State Of Gujarat vs Zaverbhai Nanjibhai Chauhan
2021 Latest Caselaw 4034 Guj

C/LPA/1376/2012                                                       IA ORDER DT. 10.3.21
                  STATE OF GUJARAT v. ZAVERBHAI NANJIBHAI CHAUHAN




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2 of 2012
                                  In
               F/LETTERS PATENT APPEAL NO. 1376 of 2012
                                  In
             R/SPECIAL CIVIL APPLICATION NO. 5500 of 2002

                                      With

          CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2014
                                   In
               F/LETTERS PATENT APPEAL NO. 1376 of 2012
                                   In
              R/SPECIAL CIVIL APPLICATION NO. 5500 of 2002
==================================================================

STATE OF GUJARAT Versus ZAVERBHAI NANJIBHAI CHAUHAN ================================================================== Appearance:

MR K.M. ANTANI, Assistant Government Pleader for the PETITIONER No. MS TRUSHA A. PATEL For the RESPONDENT MR A J PATEL for the RESPONDENT(s) No. UNSERVED EXPIRED (N) for the RESPONDENT(s) No. ==================================================================

CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI and HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 10/03/2021 IA ORDER (PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

1. During the course of arguments, learned counsel for the

Respondent Ms. Trusha A. Patel has brought to our notice the

judgment of the learned Single Judge in the case of Rajeshkumar

Bhikhabhai Patel vs. State of Gujarat [2001 (0) AIJEL­HC

210005] (Coram: D.C. Srivastava, J.), in which the learned Single

C/LPA/1376/2012 IA ORDER DT. 10.3.21 STATE OF GUJARAT v. ZAVERBHAI NANJIBHAI CHAUHAN

Judge of this Court like done in the present impugned order, in

the present Letters Patent Appeal before us, took the view that the

State has to take fresh proceedings for possession under Section

10(5) / 10(6) of the Act after the order of the Competent Authority

is set aside or remanded by the Gujarat Revenue Tribunal and

fresh order is required to be passed under Section 8(4) / Section 9

of the ULC Act, 1976.

2. Ms. Trusha A. Patel, learned counsel has also referred to

another Division Bench Judgment in the case of State of Gujarat

vs. Bharatkumar Lalbhai Vasa [Letters Patent Appeal No.1132

of 2007], in which the order of another learned Single Judge in

Special Civil Application No.5324 of 1995 decided on 9.11.2006

(Coram: Jayant Patel, J.), has upheld the order passed by the

learned Single Judge in that case, where the facts as found by the

Division Bench, were that in view of the undisputed facts before

the learned Single Judge that the State did not take any action in

pursuance of the order dated 10.1.1984 passed by the Competent

Authority which was set aside in appeal by the Tribunal as illegal

and non est and did not take the fresh procedure set out in

Section 10 of the Act after the Competent Authority decided the

matter afresh by the order dated 25.8.1992, therefore, the appeal

C/LPA/1376/2012 IA ORDER DT. 10.3.21 STATE OF GUJARAT v. ZAVERBHAI NANJIBHAI CHAUHAN

against the order of the learned Single Judge was dismissed in

limine. No detailed discussion or interpretation of these

provisions is made in that order of Division Bench.

3. Ms. Trusha Patel, learned counsel has also given us the brief

facts of the case involved before us in this case as under.

4. That originally the surplus land was determined by the

Authority of 11,793 sq.mtrs. vide order dated 26.3.1987 which

came to be published in Official Gazette on 20.6.1988 and in

pursuance of the Notice under Section 10(5) of the Act issued on

6.2.1993 for the possession of 11,793 sq.mtrs. and by Panchnama

Process, the possession was taken under Section 10(6) of the Act

on 18.3.1993. However, she submitted that by subsequent order

dated 15.12.1993, the said order dated 26.3.1987 came to be

modified by the Competent Authority and the surplus land was

reduced from 11,793 sq.mtrs. to 9,793 sq.mtrs. on account of

the claim made by two daughters of the land holder for claiming

separate limits in their hands which was accepted by the

Competent Authority. She further submitted that again by

another order dated 19.4.1995, the said surplus land area was

reduced by the Competent Authority to 3,480 sq.mtrs. and for

this time, the reduction was made on account of the Town

C/LPA/1376/2012 IA ORDER DT. 10.3.21 STATE OF GUJARAT v. ZAVERBHAI NANJIBHAI CHAUHAN

Planning Scheme, in which the deductions of the land area were

made according to the Town Planning Scheme and thus, the

surplus land under the ULC Act came to be determined by the

Competent Authority on 19.4.1995 at 3,480 sq.mtrs.

5. Ms. Trusha A. Patel, learned counsel has further submitted

before us that the sale transaction for 3,480 sq.mtrs. has taken

place. She submitted that on 7.9.1999, the land holders Khushal

Zaverji Chauhan and others executed a registered Sale Deed in

favour of Girish Natvarbhai Patel for 3,480 sq.mtrs. and the said

purchaser Girish Natvarbhai Patel again executed another

registered Sale Deed on 17.4.2000 in favour of Moti Bechar and

Bhikha Dala Patel. She further submitted that after about 10

years, on 16.10.2010, the purchaser under the registered Sale

Deed dated 17.4.2000 executed an unregistered Agreement to

Sell in favour of Umang H. Thakkar for whom learned counsel

Ms.Trusha A. Patel now appears before us and such Agreement to

Sell was executed on 16.10.2020 through the Power of Attorney

Holder of Moti Bechar and Bhikha Dala Patel, one Dipak

Ramanlal Shah and subsequently, in pursuance of the

Agreement to Sell dated 16.10.2020, on 23.12.2010, a Possession

Receipt was executed in favour of her client Umang H. Thakkar.

C/LPA/1376/2012 IA ORDER DT. 10.3.21 STATE OF GUJARAT v. ZAVERBHAI NANJIBHAI CHAUHAN

6. Explaining these transactions ad­seriatim, the learned

counsel for the Respondent Ms. Trusha A. Patel sought to submit

before us that since fresh proceedings under Section 10 of the Act

were not undertaken by the State Authorities after the orders

passed by the Competent Authority came to be modified on two

occasions viz. on 15.12.1993 and again on 19.4.1995, therefore,

the land has to be treated as vested in the original land holder

and the subsequent registered Sale Deeds / Agreements to Sell

executed in favour of her client Umang H. Thakkar to the extent

of 3,480 sq.mtrs. of land has to be treated as valid.

7. On the other hand, Mr.K.M. Antani, learned Assistant

Government Pleader for the Appellant State before us urged that

once the proceedings under Section 10(5) / 10(6) stood

concluded in respect of the entire land of 11,793 sq.mtrs. on

6.2.1993 [Section 10(5) Notice] and on 10.3.1993 [Section 10(6)

Panchnama Possession], thereafter no fresh proceedings under

Section 10 were required to be taken again upon the modification

of the orders passed by the Competent Authority on 15.12.1993

and 19.4.1995. He submitted that the original order of the

Competent Authority under Section 9 of the Act does not merge

with the modification / rectification order passed by the

C/LPA/1376/2012 IA ORDER DT. 10.3.21 STATE OF GUJARAT v. ZAVERBHAI NANJIBHAI CHAUHAN

Competent Authority under Section 9 of the Act on 15.12.1993

and later on, on 19.4.1995 and the said proceedings under

Section 10 of the Act can be upheld to the extent of the finally

determined surplus land of 3,480 sq.mtrs. He further submitted

that initial sale of the land of 3,480 sq.mtrs. in question made on

7.9.1999 itself, which was part of the land of 11,793 sq.mtrs.

vested in Government under Section 10(3) and taken possession,

was contrary to the provisions of Section 10(4) of the Act and

therefore, the present Applicant Umang H. Thakkar under the

unregistered Agreement to Sell executed in his favour

purportedly on 16.10.2010, cannot claim any right on the land in

question, admeasuring 3,480 sq.mtrs.

8. On these rival submissions, the question which requires our

consideration, is as to whether Section 10(3) of the Act vesting of

the land in the State and possession taken over under Section

10(5) / 10(6) of the Act on the basis of original order passed by the

Competent Authority under Section 9 of the Act on 26.3.1987 are

to be treated as null and void and fresh proceedings are required

to be taken de novo in pursuance of the modification /

rectification orders passed by the Competent Authority under

Section 9 of the Act on 15.12.1993 (9,793 sq.mtrs. declared

C/LPA/1376/2012 IA ORDER DT. 10.3.21 STATE OF GUJARAT v. ZAVERBHAI NANJIBHAI CHAUHAN

surplus) or again on 19.4.1995 (3,480 sq.mtrs. declared surplus)

or not.

9. Both learned counsel pray for some time to study the

matter further.

10. Time as prayed for is allowed. Put up on 17.3.2021.

(DR. VINEET KOTHARI,J)

(BIREN VAISHNAV, J) Bharat