High Court of Gujarat

DAYMA SULTAN MOHEMMED AHMEDKHANversusSTATE 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 lapses.

Summary

The petitioner, Salim Rahimbhai Shaikh, challenged an order dated 06.01.2026 issued by the City Survey Superintendent under Section 61 of the Gujarat Land Revenue Code, 1879, which directed removal of an alleged encroachment within one week. He contended that a notice under Section 202 of the same Code had been served on 17.12.2025, i.e., before the Section 61 order, rendering the latter ultra vires. The petitioner sought a quash of the order and a stay of any coercive action pending his appeal. The Court examined whether the procedural requirement that a Section 202 notice must follow a Section 61 order was satisfied. Finding that the notice indeed preceded the order, the Court held that the Section 61 order was not sustainable in law. Accordingly, the Court directed that no coercive steps be taken until the appeal limitation period expires and that the respondent authority must follow due procedure under the Code. The Court expressly declined to go into the merits of the encroachment dispute and disposed of the petition.

Issues considered

Whether a notice under Section 202 of the Land Revenue Code can be issued prior to an order under Section 61
Whether an order under Section 61 is valid when preceded by a Section 202 notice
Whether coercive steps may be taken before the limitation period for appeal under the Code expires
Whether the respondent authority must follow the procedural requirements of the Land Revenue Code for removal of encroachment

Subjects

Land Revenue CodeSection 61Section 202encroachmentprocedural due processappeal limitation periodquash ordercoercive steps

Judgment

     C/SCA/851/2026                             ORDER DATED: 21/01/2026




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/SPECIAL CIVIL APPLICATION NO. 851 of 2026
                           With
       R/SPECIAL CIVIL APPLICATION NO. 852 of 2026
                           With
       R/SPECIAL CIVIL APPLICATION NO. 853 of 2026
                           With
       R/SPECIAL CIVIL APPLICATION NO. 854 of 2026
                           With
       R/SPECIAL CIVIL APPLICATION NO. 855 of 2026
===================================================
                SALIM RAHIMBHAI SHAIKH
                           Versus
                STATE OF GUJARAT & ANR.
===================================================
Appearance:
MR. IBRAHIM M HAKIM(18634) for the Petitioner(s) No. 1
MR. JAYNEEL PARIKH, 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. Jayneel Parikh, 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.




                                Page 1 of 4
     C/SCA/851/2026                            ORDER DATED: 21/01/2026




2.            Heard Mr. MTM Hakim, learned advocate appearing

with Mr. Ibrahim M. Hakim, learned advocate appearing for the

petitioner and Mr. Jayneel Parikh, 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


                               Page 2 of 4
     C/SCA/851/2026                             ORDER DATED: 21/01/2026




exercise of powers is beyond the scope of the Code, wherein, the

notice under Section 202 of the Code cannot be preceded by the

order under Section 61 of the Code.


5.            Mr. Jayneel Parikh, 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/851/2026                                                            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 14:14:43




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