NEUTRAL CITATION
C/LPA/993/2023 ORDER DATED: 17/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 993 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 5969 of 1989
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In
R/LETTERS PATENT APPEAL NO. 993 of 2023
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STATE OF GUJARAT
Versus
LH OF DECD KANTIBHAI JINABHAI PATEL
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Appearance:
SHRI KRUTIK PARIKH, ASSISTANT GOVERNMENT PLEADER for the
Appellant(s) No. 1,2
for the Respondent(s) No. 1
SHRI MA PAREKH(1088) for the Respondent(s) No. 1.1,1.2,1.3,1.4
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 17/08/2023
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. Heard Shri Krutik Parikh, learned Assistant Government Pleader appearing for the appellants and Shri M.A. Parekh, learned counsel appearing for the respondents - original writ petitioners.
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2. To assail the judgment impugned, it is sought to be submitted by the learned AGP that the proceedings for taking of possession of the land in question by initiating the process under Sections 10(3), 10(5) and 10(6) of the Urban Land Ceiling and Regulation Act, 1976 ('the Act of 1976') had already been taken prior to the coming into force of the Repeal Act on 31.3.1999. The submission is that the finding returned by the learned Single Judge that only de jure possession was with the State and the physical possession of the land-in-question has not been taken and that by following procedure under Sections 10(5) and 10(6) of the Act of 1976, the land can be deemed to have been vested with the State, the writ petitioners are not entitled to the benefit under Section 10(3) of the Act of 1976. The submission is that even panchnama for transfer of possession to the State has been prepared on 18.4.1992 and mutation entries were made, which clearly demonstrate that the procedure for taking over possession of the land-in-question under Sections 10(5) and 10(6) of the Act of 1976 has been followed. The submission is, thus, that the benefit of Section 3 of the Repeal Act, 1999 cannot be granted to the writ Page 2 of 5 Downloaded on : Sun Sep 17 01:26:16 IST 2023 NEUTRAL CITATION C/LPA/993/2023 ORDER DATED: 17/08/2023 undefined petitioners.
3. Testing this submission of the learned AGP for the appellant, we are required to note that the Special Civil Application, out of which the instant appeal has arisen, was filed in the year 1989 challenging the orders passed by the competent authorities on 28.2.1984 and 7.6.1989, declaring the land in question as surplus. The interim order directing the parties to maintain status quo was passed on 6.5.1992. Learned counsel appearing for the writ petitioners has submitted that the writ petition was dismissed for want of prosecution on 23.6.1992, but the same has been restored on 7.12.1995 with the revival of the interim order of status quo.
4. On a pointed query made by the Court, the learned AGP admits that no application seeking vacation of the interim order along with the affidavit has been filed before the writ court to demonstrate that the proceedings for taking over possession by following the procedure under Sections 10(5) and 10(6) of the Act of 1976 had been followed. On the asking of the Court, it was submitted before us that the notifications under Section Page 3 of 5 Downloaded on : Sun Sep 17 01:26:16 IST 2023 NEUTRAL CITATION C/LPA/993/2023 ORDER DATED: 17/08/2023 undefined 10(3) had been issued on 21.8.1991 under Section 10(5) on 27.2.1992 and under Section 10(6) on 18.4.1992. The submission of the learned AGP, thus, is that the proceeding for taking over the possession of the land-in-question by following the procedure, prescribed under the Act of 1976, had been followed prior to the grant of the status quo order on 6.5.1992.
5. This submission of the learned AGP is not worth consideration for the simple reason that no affidavit seeking vacation of the interim order granted on 6.5.1992 had been filed before the writ court to assert that the land in question was in possession of the State Government or vested in it prior to the passing of the status quo order. At no stage of proceedings nor in the instant appeal, any affidavit has been filed to demonstrate that the procedure under Sections 10(5) and 10(6) of the Act of 1976 had been followed. We may further record that the notifications under Sections 10(3), 10(5) and 10(6) of the Act of 1976 had been filed by the State in the writ petition along with the reply to the application filed by the writ petitioners to bring on record the heirs and legal representatives of the deceased petitioner.
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6. The documents brought on record along with the affidavit- in-reply to the said application cannot be treated as part of record of the writ petition, once the application to bring on record the heirs and legal representatives of the deceased petitioner had been disposed of. In any case, in absence of the record before us to demonstrate that the State had followed procedure prescribed under Sections 10(5) and 10(6) of the Act of 1976 to assert that the land in question is deemed to have been vested in the State Government, we do not find any infirmity in the order passed by the learned Single Judge.
7. With the aforesaid, the appeal is dismissed being devoid of merits. In view of the dismissal of appeal, civil application does not survive and is accordingly, disposed of.
(SUNITA AGARWAL, CJ ) (N.V.ANJARIA, J) Bharat Page 5 of 5 Downloaded on : Sun Sep 17 01:26:16 IST 2023