Gujarat High Court
Lakhmanbhai Jethabhai Varsani ... vs State Of Gujarat on 28 July, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/CA/3848/2025 ORDER DATED: 28/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 3848 of
2025
In
R/LETTERS PATENT APPEAL NO. 894 of 2025
(F/LETTERS PATENT APPEAL NO. 20988 OF 2025 )
With
R/LETTERS PATENT APPEAL NO. 894 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 3874 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025 In R/LETTERS PATENT
APPEAL NO. 894 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 3874 of 2011
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LAKHMANBHAI JETHABHAI VARSANI (DECEASED) THROUGH HIS
HEIRS AND LEGAL REPRESENTATIVES & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. SHALIN MEHTA, SR.COUNSEL FOR MS. ADITI S RAOL(8128) for the
Applicant(s) No. 1,1.1,1.2,1.3,1.4
MS. HETAL G.PAEL, AGP for the Respondent(s) No. 1,2,3
MR. MEHUL SHAH, SR.COUNSEL FOR MR.JENIL M SHAH(7840) for the
Respondent(s) No. 5
MR NIKHILESH J SHAH(3007) for the Respondent(s) No. 4
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 28/07/2025
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL)
ORDER IN CIVIL APPLICATION No. 3848 OF 2025
No plausible objection has been taken to the delay of 93
days in filing the instant appeal. The delay has been explained
to the satisfaction of the Court. The delay condonation
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application is allowed. The delay in filing the present appeal is
hereby condoned. The office shall allot the regular number to
the appeal.
ORDER IN LETTERS PATENT APPEAL:-
1. Heard the learned Senior Advocates appearing for the
parties and perused the record. This intra court appeal is
directed against the judgment and order dated 28.02.2025
passed by the learned single Judge in dismissing the writ
petition on the ground that the petitioner has no locus to
maintain the writ petition challenging the allotment of a
government land in favour of the respondent No.5. We may
note that two writ petitions, namely Special Civil Application
No. 6147 of 2003 and Special Civil Application No. 3874 of
2011, have been decided by the common judgment and order
dated 28.02.2025 passed by the learned Single Judge.
2. It is pertinent to note that the original petitioner namely
Mr. Karshan Punja, of Special Civil Application No.6147 of
2003, who was appearing through the power of attorney
holder, namely Mr. Lakhmanbhai Jethabhai Versani, had died
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during the pendency of the said writ petition.
3. After the death of the original petitioner, namely Mr.
Karshan Punja, it seems that two substitution applications
were filed; one by the heirs and legal representatives of the
deceased petitioner and another, namely Civil Application
No.15444 of 2010 by the power of attorney holder namely
Mr.Lakhmanbhai Jethabhai Varsani, on the basis of a Will
dated 24.04.2009. Initially, the heirs of the original petitioner,
(namely Karshan Punja), who had filed Civil Application No.
16815 of 2010 seeking substitution in the writ petition of the
year 2003, disputed the said Will. However, later both the
substitution applications, namely Civil Application No. 16815
of 2010 filed by the heirs and legal representatives of the
original petitioner as well as Civil Application No. 15444 of
2010 filed by the power of attorney, namely Mr. Lakhmanbhai
Jethabhai Varsani, were withdrawn. It seems that again a joint
application was filed by the power of attorney namely,
Lakhmanbhai Jethabhai Varsani, as also the heirs and legal
representatives of the deceased petitioner in the year 2011, in
the writ petition namely Special Civil Application No. 6147 of
2003, wherein the following order dated 28.02.2011 was
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passed:-
"Shri Anjaria, learned advocate appearing on behalf of the
applicant does not press the present application as the
applicant has preferred another application alongwith some
of the heirs of the original deceased petitioner. Without
expressing anything on merits with respect to such an
application to be filed, with the above liberty, the present
application is dismissed as not pressed. "
4. Thereafter, it seems that the heirs and legal
representatives of the deceased petitioner were permitted to
be impleaded by an order dated 16.03.2017 in the first writ
petition, but the fact remains that even after
substitution/impleadment of the heirs, none have prosecuted
the said writ petition.
5. The second writ petition, namely Special Civil
Application No. 3874 of 2011 has been filed by Mr.
Lakhmanbhai Jethabhai Varsani on the basis of a Will dated
24.04.2009, after withdrawal of the application seeking
substitution in the writ petition filed in the year 2003, on the
basis of the same Will dated 24.04.2009.
6. It may not be out of place to note here that even the
petitioner of the second petition, who was claiming on the
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basis of a Will dated 24.04.2009, of the "right to prosecute"
the claim of Karshan Punja, had died during the pendency of
the Special Civil Application No. 3874 of 2011. The second
writ petition filed in the year 2011 by the original power of
attorney on the basis of the Will dated 24.04.2009 is now
sought to be prosecuted by his heirs, on the premise that the
"right to prosecute" conveyed by a Will dated 24.04.2009 to
their predecessor can further be prosecuted by them.
7. The question as to whether even the second writ petition
can be prosecuted by the heirs of the alleged legatee, in
whose favour no property had been transferred, rather
allegedly the "right to litigate" or the "right to prosecute the
writ petition of the year 2003" was conveyed, which was
never put into service.
8. Further, the Special Civil Application No.3874 of 2011
being second writ petition, the original petitioner even had no
right to maintain the said petition for the same cause of
action, after dismissal of his substitution application as not
pressed vide order dated 28.02.2011.
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9. The result is that the Special Civil Application No.3874
of 2011, was required to be rejected outrightly, being the
second writ petition for the same cause of action. Further, as
no one has come forward to prosecute the first writ petition of
the year 2003; the same is also liable to be dismissed as not
pressed.
10. The learned Single Judge has, however, entered into the
contention of the writ petitioner of the year 2011, considering
the issue of locus standi, and while dismissing the writ
petition, held that the petitioner of Special Civil Application
No.3874 of 2011 would have no locus to maintain an
independent petition of his own. While dismissing both writ
petitions, the learned Single Judge also permitted for refund
of the money deposited by the original petitioner in the writ
petition of year 2011 before the Collector, Kutch, under the
interim orders passed by this Court.
11. Taking note of the above, all other arguments made by
learned Senior Counsel for the petitioner namely Special Civil
Application No.6147 of 2003, based on the Will dated
24.04.2009 about conveyance of the "right to prosecute",
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would require no consideration.
12. For the additional reasoning given hereinbefore in the
above-noted facts and circumstances of the present case, the
present appeal stands dismissed. No order as to costs.
Consequently, the connected Civil Applications stand disposed
of, accordingly.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
BINA SHAH
