K.A. Puj, J.
1. This Appeal From Order is filed against the order passed by the learned Civil Judge (S.D.), Vadodara below an application Exh.5 in Special Civil Suit No. 1051 of 2001 whereby the injunction application preferred by the original plaintiff - present appellant was partly allowed and relief claimed in paragraph 21 (2) of the said application was granted and rest of the relief claimed was rejected.
2. The original plaintiff - present appellant has filed the present Appeal From Order against the rejection of the relief claimed in the injunction application.
3. This Appeal was admitted on 16.09.2003 and notice was issued in Civil Application No. 6539 of 2003 and parties were directed to maintain status-quo qua the possession and title of the land in question including the superstructure erected on the date of the said order i.e. on 16.09.2003. The Court has also made it clear in the said order that the status-quo qua the possession of the land will be maintained and the respondents were directed not to transfer possession of the land to any third party and were also directed not to transfer the superstructure erected, if not transferred or altered on or before that date. The Court has also made clear that the construction, if carried out, would be subject to the outcome of the Appeal From Order. The said arrangement was made till the Civil Application was heard and finally disposed of. The said Civil Application was finally heard and disposed of on 11.11.2003 and the Court has held that the order passed earlier on 16.09.2003 was required to be made final, till final disposal of the Appeal so as to avoid any further litigation and to eliminate the dispute between the parties. The Court has also directed to expedite the hearing of the Appeal.
4. C.A. No. 7348 of 2003 was filed by the appellant - original plaintiff seeking impleadment of one Mr. Manoj v. Shah as party - opponent No.8 in the Appeal as well as in C.A. No. 6539 of 2003 and consequently, ex-parte interim injunction was also claimed against the said opponent NO.8 restraining him from transferring further or making any construction over the said land to the extent of 3389 Sq. Mtrs. of land of Final Plot No. 834 paiki of village Bapod, Tal. & Dist. Vadodara, during the pendency of the Appeal From Order.
5. The original plaintiff - present appellant has also filed C.A. No. 7864 of 2003 seeking impleadment of one Mr. Ashokbhai Somabhai Patel as party - respondent in the A.O. as well as in C.A. No. 6539 of 2003 and interim injunction was prayed for against the said Ashokbhai Somabhai Patel in terms of the prayer made in the said application. The said application was disposed of by this Court on 11.11.2003 and said Ashokbhai Somabhai Patel was impleaded as party - respondent in the A.O. and it was conceded on his behalf that he would be abide by the order passed by this Court in C.A. No. 6539 of 2003 on 11.11.2003.
6. C.A. No. 471 of 2004 was filed by the original defendants - present respondent Nos. 5 to 7 seeking vacation of the interim relief granted by this Court in C.A. No. 6539 of 2003 on 11.11.2003. The said Civil Application was ordered to be listed alongwith A.O. for final disposal.
7. C.A. No. 776 of 2004 was filed by the present appellant - original plaintiff for taking up C.A. No. 7348 of 2003 for hearing immediately for appropriate order and the relief was claimed pending admission, hearing and final disposal of the said appeal to the effect that the opponents be restrained from making allotment of the superstructure built on the Final Plot No. 833 admeasuring about 3389 Sq. Mtrs. in favour of any person or party. Rule was issued in the said application and it was also kept for final hearing along with Appeal From Order No. 319 of 2003.
8. C.A. No. 1886 of 2004 was filed by the present appellant - original plaintiff seeking declaration from the Court that the opponents have committed breach of the injunction granted by this Court and, therefore, all the properties of the opponents be attached and the said attachment be continued till the final disposal of the appeal. It was also claimed in the said application that the Court should impose fine on the opponents for breach of injunction and for committing breach of the order of this Court. He has claimed to implead the purchasers of the five plots / shops as indicated in Annexure 'D' to the said application and appropriate order be issued to the said purchasers. Lastly, the appellant has further prayed for the direction to the Sub-Registrar, Vadodara to the effect that he could not register any Sale Deed from now onward with regard to flats constructed on Final Plot Nos.833 & 834 which are disputed final plots in this Appeal. This Civil Application was also ordered to be placed along with this Appeal for final hearing.
9. It is in the above background of the matter, all these Civil Applications as well as Appeal From Order are placed for final hearing.
10. Before hearing of Appeal From Order is started, Mr. M.B. Gandhi with Mr. P.M. Bhatt, learned advocates appearing for the appellant - original plaintiff submitted that since the opponents have committed breach of injunction of this Court, C.A. No. 1886 of 2004 which is mainly for initiating contempt proceedings against the opponents, be heard first as the contemnor has no right of hearing in the appeal. Mr. A.J. Patel with Ms. Trusha K. Patel, learned advocates appearing for the respondent Nos.5 to 7 in the appeal, have however submitted that the respondents have a very good case on merits and they have not committed any breach of injunction of this Court and there is no such law that without hearing contempt application, main appeal from order cannot be heard. In this connection, he has relied on the decision of the Hon'ble Supreme Court in Suo-Motu Contempt Petition (C) No. 426 of 2002 in I.A. No. 6 in C.A. No. 7919 of 2001 in the case of Anil Panjwani reported in 2003 AIR SCW 2609 wherein the Hon'ble Supreme Court has held that it is no rule of law and certainly not a statutory rule that a contemnor cannot be heard unless the contempt is purged. It lies within the discretion of the court to tell the contemnor charged with having committed contempt of court that he will not be heard and would not be allowed participation in the court proceedings unless the contempt is purged. This is a flexible rule of practice and not a rigid rule of law. The discretion shall be guided and governed by the facts and circumstances of a given case. Considering this judgment and after hearing the parties to some extent on this issue, the Court has ultimately decided to hear the main Appeal From Order first.
11. It is the case of the present appellant original plaintiff that the appellant has filed the Special Civil Suit No. 1051 of 2001 against the respondents - original defendants for declaration and permanent injunction restraining the defendant Nos.5 to 7 from making any changes or carrying out digging work or construction work in the suit land bearing Revenue Survey No. 883/2, Final Plot No. 834 admeasuring 2202 Sq. Mtrs. situated at Bapod, Tal. & Dist. Vadodara or in any other land which is the subject matter of the suit and also restraining them from transferring it in any manner whatsoever. The appellant has also prayed for injunction against the respondent Nos.1,2,3 restraining them from allotting in any manner or transferring or assigning the suit land admeasuring 304 Sq. Mtrs. of Final Plot No. 526 and 3389 Sq. Mtrs. of Final Plot No. 834 in favour of any person till the suit is finally heard and disposed of by the Trial Court. The appellant has also prayed for that his possession may not be disturbed in any manner whatsoever by the respondents.
12. It is also the case of the appellant that the appellant is the lawful owner and in possession of the suit land even prior to 1976 and all of a sudden, respondent Nos.5 & 6, in collusion with respondent Nos.1 to 3 submitted their demand for part of the suit land admeasuring 2202 Sq. Mtrs. of Final Plot No. 834 and the respondent Nos.1 & 2 without informing the appellant and behind his back, tried to allot the said disputed land to the respondent Nos.5 & 6, under the Urban Land (Ceiling & Regulation) Act, 1976 (now repealed). The appellant had submitted an application under Section 21 of the said Act on 21.06.1989 and the said application was not decided till the Act was repealed with effect from 30.03.1999 and, therefore, the said land was a free hold land. The said land was not acquired by the competent authority and it was a free hold land and the name of the appellant was in the revenue record. The appellant has also given public notices in the year 1992 & 1996 with regard to the title clearance Certificate. It is also the case of the appellant that the land of respondent No.5 was illegally and wrongfully utilised by the Gujarat Housing Board treating the land of the appellant being Survey No.388/389 Paiki 1587 Sq. Mtrs. as an excess land and in lieu of that land, the respondent No.6 represented in the State Government on behalf of respondent No.5 and ultimately he obtained order from the Govt. allotting the land of the appellant i.e. 2202 Sq. Mtrs. by paying price to the Govt. in the year 2001 and the dispute between the appellant and the respondent was started from the said date onwards.
13. Mr. M.B. Gandhi, learned advocate appearing for the appellant has submitted that in the injunction application Exh.5, the appellant has made two prayers. In para 21 (1) of the application, the appellant has prayed for temporary injunction restraining the defendant Nos.5, 6 & 7, either from making any type of changes or carrying out digging work or construction work in the suit land bearing Revenue Survey No. 863/2, Final Plot No. 834 admeasuring 2202 Sq. Mtrs. situated at village Bapod, Tal. & Dist. Vadodara or in any other land which was the subject matter of the land and also restraining them from transferring or assigning the said land in favour of any other persons or from creating any new rights. In Paragraph 21 (2) of the application, the appellant has prayed for the interim injunction restraining the defendant Nos.1,2, & 3 from allotting in any way or transferring or assigning the suit land Final Plot No. 526 paiki (part) admeasuring 304 Sq. Mtrs. as well as Final Plot No. 834 paiki (part) 3389 Sq. Mtrs. in favour of any person till the final decision of the suit. Mr. Gandhi has further submitted that the Trial Court has only granted interim relief in terms of para 21 (2) of the application and did not grant interim relief claimed in para 21 (1) of the application. The Trial Court has not made any discussion in the entire order with regard to the relief claimed by the appellant in para 21 (1) of the application. Precisely for this reason, the present Appeal From Order was filed before this Court.
14. Mr. M.B. Gandhi has further submitted that there was a factual typographical error in mentioning the Final Plot No.834 in para 21 (2) of the injunction application and necessary amendment was sought to be made before the Trial Court and the same was already granted. The appellant has also moved draft amendment before this Court seeking amendment by correcting Final Plot No. 833 in place of Final Plot No. 834 in second line of para 21 (2) on page 29 of the compilation . Since the appeal was taken up for hearing, no formal order for amendment was passed in that application.
15. Mr. Gandhi has further submitted that application preferred by the appellant under Section 21(1) of the ULC Act was pending and till the Act was repealed, the said application was not disposed of . The possession of the suit land was with the appellant and hence, the appellant was entitled to seek interim relief from the Court in respect of the entire property covered by Final plot No. 833 as well as 834. In the Form filed under Section 6(1) itself, the appellant has disclosed his intention to make an application under Section 21 in Column No.10 of the said form and in furtherance of that, the applicant has already produced on record of the Trial Court at Exh.4/7 a copy of the application made under Section 21 received by the Office of the competent authority on 21.06.1989. The appellant has also raised objection against taking any action in pursuance of notice issued under Section 10(5) of the Act which is dated 18.09.1989. He has, therefore, submitted that if the Government proceeded further ignoring the observations filed by the appellant, any subsequent action taken by the Govt. is required to be declared as illegal looking to the facts on record of the case and law on the subject. In this connection, Mr. Gandhi has relied on the decision of this Court in the case of NIRMALABEN v. STATE OF GUJARAT, 1984 (1) G.L.R. 322 wherein it is held that after filing of any statement under Section 6 of the Act, if the specific plea for exemption under Section 20 of the Act is raised, it is the duty of the Govt. to deal with that application and then to take resort to Section 8(1) and 8(3) of the Act.
16. Mr. Gandhi has further relied on the decision of this Court in the case of M/S. AVANTI ORGANISATION v. . COMPETENT AUTHORITY & ADDITIONAL COLLECTOR, URBAN LAND CEILING ACT, RAJKOT, 1989 (1) G.L.R. 586 (Full Bench) wherein while slightly modifying this Court's judgment in case of NIRMALABEN v. . STATE OF GUJARAT (Supra), this Court has held as under :-
'It is indeed true, that it should be endeavour of the State Government to dispose of the application under Section 20(1) at an early date but the Court is not inclined to the view that merely because an application for exemption is pending, the entire process beyond the Section 6 stage should grind to a halt till such application is decided. Ordinarily, the process can be carried upto the Sec. 8(3) stage and at that stage the competent authority must apply its mind whether having regard to the nature of the objections it would be desirable to pass an order adverse to the objector under S. 8(4) notwithstanding the pendency of the exemption application. If the objection has no relevance to the lands in respect of which exemption is sought, there is no reason why the competent authority should not proceed further upto Sec. 10(2) stage. For the above reason, this Court cannot subscribe to the view expressed in Paragraph 2 of Nirmalaben's case, 1984 (1) G.L.R. 322.'
17. Mr. Gandhi has further relied on the decision of this Court in the case of SAMRATHBEN MANILAL CHOKSHI AND ANR. v. . STATE OF GUJARAT AND ANR., 1994 (1) G.L.R. 203 wherein while applying the ratio of NIRMALABEN (Supra) to the application under Section 21 of the ULC Act, this Court has held as under :-
'It is true that the Bench in Nirmalaben Manilal Doshi v. . State of Gujarat, 1984 (1) G.L.R. 322 was concerned with the case where an application under Section 20 of the Act for exemption was taken and was pending at the time when the further processes under the Act were prosecuted. But we find that there is no warrant to make a distinction between a case where an application under Section 20 is pending and a case where an application under Section 21 is pending. Section 20 deals with the general power to exempt. Section 21 deals with the power to treat and declare as not excess land even though the person holds the land in excess of the Ceiling limit, in the contigencies set forth therein.
If the power to exempt is exercised under Section 20 of the Act, the land does not come within the purview of Chapter III of the Act. The implication of an order, if that comes to be made under Section 21 of the Act is that though there is vacant land in excess of the ceiling limit, yet it would not be treated as excess, for the purpose of Chapter III of the Act. That Chapter is the blood-stream of the Act and it contains the operative provisions for ceiling on vacant land. The result of the order under either Section 20 or 21 is that the land goes out of the mischief of Chapter III of the Act. The result is one and the same though the process and the scope of the consideration may be different.'
18. Mr. Gandhi has thereafter relied on the decision of this Court in the case of SAVITABEN RAMANBHAI PATEL v. . STATE OF GUJARAT & ORS., 1999 (1) G.L.R. 860 wherein after referring to the aforesaid decisions, this Court has held as under :-
'The State is bound to follow the decision of this Court. Under the circumstances, the proceedings initiated in the present two cases in respect of the lands upto the stages of Sec. 10(2) of the Act are for the present left untouched. The prosecution of further processes under the Act after the stage of Sec. 10(2) of the Act will depend upon the decision on the applications under Section 20 and/or 21 of the Act.'
19. Mr. Gandhi has further relied on the decision rendered in LPA No. 5 of 2002. He has submitted that it is upto the appellant to file appeal under Section 33 of the ULC Act challenging the order declaring excess vacant land but when the appellant succeeds in an application under Section 21, he need not file any appeal in as much as the appellant would thereby be permitted to retain the excess vacant land. Mr. Gandhi has further relied on the decision of the Hon'ble Supreme Court in the case of SMT. DAROTHI CLARE PARREIRA AND ORS. v. . STATE OF MAHARASHTRA AND ORS., A.I.R. 1996 S.C. 2553 wherein it is held that it is only after the land vests in the Govt. and Govt. becomes the owner of the excess land, the land-holder has right to make an application either under Section 20 or 21 of the Act. He has submitted that in the said decision, application under Section 21 was made in the year 1979 and the said application was directed to be proceeded further by the Hon'ble Supreme Court in the year 1995 and in the year 1996, the said application was disposed of only on the ground that the land involved in the said application under Section 21 was allotted to some third party and in that context, the Hon'ble Supreme Court has said that since the land was allotted to some third party, the Court was not going to interfere in the said decision of the Govt. Mr. Gandhi has, however, submitted that the Hon'ble Supreme Court has not decided the matter on merits and in the appellant's case, application under Section 21 is still pending and, therefore, the facts of the case before the Hon'ble Supreme Court and the facts of the present case are totally different in nature. In view of this observation, Mr. Gandhi has submitted that the appellant was holding the land in question and, therefore, the appellant has every right to make an application under Section 21which is not disposed of and in view of the decisions rendered by this Court in LPA No. 5 of 2002, all actions taken by the Govt. beyond Section 10(2) are held to be illegal.
20. Mr. Gandhi has further submitted that once an objection is raised by the appellant under Section 10(5) of the Act on 10.08.1989 and if the said objections are not considered, the appellant need not bother as he was never informed that his objection against notice u/s. 10(5) was considered and rejected and, therefore, he was not required to file any appeal or any proceedings under Section 10(5) of the Act. If the Government proceeds further without considering the objections raised against the notice issued under Section 10(5) of the Act, all actions of the Govt. subsequent thereto are absolutely illegal and must be quashed and set aside by this Court. The physical possession of the lands in question remained with the appellant upto the date of filing of the suit and the appellant has paid the land revenue to the Govt. at least up to the year 1999. This shows that the Govt. has never taken the possession in the year 1990. Even if the possession is taken by the Govt., the same is symbolic or paper possession.
21. Mr. Gandhi has further submitted that the order granting allotment was obtained by playing fraud with the Govt. Officials and or by joining hands with the Govt. Officers for the simple reason that the respondent No.6 obtained Power of Attorney from respondent No.5 on 30.04.2001 and within a span of 24 days i.e. on 24.05.2001 he obtained the order of allotment under Section 23 from the Govt. which was not only surprising but shocking as it is reflected from the order of the Govt. that one Mr. Bhavesh Amin as a Power of Attorney Holder represented before the Govt. and on his representation, market price was called for from the office of the Collector through Deputy Town Planning Officer on 06.02.2001 and on that day, the market price of the land in the year 1999, according to the Town Planning Officer was Rs. 2,200/- whereas on 06.02.2001, the price mentioned in the order dated 24.05.2001 was Rs.950/-. The land in question was allotted in the name of Bhavesh Amin whereas the land was to be allotted to Khodabhai Rabari as his land was declared as vacant land and used by the Housing Board. The condition No.2 of the allotment order dated 24.05.2001 contemplates that the lands shall be developed by the person in whose name allotment is made and he cannot permit any person to make development of the said land. In the instant case, the Power of Attorney makes it clear that the land allotted was sold to the Builder i.e. respondent No.7 and all rights were given to the said respondent No.7 even before the allotment was made. The very purpose of granting allotment to the respondent No.5 on 24.05.2001 has been frustrated.
22. Mr. Gandhi has further submitted that the disputed land was allotted to the respondent under Section 23 of the ULC Act, after the said Act was repealed by the Parliament. He has, therefore, submitted that the said allotment itself is illegal and void ab initio. For this purpose, he relies on the decision of this Court in the case of VIPIN CHANDRA VADILAL BAVISHI & ANR. v. . STATE OF GUJARAT AND ORS., 43 (3) G.L.R. 2592 wherein it is held that 'after the Repeal Act, even if the instruction issued as per the Circular dated 15.04.1999, are taken into consideration, the State Government had no authority whatsoever, to continue to exercise the powers under Section 23 of the Act, for the land in question and it could not have been allotted to respondent No.3 or to any one else in purported exercise of the powers under Section 23 of the Act and the only mode for disposal of such land would be by way of public auction at market price. If on account of the situation beyond control of the State Government, the allotment of the land which was made prior to the repealing Act came into force, is not given effect or possession thereof, could not be handed over then at the most, the allottee would be entitled to refund the amount with reasonable rate of interest.
23. Mr. Gandhi has further submitted that the respondents have suppressed from this Court as well as from the Trial Court regarding the suit filed by or against them. Necessary details and particulars of all the suits were not given by the respondents. The Trial Court has only partly allowed the injunction application and without considering the facts and evidence on record, the interim injunction was refused so far as prayer made in Para 21 (1) is concerned.
24. Mr. Gandhi has further submitted that this Court has rightly passed the order of status-quo qua the title and possession of the suit property on 16.09.2003 and confirmed on 11.11.2003. However, the said order was flouted by the respondent Nos. 5 to 7 as they have disposed of five Flats & Shops situated Final Plot No. 834 as well as Final Plot No. 833. The sales have taken place by Regd. Sale Deed and the details of such sale deeds were furnished by the appellant along with the said application. Therefore, all these transactions are required to be cancelled and the possession be taken from all these persons to whom the Shops and Flats were sold and transferred and if necessary, they should also be joined as parties in the present proceedings.
25. Mr. A.J. Patel, learned advocate appearing for the respondent Nos.5 to 7 along with Ms. Trusha Patel has submitted that the order declaring the land in question as surplus was passed by the competent authority and Deputy Collector on 05.01.1987 and the said order was not challenged by the appellant. The appellant has not filed any objection pointing out that his so-called application under Section 21was pending. The said order of the competent authority had become final and conclusive long back and, therefore, no suit could have been filed by the appellant in respect of the transaction which has become final long back under the Provisions of the ULC Act. For this purpose, he relied on the Provisions contained in Section 42 of the ULC Act which reads as under :-
'42. Act to override other laws :-
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or any custom, usage or agreement or decree or order of a Court, Tribunal or other authority.'
26. In view of the aforesaid provisions of Section 42 of the ULC Act, the Civil Court has no jurisdiction to entertain the suit challenging the transactions which had become final and conclusive long back. Pursuant to the order passed by the competent authority on 05.01.1987, the competent authority has initiated proceedings under Section 10(1) of the ULC Act on 12.03.1987 by issuing a Notification under Section 10(1) of the Act, inviting objections from the persons interested in the land in question. However, no objections were filed by the appellant pursuant to the said notification. Had the appellant raised any objection, the competent authority would have passed an order under Section 10(2) of the ULC Act and if such an order was invited by the appellant and if the order was against him, he could have filed an appeal against such order under Section 33 of the ULC Act. Since no objections were filed by the appellant pursuant to the Notification under Section 10(1) of the ULC Act, the competent authority was not under obligation to pass any order under Section 10(2) of the Act and, therefore, the competent authority proceeded to issue a notification under Section 10(3) of the ULC Act on 17.09.1987. As per the law laid down by the Hon'ble Supreme Court in the case of SMT. DAROTHI CLARE PARREIRA AND ORS. v. . STATE OF MAHARASHTRA AND ORS., AIR 1996 S.C. 2553 wherein it is held that it was open to the competent authority to issue notification under Section 10(3) of the Act. Even at this stage also, the appellant could have filed an appeal before the appellate authority but no such appeal was filed. After the notification was issued under Section 10(3) of the Act, notice under Section 10(5) of the ULC Act was issued on 09.06.1989 for the purpose of taking over the surplus land including the suit land. The said notice was also not challenged and, therefore, the possession was taken under Section 10(6) of the Act on 16.01.1990. Once the possession was taken over by the Govt, whatever status the appellant had qua the said land stood extinguished and the land stood vested in the State Govt. and it was open to the State Govt. to dispose of the said land subject to the relevant provisions of the ULC Act and the manner provided therein. It was not open to the appellant to file the suit before the Civil Court as the Civil Court has no jurisdiction to decide the said issue.
27. Mr. Patel has further submitted that at no point of time, the appellant has complained about the pendency of his so-called application under Section 21 of the Act. In this connection, he relied on the communication dated 21/22.09.1989 which was addressed with a view to ascertain as to whether any application is pending or not and if such an application was in fact pending, the process of taking over of possession could have been postponed till the disposal of such application. In reply to the said communication, it was stated that no application of whatsoever nature qua the suit land was pending on the date when possession of the suit land was taken over by the State Government.
28. Mr. Patel has further submitted that Suit filed by the appellant is barred by limitation as the possession was taken over in year 1990 and the suit was filed in 2001. In absence of any proceedings being pending when the Act was repealed on 30.03.1999, right, if any, in favour of the appellant was lost. Even otherwise, Section 100 of the Limitation Act prescribes the period of limitation as three years from the date on which cause of action arose. When the suit is barred by limitation, there is no question of granting any interim relief.
29. Mr. Patel has further submitted that while allotting the land to the respondent, though reference was made to ULC Act in respect of excess land, it was, in fact, allotted by the State Government under the Provisions of the Bombay Land Revenue Code and the Rules framed thereunder. There is a statutory presumption under Section 37 of the Code that all public roads etc., and all lands which are not the property of Ors. belong to Government. Under Rule 42 of Gujarat Land Revenue Rules, 1972, ordinarily, the Collector may sale the Government land by auction but he may, in his discretion, dispose of such land by private arrangement, either upon payment of a price fixed by him, or without charge, as he deems fit. Even under Rule 55 of the said Rules, the Collector in exceptional cases, the Collector may dispose of the Government land in such manner, for such period and subject to such special conditions, if any, as the Collector deems fit. Mr. Patel has, therefore, submitted that wrong mentioning of Section or Rule does not vitiate the action taken or order passed by the authority having valid power or Competence to do so. In this connection, Mr. Patel relied on the decision of the Hon'ble Supreme Court in the case of P. RADHAKRISHNA NAIDU AND ORS. v. . GOVERNMENT OF ANDHRA PRADESH AND ORS., A.I.R. 1977 S.C. 854 wherein it is held that a wrong reference to power will not vitiate any action if it can be justified under some other powers under which the Government can lawfully do the Act. Mr. Patel further relied on the decision of the Hon'ble Supreme Court in the case of MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD v. . BEN HIRABEN MANILAL, A.I.R. 1983 S.C. 537, wherein it is held that exercise of a power if there is indeed power, will be referable to a jurisdiction, when the validity of the exercise of that power is in issue, which confers validity upon it and not to a jurisdiction under which it would be nugatory though the Section was not referred, and a different or a wrong section of different provisions was mentioned.
30. Mr. Patel has further submitted that the contents of the communication dated 22.09.1989 and the endorsement made below it are in conformity with what was stated by the appellant himself in the application made by him on or about 04.03.1994, in respect of other land wherein, the appellant has not included the suit land. Mr. Patel has, therefore, submitted that this has made it abundantly clear that the stand adopted by the appellant in the said application dated 04.03.1994 was inconsistent with what was stated by him in the communication dated 22.09.1989. Mr. Patel has, therefore, submitted that no application of whatsoever nature qua the suit land was pending on the date when possession of the suit land was taken over by the State Government. The competent authority has also addressed a further communication dated 16.07.1997 in connection with the application made by the appellant in respect of other Survey Nos. and by the said communication, the appellant was asked to submit a detailed scheme for constructing houses for weaker sections of the society on the same land. The contents of the said communication reveal that the appellant was not interested in processing by the competent authority the application dated 04.03.1994.
31. The revenue department of the State Government had passed an order on 24.05.2001 granting land admeasuring 2202 Sq. Mtrs. out of Final Plot No. 834 of Survey No. 863/2 to the erstwhile owners in lieu of his share which was taken away through mistake by the Gujarat Housing Board. Pursuant to this order, the possession was also handed over to the erstwhile owner on 05.07.2001 in the presence of the Deputy Mamlatdar of the office of competent authority, Baroda and the possession receipt was passed by the owner on the same day. On the basis of the said order as well as the possession receipt, the name of the erstwhile owner was entered in village Form No. 8-A as the owner of the said land and thereafter, mutation Entry No. 6181 came to be effected on 05.07.2001 on the basis of the said order and the said mutation entry came to be certified by the competent authority in due course. As stated in the said order, the owner has also paid the market price of Rs.8,38,170/- in the Govt. Treasury by Challan dated 07.03.2001. Since the erstwhile owner and the members of his family wanted to develop the said land, they executed a Power of Attorney in favour of the respondent No.6 on 03.04.2001. After the possession of the suit land was handed over to the respondent No.6, an amount of about Rs.1 Crore was invested towards cost of construction of a Shopping Centre-cum-Residential Flats under said land. The said construction was already completed and shops have already been allotted to the concerned allottees and some of them have already started their activities in the said Shops / Commercial Flats. The construction of the Flats upto 4th floor of the building has also contractually completed and only cosmetic work was required to be completed.
32. Mr. Patel has further submitted that by filing the present suit, the appellant was trying to reopen a chapter which was already concluded by competent authority in accordance with law. The appellant could have challenged in appeal the orders passed under the ULC Act but he did not do so and though he has lost possession in the year 1990, he has not done anything upto 2001 and it was only in the year 2001, he filed the present suit which was not maintainable in view of the clear Provisions of Section 42 of the ULC Act. Since the ULC came to be repealed with effect from 30.03.1999 by the Provisions of the Urban Land (Ceiling & Regulation) Repeal Act, 999, all the proceedings arising under the Act stood abated and no such proceedings could have been initiated thereafter. The suit is not maintainable and the question of granting of any interim relief in such a suit does not arise.
33. Mr. Patel has alternatively submitted that even if the appellant succeeds in the suit, he can at the most be compensated in as much as, if the appellant succeeds in establishing that the possession of the suit land was erroneously taken over by the State Government and the land was illegally disposed of by the State Government, the appellant can claim damages from the State Government. It is, however, not open for the appellant to stay the entire scheme by an order of injunction from the Civil Court or from this Court. The present Appeal From Order therefore does not deserve for any relief and Civil Application should also meet with the same fate.
34. With regard to scope and ambit of Appeal From Order under O.43, R.1 is concerned, Mr. Patel has relied on the decision of this Court in the case of MARADIA CHEMICALS LIMITED v. . GUJARAT ELECTRICITY BOARD, 2002 (2) G.L.H. 282 wherein it is held that 'it is settled principles of law that in Appeal From Order challenge is against the exercise of discretion by the learned Judge of the lower Court in granting or refusing the injunction which is an equitable relief. In such appeals, the Appellate Court will not interfere with the exercise of the discretion of the Court of the first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the Court has ignored the settled principles of law regulating grant or refusal of interlocutory injunction. An appeal against exercise of discretion is said to be an appeal on principle and the Appellate Court will not reassess the material and seek to reach a conclusion different from one reached by the Court below if the one reached by the court was reasonably possible on the material. The Appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it has considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the Appellate Court would have taken a different view may not justify interference with the Trial Court's exercise of discretion. The Court has observed that this principle is enunciated by the Hon'ble Supreme Court in the case of WANDER LIMITED v. . ANTOX INDIA PRIVATE LIMITED, 1990 (Supp.) S.C.C. 727.
35. Mr. Patel has further relied on the observations made by the Hon'ble Supreme Court in the case of WANDER LIMITED v. . ANTOX INDIA PRIVATE LIMITED, 1990 (Supp.) S.C.C. 727 stating that 'Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal rights asserted by the plaintiff and its alleged violation are both contested and are uncertain and remain uncertain till they are established at the trial on evidence. The Court, at this stage, acts on certain well settled principle of administration of this form of interlocutory remedy which is both temporary and discretionary. The interim relief remedy is intended to preserve in status-quo, the rights of parties which may appear on a prima facie case. The Court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case consideration is somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted.
36. Based on the aforesaid two decisions, Mr. Patel has submitted that since the Trial Court, after having considered the facts and circumstances of the case and after having applied its mind to the controversy raised before it, granted interim relief only in terms of para 21 (2) and refused the interim relief prayed for in para 21 (1) of the injunction application and hence there is no justification for this Court to interfere with the said order of the Trial Court.
37. Mr. Patel has further relied on the decision of this Court in the case of RAVJI LALLUBHAI AND ANR. v. . COMPETENT AUTHORITY AND DEPUTY COLLECTOR, VADODARA AND ANR., 1997 (2) G.L.H. (U.J.) 26 for the proposition that 'On account of the publication of notification under Section 10(3) of the ULC Act, right of appeal which has been conferred upon a land-holder is not lost. There is no provision in the Act which can be read even by implication to suggest that once the notification under Section 10(3) of the Act is issued, right of appeal conferred upon a land-holder gets extinguished.'
38. Mr. Patel has further relied on the decision of this Court in the case of GAJANAN MAGANLAL PARIKH AND ORS. v. . MUNICIPAL CORPORATION, DANA PITH AND ANR. in S.C.A. No. 2337 of 1980 decided on 16.04.1991 wherein it is held that 'The ULC Act had overriding effect on all other laws and when the lands in question were likely to be acquired under the ceiling law by paying compensation as provided therein, it would not be proper to compel the Govt. to acquire them under the Provisions of Land Acquisition Act, 1894. The submission made on behalf of the original petitioners that the land which were under reservation were not the 'vacant land' as defined in Section 2(q) of the ULC Act was rejected.'
39. Mr. Patel has further relied on the decision of the Hon'ble Supreme Court in the case of SMT. DAROTHI CLARE PARREIRA AND ORS. v. . STATE OF MAHARASHTRA AND ORS., (SUPRA) for the proposition that 'the competent authority need not wait till the application under Section 21 is disposed of. Once the possession of the land is taken over and the same has been allotted by the State Government, the Court would not interfere in the said decision. The Hon'ble Supreme Court has held in that case that they do not go into the correctness of the order passed by the Govt. under Section 21 for the reason that it would be open to the Govt. and the Govt. have stated in their order that they have already decided to allot the land for Anr. equally efficacious public purpose. Therefore, we cannot sit over the decision taken by the Govt. holding it illegal.' Here in the present case also, the possession of the suit land was taken over in 1990 and thereafter, in 2001 it has already been allotted. Therefore, there was no reason to interfere in the said order of the Govt.
40. Mr. Patel has further relied on the decision of this Court in the case of KANTIBHAI NANUBHAI PATEL v. . URBAN LAND TRIBUNAL AND ORS., 38 (3) G.L.R. 2415 wherein, after following the decision of the Hon'ble Supreme Court in the case of DAROTHI CLARE PARREIRA v. . STATE OF MAHARASHTRA (SUPRA), this Court has held that having regard to the scheme of the Act, it cannot be said that until the application under Section 21 or 20 is considered and disposed of the Competent Authority has no power to have the Notification under Section 10(3) vesting the excess land in the Govt., published.'
41. Mr. Patel has further relied on the decision of this Court in the case of MAGANLAL MEPABHAI PATEL v. . COMPETENT AUTHORITY AND EX-OFFICIO ADDITIONAL COLLECTOR, 40 (3) G.L.R. 2105 wherein it is held that 'On a plain reading of Section 4 of the Urban Land (Ceiling & Regulation) Repeal Act, 1999, it becomes obvious that the intention of the Parliament was merely to bring an end to all proceedings; 'all proceedings' have obviously been clarified to mean those proceedings which relate to any order made or purported to be made under the principal Act. In short, therefore, and in plain language, whether any orders were made or purported to be made under the Act of 1976, and where those orders were challenged by way of an appeal, revision, or a writ petition, or perhaps even a suit (if permissible), such proceedings wherein such challenge was made would be proceedings for the re-examination of the rights of the parties. It is specifically these proceedings which have been directed to have abated.'
42. Here in the present case, no proceedings are said to have been pending as the orders passed by the competent authority are not challenged in appeal and they have become final. Even if it is assumed that the application under Section 21 of the Act was said to be pending, it is now deemed to have been abated in view of the Provisions contained in Section 4 of the Repeal Act. In the above view of the matter, Mr. Patel has submitted that there is no substance in the present appeal and the same deserves to be dismissed with cost.
43. As far as Contempt Application being C.A. No. 1886 of 2004 is concerned, Mr. Gandhi has submitted that this Court has directed the parties to maintain status-quo qua the possession and title of the land in question including the superstructure erected on it as on that date i.e. 16.09.2003. It was also clarified by the Court that there is a status-quo qua the possession of land and, therefore, the respondent shall not transfer possession of the land to any third party and shall not transfer the superstructure erected, if not transferred or alienated on and with effect from that date i.e. 16.09.2003. As stated earlier, the said order has been confirmed on 11.11.2003 and status-quo granted earlier was ordered to be continued till the disposal of the appeal. Despite the aforesaid order of the Court, the respondent Nos.6 & 7 have disposed of certain Flats and Shops situated at Final Plot No. 834 as well as Final Plot No. 833, the sales have been taken place by Regd. Sale Deeds. On inquiry, it was found that about 17 Flats/Shops have been disposed of inspite of the injunction granted by this Court and, therefore, the respondents have committed an act of breach of injunction and, therefore, serious view was required to be taken and all the sales which have been taken place are required to be set aside.
44. The above application was opposed by Mr. Patel and reply was filed by Mr. Bhavesh Amin, respondent No.6 denying the allegation that the respondents have committed breach of injunction order passed by this Court or by the Trial Court. This Contempt application was filed only with a view to delaying the proceedings and to enjoy the interim relief and to extort money by the respondents. Though the appeal was admitted long back and the respondents were very keen to go on with the appeal, the appellant was trying to delay the hearing of the appeal by moving one after another application before this Court. The prayer clause of the injunction application filed before the Trial Court was divided into two parts and 21 (1) was related to Final Plot No. 834 admeasuring 2202 Sq. Mtrs. The learned Trial Judge has refused to grant relief as prayed for in para 21 (1) and, therefore, the appellant has filed the appeal in respect of the denial of the interim relief. Along with the appeal, an application for injunction qua the land bearing Final Plot No. 834 admeasuring 2202 Sq. Mtrs. was also filed and this Court has granted injunction qua the land in question. The order passed by this Court with regard to the status-quo of the said land would necessarily mean that the appellant has referred to Survey No. 834 only which is in dispute. The said fact is evident in para 6 of the application. The contention raised in para 5 & 6 of the Civil Application No. 6593 of 2003 would also make it clear that the relief is only for Final Plot No. 834. The respondents have not disposed of any Flat which is situated on Final Plot No. 834. The said fact is also evident from the copies of the Sale Deeds produced by the appellant. The said Sale Deeds are of the Flats and Shops situated on the land bearing Final Plot No. 833 admeasuring 3389 Sq. Mtrs. The said land i.e. F.P. No. 833 is neither the subject matter of appeal nor of the Civil Application No. 6539 of 2003 for stay. Even before the Trial Court, in para 21 of the injunction application filed by the appellant, the land which was referred to is F.P. No. 834 and not the land bearing Final Plot No. 833. Thus, Final Plot No. 833 is not the subject matter of the appeal and in C.A. No. 6539 of 2003. Hence, the order of status-quo passed by this Court was only qua Survey No. 834 and by no stretch of imagination, it can be treated as the order qua Final Plot No. 833.
45. The next contention raised by Mr. Gandhi is that the mentioning of Final Plot No. 834 in para 21 (2) was only a typographical error and it was in fact Final Plot No. 833, and amendment to that effect has also been moved before the Trial Court and it has been already granted by the Trial Court and hence, the status-quo granted by the Trial Court and by this Court equally applies to Final Plot No. 833. In this connection, Mr. Patel has submitted that even if the amendment is granted by the Trial Court, the appellant has not moved any application before this Court for carrying out the necessary amendment and it was moved only during the course of hearing of this appeal from order by preferring Civil Application No. 1668 of 2004 in March, 2004. On the basis of the subsequent amendment, it cannot be said that the respondents have committed any breach of injunction. For the purpose of deciding the issue with regard to contempt, such amendment would not be pressed into service with retrospective effect and hence, it cannot be said that the respondents have committed any breach of the injunction order passed by this Court. The respondents have not committed any contempt and contempt application, therefore, deserves to be dismissed with cost.
46. After having heard the learned advocates appearing for the respective parties and after having gone through the impugned order passed by the learned Trial Judge and having perused the papers and documents produced and the authorities cited before the Court, the points which fell for the consideration of the Court are :-
(1) Whether the suit is barred by limitation ?
(2) Whether the Civil Court has any jurisdiction to decide the issues raised in the suit ?
(3) When the issues regarding jurisdiction and limitation go to the root of the matter, whether the Civil Court should grant any interim relief ?
(4) In absence of any challenge to the ULC proceedings which have become final and conclusive, whether the appellant can maintain the suit or claim any relief in the suit merely on the basis of pendency of an application under Section 21 of the ULC Act.
(5) Whether allotment of the suit land made by the State Government can be said to be illegal or unjustified Whether the respondent Nos. 5 to 7 have committed any breach of injunction granted by the Trial Court or by this Court ?
47. As far as the questions regarding limitation and jurisdiction are concerned, since the suit is still pending before the Trial Court, it is not proper for this Court to express any opinion on these questions. The Trial Court should have, however, considered these issues while granting interim injunction in the suit. Since the appellant - original plaintiff has come before this Court challenging the order of the Trial Court of rejection of the remaining interim relief, this Court cannot keep its eyes closed especially when the learned advocate for the respondents Nos.5 to 7 has ably demonstrated that the suit is barred by limitation as the possession of the suit land was taken over by the State Government on 16.01.1990 and the suit was filed in 2001. The main grievance of the appellant was that he was wrongly dispossessed with the suit land as his application under Section 21 of the ULC Act was pending. The appellant should have in that case, challenged the Notification under Section 10(3) or the notice issued under Section 10(5) of the Act before the appropriate forum, but, under no circumstances, after the Repeal Act, 1999 and after allotment of the suit land to the respondents or other persons, it may not be prima facie justified that the suit filed was well within the period of limitation. Even otherwise, after the Repeal Act, 1999 has come into force, the jurisdiction aspect assumes much significance and without deciding the said issue either by way of preliminary issue or otherwise, the Trial Court should have been very slow in granting interim injunction. This Court has held in the case of MAGANLAL MEPABHAI PATEL v. . COMPETENT AUTHORITY AND EX-OFFICIO ADDITIONAL COLLECTOR (1999) 40 (3) G.L.R. 2105 that the abolition and repeal of the Act of 1976 only means that the machinery for enforcement or right created by orders passed under the Act has ceased to exit. The Court has, however, not gone to the length of saying that the rights which may have been created under those orders are incapable of enforcement through Civil Court, particularly since the implied bar against the jurisdiction of Civil Courts is simultaneously removed by the abolition and repeal of the Act of 1976.
48. It is an undisputed fact that the appellant has neither challenged the order of Competent Authority passed on 05.01.1987, nor the Notifications issued under Section 10(1) and 10(3) of the ULC Act, issued on 12.03.1987 and 17.09.1987 respectively. The appellant has also not challenged the notice issued under Section 10(5) of the ULC Act, nor challenged the action of the State Government of taking possession of the suit land on 16.01.1990. Mere filing of an application under Section 21(1) of the Act, which fact is also in dispute, or mere raising an objection to the notice under Section 10(5) of the ULC Act are not sufficient. As soon as Notification under Section 10(3) is issued, the suit land is vested in the State Government and as soon as the possession of the suit land is taken over by the State Government, the appellant has lost all his rights in the suit land, till the said action is declared to be illegal or null and void by the appropriate Court, authority or tribunal. If, on the date when the Repeal Act has come into force, no rights are created or are in existence in favour of the appellant, mere pendency of his application under Section 21 of the ULC Act would not come to his rescue, as all proceedings including proceedings under Section 21 of the Act, are, therefore, abated.
49. The Court now proceeds to deal with the issue raised by Mr. Gandhi with regard to the effect of pendency of an application under Section 21 of the ULC, even if it is presumed that such an application was pending, on the subsequent proceedings under the ULC Act, beyond the stage of Section 10(2) of the said Act. It is, true that earlier this Court has taken the view in the case of STATE OF GUJARAT v. . KANUBHAI @ NAVINBHAI (S.C.A. No. 9331 of 2000) decided in November, 2003 that an application under Section 20 of the ULC Act seeking exemption was filed and since there was nothing on record showing that the said application was disposed off by the Competent authority, all subsequent actions taken without disposal of the said application cannot be held to be justified in view of the decisions of this Court. However, the Court has not rested its decision on this solitary ground. The Tribunal has remanded the matter to the competent authority and order of the Tribunal was challenged by the State Government before this Court, after about two years and that too, after Repeal Act, 1999 has come into force on 30.03.1999, and the matter was still pending before the competent authority. Moreover, the decision of the Hon'ble Supreme Court in the case of DAROTHI CLARE PARREIPA (SMT.) AND ORS. (SUPRA) was neither cited nor relied upon by the State Government. In the present case, the facts are quite distinguishable. The proceedings under the ULC Act were finalised and the appellant has not challenged the said proceedings. After vesting of the land under Section 10(3) of the Act in the State Government, the possession of the disputed land was already taken over on 16.01.1990 and, thereafter, the Special Civil Suit was filed in 2001 before the Civil Court. In the said background of the matter, the observations made by the Hon'ble Supreme Court in the case of SMT. DAROTHI CLARE PARREIPA AND ORS. (SUPRA) are of much relevance. Considering the scheme of the Act, the Hon'ble Supreme Court has given categorical finding that it cannot be said that until the application under Section 21 or Section 20 is considered and disposed of, the Competent Authority has no power to have the notification under Section 10(3), vesting the excess land in the Government published. The decision of this Court in the case of RAJESHKUMAR BHIKHABHAI PATEL v. . STATE OF GUJARAT, 2001 (3) G.L.R. 2520 (Supra) has no application as in that case, the competent authority did not proceed to act in accordance with the order of the Tribunal dated 10.12.1998, and thereafter, the Act was repealed with effect from 30.03.1999. In the present case, the order of the competent authority is not challenged at all. The decision of this Court in the case of RAJKOT MUNICIPAL CORPORATION v. . LAVJIBHAI M. PATEL THROUGH HIS P.O.A. HOLDER RAJESH J. JOSHI AND ORS., 2000 (3) G.L.R. 2293 (Supra) has also no application as in that case, admittedly the possession was not taken over by the State Government despite the Notification having been issued under Section 10(3) of the Act. The decision of this Court in the case of AMBALAL PARSOTTAMBHAI PATEL v. . STATE OF GUJARAT, 2001(4) G.L.R. 3319 (Supra) has also no application as in that case Scheme was not approved and the matter was remanded to the competent authority and pending decision of the competent authority, the Act was repealed on 30.03.1999. In the present case, order passed by the Competent authority has become final and no proceedings except application under Section 21 are pending before the Competent Authority and after Repeal Act, 1999 and more particularly, when the Notification under Section 10(3) has already been issued vesting the disputed property in the State Government and after issuance of notice under Section 10(5) of the Act, possession was taken over by the State Government, neither the State Government or any authority in that behalf be directed to decide application under Section 21 of the Act, nor Notification under Section 10(3) or any subsequent proceedings under the Act, can be held to be illegal, unlawful or null and void.
50. The Division Bench Judgment of this Court in the case of STATE OF GUJARAT v. . KISHORKUMAR RANGILDAS LOTWALA (L.P.A. No. 5 of 2002 decided on 25.06.2003) is distinguishable on facts as in that case, the possession of the disputed land was with the land owner. Initially application under Section 21 was rejected. An appeal preferred there against before the Tribunal was allowed and the Competent authority was directed to decide the application under Section 21 in accordance with law. During the pendency of the said proceedings, the competent authority sought to take possession, which action was challenged before this Court. The said petition was disposed of by giving direction to dispose of the application under Section 21 on merits and till then status-quo was ordered to be maintained. Thereafter, another petition was filed challenging the notification under Section 10(3) of the ULC Act. During the pendency of the said petition, Repeal Act came to be passed and proceedings under Section 21 were abated. In the above context, this Court has held that unless and until the application under Section 21 of the Act is decided in accordance with law (which is not decided subsequently, all proceedings initiated by the Competent authority of taking possession beyond Section 10(2) of the Act are illegal and bad in law. In the present case, the possession was taken over in 1990 and it was with the State Government on the date when Repeal Act came to be effected. Notification under Section 10(3) nor any other order, notice or notification were challenged till 2001 when the Civil Suit came to be filed. In this view of the matter, even if it is believed that Section 21 application is pending the same is abated by virtue of Repeal Act.
51. In view of the fact that the State Government is empowered to allot the surplus land vested in it by resorting to the Provisions contained in the Bombay Land Revenue Code and the Rules framed thereunder, and mere wrong mentioning of the Section or Act does not vitiate the said action, the contention raised by Mr. Gandhi that the allotment is invalid and void-ab-initio, is rejected.
52. In view of the above discussion and after deriving support from the authorities cited before the Court and after having found force in the arguments made by Mr. Patel, the Court does not think it just and proper to interfere in the order of rejection of the remaining interim relief and hence the present Appeal From Order is dismissed without any order as to cost.
53. As far as Civil Application No. 1886 of 2004 is concerned, after considering the rival submissions of the parties and after perusing the record, the Court is of the view that there is no deliberate or wilful breach of injunction of the order passed either by the trial Court or by this Court. The whole controversy arose only because of wrong survey number mentioned in the prayer clause and amendment was moved and granted at a very late stage. Before this Court, such amendment was sought for at the time of final hearing of this Appeal From Order. Even after this amendment, person to whom the land admeasuring about 3389 Sq. Mtrs. of Survey No. 833 was allotted was not joined as part-defendant in the suit and before this Court, though the application was moved, he is not impleaded as party till this date. Moreover, the above discussion in Appeal From Order reveals that the appellant's case is, prima facie, lacking in merits. Due to all these reasons, though the Court does not want to purge any of the respondents for the alleged breach of injunction order, the Court expects that when there is even little doubt or apprehension about the violation or breach of the Court's order, the parties against whom such order is passed, should immediately approach to the concerned Court and seek necessary clarification instead of committing any breach by taking shelter of any technical issue or by taking advantage of any factual error of other side. The order of the Court, even if it is wrong and till it is reversed or set aside, must be honoured at any cost.
54. With the above observation, Civil application No. 1886 of 2004 is rejected.
55. Since the main Appeal From Order is dismissed, Civil Application No. 7348 of 2003 for joining party does not survive and it is accordingly disposed of. It is, however, open for the appellant to move appropriate application before the Trial Court seeking impleadment of the said party in the pending suit.
56. In view of the order passed in main Appeal From Order, Civil Application No. 76 of 2004 and 471 of 2004 do not survive and they are accordingly disposed of.
57. After the above judgment is pronounced, Mr. P.M. Bhatt, learned advocate appearing for the appellant makes the request for stay against the operation and implementation of this judgment. Ms. Trusha Patel, learned advocate appearing for respondent Nos.5 to 7 has objected to the said request. Having regard to the facts and circumstances of the case and for the reasons mentioned in this judgment, the Court has not found any sufficient reason granting stay and hence, there is no reason for staying this judgment. Hence, the request is rejected.