KAMUBEN JAYANTIBHAI PATEL & ORS. v. BHUPENDRA CHAGANLAL GANDHI & ORS.

CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT 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- LPA/755/2005 JUDGMENT 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 “excess 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 :- “Rule. 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 LPA/755/2005 JUDGMENT 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, “..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 LPA/755/2005 JUDGMENT 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 LPA/755/2005 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 LPA/755/2005 JUDGMENT 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.