Gujarat High Court
State Of Gujarat vs Lh Of Decd Kantibhai Jinabhai ... on 17 August, 2023
Bench: N.V.Anjaria
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
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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
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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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C/LPA/993/2023 ORDER DATED: 17/08/2023
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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
