chandrakant Galande v.
Pune Municipal Transport.
16. The aforesaid conclusion leads us further to the question as to whether the appellants have any justifiable cause to approach the court. Firstly, no proceedings had ever been initiated against the appellants by the authorities under the 1976 Act. Secondly, the State authorities, the respondent herein, failed miserably to perform their statutory duties and it appears that they could not muster the courage to take the actual physical possession of the land in dispute in spite of issuance of notice under Section 10(5) of the 1976 Act in the year 1993. More so, the so-called authorities could issue notices under Section 10 of the 1976 Act after a lapse of twelve years as the assessment of surplus land became final in 1981 itself. Such an indifferent attitude on the part of the authorities is not commendable rather it is condemnable, but that does not mean that the court should decide only the effect of the repealing 1999 Act in these proceedings at the behest of the appellants in the absence of the original tenure-holders and subsequent transferees inasmuch as in the fact situation of this case where the appellants, for the reasons best known to them, did not consider it proper to place either of the sale deeds on record.
Strong reliance was placed upon a decision of the Supreme Court in the case of State of U.P. v. Hari Ram, 2013 (3) Scale 348 wherein the court has held that requirement of giving notice under sub-sections (5) and (6) of section 10 of the ULC Act is mandatory. It was submitted that thus, the Page 4 of 8 C/CA/7054/2014 ORDER mandatory provisions of section 10(5) and section 10(6) of the Act have not been satisfied in the present case and as such, the possession, if any, taken over by the respondents is not lawful possession in the eye of law and as such, the petitioner is entitled to the grant of reliefs prayed for in the petition."
4.1. Mr. Nanavati, learned senior advocate thereafter drew our attention to paragraph Nos.3 and 4 of the Additional Affidavit filed in the writ petition, wherein it has been averred that:-
"3. The appellant further states that the notices were issued under Urban Land Celing Act, 1976. The Copy of the notice dated 24.07.1996 under Section 10(5) isa marked herewith and marked as Annexure-II
4. It is stated that the competent authority passed an order dater 01.10.1996 after following the procedure proscribed under the Urban Land Ceiling Act, 1976. The copy of the said order is annexed herewith and marked as Annexure-III. "
4.2. Mr. Nanavati, learned senior advocate also drew our attention to the Notice dated 24.07.1996 and the Further Affidavit filed by the applicants in the Appeal. By making such submissions, learned senior advocate Mr. Nanavati submitted that the impugned judgment and order passed by the learned Single Judge may not be stayed since the possession is taken contrary to the decisions of the Apex Court.
5. Mr. Oza, learned senior advocate appearing for original owner, respondent No.1 herein has contended that this Court may not stay the impugned judgment and order passed by the learned Single. He drew our attention to the order dated 29.08.2013 passed in Civil Application No.5654 of 2013 in First Appeal No.1274 of 2013, preferred by one Page 5 of 8 C/CA/7054/2014 ORDER Madhubhai Virjibai Dhanani Patel against the present respondent No.1- kamuben @ Kamlaben. It is necessary to reproduce the order passed in said Civil Application, which reads as under:-
1. We have heard Mr.Navin Pahwa for the applicants, Mr.Y.N.Oja with Ms.Thula for the opponent Nos.1, 2 and 3, Mr.G.M.Joshi for the opponent No.4, Mr.B.B.Naik with Mr.Mehta for the opponent Nos.5 and 6 and Mr.S.P.Majmudar for the opponent No.7.
2. It is an admitted position that pending the suit before the trial Court, no interim injunction was in operation.
Subsequently, by the impugned order the suit has been dismissed under Order 7 Rule 11 of the Civil Procedure Code. Therefore, we find that the ad-interim injunction granted earlier does not deserve to be continued. We leave it at that, because Mr.Pahwa has not invited further reasons on the said aspect.
3. However, considering the facts and circumstances, since the appeal has been admitted, the principles of lis pendense should apply. Therefore, it is observed that the appellant original plaintiff can be at the liberty to get the lis pendense registered with the concerned Sub-Registrar showing the pendency of the present proceedings. Once the lis pendense is registered the order passed by this Court in the present proceedings shall be binding to the person concerned. So as to enable the applicant/appellant to get the lis pendense registered, the ad-interim relief granted earlier can be continued for some time.
4. Hence, so as to enable the applicant to get the lis pendense registered, the ad-interim relief granted earlier shall remain in operation till 16.9.2013. It is also clarified that by non-continuance of the interim relief, neither party would get any additional right to disturb the possession of any party to the proceedings or any third party, who may be holding the possession of the property or part thereof under the transaction already entered into.
5. Subject to the aforesaid observation and direction Page 6 of 8 C/CA/7054/2014 ORDER present application is disposed of."
6. We have heard learned senior advocates appearing for the parties and perused the material on record. Keeping in mind the fact that if the impugned judgment and order of the learned Single Judge is not stayed, the very purpose of admission of the appeal would be frustrated. Further, we are of the opinion that if the impugned judgment and order of the learned Single Judge is stayed, the respondents herein will not be prejudiced in any manner whatsoever.
7. Incidentally, at this stage it needs to be mentioned that the respondent No.1 herein was the petitioner before the learned Single Judge while initially the present applicants were impleaded as the respondents therein. At a later stage the respondent No.2 herein preferred an application for joining party and she came to be impleaded as respondent No.3 in the petition before the learned Single Judge. In the backdrop of this scenario, in our considered opinion it is the respondent No.1 herein who can oppose the grant of interim relief and the respondent No.2 herein has no locus to oppose the grant of interim relief.
8. Hence, we are staying the judgment and order dated 15.07.2013 passed by the learned Single Judge in Special Civil Application No. 3119 of 2013. We direct the State Government-applicant herein to maintain the status quo as on today and not to deal with the land in question in any manner whatsoever till the pendency of this appeal.
9. It is made clear that the parties are at liberty to produce on record the documents which are produced before the learned Single Judge by way of filing appropriate application and to initiate any other proceedings, if they so desire, which is prescribed under the law. Paper Page 7 of 8 C/CA/7054/2014 ORDER book will be prepared on or before 2nd March, 2015.
10. With the above observations and directions, the present Application stands disposed of. Rule is made absolute to the aforesaid extent.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) pawan Page 8 of 8