Gujarat High Court
Gujarat Mineral Development ... vs Viramji Tejmalji Hothi (Jadeja) on 27 June, 2025
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C/SCA/19485/2021 ORDER DATED: 27/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19485 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 19489 of 2021
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GUJARAT MINERAL DEVELOPMENT CORPORATION LTD.
Versus
VIRAMJI TEJMALJI HOTHI (JADEJA) & ORS.
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Appearance:
MR K.M.PATEL, SR. ADVOCATE WITH
MR.VARUN K.PATEL(3802) for the Petitioner(s) No. 1
MR ANAND R PATEL(2424) for the Respondent(s) No. 1,2
MR VIJAY N RAVAL(2025) for the Respondent(s) No. 1,2
MR SHAILESH DESAI, AGP for the respondent No.3-State
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 27/06/2025
ORAL JUDGEMENT
1. Heard learned senior advocate Mr. K.M. Patel with
learned advocate Mr. Varun K. Patel for the petitioner,
learned advocate Mr. Anand R. Patel for respondents No. 1 &
2 and learned Assistant Government Pleader Mr. Shailesh
Desai for respondent No.3- State.
2. Rule returnable forthwith. Learned advocate Mr. Anand
Patel and learned Assistant Government Pleader Mr. Desai
waive service of notice of rule on behalf of their respective
respondents.
3. As issue involved in both these petitions is common, its
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heard together and decided by way of the common
judgement. For sake of convenience, facts of special civil
application No. 19485 of 2021 is taken into consideration.
4. The present writ applications are filed under Article 227
of the Constitution of India seeking following reliefs :-
"(a) Be pleased to issue writ of certiorari or any other appropriate
writ, order or direction in the like nature quashing and setting aside the
judgment and order dated 30.07.2021 of the learned Principal Senior
Civil Judge, Nakhatrana, Kachchh passed in Regular Execution
Petition No.15 of 2017 and Regular Execution Petition No. 1 of 2018;
(b) Pending the admission, hearing and final disposal of the
petition, be pleased to stay the operation, implementation and
execution of the judgment and order dated 30.07.2021 of the learned
Principal Senior Civil Judge, Nakhatrana, Kachchh passed in Regular
Execution Petition no.15 of 2017 and Regular Execution Petition No. 1
of 2018 AND be further pleased to stay the proceedings of Execution
Petition no.15 of 2017 and Regular Execution Petition No. 1 of 2018
pending before the learned Principal Senior Civil Judge, Nakhatrana,
Kachchh;
(c) Any other appropriate relief deemed just and proper be
granted."
5. The short controversy involved in the matter is about,
which date to be considered as date of taking over
possession i.e. date of award i.e. 29.02.2000 or date when
petitioner has been handed over the actual possession of the
suit land i.e. 13th October, 2001?.
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6. According to case of the petitioner, it has received the
possession of the suit land on 13 th October, 2001, whereas
according to the original claimants, they have handed over
the possession of suit land on date of award i.e. 29.02.2000.
7. The execution application was filed by the original
claimant having found that there is short-fall in depositing
the decreetal amount by the petitioner as regards the
calculation of interest which is not considered as per the
award and wrongly considered by considering the date of
possession of suit land as date on which petitioner had
received actual possession.
8. After hearing the parties and considering their
objections, Executing Court vide its order dated 30 th July,
2001 which is impugned in the present writ applications,
thereby, the Executing Court has accepted the say of the
original claimants to the effect that date of award should be
considered as a date of taking over possession as claimants
have said so and no contrary material on record to take
different date into account.
9. Feeling aggrieved and dissatisfied with such
observation made by the Executing Court in pending
executions, the present writ applications are filed.
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10. After hearing learned advocates, this Court in past has
called upon the learned Assistant Government Pleader to
get proper instruction to resolve the controversy in the
matter, so certain documents were submitted before this
Court in relation to taking over the possession of the suit
property from the original claimants.
11. Such documents which are internal communication
between the respective officers of the Revenue Department
concerned, would suggest that at least as on date of award,
the suit property was occupied by the original claimants and
not handed over as claimed.
12. The additional affidavit which has been filed by the
petitioner would also confirmed that at least the date of
award can not be considered as a date of taking over
possession as documents speaks otherwise. At the same
time, it is also not coming out accurately that on which date
the actual possession has been taken from the original
claimants.
13. In light of the aforesaid, the Executing Court having
empowered to decide such controversy and having ample
power under Section 47 of CPC which appears to have not
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been exercised and in a slipshod manner, objection has been
considered and conclusion derived that date of award is
considered as a date of taking over the possession.
14. As such, it was incumbent upon the Executing Court to
decide such date by permitting the parties to lead their
respective evidence including calling upon the revenue
authorities concerned which is also party to the proceeding,
thereby Executing Court itself could have ascertained the
actual date of taking over the possession of suit land from
original claimants, thereby could have resolved the
controversy in accordance with law.
15. Learned advocates for the respective parties have
argued the case at length but faced with said documents, it
was at ad-idem that Executing Court could have exercised its
power and after analyzing government records/letters and
so also examined parties including concern revenue official,
could have satisfactorily decided lis between the parties.
16. Even this Court has reached to the conclusion and feel
so that the matter requires to be remanded back to the
Executing Court thereby, both the parties can lead their
appropriate evidence before the Executing Court and issue
germane in the matter can be effectively and convincingly
decided by the Executing Court.
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17. At this stage, learned senior advocate Mr. K.M. Patel,
under the instruction of his client as well as learned advocate
Mr. Anand R. Pate also under the instruction of his client,
have shown their willingness to go back to the Executing
Court for re-deciding the issue germane in the matter.
18. In the light of the aforesaid, this Court passed the
following order :-
(i) Both these writ applications are partly allowed.
(ii) The impugned order dated 30.07.2021 passed by the
Principal Senior Civil Judge, Nakhatrana, Kachchh passed in
Regular Execution Petition No.15 of 2017 and Regular
Execution Petition No. 1 of 2018 is hereby quashed and set
aside and the matter is remanded back to the Executing
Court to decide the issue germane about on which date
actual possession was taken by the authority from original
claimants and accordingly, thereafter proceed further with
the execution petition.
(iii) It is made clear that this Court has neither gone into
nor examined legality and validity of an issue as regards to
ascertaining actual date of taking over the possession of the
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suit property from the claimants. Such recourse is required
to be adjudicated by the Executing Court after allowing
requisite evidence to come on record after permitting the
parties to lead such evidence i.e. oral and documentary.
(iv) As the matter is very old and original reference is of the
year 1998, it would be in the interest of all parties concerned
that Executing Court can decide the issue at the earliest. If
the parties extend their co-operation to the Executing Court,
the Execution Petition be heard and decided at the earliest
preferably on or before 31st December, 2025.
19. Rule is made absolute to the aforesaid extent. No order
as to cost.
(MAULIK J.SHELAT,J)
SALIM/
