NEUTRAL CITATION
C/LPA/1192/2023 ORDER DATED: 14/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1192 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 13061 of 2008
With
R/LETTERS PATENT APPEAL NO. 1194 of 2023
In
SPECIAL CIVIL APPLICATION NO. 13061 of 2008
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R/LETTERS PATENT APPEAL NO. 1195 of 2023
In
SPECIAL CIVIL APPLICATION NO. 11715 of 2013
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F/LETTERS PATENT APPEAL NO. 24395 of 2023
In
SPECIAL CIVIL APPLICATION NO. 11716 of 2013
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F/LETTERS PATENT APPEAL NO. 24396 of 2023
In
SPECIAL CIVIL APPLICATION NO. 13243 of 2013
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F/LETTERS PATENT APPEAL NO. 24397 of 2023
In
SPECIAL CIVIL APPLICATION NO. 13242 of 2013
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F/LETTERS PATENT APPEAL NO. 24398 of 2023
In
SPECIAL CIVIL APPLICATION NO. 13247 of 2013
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F/LETTERS PATENT APPEAL NO. 24399 of 2023
In
SPECIAL CIVIL APPLICATION NO. 11714 of 2013
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F/LETTERS PATENT APPEAL NO. 24400 of 2023
In
SPECIAL CIVIL APPLICATION NO. 13244 of 2013
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F/LETTERS PATENT APPEAL NO. 24401 of 2023
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SPECIAL CIVIL APPLICATION NO. 13246 of 2013
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F/LETTERS PATENT APPEAL NO. 24402 of 2023
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SPECIAL CIVIL APPLICATION NO. 13248 of 2013
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NEUTRAL CITATION
C/LPA/1192/2023 ORDER DATED: 14/09/2023
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F/LETTERS PATENT APPEAL NO. 24403 of 2023
In
SPECIAL CIVIL APPLICATION NO. 13245 of 2013
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F/LETTERS PATENT APPEAL NO. 24404 of 2023
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SPECIAL CIVIL APPLICATION NO. 13251 of 2013
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F/LETTERS PATENT APPEAL NO. 24405 of 2023
In
SPECIAL CIVIL APPLICATION NO. 13249 of 2013
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F/LETTERS PATENT APPEAL NO. 24406 of 2023
In
SPECIAL CIVIL APPLICATION NO. 13250 of 2013
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MSA. BILESHWAR INDUSTRIAL ESTATE
Versus
STATE OF GUJARAT
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Appearance:
MR MI HAVA(348) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 14/09/2023
COMMON ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. This bunch of Appeals has been filed against the order passed by the learned Single Judge dated 01.07.2023 in Interlocutory Application for seeking amendment for incorporation of the prayers in the prayer clause of the writ Page 2 of 17 Downloaded on : Wed Sep 20 20:32:17 IST 2023 NEUTRAL CITATION C/LPA/1192/2023 ORDER DATED: 14/09/2023 undefined petition and amendment in the main writ petition itself.
2. While rejecting the amendment application, the learned Single Judge has recorded that there was no justification for filing the amendment application after a period of 15 years, that too, at the stage of final hearing of the writ petition. It was noted that the writ petition was substantially heard on 27.06.2023 and at the request made by the learned counsel for the petitioners, the matter was posted in the second session on the said day and later adjourned on the next day. However, the amendment application was filed on the next date, i.e. 28.06.2023 in the Court seeking to amend the writ petition.
3. With the rejection of the amendment application by a separate order dated 01.07.2023, passed on the application for amendment, the order of the same date i.e. 01.07.2023 has been passed dismissing the writ petition on the ground that no mandamus can be issued to the Revenue Authorities as prayed for in the original writ petition in absence of any challenge to the orders dated 08.03.2007 and 30.04.2008 Page 3 of 17 Downloaded on : Wed Sep 20 20:32:17 IST 2023 NEUTRAL CITATION C/LPA/1192/2023 ORDER DATED: 14/09/2023 undefined passed by the Revenue Authorities.
4. The contention of the learned counsel for the appellant is that the writ petitions have been dismissed on technical grounds. In the original writ petition itself, the petitioners had sought the relief of setting aside the action of the respondent authorities in not mutating the revenue entries based on the registered sale deed executed in favour of the writ petitioner, though there was no specific challenge to the orders of deletion of mutation entries. The contention is that the learned Single Judge has erred in law in not entering into the merits of the case.
5. Noticing the above submissions, we permitted the learned counsel for the petitioners to address us on the merits of the contentions of the writ petitioners in the writ petitions itself. Coming on the merits of the case of the petitioners in the original writ petitions, the facts in brief are relevant to be noted at the outset. The petitioner in the main writ petition namely M/s. Bileshwar Industrial Estate Developers Private Limited is an auction purchaser in a sale Page 4 of 17 Downloaded on : Wed Sep 20 20:32:17 IST 2023 NEUTRAL CITATION C/LPA/1192/2023 ORDER DATED: 14/09/2023 undefined conducted by the Debt Recovery Tribunal in O.A. No. 165 of 1999. The public auction of the land in question was held on 29.03.2004; it was confirmed on29.11.2004 and the sale certificate was issued in favour of the writ petitioner namely M/s. Bileshwar Industrial Estate Developers Private Limited on 29.11.2004 / 23.03.2005. The possession of the land in question was handed over to the said writ petitioner on 23.03.2005. Kacha entry No. 3778 was made on 04.08.2005 which was certified on 14.10.2005. The borrower / judgment debtor had challenged the mutation entry before the Mamlatdar and his application was rejected on 07.10.2005. The appeal before the Deputy Collector was also rejected on 18.01.2006. In the meantime, the development plan submitted by the aforesaid petitioner was approved by the Ahmedabad Urban Development Authority (AUDA) on 18.08.2006. The aforesaid petitioner had carved out 27 plots out of the total land purchased by him in the auction and executed registered sale deeds in favour of private persons who are also party in the bunch of writ petitions as the petitioners therein, where from the instant bunch of appeal Page 5 of 17 Downloaded on : Wed Sep 20 20:32:17 IST 2023 NEUTRAL CITATION C/LPA/1192/2023 ORDER DATED: 14/09/2023 undefined arose. The Ahmedabad Municipal Corporation had granted permission for development of the land in question after a direction was issued by the judgment and order dated 10.10.2005 passed in Special Civil Application No. 19454 of 2005. The revision namely R.A. No. 21 of 2006 before the Collector was also dismissed on 16.10.2006. Learned counsel for the petitioners has also placed before us the order passed by the Recovery Officer dated 11.04.2008, whereby the objections filed by Gujarat Industrial Development Corporation (GIDC) (respondent No. 5 herein) to the auction sale had been rejected. The sale deed in favour of the petitioner namely M/s Bileshwar Industrial Estate Developers Private Limited was executed on 15.04.2008, after rejection of the objections filed by GIDC. It was further placed before us that the appeal before Debt Recovery Tribunal filed by GIDC against the order passed by the Recovery Officer, registered as Appeal No. 34 of 2008, was also rejected on 12.08.2009.
6. With these facts, it was sought to be submitted by the learned counsel for the petitioners that the fact that the Page 6 of 17 Downloaded on : Wed Sep 20 20:32:17 IST 2023 NEUTRAL CITATION C/LPA/1192/2023 ORDER DATED: 14/09/2023 undefined petitioner namely M/s Bileshwar Industrial Estate Developers Private Limited, who was the auction purchaser in the sale conducted by DRC in a public auction, is a bona fide purchaser of the land-in-question has been proved at many stages of the auction sale. The stand of the GIDC in contesting the claim of the petitioners, the auction purchaser and subsequent transferees on the premise that the land in question had been acquired prior to the creation of mortgage, therefore, is not sustainable. It was argued that once challenge to the auction sale was turned down by the Recovery Officer and the DRT, and the order passed by the DRT dated 12.08.2009 had attained finality as it had not been challenged, GIDC cannot claim any right or interest in the land in question and cannot object to the title of the writ petitioners at all, i.e. the auction purchaser and the subsequent transferees.
7. Considering the said submission, we are further required to note that it could not be disputed by the learned counsel for the writ petitioners that the land in question, over which the mortgage was created by the borrower, was Page 7 of 17 Downloaded on : Wed Sep 20 20:32:17 IST 2023 NEUTRAL CITATION C/LPA/1192/2023 ORDER DATED: 14/09/2023 undefined acquired by the acquisition notifications dated 15.11.1973 and 04.11.1976 under Section 4 and 6 of the Land Acquisition Act. This fact has been brought before the learned Single Judge in the writ petition by the GIDC in the affidavit-in-reply, as respondent No. 5 therein. It is categorically stated in the affidavit of GIDC that Survey No. / Final Plot No. 74 admeasuring 17,199 sq. mtrs. and Final Plot No. 75/2 admeasuring 2125 sq. mtrs. were acquired by the State of Gujarat by publication of the notifications dated 15.10.1973 under Section 4 and the notification dated 04.11.1976 under Section 6 of the Land Acquisition Act, 1894. After the notice under Section 9 was issued, the award was passed on 22.09.1986.
8. Against the award, a Reference was made being Reference No. 1390 of 1987, wherein Reference Award dated 13.09.1994 was passed by the District Judge, Ahmedabad (Rural), Mirzapur. The First Appeal Nos. 3198 and 3196 of 1995 against the said award were filed, which were dismissed on 26.07.1986. SLP No. 1405 of 1997 challenging the order of the First Appellate Court, had also been dismissed by the Page 8 of 17 Downloaded on : Wed Sep 20 20:32:17 IST 2023 NEUTRAL CITATION C/LPA/1192/2023 ORDER DATED: 14/09/2023 undefined Apex Court by the judgment and order dated 08.08.1997. In the meantime, the possession of the land in question was handed over to the State Government on 23.03.1986 and, thereafter, on 18.08.1987, the State Government had transferred the possession of the acquired land to the GIDC. It is also stated in the affidavit filed on behalf of GIDC that these entries were duly made in the revenue record in the name of the State Government and, thereafter, in the name of GIDC.
9. It was the stand of the GIDC in the said affidavit that the original owner / borrower namely M/s. Indian Electro Chemicals Ltd. had created a mortgage over the property in question in favour of the Union Bank of India by taking a huge amount of money in the year 1984-85, after the acquisition proceedings were commenced. Though the exact date of creation of the mortgage by the original owner / borrower has not been given in the record of the writ petitions, but the learned counsel for the appellant - original writ petitioners could not dispute the above-noted facts narrated by GIDC in the affidavit filed before the Writ Court. Page 9 of 17 Downloaded on : Wed Sep 20 20:32:17 IST 2023
NEUTRAL CITATION C/LPA/1192/2023 ORDER DATED: 14/09/2023 undefined A perusal of the rejoinder filed on behalf of the writ petitioner by the Director of M/s. Bileshwar Industrial Estate Developers Private Limited, at page '72-73' of the paper-book makes it evident that no reply has been given to above noted averments in paragraph '3' of the affidavit filed by GIDC in reply to the writ petition. The paragraph '4' of the rejoinder - affidavit, which is in reply to para '2' of the reply affidavit of GIDC, only states that the GIDC made application before the DRT, Ahmedabad and the same was pending adjudication at that point of time. The writ petitioner was opposing the application of GIDC in the proceedings before the DRT. The fact remains that specific contention of the GIDC about commencement of the acquisition of the land in question in year 1973-74 under the Land Acquisition Act, 1894 and the subsequent conclusion thereof had not been controverted by the writ petitioners.
10. The only submission of the learned counsel for the petitioners that the petitioner being a bona fide auction purchaser in an auction conducted by the DRT, has a right accrued in its favour on account of the sale deed dated Page 10 of 17 Downloaded on : Wed Sep 20 20:32:17 IST 2023 NEUTRAL CITATION C/LPA/1192/2023 ORDER DATED: 14/09/2023 undefined 15.04.2008 executed pursuant to the proceedings drawn by DRT, which cannot be held invalid. The auction purchaser, i.e. petitioner had further dealt with the property by carving out plots and executed sale deeds of the said plots after the challenge to the auction sale made by GIDC was turned down. All the rights created in the land-in-question subsequent to the auction sale, cannot be ignored or even cannot be held to be illegal on account of the stand taken by GIDC. Reliance is placed on the decision of the Apex Court in the case of Sadashiv Prasad Singh versus Harendar Singh and Others reported in (2015) 5 SCC 574, to urge that the rights created in favour of the third party, a bona fide auction purchaser in the property purchased by him in a sale in compliance of the Court order / in a recovery proceedings under the Recovery of Debts And Bankruptcy Act, 1993, cannot be extinguished except in cases where the said purchase can be assailed on the grounds of fraud or collusion. It was argued that the Apex Court has held therein that where the property has been purchased for value by bona fide purchaser in furtherance of duly publicised public Page 11 of 17 Downloaded on : Wed Sep 20 20:32:17 IST 2023 NEUTRAL CITATION C/LPA/1192/2023 ORDER DATED: 14/09/2023 undefined auction purchaser, interference on the grounds of equity is not permissible.
11. At this stage, it is further submitted by the learned counsel for the petitioners that the GIDC has challenged the order passed by the Debt Recovery Tribunal before this Court in Special Civil Application No. 22161 of 2006, which was also dismissed vide judgment and order dated 13.10.2006 on the ground of statutory alternative remedy. The copy of the said order has been placed before us in the compilation by the learned counsel for the petitioners during the course of hearing.
12. Having noted the facts of the case and consideration of the arguments made by the learned counsel for the petitioners, we are required to note that in absence of any dispute with respect to the acquisition of the land-in-question completed under the Land Acquisition Act, 1894, the auction purchaser, though may be a bona fide purchaser of the land in question, cannot be allowed to assail the order passed by the Revenue Authorities in cancelling the mutation entry, the Page 12 of 17 Downloaded on : Wed Sep 20 20:32:17 IST 2023 NEUTRAL CITATION C/LPA/1192/2023 ORDER DATED: 14/09/2023 undefined order with respect to which was sought to be challenged by the petitioners by way of the amendment application filed before the writ Court. We may note that the proceedings before us are arising out of the orders passed by the Revenue Authorities in deleting the mutation entries made in the name of the auction purchaser based on the sale certificate issued during auction. However, once the land-in-question had been acquired in a proceedings under the Land Acquisition Act, 1894, and the acquisition proceedings were brought to their logical conclusion with the making of the award dated 22.09.1986 and transfer of possession to the State Government and in turn to the GIDC on 18.08.1987, the question would be as to whether the borrower namely the original owner of the land in question had ever raised any challenge to the land acquisition proceedings or not. Further question would be as to whether the borrower had succeeded in the challenge raised, if any. The third question would be as to whether he had received compensation for the land in question or accepted the award or challenged the same before the Reference Court. Though in the affidavit filed by Page 13 of 17 Downloaded on : Wed Sep 20 20:32:17 IST 2023 NEUTRAL CITATION C/LPA/1192/2023 ORDER DATED: 14/09/2023 undefined GIDC, there are assertions with regard to the challenge to the award by filing Reference by way of the First Appeals and further Appeal to the Apex Court, but there is no clarity with respect to the person who raised the said challenges. There is no answer to the affidavit of the GIDC with respect to the land acquisition proceedings, in reply to the same filed on behalf of writ petitioners. For the above facts brought before us and further in the absence of the borrower / original owner of the land-in-question, we cannot make any comment on the issues raised by the GIDC with respect to the challenge to the determination of the compensation under the award dated 22.09.1986 in the reference first appeal and further appeals.
13. However, so far as the claim of the petitioner - auction purchaser is concerned, once the acquisition notifications were issued under Section 4 and 6 of the Act in the year 1973 and 1976, the borrower was restrained from creating any mortgage in favour of the Bank namely Union Bank of India to take loan. The auction purchaser - petitioner got right in the property in the auction sale of a land which Page 14 of 17 Downloaded on : Wed Sep 20 20:32:17 IST 2023 NEUTRAL CITATION C/LPA/1192/2023 ORDER DATED: 14/09/2023 undefined was already vested in the State Government on account of the conclusion of land acquisition proceedings with the making of the award on 22.09.1986. The transfer of title in favour of the petitioner by the sale deed dated 15.04.2008, therefore, does not seem to be transfer of a valid title, in the facts and circumstances of the case brought before us.
14. However, for the fact that the challenge before us is only to the orders passed by the Revenue Authorities to delete the mutation entry in the name of the auction purchaser, we are not entering into the merits of the claim of the GIDC in detail. The petitioner - auction purchaser, who has acquired right in the property by way of the sale deed dated 15.04.2008 cannot have a better title than that of the borrower, who, according to us, was not competent to create the mortgage in favour of the Bank, over the land which was subject matter of acquisition under the Land Acquisition Act, 1894.
15. For the above noted facts, we are afraid to accept the arguments of the learned counsel for the petitioners Page 15 of 17 Downloaded on : Wed Sep 20 20:32:17 IST 2023 NEUTRAL CITATION C/LPA/1192/2023 ORDER DATED: 14/09/2023 undefined about the right of the bona-fide auction purchaser to challenge the action of the Revenue Authorities in deletion of the mutation entries. For any right claimed in the land-in- question, it is open for the petitioner - auction purchaser to file a Civil Suit seeking appropriate relief. So far as the other writ petitioners in the bunch are concerned, they are the subsequent purchaser, who had acquired right, title and interest in the property through the auction purchaser. They can also be impleaded in the same suit to seek appropriate relief. In any case, no merit in found in the writ petition. All the writ petitions are dismissed, being devoid of merits. Consequently, all the Appeals are also DISMISSED. Pending Civil Application/s, if any, also stand disposed of, accordingly.
16. We may further record that in some of the appeals arising out of the above-noted common judgments of the learned Single Judge, there are office objections that the appeals are delayed, as they are not supported by any delay condonation application. Be that as it may, as all the above- noted appeals are arising out of the common judgment, we have called for the records of the defective appeals from the Page 16 of 17 Downloaded on : Wed Sep 20 20:32:17 IST 2023 NEUTRAL CITATION C/LPA/1192/2023 ORDER DATED: 14/09/2023 undefined Office and they are also being dismissed both on the ground of delay and on merits, in view of the above orders.
(SUNITA AGARWAL, CJ ) (ANIRUDDHA P. MAYEE, J.) AMAR SINGH Page 17 of 17 Downloaded on : Wed Sep 20 20:32:17 IST 2023