Gujarat High Court
Bandishbhai Kanubhai Patel vs Authorized Officer on 3 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10396 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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BANDISHBHAI KANUBHAI PATEL
Versus
AUTHORIZED OFFICER & ORS.
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Appearance:
MR. BK. RAJ(3794) for the Petitioner(s) No. 1
M R BHATT & CO.(5953) for the Respondent(s) No. 4
MR RAKSHITKUMAR N PATEL(12486) for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 03/11/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr. B. K. Raj appearing for the
petitioner, learned Advocate Mr. R. N. Patel for respondent
No.3 and learned Advocate Mr. Mayur Kishanchandani for
learned Advocate Mr. M. R. Bhatt for respondent No. 4.
Though served, none appeared for respondent Nos. 1 and 2.
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2. The present writ application is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
"(7.1) May Your Lordships be please to issue a Writ Certiorari or
Mandamus or any other appropriate writ, command order or direction to
quash and set-aside the Impugned order dated 18/06/2018 passed by
the Ld. Additional District Judge of Vadodara in Misc. Civil Application
no. 103/07 and also be pleased to pass an appropriate order to join the
petitioner as one the respondent in Misc. Civil Application no. 103/07.
(7.2) During the pendency of this petition for admission and final hearing,
through an Ex-parte/Bi-parte Ad interim relief, May Your Lordships be
please to stay the execution, implementation and operation of the
Impugned order dated 18/06/2018 passed by the Ld. Additional District
Judge of Vadodara in Misc. Civil Application no. 103/07 and also be
pleased to stay the further proceedings of Misc. Civil Application no.
103/07.
(7.3) May Your Lordships be please to grant any other relief which may
be prayed at the time of the hearing in the interest of the real, complete
and substantial justice and also be please to grant any other relief which
may be fit and appropriate in the fact and circumstances of the case."
3. THE SHORT FACTS OF THE CASE APPEAR TO BE
THAT:
3.1. One Civil Miscellaneous Application No. 103 of 2007, filed by
the Competent Officer under the provisions of under Section-
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11(5) of the Petroleum and Minerals Pipelines (Acquisition of
Right of User in Land) Act, 1962 (hereinafter referred to as
"the Act 1962"), which is pending before the District Court,
Vadodara. The said reference application appears to have been
filed under the Act 1962 due to dispute between respondent
No.2 & 3 in regards to entitlement of compensation so awarded
by competent authority vide its award dated 01.01.2006 for loss
of trees/crops standing on part of an agricultural land situated
at Survey No. 950, Village : Padra, Dist : Vadodara,
admeasuring 1757 sq. meters. (herein after referred as "subject
land").
3.2. As per revenue record, subject land stood in the name of
respondent No.2, whereas as per panchnama carried out, crops
sowed by respondent No.3. It is undisputed that respondent
No.2 & 3 are real brothers.
3.3. The impugned application of joining party in the aforesaid
reference application filed by petitioner, below Exhibit 853,
under Order 1 Rule 10 (2) of CPC, came to be rejected by the
District Court vide its order dated 18th June, 2018, which is
impugned in the present writ application.
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4. SUBMISSIONS OF THE PETITIONER:
4.1. Learned Advocate Mr. Raj appearing for the petitioner, would
submit that the petitioner has purchased the subject land from
respondent No. 2 by way of registered sale deed dated 20th
March, 2011, thereby, stepped into the shoe of respondent No.
2. It is submitted that reference application being Civil
Miscellaneous Application No. 103 of 2007 came to be filed by
the Competent Authority under the Act 1962 for deciding the
entitlement of award amount dated 1st January, 2006, between
respondents No. 2 and 3 herein. It is further submitted that
once the petitioner has purchased the subject land, he would be
successor in interest for respondent No. 2 herein, thereby
entitled to be joined in the reference.
4.2. Learned Advocate Mr. Raj would further submit that
respondent No. 3 happens to be the real brother of respondent
No. 2, objected to such sale deed before the Revenue Authority
but remained unsuccessful in his attempt, inasmuch as Revenue
Authority has certified the entry in favor of the petitioner. It is
submitted that respondent No. 3 having challenged the sale
deed by way of Special Civil Suit No.370 of 2011 (New Special
Civil Suit No.29 of 2018), which is pending for adjudication,
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wherein, till date no stay has been granted in favour of
respondent No.3 herein. It is further submitted that the Civil
Court concerned has not yet set-aside such sale-deed, inasmuch
as, the sale deed is neither stayed nor quashed. It is respectfully
submitted that once the petitioner has purchased subject land
from respondent No. 2 by way of registered sale deed, title of
the subject land stood transferred in favour of the petitioner,
who has direct interest in the immovable property in question -
subject land.
4.3. Learned Advocate Mr. Raj would respectfully submit that the
District Court has committed serious error of law by rejecting
the impugned application solely on the ground that the
purchase of the subject land by the petitioner subsequent to the
reference proceeding. It is submitted that the District Court has
failed to consider the contents of the sale deed, wherein also, it
was agreed between the seller and buyer i.e. respondent No. 2
and petitioner that in a case of any dispute arise at the instance
of anyone, including government officials, in relation to any
compensation, the seller will get it remove such objection and
in that eventuality, if any expense borne by buyer, seller will
reimburse to him. It is submitted that, considering the fact that
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respondent No. 2 having not objected joining of the petitioner
in the application, the impugned application for joining as
party ought not to have been rejected by the District Court.
4.4. Making the above submissions, learned Advocate Mr. Raj
would request this Court to allow the present writ application.
5. SUBMISSIONS OF THE RESPONDENT NO.3:
5.1. Per contra, learned Advocate Mr. Patel would vehemently
submit that there is no error, much less any gross error of law,
committed by the District Court while rejecting the impugned
application. It is submitted that, undisputedly, the petitioner,
by way of the so-called sale deed, purchased the subject land
from respondent No. 2 in the year 2011, whereas the reference
application filed in the year 2007, that too in relation to
compensation for the damage to existing trees/crops at the
relevant point of time.
5.2. Learned Advocate Mr. Patel would respectfully submit that
when respondent No. 2 in turn the petitioner, would not entitle
to receive any compensation for which the reference made. So,
the petitioner is neither necessary nor proper party to be joined
in such reference proceeding.
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5.3. Learned Advocate Mr. Patel would further submit that the sale
deed, which was executed by respondent No. 2 in favor of the
petitioner, is the subject matter of Special Civil Suit No.370 of
2011 (New Special Civil Suit No.29 of 2018), which is pending
for its adjudication. It is submitted that no sale consideration
has been passed on to respondent No. 2 when the sale deed got
registered. It is further submitted that the entire sale
consideration was subsequently paid by the petitioner to
respondent No.2, after getting compensation from land
acquisition proceeding.
5.4. Learned Advocate Mr. Patel would submit that when there is
no valid sale in favour of the petitioner by respondent No. 2, in
that circumstance also, the petitioner has no right to be
impleaded as party in the reference application. It is
respectfully submitted that what is to be decided in the
reference application is the entitlement of the compensation
between respondent No.2 & 3, thus, presence of the petitioner
is not at all required having so purchased subject land after
reference application.
5.5. Making the above submissions, learned Advocate Mr. Patel
would request this Court to reject the present writ application.
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6. SUBMISSIONS OF RESPONDENT NO.4:
6.1. Learned Advocate Mr. Mayur Kishanchandani appearing for
respondent No. 4, would only submit that respondent No.4 is
already deleted from the array of parties before the District
Court and as such, being a formal party, nothing further
requires to be submitted in the matter.
7. No other and further submissions are made.
POINT FOR DETERMINATION
8. The short question falls for my consideration as to whether the
petitioner is required to be joined in the reference application
being Civil Miscellaneous Application No. 103 of 2007, or not?
ANALYSIS
9. The facts which are observed hereinabove are not in dispute. It
remains undisputed fact that due to dispute between
respondent Nos. 2 and 3, who happens to be brothers in
regards to entitlement of compensation in relation to the award
dated 1st January, 2006, made by the Competent Authority
under the Act 1962, in relation to damage to existing
crops/trees in relation to the subject land, aforesaid reference
application came to be filed by the Competent Authority
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before the District Court, Vadodara. It also remained
undisputed that by way of registered sale deed, respondent No.
2 sold the subject land in favor of the petitioner in the year
2011. It is also undisputed that respondent No. 3 has
questioned the said sale deed by way of filing Special Civil Suit
No.370 of 2011 (New Special Civil Suit No.29 of 2018) before
the Civil Court concerned, which is pending, wherein there is
no stay granted in favour of respondent No. 3 by Civil Court
concerned. Thus, as on date, said registered sale deed in favour
of petitioner stand, rather after its execution, it appears that he
has received compensation amount for its acquisition. It also
remained undisputed fact that revenue entry certified in favour
of the petitioner by the competent Revenue Authority, though
questioned by respondent No. 3, it remains unaltered,
inasmuch as, respondent No. 3 has remained unsuccessful so
far in disturbing such sale deed/revenue entry in any manner
whatsoever.
10. When the petitioner purchased the subject land by way of
registered sale deed, as per the provisions of the Transfer of
Property Act, 1882 (herein after referred as "the Act, 1882), the
title of the immovable property stood transferred in favor of
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the petitioner. The District Court has neither considered such
aspect nor taken pain to see the wording of the sale deed
executed between respondent No. 2 and the petitioner. It is
clearly mentioned in such sale deed (internal page Nos. 23 & 24
of sale deed) that as on the date of execution of the sale deed,
there is no acquisition of subject land by any government
authority and as such no notice so far received by respondent
No. 2 from any government authority. Nonetheless, if there
would any dispute arise as regards the subject land from any
government authority, the same shall be removed by the seller
i.e. respondent No. 2 at his costs, failing which, it is open for
the buyer i.e. petitioner herein to remove it. It appears that
respondent No.2 has not objected joining of petitioner in the
subject reference application. So, prima facie, he is giving his
implied consent in favour of petitioner to be joined and defend
it, in accordance with law. It may be noted here that though
served respondent No.2 chooses not to appear in this matter,
which prima facie, shows that he is no longer interested to
contest/prosecute the reference application rigorously having
sold subject land. According to my view, when the petitioner
purchased the subject land by way of registered sale deed may
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be in the year 2011, he would step into shoe of respondent No.
2 and be entitled to be joined as party in the reference
application in question, whereby he can very well represent the
interest of respondent No.2.
11. At this stage, it would be apt to refer and rely upon the direct
decision of the full bench of the Honorable Supreme Court of
India in case of Razia Begum Versus Sahebzadi Anwar Begum
reported in AIR 1958 SC 886, wherein held thus:
"[13] As a result of these considerations, we
have arrived at the following conclusions:
(1) That the question of addition of parties
under R. 10 of O. 1 of the Code of Civil
Procedure, is generally not one of initial
jurisdiction of the court, but of judicial
discretion which has to be exercised in view of
all the facts and circumstances of a particular
case; but in some cases, it may raise
controversies as to the power of the court, in
contradistinction to its inherent jurisdiction,
or, in other words, of jurisdiction in the
limited sense in which it is used in S. 115 of
the Code;
(2) That in a suit relating to property, in
order that a person may be added as a party, he
should have a direct interest as distinguished
from a commercial interest, in the subject-
matter of the litigation;
(3) Where the subject-matter of the litigation,
is a declaration as regards status or a legal
character, the rule of present or direct
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interest may be relaxed in a suitable case
where the court is of the opinion that by
adding that party, it would be in a better
position effectually and completely to
adjudicate upon the controversy;
(4) The cases contemplated in the last
proposition, have to be determined in
accordance with the statutory provisions of Ss.
42 and 43 of the Specific Relief Act;
(5) In cases covered by those statutory
provisions, the court is not bound to grant the
declaration prayed for, on a mere admission of
the claim by the defendant, if the court has
reasons to insist upon a clear proof apart from
the admission;
(6) The result of a declaratory decree on the
question of status, such as in controversy in
the instant case, affects not only the parties
actually before the Court, but generations to
come, and in view of that consideration, the
rule of 'present interest', as evolved by case
law relating to disputes about property does
not apply with full force; and
(7) The rule laid down in S. 43 of the Specific
Relief Act, is not exactly a rule of res
judicata. It is narrower in one sense and wider
in another."
(emphasis supplied)
12. When the petitioner having direct interest in the immovable
property, inasmuch as, purchased the subject land by way of
registered sale deed, in view of the ratio laid down by Hon'ble
Full Court in the case of Razia Begum (supra), he would be
entitled to be joined in the reference application. The District
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Court has not appreciated the aforesaid aspect while rejecting
the impugned application and erroneously observed that the
petitioner being purchaser of the subject land subsequent to the
reference proceeding, would not be necessary party to be joined
in the proceeding.
13. According to my view, the right of entitlement to get
compensation is to yet be decided in the subject reference
application. But during the pendency of such reference
proceeding, if respondent No.2 having sold the subject land,
thereby, sold his interest in the subject land to third party i.e.
petitioner herein, such subsequent purchaser cannot be
estopped in law from joining in the reference application,
especially when respondent No.2 who one of party claiming
compensation not objected presence of the petitioner.
14. Thus, in view of aforesaid, I am unable to agree with the
reasons so assigned by District Court while rejecting the
impugned application.
15. So far as the submissions made by learned Advocate Mr. Patel
that the sale deed in question is not validly executed, inasmuch
as, no sale consideration was paid by petitioner to respondent
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No. 2 when executed/registered the sale deed. Prima facie, such
submission has no legs to stand, inasmuch as, as per the
definition of sale given under Section-54 of the Act, 1882, even
if sale consideration is promised to pay in future also constitute
valid sale in law. Even it is not even a case of respondent No.2
that he has not received any sale consideration from the
petitioner subsequent to registration of said sale deed, rather
accepted sale consideration from petitioner subsequently on
acquisition of subject land as confirmed by learned advocate
Mr. Patel during course of his submission. At least, respondent
No.3 cannot allow to raise such plea in this proceeding.
16. Nevertheless, to make the things clear, I would like to observe
the definition of 'Sale' as provided under the Act, 1882 in
relation to transfer of ownership of immovable property as
under:
"54. "Sale defined":-
"Sale" is a transfer of ownership in exchange for a
price paid or promised or part-paid and part-promised.
Sale how made. -
Such transfer, in the case of tangible immovable property of
the value of one hundred rupees and upwards, or in the case
of a reversion or other intangible thing, can be made only by
a registered instrument.
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In the case of tangible immovable property, of a value less
than one hundred rupees, such transfer may be made either
by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when
the seller places the buyer, or such person as he directs, in
possession of the property.
Contract for sale. A contract for the sale of immovable
property is a contract that a sale of such property shall take
place on terms settled, between the parties. It does not, of
itself, create any interest in or charge on such property."
17. In view of said definition and rights of seller so defined under
Section 55 of the Act, 1882, who once conveyed title of the
immovable property by way of registered sale deed in favour of
its buyer, lost its title over the immovable property. As such,
this Court is not like to further elaborate and give its reasoning
on such submission, except given herein above, as the aforesaid
suit filed by respondent No. 3 is writ large pending before Civil
Court. This aspect requires to be adjudicated by the Trial
Court concerned on getting appropriate evidence on record on
the issue if any frame in this regards. Nonetheless, aforesaid
observations made by this Court to deal with the submissions
so made by learned Advocate Mr. Patel.
18. In light of the aforesaid, according to my view, the District
Court has committed serious error of law, inasmuch as,
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committed jurisdictional error by not exercising its power so
vested in it by not allowing the impugned application. When
this Court finds the impugned order erroneous, perverse and
contrary to settled principles of law and so also not exercising
its jurisdiction vested in it, in that fact circumstances, this
Court requires to step into it and needs to interfere with such
order, when exercised its power of superintendence under
Article 227 of the Constitution of India, which I do so. [See -
Waryam Singhvs vs. Amarnath,, reported in AIR 1954 SC 215
(para-13) & Bhudev Mallick alias Bhudeb Mallick and Another
vs. Ghoshal and Others, reported in 2025 SCC OnLine SC 360
(para 53 to 58) : 2025 (1) GLH 553].
CONCLUSION
19. The upshot of the aforesaid observations, discussions and
reasons, the impugned order dated 18th June, 2018, passed by
the 3rd Additional District Judge, Vadodara, below Exhibit
853 in the reference application being Civil Misc. Application
No.103 of 2007, is hereby quashed and set aside.
20. Consequently, the impugned application filed below Exhibit
853 in the reference application being Civil Misc. Application
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No.103 of 2007 is hereby allowed, thereby, petitioner is
permitted to be joined in the reference application being Civil
Miscellaneous Application No. 103 of 2007. It is open for the
petitioner to file his response/reply in the application.
21. After giving an opportunity of hearing to all parties concerned,
the District Court concerned shall decide the reference
application being Civil Miscellaneous Application No. 103 of
2007 in accordance with law as expeditiously as possible.
22. In view of the foregoing conclusion, the present writ
application is hereby allowed. Rule made absolute accordingly.
No order as to costs.
(MAULIK J.SHELAT,J)
NILESH
