Marutinandan Kathiawadi vs State Of Gujarat
2021 Latest Caselaw 1735 Guj

       C/LPA/437/2017                                         IA ORDER




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


       MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2017
           In R/LETTERS PATENT APPEAL NO. 437 of 2017
         In R/SPECIAL CIVIL APPLICATION NO. 1519 of 2017
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MARUTINANDAN KATHIAWADI Versus STATE OF GUJARAT ========================================================== Appearance:

MR C B UPADHYAYA for the PETITIONER(s) No. MR SATYAM Y CHHAYA for the RESPONDENT(s) No. ==========================================================

CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH and HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

Date : 05/02/2021

IA ORDER (PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH)

1. We have heard Shri Chitrajeet Upadhyaya, learned

counsel for the applicant, Shri Satyam Chhaya,

learned counsel appearing for the respondent-

Corporation and Shri Dharmesh Devnani, learned

Assistant Government Pleader for the State respondent

No.1.

2. This is an application seeking review/recall of the

order dated 21st March, 2017 passed by a Division

C/LPA/437/2017 IA ORDER

Bench of this Court in Letters Patent Appeal No. 437 of

2017 whereby the said Letters Patent Appeal was

dismissed. Further relief framed is for quashing of the

demand of the Corporation of Rs.91,93,640/-.

3. The Miscellaneous Civil Application (For Review) No.1

of 2017 has been filed upon liberty granted by the

Supreme Court vide order dated 28th April, 2017

passed in Special Leave To Appeal (Civil) No. 12930 of

2017. The order of the Supreme Court is reproduced

below:

"Heard Mr. K.T.S. Tulsi, learned senior counsel along with Mr. Nachiketa Joshi, learned counsel for the petitioner and Ms. Hemantika Wahi, learned counsel appearing for the State.

It is submitted by Mr. K.T.S. Tulsi, learned senior counsel that in 144 cases, the policy formulated by the State Government has been applied whereas the petitioner has been selectively chosen to be covered under the policy as a result of which he has been slapped with a demand of Rs.91,93,640/- towards occupational charges.

On a perusal of the judgment of the High Court, we find that the High Court has not dealt with it although such a ground was taken in the intra-court appeal.

In view of the aforesaid, we grant liberty to

C/LPA/437/2017 IA ORDER

the petitioner to file an application for review within four weeks hence only relating to occupational charges with the stipulation that the High Court shall entertain the review and dispose it of on its own merits without throwing it at the threshold on the ground of limitation. If the petitioner becomes unsuccessful in the application for review, liberty is granted to approach this Court challenging the order passed in review as well as the main order only relating to occupational charges.

With the aforesaid request, the special leave petition stands disposed of.

I.A.No.5/2017 in SLP (C) No.30653/2016

Prayer for extension of time stands rejected."

4. The fact that the present appellant-applicant was in

possession of the plot belonging to the Corporation is

not in issue. It is also admitted fact that the appellant-

applicant has not paid any rent to the Corporation for

the entire period of occupation. After the appellant-

applicant lost from this Court and before action by the

Corporation to evict him could be taken, the question

arose with regard to occupational charges or the

occupancy charges for the period for which the land

C/LPA/437/2017 IA ORDER

was occupied and utilized by the appellant-applicant.

The Corporation seems to have charged the rent on

some settled rate as per the policy of the Corporation

which is 5% of the Jantri rate prevalent at the relevant

time.

5. Before us, Shri Upadhyaya, learned counsel for the

appellant-applicant has submitted that the appellant-

applicant is ready and willing to pay any reasonable

amount and according to him, the reasonable amount

is Rs. 7.5 Lac, which the appellant-applicant is

offering to the Corporation but the Corporation has not

accepted the same. Mr. Upadhyaya has also sought to

interpret Clause(b) of the direction issued by the

Supreme Court in the earlier round of litigation dated

28th November, 2016 to mean that the occupational

charges would be from the date of the order of the

Supreme Court and not from the date of occupation.

We are unable to find any such mention in the order of

the Supreme Court in Clause(b) of its direction that the

occupational charges would be from the date of the

judgment. In any case, subsequently, the learned

C/LPA/437/2017 IA ORDER

Single Judge and the Division Bench have already

rejected the claim of the petitioner-appellant. We,

however, feel that the demand raised by the

Corporation of such a huge amount at a flat rate and

that too at such a belated stage would be

unreasonable and unfair. As such, it would be

appropriate that a reasonable amount may be fixed in

the best interest of the parties and also to ensure that

it does not pinch either of them.

6. Having considered the rates and the figures as placed

before us, we feel that the amount of Rs. 25,00,000/-

(Rupees Twenty Five Lacs only) be determined as the

occupational charges as full and final amount. Mr.

Upadhyaya, upon instruction from his client has

stated that the appellant-applicant would not take this

matter any further and would accept the figure given

by us. Further, on the request of Shri Upadhyaya, we

grant three months time to the appellant to deposit the

said amount. In the event of default this order will

stand automatically withdrawn without further

reference to Court and the respondent Corporation

C/LPA/437/2017 IA ORDER

would be free to recover the amount as per the demand

raised by it.

7. In view of the above, we recall the order passed by the

Division Bench on 21st March, 2017 and dispose off

the Letters Patent Appeal in terms of the above order.

8. The application stands disposed off accordingly.

(VIKRAM NATH, CJ)

(VIPUL M. PANCHOLI, J) A.M. PIRZADA