High Court of Gujarat

FIDAHUSEN IBRAHIMBHAI TINWALAversusSTATE OF GUJARAT

Disposal: 56-DISPOSED AT ADMISSION STAGE
Bench: VAIBHAVI D NANAVATI

Holding

The Court held that the Section 202 notice issued before the Section 61 order is not sustainable, and no coercive steps may be taken until the appeal limitation period lapses.

Summary

The petitioner, Rahimbhai Tinwala, challenged an order dated 06‑01‑2026 issued by the City Survey Superintendent under Section 61 of the Land Revenue Code, 1879 directing removal of an alleged encroachment within one week. He 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 claimed was beyond the statutory scheme and sought a stay of the order pending appeal. The respondents argued that the authority had complied with the procedural requirements of the Code. The Court held that a Section 202 notice cannot lawfully precede a Section 61 order, rendering the impugned notice unsustainable, and directed that no coercive steps be taken until the limitation period for filing an appeal expires. No merits of the encroachment claim were examined; the petition was disposed with the order made absolute and parties were instructed to cooperate before the appellate forum.

Issues considered

Whether a notice under Section 202 of the Land Revenue Code, 1879 can be issued prior to an order under Section 61 of the same Code.
Whether the order under Section 61 directing removal of encroachment is procedurally valid in view of the earlier Section 202 notice.
Whether coercive steps may be taken before the limitation period for filing an appeal against the Section 61 order expires.

Subjects

Land Revenue CodeSection 61Section 202encroachment removalprocedural validityappeal limitation periodHigh Court of Gujaratquash order

Judgment

     C/SCA/861/2026                             ORDER DATED: 21/01/2026




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/SPECIAL CIVIL APPLICATION NO. 861 of 2026
                           With
       R/SPECIAL CIVIL APPLICATION NO. 862 of 2026
                           With
       R/SPECIAL CIVIL APPLICATION NO. 863 of 2026
                           With
       R/SPECIAL CIVIL APPLICATION NO. 864 of 2026
===================================================
                   RAHIMBHAI TINWALA
                           Versus
                STATE OF GUJARAT & ANR.
===================================================
Appearance:
MR. IBRAHIM M HAKIM(18634) for the Petitioner(s) No. 1
MR. JWALANT VORA, 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. Jwalant Vora, 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

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


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     C/SCA/861/2026                            ORDER DATED: 21/01/2026




petitioner and Mr. Jwalant Vora, 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

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


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     C/SCA/861/2026                             ORDER DATED: 21/01/2026




order under Section 61 of the Code.


5.            Mr. Jwalant Vora, 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.


7.            It is made clear that, this Court has not gone into the




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         C/SCA/861/2026                                                            ORDER DATED: 21/01/2026




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 14:14:04




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