Gujarat High Court Case Information System
Print
LPA/755/2005 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 755 of 2005
In
MISC.
CIVIL APPLICATION No. 1637 of 2004
In
SPECIAL
CIVIL APPLICATION No. 228 of 1996
And
CIVIL
APPLICATION No. 4895 of 2005
In
LETTERS
PATENT APPEAL No. 755 of 2005
With
LETTERS
PATENT APPEAL No. 756 of 2005
In
MISC. CIVIL
APPLICATION No. 1637 of 2004
in
SPECIAL
CIVIL APPLICATION No. 4896 of 2005
And
CIVIL
APPLICATION No. 4896 of 2005
in
LETTERS
PATENT APPEAL No. 756 of 2005
For
Approval and Signature:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
&
HONOURABLE
MR.JUSTICE SHARAD D.DAVE
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to civil judge ?
=========================================================
KAMUBEN
JAYANTIBHAI PATEL & 4 - Appellant(s)
Versus
BHUPENDRA
CHAGANLAL GANDHI & 16 - Respondent(s)
=========================================================
Appearance
: {Letters Patent Appeal No. 755 of 2005 & Civil Application No.
4895 of 2005}
MR
AS VAKIL for Appellants
MR UTPAL M PANCHAL for Respondent(s) : 1 -
5.
MS ARCHANA RAVAL AGP for Respondent no. 6
DELETED
for Respondent(s) : 7, 9,
NONE for Respondent(s) : 8, 10 ? 11,
13-17
MR MIHIR THAKORE, Sr Advocate with MR AMAR N BHATT for
Respondent(s) : 12,
Appearance
: {Letters Patent Appeal No. 756 of 2005 & Civil Application
No. 4896 of 2005}
MR
MIHIR THAKORE, Sr Advocate with Mr Amar N. Bhatt for Appellants
MR
UTPAL M PANCHAL for Respondent(s) : 1- 5.
None for Respondents
Nos. 3.2.1
MS ARCHANA RAVAL
AGP for Respondent No. 6
DELETED for Respondents No. 7,
10, 12
MR AS VAKIL for Respondent nos. 8,
13 to 16
RULE Served :: Respondent(s) : 9, 11, 17 -
21
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE SHARAD D.DAVE 16th September, 2008
ORAL
JUDGMENT
(Per
: HONOURABLE MS. JUSTICE R.M.DOSHIT)
Learned advocate Mr. A.S
Vakil has appeared for the appellants in Letters Patent Appeal No.
755 of 2005. He has submitted that since the decision in the writ
petition, the respondent no. 11 has passed away. He, therefore,
seeks leave to delete the name of the respondent no.11/opponent no.
11 from the cause-title of the Letters Patent Appeal No. 755 of 2005
and Civil Application No. 4895 of 2005. Leave is granted. Name of the
Respondent no. 11/opponent No. 11 from the cause-title of the Appeal
and Civil Application be deleted.
These
two Appeals, preferred under clause 15 of the Letters Patent, arise
from the judgment and order dated 10th March, 2005 passed
by the learned Single Judge in above Misc. Civil Application No. 1637
of 2004.
The
appellants in Letters Patent Appeal No. 755 of 2005 are the original
owners of the land bearing Plot no. 32 of village-Adajan,
District-Surat. The appellants in Letters Patent Appeal No. 756 of
2005 have purchased the said land in the year 2002 from its owners.
They are the successors-in-title of the appellants in Appeal No. 755
of 2005. In the proceedings held under the Urban Land [Ceiling &
Regulation] Act, 1976, the said land was, by order made by the
competent authority, declared to be ?Sexcess vacant land??.
The said order of the competent authority was set-aside in appeal, by
the Urban Land Tribunal, Ahmedabad. The order of the Urban Land
Tribunal was challenged by the State Government in above Special
Civil Application No. 228 of 1996. On 6th February, 1996,
the following Order came to be made on the said petition :-
?SRule.
Ad-interim relief in terms of para 11 [B] is granted on the condition
that the land declared surplus may not be disposed of by the
petitioner in any manner.??
In view of
the Repeal of the above Act of 1976 by the Urban Land [Ceiling &
Regulation] Repeal Act, 1999, the petition came to be disposed of
by Order dated 20th July, 1999. The said order has become
final. During the pendency of the aforesaid petition, in the year
1998, the respondents no. 1 to 5 ? the applicants in Misc. Civil
Application – purchased the said land allegedly from the constituted
attorney of the owners -the appellants in Letters Patent
Appeal No. 755 of 2006. The above referred transfers, one in favour
of the respondents no. 1 to 5 and the other in favour of the
appellants in Appeal No. 756 of 2005 are subject matter of dispute in
Special Civil Suits No. 180 of 2004 and 194 of 2004 pending before
the Civil Court at Surat.
Pending
the said suits, the respondents nos. 1 to 5 took out above Misc.
Civil Application for review/clarification of the above referred
order dated 6th February, 1996. While disposing of the
Misc. Civil Application, by impugned Order dated 10th
March, 2005, the learned Single Judge has observed that, ?S..It
appears that the earlier interim order dated 6.2.1996 has finally
merged with the final order dated 2.7.1999 passed by this court
whereby the Rule is discharged and the interim relief is vacated and,
therefore, when the interim order is vacated when final order is
passed in the main Special Civil Application, naturally the interim
order dated 6.2.1996 cannot be said to be, in any manner, prejudicial
to the rights of any parties to the proceedings. If the petitioner
has purchased the property by registered Sales Deed on 4.5.1998, then
subject to the contentions of the client of Mr. Vakil as well as Mr.
Bhatt, it cannot be said that the interim order shall be, adversely
affected the rights of the applicant on the basis of the so-called
Sale Deed dated 4.5.1998. It deserves to be recorded that merely
because application is made, it cannot be said that this Court has
expressed view on the legality and validity of the Sale Deed dated
4.5.1998, which otherwise may be a subject matter for scrutiny in the
proceedings of Special Civil Suit No. 180/2004 and No. 194/2004 and
also in the relevant proceedings arising in respect to the revenue
entry under the Bombay Land Revenue Code. Suffice it to say, it would
be open to both the parties to raise all contentions as may be
available in accordance with law, except that the order dated
6.2.1996 passed in Special Civil Application No. 228 of 1996 shall
not be construed in the manner for putting any embargo over the
rights of either side.?? It is this observation which has
aggrieved the appellants before us.
Mr.
Thakore and Mr. Vakil have appeared for the appellants. In the
submission of Mr. Thakore and Mr. Vakil, the above referred
observation made by the learned Single Judge is unwarranted and is
made without jurisdiction. They have submitted that the application
made by the respondents nos. 1 to 5 ? non-party to the writ
petition was not maintainable. In any view of the matter, the interim
order made on 2nd February, 1996 was clear and
unambiguous. The said order did not call for clarification.
What should be the effect of the said order on the purchase made by
the respondents no. 1 to 5 is the subject matter of proceedings
pending before the Civil Court. The above referred observation made
by the learned Single Judge will preempt the defense of the
appellants before the Civil Court.
Mr. Panchal has appeared for the respondents nos. 1 to 5. He
has contested the appeals. At the outset, Mr. Panchal has questioned
the maintainability of the present Appeal. He has submitted that
against the order made in a petition filed under Article 227 of the
Constitution, an appeal under Letters Patent does not lie. In support
thereof, he has relied upon the judgment of the Hon’ble Supreme Court
in the matter of Sushilbhai Laxminarayan Mudliyar & Ors.
vs. Nihalchand Waghajibhai Shaha & Ors. [1993 Suppl. (1)
SCC 11] & of Kishorilal v. Sales Officer, District Land
Development Bank & Ors. [2006 (7) SCC 496]. As against
that, Mr. Thakore has relied upon the judgment in the matter of
Dilawarsinh Khodubha v. State of Gujarat & Anr.
[1994 (2) GLH 1]. In both these judgments, the Hon’ble
Supreme Court has reiterated the well-settled law that when a
petition is filed under Articles 226 & 227 of the
Constitution, the Letters Patent Appeal would be maintainable. Same
is the view expressed by the Full Bench of this Court in the matter
of Dilawarsinh Khodubha v. State of Gujarat & Anr.
[Supra]. Besides, these Appeals arise from the order made on
application for review. An appeal against the order allowing the
review is maintainable under Order XLVII Rule 7 CPC. We are,
therefore, of the opinion that these Appeals against the impugned
order dated 10th March, 2005 made on application for
review are maintainable.
Mr. Panchal has submitted that the aforesaid interim
relief has prejudiced the rights of the respondents nos. 1 to
5 created by the aforesaid sale. The respondents, therefore, were
compelled to seek clarification. The clarification made by the
learned Single Judge does not in any manner prejudice the
rights of the parties before the Civil Court.
We
are unable to agree with Mr. Panchal. We do agree with Mr. Thakore
and Mr. Vakil that the above referred observation shall prejudice
and adversely affect the rights and contentions of the appellants
before the Civil Court. Besides, the order dated 6th
February, 1996 is clear and unambiguous. No clarification was
warranted. Moreover, the respondents nos. 1 to 5 not being party to
the writ petitions, had no locus to seek clarification
of the interim order dated 2nd February, 1996. The
application was made without seeking permission to file such
application. Nor did the applicant seek condonation of delay though
the application was ex facie time barred. If the respondents
nos. 1 to 5 have purchased the land while interim relief was
operating, the legal consequences shall follow. Such legal
consequences cannot be avoided or obliterated by seeking
clarification of the order.
For
the aforesaid reasons, the Appeals are allowed. The impugned
order dated 10th March, 2005 passed by the learned Single
Judge is quashed and set-aside. Misc. Civil Application No.
1637 of 2004 is rejected. Civil Applications stand disposed
of.
Registry
will maintain copy of this order in each Appeal.
{Miss R.M Doshit, J.}
{Sharad D. Dave, J.}
Prakash*
Top