Gujarat High Court
Msa. Bileshwar Industrial Estate vs State Of Gujarat on 14 September, 2023
Bench: Aniruddha P. Mayee
NEUTRAL CITATION
C/LPA/1192/2023 ORDER DATED: 14/09/2023
undefined
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
With
R/LETTERS PATENT APPEAL NO. 1195 of 2023
In
SPECIAL CIVIL APPLICATION NO. 11715 of 2013
With
F/LETTERS PATENT APPEAL NO. 24395 of 2023
In
SPECIAL CIVIL APPLICATION NO. 11716 of 2013
With
F/LETTERS PATENT APPEAL NO. 24396 of 2023
In
SPECIAL CIVIL APPLICATION NO. 13243 of 2013
With
F/LETTERS PATENT APPEAL NO. 24397 of 2023
In
SPECIAL CIVIL APPLICATION NO. 13242 of 2013
With
F/LETTERS PATENT APPEAL NO. 24398 of 2023
In
SPECIAL CIVIL APPLICATION NO. 13247 of 2013
With
F/LETTERS PATENT APPEAL NO. 24399 of 2023
In
SPECIAL CIVIL APPLICATION NO. 11714 of 2013
With
F/LETTERS PATENT APPEAL NO. 24400 of 2023
In
SPECIAL CIVIL APPLICATION NO. 13244 of 2013
With
F/LETTERS PATENT APPEAL NO. 24401 of 2023
In
SPECIAL CIVIL APPLICATION NO. 13246 of 2013
With
F/LETTERS PATENT APPEAL NO. 24402 of 2023
In
SPECIAL CIVIL APPLICATION NO. 13248 of 2013
With
Page 1 of 17
Downloaded on : Wed Sep 20 20:32:17 IST 2023
NEUTRAL CITATION
C/LPA/1192/2023 ORDER DATED: 14/09/2023
undefined
F/LETTERS PATENT APPEAL NO. 24403 of 2023
In
SPECIAL CIVIL APPLICATION NO. 13245 of 2013
With
F/LETTERS PATENT APPEAL NO. 24404 of 2023
In
SPECIAL CIVIL APPLICATION NO. 13251 of 2013
With
F/LETTERS PATENT APPEAL NO. 24405 of 2023
In
SPECIAL CIVIL APPLICATION NO. 13249 of 2013
With
F/LETTERS PATENT APPEAL NO. 24406 of 2023
In
SPECIAL CIVIL APPLICATION NO. 13250 of 2013
==========================================================
MSA. BILESHWAR INDUSTRIAL ESTATE
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR MI HAVA(348) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2,3,4,5
==========================================================
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
