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State of Gujarat Vs. Sankalchand P. Vachheta Since Deceased Through His Heirs - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtGujarat High Court
Decided On
Case NumberLetters Patent Appeal No. 978 of 2001 with L.P.A. Nos. 989 to 1007 of 2001, 456 and 600 of 2003; 108
Judge
Reported in(2004)3GLR1983
ActsConstitution of India - Articles 226 and 227; Code of Civil Procedure (CPC) , 1908 - Order 47, Rule 1; Urban Land (Ceiling and Regulation) Repeal Act, 1999 - Sections 4 and 10
AppellantState of Gujarat
RespondentSankalchand P. Vachheta Since Deceased Through His Heirs
Appellant Advocate S.N. Shelat, Adv. General and; P.R. Abichandani, A.G.P.
Respondent Advocate S.B. Vakil, Adv. for; D.C. Dave, Adv. for Respondent No. 1
DispositionAppeal allowed
Excerpt:
.....therefore, facts of l. on 12-5-1999 and the said petition was disposed of on 12-5-1999. it is a brief order which we would like to reproduce, which is as under :the petitioner in this petition has challenged the order passed by the authorities under the urban land (ceiling & regulation) act, 1976. the authorities have not taken the possession of the land in question from the petitioner, which is not in dispute. 1503 of 1999 and 29 other review applications filed in other writ petitions and then dismissed all the 30 review applications by his common judgment and order dated 10-9-1999 (reported in 2000 (2) glr 1187) running into 8 typed pages, which we would like to reproduced, which is as under :coram :mr......(u.l.c.) were required to file all these appeals against the orders passed by the learned single judge in writ petitions whereby the learned single judge of this court disposed of all the writ petitions on the point of possession. he submitted that due to the connivance of the officials of the government and the a.g.ps., who appeared in the writ petitions, with the original petitioners the government has suffered loss running into crores of rupees as it has lost thousands of acres of valuable lands worth crores of rupees which were already vested in the government and the possession thereof was already taken over since long. learned advocate general also stated at the bar that because of dereliction of duty the government had also issued notices to the concerned a.g.ps., and.....
Judgment:

B. J. Shethna, J.

1. All these matters are disposed of by this common judgment and order, as common point is involved in all these matters. All these appeals are arising out of the judgments and orders passed by K. R. Vyas, J., in Special Civil Applications and Misc. Civil Applications, filed in Special Civil Applications.

2. Learned Advocate General Shri Shelat appearing with learned A.G.P. Shri P. R. Abichandani for the appellants submitted that the appellant - State of Gujarat and competent authority and the Deputy Collector (U.L.C.) were required to file all these appeals against the orders passed by the learned single Judge in writ petitions whereby the learned single Judge of this Court disposed of all the writ petitions on the point of possession. He submitted that due to the connivance of the officials of the Government and the A.G.Ps., who appeared in the writ petitions, with the original petitioners the Government has suffered loss running into crores of rupees as it has lost thousands of acres of valuable lands worth crores of rupees which were already vested in the Government and the possession thereof was already taken over since long. Learned Advocate General also stated at the Bar that because of dereliction of duty the Government had also issued Notices to the concerned A.G.Ps., and thereafter, they were sacked as A.G.Ps.. In view of the above serious allegations, we have heard learned Advocate General Shri Shelat and other learned Counsel for the respondents to a great length. On the point of maintainability of the present L.P.A., all these appeals were seriously opposed by learned Senior Advocate Shri S.B. Vakil and all other Counsel, appearing for the respondents. It may also be stated that in some of the matters the learned Counsel Mrs. K.A. Mehta, Mr. A.J. Patel and others appearing for the respondents conceded that appeals before this Court against the judgments and orders passed by the learned single Judge, were maintainable as their petitions were mainly under Article 226 of the Constitution of India. It may also be stated that all the learned Counsel for the respondents original petitioners also submitted that if this Court comes to the conclusion that the L.P.As. were maintainable then without expressing any opinion on merits, the matters be straightaway sent back to any other single Judge for deciding the writ petitions afresh, strictly in accordance with law, on merits.

3. Learned Senior Advocate, Mr. Vakil and others had argued the point of maintainability of appeals to a great length. In nut-shell, we would like to reproduce the contentions of the learned Advocates on the maintainability of all these appeals, which are as under :-

(i) That no L.P.A. would be maintainable against the orders passed by the learned single Judge in writ petitions which were filed under Article 227 of the Constitution.

(ii) That the learned single Judge has not decided the writ petition on merits and determined the rights of the parties, therefore, it cannot be said that the orders passed in all the petitions were judgments. Hence, the appeals under Clause 15 of the L.P.A. would not lie against such orders.

(iii) That there was no judicial determination of any dispute between the parties as the learned single Judge has simply given effect to the provisions of the Repeal Act of 1999 on the statement that the Government had not taken possession of an excess vacant land.

(iv) That it was more or less a consent order, therefore, no appeals would He against such consent orders.

(v) That no L.P.A. would lie against an order passed by the learned single Judge dismissing the review petitions, filed in main writ petition.

4. Before appreciating the aforesaid contentions raised by learned Counsel for the respondents-original petitioners, we would like to narrate few facts of, at least, one petition from the present group of matters, which are very essential for correct adjudication, therefore, facts of L.P.A. No. 978 of 2001 are narrated in nut-shell, which are as under :

By an order dated 14-3-1988 the competent authority and Deputy Collector, Urban Land Ceiling, Ahmedabad, declared 9421 sq.mtrs. of land of the original land owner Shri Gabhaji Otaji and ordered to vest it in the Government. The said excess land was in possession of Shakalji Punjaji who claimed to have purchased the same under the registered sale-deed dated 15-7-1960. Aggrieved by the order dated 22-2-1988, passed by the competent authority and deputy collector, Urban Land Ceiling, Ahmedabad, said Shri Sankalchand Punjaji had filed Appeal No. 141 of 1991 before the Urban Land Tribunal at Ahmedabad (for short 'Tribunal'), which was dismissed by the learned Tribunal on 27-4-1992, by holding that '..............the evidence on record that the possession of the suit land has been taken over by the State Government under Section 10 of the Act on 27-7-1990, and therefore, the disputed land has been vested in the State Government free from all encumbrances.......... in other words the State Government has become the owner in respect of the suit land.' The respondent-original petitioner Shri Sankalchand P. Vachheta died, therefore, his LRs challenged the impugned orders dated 14-3-1988 passed by the competent authority and the Deputy Collector, Urban Land Ceiling, Ahmedabad, confirmed in Appeal on 27-4-1992 by the learned Tribunal by way of Special Civil Application No. 539 of 1993 before this Court. The cause-title of the petition shows that the petition was filed only under Article 226 of the Constitution. On the point of possession of the land, a specific averments made by the original petitioners in Para 5 of Special Civil Application No. 539 of 1993 that 'The Tribunal has also confirmed the order of the competent authority and also ordered to initiate proceeding under Section 10 of the Land Ceiling Act for compensation and the possession of the land has been taken over by the State Government...........'

The above petition of the respondents-original petitioners were admitted and pending before this Court since long and during the pendency and final disposal of the said petition, the Urban Land (Ceiling & Regulation) Repeal Act, 1999 (Act No. XV of 1999) (for short 'Repeal Act, 1999) came to be passed by the State Government repealing the main Urban Land (Ceiling & Regulation) Act of 1976 (for short 'the Act') on 30-3-1999. Though, the Repeal Act was passed on 30-3-1999, Special Civil Application No. 539 of 1993 was moved before K.R. Vyas, J. just on the eve of summer vacation i.e. on 12-5-1999 and the said petition was disposed of on 12-5-1999. It is a brief order which we would like to reproduce, which is as under :

'The petitioner in this petition has challenged the order passed by the authorities under the Urban Land (Ceiling & Regulation) Act, 1976. The authorities have not taken the possession of the land in question from the petitioner, which is not in dispute.

In view of the fact that the dispute involved in this petition is directly covered under the provisions of the Urban Land (Ceiling & Regulation) Repeal Act, 1999 (Act No. XV of 1999) repealing the Urban Land (Ceiling & Regulations) Act, 1976, which is also adopted by the State Govt. by passing a resolution dated 30-3-1999, this petition has abated, and consequently, the impugned order passed against the petitioner also stands abated. Rule made absolute accordingly with no order as to costs.'

5. We have already reproduced the specific findings recorded by the learned Tribunal on the point' of possession of the suit land which was taken over by the State Government under Section 10 of the Act way back on 22-7-1990 and that vesting of the excess land in the State Government free from all encumbrances and the averments made by the respondents-petitioners themselves in Para 5 of Special Civil Application No. 539 of 1993 that the possession of the land had already been taken over by the State Government. In spite of all this, the learned single Judge in his order dated 12-5-1999, passed in Special Civil Application No. 539 of 1993, stated that ...'the authority have not taken possession of the land from the petitioner which is not in dispute.' . Accordingly, the learned single Judge dismissed the petition as having been abated and also held that consequently the impugned orders passed against the petitioners also stands abated, and thereby, made Rule absolute. Be that as it may.

6. Coming to know about the aforesaid order dated 12-5-1999, passed by K.R. Vyas, J., in Special Civil Application No. 539 of 1993, the State of Gujarat and competent authority and Deputy Collector (U.L.C.), Ahmedabad, filed Review Application being Misc. Civil Application No. 1503 of 1999 seeking review of an order dated 12-5-1999 mainly on the ground that the possession of the land was already taken over by the State Government way back in 1990, but somehow or the other, the said fact was not brought to the notice of the learned single Judge and neither the officers from the concerned department were called nor the original record was placed before the Court for its perusal. Along with the application, panchnama dated 27-7-1990, taking over possession of the excess vacant land was also produced at Annexure-B to the Review Application. It was also contended in the Review Application that reading Section 4 of the Repeal Act with Section 3(1)(A) of the Act, all the proceedings which were finally concluded prior to commencement of Repeal Act i.e. 30-3-1999 will not get abated, therefore, the impugned order dated 15-7-1980 passed by the authority challenged in the writ petition cannot be abated nor the writ petition, as observed by the learned Judge in his order dated 12-5-1999.

7. Learned single Judge (K.R. Vyas, J.), had initially issued Rule on Review Application being Misc. Civil Application No. 1503 of 1999 and 29 other Review Applications filed in other writ petitions and then dismissed all the 30 Review Applications by his common Judgment and order dated 10-9-1999 (reported in 2000 (2) GLR 1187) running into 8 typed pages, which we would like to reproduced, which is as under :

'Coram : Mr. Justice K. R. Vyas : Date of decision : 10-9-1999


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