MOHEMMED HABIB KHERUWALAversusSTATE OF GUJARAT
- Disposal
- 58-RULE ISSUED & RULE ABSOLUTE/ALLOWED @FH
- Bench
- VAIBHAVI D NANAVATI
Holding
The order under Section 61 is unsustainable because the notice under Section 202 was issued beforehand, and no coercive steps may be taken until the appeal limitation period expires.
Summary
Naderali Rajjabhai Usisawla filed a petition seeking to quash an order dated 06‑01‑2026 issued by the City Survey Superintendent, Vadodara under Section 61 of the Land Revenue Code, 1879, which directed removal of an encroachment within a week. The petitioner contended that a notice under Section 202 of the same Code had been issued on 17‑12‑2025, i.e., before the Section 61 order, which he argued is contrary to the statutory scheme and renders the order invalid. He also sought a stay of the order pending the filing of an appeal. The respondents argued that the authority must follow the procedure prescribed by the Code. The Court held that the notice under Section 202 indeed preceded the Section 61 order, making the latter unsustainable, and directed that no coercive steps be taken until the appeal limitation period lapses, while reminding the authority to follow due process. The matter was disposed without addressing the merits, and the parties were directed to cooperate before the appellate forum.
Issues considered
- Whether an order under Section 61 of the Land Revenue Code, 1879 is valid when a notice under Section 202 has been issued prior to it
- Whether a stay of the Section 61 order is warranted pending the filing of an appeal
Subjects
Judgment
C/SCA/846/2026 ORDER DATED: 21/01/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 846 of 2026
With
R/SPECIAL CIVIL APPLICATION NO. 847 of 2026
With
R/SPECIAL CIVIL APPLICATION NO. 848 of 2026
With
R/SPECIAL CIVIL APPLICATION NO. 849 of 2026
With
R/SPECIAL CIVIL APPLICATION NO. 850 of 2026
=====================================================
NADERALI RAJJABHAI USISAWALA
Versus
STATE OF GUJARAT & ANR.
=====================================================
Appearance:
MR. IBRAHIM M HAKIM(18634) for the Petitioner(s) No. 1
MR. ANGESH A. PANCHAL, AGP for the Respondent(s) No. 1,2
=====================================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 21/01/2026
COMMON ORAL ORDER
1. RULE, returnable forthwith. Mr. Angesh A. Panchal,
learned AGP waives service of Rule on behalf of the respondent –
State. With the consent of the learned advocates appearing for the
respective parties, the matter is taken-up for final hearing.
2. Heard Mr. MTM Hakim, learned advocate appearing
Page 1 of 4
C/SCA/846/2026 ORDER DATED: 21/01/2026
with Mr. Ibrahim M. Hakim, learned advocate appearing for the
petitioner and Mr. Angesh A. Panchal, learned AGP appearing for
the respondents.
3. By way of present petition, the petitioner herein has
prayed to quash and set aside the impugned order dated 06.01.2026
passed by the respondent no.2 – City Survey Superintendent,
Vadodara under Section 61 of the Land Revenue Code, 1879 (for
short ‘the Code’). [Annexure-A].
4. Mr. MTM Hakim, learned advocate appearing for the
petitioner submits that the petitioner herein is issued an order
under Section 61 of the Code, on 06.01.2026 duly produced at
Annexure – A to the petition, wherein, the respondent authority has
directed to remove the encroachment within a period of one week.
It is submitted that the petitioner herein is in process of preferring
an appeal. In view thereof, the impugned notice be directed not to
be acted upon. It is submitted that the notice under Section 202 of
the Code, 1879 was issued prior to the issuance of the order under
Section 61 of the Code i.e. on 17.12.2025. It is submitted that such
exercise of powers is beyond the scope of the Code, wherein, the
Page 2 of 4
C/SCA/846/2026 ORDER DATED: 21/01/2026
notice under Section 202 of the Code cannot be preceded by the
order under Section 61 of the Code.
5. Mr. Angesh A. Panchal, learned AGP appearing for the
respondents submits that the respondent authority shall follow due
procedure under the Code.
6. Considering the submissions advanced by the learned
advocates appearing for the respective parties, in view of statutory
Appeal provided against the order under Section 61 of the Code,
the limitation period thereof, the authorities are directed not to
take any coercive steps till the limitation period is over. Further, it
also emerges from the record, which is not in dispute that the
notice under Section 202 of the Code preceded the order under
Section 61 of the Code dated 06.01.2026, which is impugned in the
present petition. In view of the aforesaid, the impugned notice is
such that the same is not sustainable in eye of law. Further, the
respondent authority shall follow due procedure in accordance with
law as provided under the Land Revenue Code for removal of
encroachment in question.
Page 3 of 4
C/SCA/846/2026 ORDER DATED: 21/01/2026
7. It is made clear that, this Court has not gone into the
merits of the case and no opinion is expressed thereon. The present
order is passed with the consent of the learned advocates appearing
for the respective parties.
8. All the contentions are kept open to be agitated before
the Appellate forum. Parties are expected to co-operate in the
proceedings before the Appellate forum.
9. The present petition stands disposed of, accordingly.
Rule is made absolute to the aforesaid extent.
9.1. The order passed in the present petition be
communicated to the concerned Officer by the learned AGP
forthwith.
Direct service today is permitted.
(VAIBHAVI D. NANAVATI,J)
Pradhyuman
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: PRADHYUMANSINH DILIPSINH RAHEVAR(HC01408), PRIVATE SECRETARY, at High Court of Gujarat on 21/01/2026 14:13:22
Page 4 of 4
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.