Gujarat High Court
Kamuben Wd/O Dalpatbhai Durlabhbhai ... vs State Of Gujarat on 23 April, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/10747/2023 ORDER DATED: 23/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10747 of 2023
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KAMUBEN WD/O DALPATBHAI DURLABHBHAI PATEL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. AADIT R SANJANWALA(9918) for the Petitioner(s) No. 1
MR JK SHAH ASSTT. GOVERNMENT PLEADER/PP for the Respondent(s)
No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 23/04/2025
ORAL ORDER
1. Heard learned Senior Advocate Mr. S. H Sanjanwala
for the petitioner and learned AGP Mr. J. K. Shah for
the respondent no. 1- State.
2. By the way of this petition, the petitioner has sought
for following prayers:
"A. YOUR LORDSHIPS MAY BE PLEASED TO allow
the present petition;
B. YOUR LORDSHIPS MAY BE PLEASED TO issue a
writ of certiorari and/or any other appropriate writ,
order and direction by quashing and setting aside
the order dated 28.12.2022 (Annexare-D) and YOUR
LORDSHIPS MAY BE PLEASED TO allow the
application filled by the petitioner dated
19.07.2022.
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C. YOUR LORDSHIPS MAY BE PLEASED TO issue a
writ of mandamus and/or any other appropriate
writ, order or direction directing the Mamlatdar to
act according to law and to delete the name of the
Government from the 7/12 extract in land bearing
Survey No. 494 of Village Katargam admeasuring
3780 Sq. Mtrs.
D. Pending admission, hearing and till final
disposal of the present petition YOUR LORDSHIPS
MAY BE PLEASED TO direct respondent no. 2 -
Mamlatdar to forthwith delete the name of the
Government from the 7/12 extract in land bearing
Survey No. 494 of Village Katargam admeasuring
3780 Sq. Mtrs. and enter the name of the petitioner.
E. YOUR LORDSHIPS MAY BE PLEASED TO provide
the cost of this petition.
F. YOUR LORDSHIPS MAY BE PLEASED TO award
any such other and further relief as may be deemed
just and expedient in the interest of justice."
3. Learned Senior Advocate for the petitioner would
submit that earlier Special Civil Application No. 3119
of 2003 was preferred by the present petitioner
interalia challenging the order passed by Urban Land
Ceiling Authority dated 25.02.2003 wherein it had
declared the land of the petitioner bearing Survey No.
494 of Village Katargam, Dist: Surat as surplus land.
The Learned Senior Advocate would submit that the
petitioner had succeeded in the said writ petition, and
this Hon'ble Court in its judgement and order dated
15.07.2013 held that the order dated 25.02.2003 to be
quashed and set aside and it was further held that
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upon coming into force of the Repeal Act on
30.03.1999, all proceedings under the Urban Land
Ceiling Act have been abated in respect of the subject
land and the respondents were accordingly directed in
issue a no objection certificate to the petitioner in
respect of the land in question. The petitioner having
succeeded in the said writ petition, the state had
preferred Letters Patent Appeal no. 775 of 2014
against the said order. Thereafter the said Letters
Patent Appeal came to be dismissed by the Division
Bench of this Hon'ble Court in its order dated
21.11.2019. It is submitted by the petitioner that
thereafter the petitioner had filed a Caveat Application
before the Hon'ble Supreme Court but so far after
21.11.2019 i.e. more than 3 years no copy has been
served on therefore petitioner and the Collector is even
refusing today to enter the name of the petitioner.
4. Learned Senior Advocate would submit that thereafter,
the petitioner approached the authorities by the way of
application dated 19.07.2022 to give effect of the
judgment and order dated 15.07.2013 passed by this
Hon'ble Court, however the said application came to be
rejected on 28.12.2022 by the authorities on the
ground that the State has decided to challenge the
order passed by Division Bench of this Court passed in
Letters Patents Appeal no. 775 of 2014 before the
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Hon'ble Supreme Court and therefore the same is
under process, and therefore the application is
rejected.
5. Learned Senior Advocate would under such
circumstances, request this Court to appropriately
direct the authorities concerned, to give effect of the
orders of this Court in the revenue record.
6. As against the same, learned AGP Mr. J.K. Shah would
vehemently oppose the present petition. Learned AGP
would submit that the State had filed Special Leave
Petition (diary) no. 24923 of 2022 on 11.08.2022
challenging the order and judgment passed by the
Division Bench of this Hon'ble Court, however the
same came to be dismissed for default vide order dated
17.07.2023. Further Learned AGP would submit that
the State has undertaken the process for restoration
before the Hon'ble Supreme Court thereof. It is further
submitted that since the State is an impersonal
machinery, the State may be given some leeway and
whereas this Court may not direct implementation of
the order of this Court.
7. Considering the submissions made by the learned
Senior Advocate for the petitioner and learned AGP for
the State, it would appear to this Court that while the
learned Single Judge of this Court vide order dated
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05.07.2013, had allowed the petition by the present
petitioner, it would also appear that the said decision
had acquired finality on account of the order dated
21.11.2019 passed by the Division Bench of this Court
in challenge by the State to the order in question. It
would appear from the submissions made by the
learned advocate for the petitioner that as of now, the
Special Leave Petition (diary) no. 24923 of 2022 filed
but the State before the Hon'ble Supreme Court is
dismissed for default vide order dated 17.07.2023.
Therefore, the order dated 21.11.2019 of the Division
Bench of the High Court in Letters Patent Appeal No.
775 of 2014 is in operation and is final and binding on
all parties.
8. To this Court, it would appear that for the purpose of
brevity, observations of the Division Bench, vide order
dated 21.11.2019 at para 40, 41 being relevant for the
present purpose is quoted for benefit:
"40. Once we hold that the plea of principle of res
judicata is not tenable in law, we find it difficult to
disturb the findings of fact recorded by the learned
Single Judge upon perusal of the original record.
The learned Single Judge has observed, in so
many words, that the original record was called
for from the ULC Authorities, and upon perusal of
the same, it was found that there was nothing to
indicate that the possession had been taken over
in accordance with law. In such circumstances,
referred to above, we are of the view that we
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should not disturb the judgment of the learned
Single Judge.
41. The contention like whether Kamuben could be
said to be a stranger to the litigation etc. are
sought to be raised for the first time in this appeal.
No such contentions were canvassed before the
learned Single Judge. The issue before the learned
Single Judge was limited to the extent whether on
the date of the repeal, Kamuben was in actual
physical possession of the subject land or not. The
finding of fact in this regard, as recorded by the
learned Single Judge, is that Kamuben was in
actual physical possession of the subject land on
the date of repeal and, in such circumstances, the
ULC proceedings could be said to have lapsed
thereafter. If we have to close this judgment with
one last observation, then we would say that the
case on hand is one of paper possession and
nothing beyond that.
In view of the aforesaid discussion, this appeal
fails and is hereby dismissed."
9. While the learned AGP Mr. Shah for the State has inter
alia submitted that taking into account the fact that
the State is an impersonal machinery, this Court may
grant some leeway to the State, to this Court, it would
appear that such a prayer may not be within the realm
of this Court to grant. Once the respondents have
taken a decision to approach the Hon'ble Supreme
Court for the purpose of filling restoration application
whether the delay is required to be condoned or not
etc. would be aspect which the Hon'ble Supreme
Court may take into consideration and it is not for this
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Court to make any observations as regards the same,
yet this Court would not countenance a stand of the
State that they would not implement an order of the
year 2013, in the year 2025 on the ground that the
said order was challenged by the State before the
Hon'ble Supreme Court, however since it was
dismissed for default, process for filling restoration
application is under process. In this view of the fact
that to this Court, it would also appear that while the
order of the learned Coordinate Bench of this Court is
confirmed by the Division Bench is required to be
implemented by the State i.e. appropriate directions
are required to be issued, yet considering the fact that
the State is in process of filing restoration application
before the Hon'ble Apex Court, appropriate safeguards
have to be imposed so as to ensure that the petition
before the Hon'ble Supreme Court may not be
infructuated.
10. At this Stage, it would be relevant to mention that
during hearing of this petition, on 08.04.2025,
learned Senior Advocate Mr. S.H. Sanjanwala under
the instructions, had shown inclination to file an
undertaking that the petitioner would abide by any
decision of the Hon'ble Supreme Court in Diary
No.24923/2022 which was preferred challenging the
order passed by the Hon'ble Division Bench of this
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Court in Letters Patent Appeal No.775/2014 dated
21.11.2019 confirming order passed by a learned
Coordinate Bench dated 15.07.2013 in Special Civil
Application No.3119/2003, more particularly, the said
application before the Hon'ble Supreme Court having
been dismissed for non-prosecution and the State as
having been informed by learned AGP having
undertaken process for restoration thereof and
whereas the learned Senior Advocate in that regard,
has tendered an undertaking of the original petitioner
before this Court, which is taken on record.
11. Having regard to the above, to this Court, an order
balancing the interest of the parties is required to be
passed and whereas to this Court, the following
directions would meet with the ends of justice:
(a) The undertaking tendered by the learned Senior
Advocate sworn by the original petitioner on is
directed to be taken on record. The same reads as
under:
"I, Kamuben Wd/o. Dalpathbhai Patel, Female,
Adult, the petitioner in the captioned petition,
having residence at A-7, Smit Sagar Society, Near
Ayodhya Nagar, Adajan, Surat do hereby
solemnly affirm and state as follows:
1. By an order dated 17.07.2023, Special Leave
Petition (diary) no. 24923 of 2022 is dismissed for
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default. Therefore, the order dated 21.11.2019 of
the Division Bench of the High Court in Letters
Patent Appeal No. 775 of 2014 is in operation and
is final and binding on all parties. I respectfully
submit that in view thereof, the reliefs prayed for
in the petition for entering the name of the
petitioner in the 7/12 extract and deleting the
name of the government may be granted. If at all
the Respondent chose to file an application for
restoration of Special Leave Petition (diary)
no.24923 of 2022, I would defend the same in
accordance with the law. I undertake to abide by
the final decision of the Hon'ble Supreme Court in
the said matter. In view of my aforesaid
undertaking, I submit that the petition may be
allowed and the prayer for entering my name in
7/12 and deleting the name of the government in
7/12 may be granted, which may be made
subject to the decision of the Hon'ble Supreme
Court in Special Leave Petition (diary) no.24923 of
2022."
(b) The respondent authorities are directed to give
appropriate effect of the order of learned Coordinate
Bench dated 05.07.2013 in Special Civil Application
No. 3119 of 2003 as confirmed by the Division Benc
vide order dated 21.11.2019 in Letters Patent Appeal
No. 775 of 2014 and appropriate consequential entries
shall also be mutated by the authorities concerned as
per the request made by the present petitioner in
writing to the respondent.
(c) It is clarified that the petitioner shall strictly abide
by undertaking dated 12.04.2025 tendered to this
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Court, and whereas the Revenue Authorities are
directed to mutate an entry with regard to present
order in the revenue record.
With this observations and directions, the present
petition stands disposed of as allowed. Direct service
is permitted.
(NIKHIL S. KARIEL,J)
Y.N. VYAS
