Gujarat High Court
Zahirbhai Fidabhussein Africawala vs State Of Gujarat on 16 January, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
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C/LPA/1469/2018 ORDER DATED: 16/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1469 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 5536 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1469 of 2018
With
CIVIL APPLICATION (FOR PRODUCTION OF ADDITIONAL EVIDENCES) NO. 1
of 2022
In R/LETTERS PATENT APPEAL NO. 1469 of 2018
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 1469 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
In R/LETTERS PATENT APPEAL NO. 1469 of 2018
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ZAHIRBHAI FIDABHUSSEIN AFRICAWALA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. ANSHIN DESAI, SR. ADV. ARPIT R SINGHVI(9524) for the Appellant(s) No. 1
MR JEET J BHATT(6154) for the Appellant(s) No. 1
MS. HETAL PATEL, ASSISTANT GOVERNMENT PLEADER for the Respondent(s)
No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 16/01/2025
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
Heard the learned senior counsel Mr. Anshin Desai for the
appellant and perused the record.
2. The present intra-court appeal was directed against the
judgment and order dated 12/06/2018 passed by the learned single
Judge, wherein the order dated 13th July, 2017 passed by the
Secretary (Appeals) Revenue Department, Ahmedabad in Revision
Application No. 44 of 2016 preferred by the petitioner challenging
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the order dated 13th October, 2020 passed by the Collector,
Junagadh, was subjected to challenge.
3. At the outset, it may be stated that the land-in-question
subject matter of consideration in the present appeal (original writ
petition) was the land bearing Survey No. 1261/1 paiki admeasuring
4445 sq.yards situated at Kodinar, the then District Amreli, which
was a government land, granted on lease by the Collector vide
order dated 29.12.1972 for a period of seven years for the purpose
of running a petrol pump. The original lease was in favour of one
Navinchandra R. Leua on the condition as prescribed in the lease
deed. The lease period, as per the terms and conditions of the
lease deed dated 29.12.1972 expired on 18.01.1983, and there was
no renewal thereafter.
4. It seems that after expiry of the lease in the year 1983, as
recorded by the learned single Judge, the petitioner moved an
application in the year 1985 seeking extension of the lease for a
period of 10 years. It may also be noted that it is the case of the
appellant herein that the permission for transfer of lease from the
original independent lessee to the partnership firm was granted by
the Collector and the lease was transferred in the name of the
partnership firm for running the petrol pump. It may further be
noted that some dispute arose with regard to the constitution of the
partnership firm running the petrol pump and because of that the
dispute arose with regard to the continuance of the partnership firm
as a lessee over the land-in-question. The eviction order dated 13 th
October, 2000 had been passed by the Collector invoking the
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provisions of Section 79A of the Gujarat Land Revenue Code, 1879
terming the partnership firm being unauthorised occupant on the
land-in-question.
5. Pertinent is to note that no dispute could be raised with
regard to the finding of the learned single Judge that though lease
period was over on 18.01.1983, the petitioner firm continued to
occupy the land-in-question and no order for renewal/revision of
rent or making of recovery was passed.
6. Be that as it may, the order dated 13.10.2000 of eviction of
the partnership firm passed by the Collector, Junagadh had not
been challenged for a period of 16 years and the Revision
Application No. 44 of 2016 was preferred before the Special
Secretary, Revenue Department, which was dismissed by the order
dated 13th July, 2017.
7. We may record that we cannot attach any illegality to the
order passed by the learned single Judge that the petitioner who
did not challenge the eviction for a period of 16 years before the
SSRD, cannot be given any indulgence.
8. In addition to the above, it was also recorded by the learned
single Judge that as per the conditions of the original lease deed
dated 29th December, 1972, the lease was renewable for 7 years and
the maximum period of permissible renewable was upto 30 years.
Even this period of 30 years had expired when the Revision was
preferred before the SSRD in the year 2016. Thus, the outer limit
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of the maximum period within which the lease could have been
renewed, had also expired. The writ petition has been dismissed on
merits with the above observations.
9. Challenging this order, it is argued by the learned senior
counsel appearing for the appellant, that the provisions of Section
79A for eviction of partnership firm as an unauthorized occupant is
not attracted in the facts and circumstances of the case, inasmuch
as, the present case cannot be said to be a case of an occupant,
who is a sheer encroacher or where there are allegations of non-
compliance of any of the conditions of grant of lease. The
contention is that in view of the conditions of the lease deed giving
liberty to the lessee to seek renewal and various communications
between the authorities and the lessee in the matter of renewal of
the lease, the present case cannot be said to be a case where a
blanket order of ousting the petitioner terming it as unauthorized
occupant could be passed.
10. As regards the breach of condition of the lease indicated in
the order dated 13.10.2020, it was argued that the same cannot be
taken as a ground to evict the petitioner as an unauthorized
occupant on account of the subsequent communications between the
parties, wherein at some stage of the proceedings, even the
proposal of the petitioner for extension of lease was considered
positively on payment of premium.
11. Pressing the Civil Application No.1 of 2023 for bringing on
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record various communications between the years 1984 and 1999
and thereafter from 2001 to 2014, it is sought to be submitted by
the learned senior counsel appearing for the appellant that all these
documents which show that there was subsistence claim of renewal
of lease of the petitioner, which fact is required to be taken into
account by giving benefit of order XLI Rule 27, CPC. It was
argued that though these documents could not be pressed into
service by bringing them on record before the learned single Judge,
but the present Court being a Court of appeal in order to do the
ultimate justice, is required to take into account all these
documents, by allowing the application which clearly show that in
the intervening period from 1983 to 2016, there was consistent
consideration by the State authorities in the matter of renewal of
the lease. The submission is that if these documents are not
permitted to be brought on record, serious prejudice would be
caused to the petitioner, inasmuch as, the documents brought by
means the application under Order XLI Rule 27 being the
communications of the Government authorities, cannot be ignored.
12. With vehemence, it was argued by the learned senior counsel
appearing for the petitioner that the learned single Judge has
committed an error in holding that even the maximum period of 30
years mentioned in the lease deed for extension of the lease tenure
had expired, when there was a positive consideration in the matter
of renewal during the intervening period by the competent
authority. Various communications made in the years 1985 and
1986 between the petitioner, Mamlatdar and the Collector have
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been brought on record to submit that inspite of positive
consideration by the competent authority for grant of renewal of
lease, renewal could not be granted and, as such, the eviction of
the petitioner by the order dated 13 th October, 2000 on the premise
of breach of condition of the lease deed and the petitioner being
unauthorized occupant by invoking Section 79A of the Revenue
Code, can not be sustained.
13. It was further argued that, at the most, the present case gives
rise to a situation of determination of the lease by virtue of
Sections 105, 106 and 111 of the Town Planning Act. If that be
so, the principle of lease holding-over incorporated in Section 111G
would be attracted and the petitioner being the lessee holding-over,
could not be said to be unauthorized occupant. There was no
determination of lease by virtue of the provisions of the Transfer of
Property Act in light of the conditions of the original lease dated
29.12.1972. The eviction order is nothing but a short cut method
adopted by the Collector for eviction of a lessee by terming it as an
unauthorized occupant. With the above, it was vehemently argued
by the learned senior counsel that from both the angles, the order
passed by the learned single Judge, cannot be sustained.
14. Taking note of the above contentions, suffice it to record that
there is no dispute about the fact that the tenure of the lease
originaly granted vide lease deed dated 29.12.1972 had expired on
18.01.1983. From 18.01.1983 onwards till 13 th October 2000 there
may be considerations by the competent authority in the matter of
renewal of lease, but the fact remains that the lease was never
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renewed nor the position of the petitioner as a lessee was
regularized. Moreover, on 13.10.2000, the Collector found that the
petitioner being an unauthorized occupant over the government
land, lease of which had already been expired in January, 1983.
Section 79A permits for summary eviction of unauthorized occupant
who is in wrongful possession on a government land, if seizes to be
entitled to possession of the government land granted under the
provisions of the Land Revenue Code, 1879. There is no dispute
about the fact that the lease of the land-in-question was governed
by the provisions of the Land Revenue Code and the conditions of
the lease were aligned in the lease deed dated 29.10.1972.
15. With the expiry of the tenure of the lease and there being no
renewal after 18.01.1983, the petitioner cannot be described as an
authorized occupant, as it did not have right to retain the
possession of the government land beyond the period of lease.
Moreover, the order of eviction dated 13.10.2000 had not been
challenged by the petitioner for a period of 16 years and hence the
revision application filed in the year 2016 had been dismissed by
the SSRD vide order dated 13th July, 2017. No infirmity can be
found in the decision of the SSRD in rejecting the Review
Application as also the order passed by the learned single Judge
that for the dispute pertaining to the occupation of the land-in-
question have come to an end in the year 2000 with the passing of
the order dated 13.10.2000. The petitioner cannot be permitted to
re-open it after 16 years.
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16. In the instant case, the petitioner is an indolent litigant, who
is trying to espouse his cause by challenging the order dated
13.10.2000 after a period of 16 years. For filing a writ petition,
there is no doubt that no fixed period of limitation is prescribed,
however, when the extraordinary jurisdiction of the Writ Court is
invoked, it is to be seen as to whether within reasonable time, the
same has been invoked and it would not resurrect the cause of
action, which has had a natural death. The discretion to be
exercised would be with the due care and caution. In the instant
case, when it is found that the writ petitioner was guilty of delay
and laches, the LPA is liable to be dismissed on the said sole
ground itself, and there cannot be any permission to an indolent
litigant to take an advantage of his own wrong. Inordinate delay
in making the motion for a Writ, will indeed be a good ground for
refusing to exercise the discretionary jurisdiction. This proposition
has been aptly affirmed by the Apex Court in the case of Mrinmoy
Maity vs. Chhanda Koley and Others (2024) 4 SCC 506).
17. We may also record that vide order dated 13.10.2000 not
only the eviction of the petitioner from the government land was
effected, but there was determination of rent as damages for the
period of wrongful occupation was levied. All other communications
after 13.10.2000, as sought to be brought before us by means of
the Civil Application under Order XLI Rule 27, CPC, are pertaining
to the interse communications by the authorities in the matter of
computation of rent/damage. It has no bearing on the order of
eviction dated 13.10.2000.
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18. Be that as it may, it is more than evident that the petitioner
has succeeded in retaining illegal possession of the government land
beyond the period of lease granted to it by virtue of the lease deed
dated 29th December, 1972 and had even not paid the rent/damage
for the period of wrongful occupation. The repeated
communications made by the petitioner with a view to protract the
dispute pertaining to payment of rent, cannot come to the rescue of
the appellant/original petitioner.
19. From all angles, the occupation of the petitioner over the
land-in-question cannot be said to be in terms of the conditions of
the lease deed dated 29.10.1972, which was for a fixed tenure of
seven years. The fact that there was a condition in the lease deed
that the lease period may be renewed with the order/approval of
the competent authority, will not give right to the petitioner to
retain the possession beyond the expiry of the lease period i.e. after
18.01.1983. There is no question of determination of lease when
the lease period had automatically expired with the expiry of the
tenure of lease, which was a fixed period mentioned in the lease
deed itself. The reference to the provisions of Section 105, 106 and
111G of the T.P. Act, therefore, is misconceived.
20. It is a plain and simple case where the lessee of a
government land had been able to occupy the government land
beyond the lease period by making repeated communications
without payment of rent or damage for the period of such
unauthorised occupation. We may also record that by virtue of the
interim order dated 28.01.2019 passed in the present case, the
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Mamlatdar, Kodinar was directed not to take any action pursuant to
communication dated 15.01.2019 to Circle Officer and City Talati,
Kodinar for taking over possession of the subject land pursuant to
order dated 13.10.2000 passed by the District Collector. However
the fact remains that the interim order granted on 28.01.2019 is
confined to the dispossession of the petitioner from the land-in-
question. In any case, once we find that there is no error in the
order of the learned single Judge, inasmuch as, the petitioner
cannot be said to be in rightful possession of the land-in-question
after expiry of lease period on 18.01.1983, we cannot grant any
benefit to the petitioner of the interim order dated 28.01.2019,
which was subject to final disposal of the instant appeal.
21. For the above discussion, while rejecting the Civil Application
No.1 of 2022 filed on 23.08.2022 and the Civil Application No. 1 of
2023 filed on 04.01.2023 under Order XLI Rule 27, CPC, we dismiss
the present appeal with the finding that we do not find any error
of law in the order passed by the learned single Judge for the
reason given hereinabove in addition to the reasonings given by the
learned single Judge in the judgment impugned.
22. Even otherwise, we may note that within the limited scope
available under Section 15 of the Letters Patent, no interference is
called for, inasmuch as, normally the Division Bench would not,
unless there exist cogent reasons, differ from a finding of fact
arrived by the learned single Judge (Reference: Umabai vs. Nilkanth
Dhondiba Chavan) [(2005) 6 SCC 243].
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23. In B. Venkatamuni vs. C.J.Ayodhya Ram Singh and Others
[(2016) 13 SCC 449] the Apex Court observed in para-11 that, " In
an intra-court appeal, the Division Bench undoubtedly may be
entitled to reappraise both questions of fact and law, but the
following dicta of this Court in Umabai v. Nilkanth Dhondiba
Chavan (2005) 6 SCC 243 could not have been ignored by it,
whereupon the learned counsel for the respondents relied ". The
Apex Court in para-52 observed as under:-
"52. It may be, as has been held in Asha Devi v. Dukhi Sao (1974) 2
SCC 492 that the power of the appellate court in intra-court appeal is
not exactly the same as contained in Section 100 of the Code of Civil
Procedure but it is also well known that entertainment of a letters patent
appeal is discretionary and normally the Division Bench would not,
unless there exist cogent reasons, differ from a finding of fact arrived at
by the learned Single Judge. Even as noticed hereinbefore, a court of
first appeal which is the final court of appeal on fact may have to
exercise some amount of restraint. 25. The suspicious circumstances
pointed out by the learned District Judge and the learned Single Judge of
the High Court, were glaring on the face of the record. They could not
have been ignored by the Division Bench and in any event, the Division
Bench should have been slow in interfering with the findings of fact
arrived at by the said courts. It applied a wrong legal test and thus,
came to an erroneous decision.
24. The appeal stands dismissed, accordingly. No order as to
costs. The pending Civil Applications also stand disposed of.
25. After the judgment was dictated in the open Court, the prayer
made by the learned senior counsel for the appellant for stay of
this judgment for a period of six weeks, is hereby rejected in view
of the reasonings given hereinbefore.
(SUNITA AGARWAL, CJ )
(PRANAV TRIVEDI,J)
C.M. JOSHI
