Research › Search › Judgment

Gujarat High Court · body

2018 DIGILAW 853 (GUJ)

Gujarat Housing Board v. State of Gujarat

2018-07-12

R.SUBHASH REDDY, VIPUL M.PANCHOLI

body2018
ORDER : Vipul M. Pancholi, J. All these appeals, which are filed under Clause 15 of the Letters Patent, are directed against the common oral judgment dated 11.10.2017 rendered by the learned Single Judge in Special Civil Application No.7147 of 2008 and allied matters, by which, the learned Single Judge has allowed the petitions filed by the original petitioners. 2. The issue involved in these appeals is similar and as the learned Single Judge has disposed of all the three petitions by common judgment, these appeals are heard together and are being disposed of by this common order. 3. For the sake of convenience, the facts stated in Special Civil Application No.7149 of 2008 are considered. It is the case of the respondent No.3 herein - original petitioner that he has purchased the land bearing Block No.86, Revenue Survey Nos.95/1 and 95/3 of village Vareli, Taluka Palsana, District Surat, by a registered sale deed executed on 20.03.2008. The petitioner has purchased the said land from Minaxiben, widow of Bharatbhai Nanubhai Desai and others after payment of consideration and thereby the petitioner is the bona fide purchaser of the land in question. It is further stated that predecessors-in-title of the petitioner have suffered the reservation for a period of more than 20 years. The land in question was reserved for housing purpose and though the period of more than 10 years has expired, after the development plan was sanctioned by Surat Urban Development Authority (SUDA), the land was not acquired by the Housing Board. It is stated that on 31.01.1986 Principal Development Plan was sanctioned. Thereafter, SUDA passed a resolution proposing a revised development plan in the year 1993, and in the year 1996, SUDA prepared a draft revised plan and submitted to the State Government. The land in question was reserved for the Gujarat Housing Board. Thereafter, the same was modified and ultimately the State Government has suggested modified draft development plan on 17.05.2001 and on 15.09.2004, revised development plan came into force. It is stated that in the notification dated 02.09.2004, the land of the petitioner is not shown as reserved for the alleged public purpose of Housing Board. However, when the petitioner applied for zoning certificate regarding the land in question, while issuing zoning certificate on 17.04.2007, SUDA has shown the land in question as reserved for public housing by Gujarat Housing Board. However, when the petitioner applied for zoning certificate regarding the land in question, while issuing zoning certificate on 17.04.2007, SUDA has shown the land in question as reserved for public housing by Gujarat Housing Board. Thus, the petitioner filed the captioned petition in which various contentions were raised and the petitioner, by filing the petition in the year 2008, prayed that the zoning certificate dated 17.04.2007 issued by SUDA regarding the land in question be quashed and set aside. It was also prayed that the Draft Revised Development Plan submitted by SUDA under Section 16 of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as 'the Act' for short) for sanction to the State Government showing re-reservation of the land in question for the same purpose of public housing by Gujarat Housing Board, be declared as illegal. Petitioner also prayed that the final notification dated 02.09.2004 with regard to the land in question be declared as illegal. At this stage, it is required to be noted that during the pendency of the petition, the petitioner issued a statutory notice dated 01.08.2016 and pursuant to the said notice, no action was taken by the Gujarat Housing Board for acquisition of the land in question. The petitioner sought amendment which was granted by the learned Single Judge by which the petitioner also prayed that this Court may declare that the reservation of the land in question has lapsed under Section 20(2) of the Act and therefore the respondents be restrained from enforcing the reservation. 4. The learned Single Judge, by the impugned common judgment, allowed the petitions and therefore the Gujarat Housing Board the appellant herein has filed the present appeals. 5. Heard learned advocate Mr. Y.N. Ravani for the appellant Gujarat Housing Board and learned Senior Advocate Mr. S.H. Sanjanwala assisted by learned advocate Mr. Dilip Kanojiya for the present respondent No.3 original petitioner. 6. Learned advocate Mr. Ravani for the appellant submitted that the revised development plan came into force on 02.09.2004 and as per the provisions of the Act, the said revised development plan can be made for a period of 10 years i.e. up to 02.09.2014. However, the petitioners filed the captioned petitions in the year 2008. 6. Learned advocate Mr. Ravani for the appellant submitted that the revised development plan came into force on 02.09.2004 and as per the provisions of the Act, the said revised development plan can be made for a period of 10 years i.e. up to 02.09.2014. However, the petitioners filed the captioned petitions in the year 2008. Thus, when the period of 10 years was not over, the petitions were filed at a premature stage and therefore the learned Single Judge ought not to have entertained the said petitions. It is submitted that the object of Section 20(2) of the Act is to see that any land owners may not suffer reservation of land for a long time. In the present case, the land in question has been purchased by the petitioners in March, 2008, at that time, petitioners were aware about the reservation designated by the Town Planning Authority for the land in question. Prior to 2004, the land was an agricultural land. Under such circumstances, the petitioners have purchased the land which was designated as reserved for the purpose of Gujarat Housing Board. Thus, such new purchasers cannot be said to be sufferers for last 10 years. They have no cause of action to challenge such reservation. At this stage, it is further submitted that the reservation imposed on the land designating the purpose restrains the owner for a particular mode of utility of land. The petitioners themselves have chosen to purchase the land which was reserved for the purpose of Gujarat Housing Board. Thus, the purchasers cannot be allowed to raise a grievance of suffering from reservation and they should have been asked to wait for a period of 10 years from the date of purchase of the land. 7. Learned advocate Mr. Ravani thereafter submits that the predecessors-in-title of the petitioners have never raised any objection in the year 1996 or 2001 i.e. at the time of preparing the revised development plan. However, the petitioners, who purchased the land in question in the year 2008, have raised the objections when the zoning certificate was issued by SUDA questioning the said certificate by filing the captioned petitions. Thus, the petitioners be estopped from raising such contention when their predecessors-in-title have not raised any objection. 8. Learned counsel Mr. However, the petitioners, who purchased the land in question in the year 2008, have raised the objections when the zoning certificate was issued by SUDA questioning the said certificate by filing the captioned petitions. Thus, the petitioners be estopped from raising such contention when their predecessors-in-title have not raised any objection. 8. Learned counsel Mr. Ravani thereafter would contend that the statutory notices were issued by the petitioners on 01.08.2016 under the provisions of Section 20(2) of the Act. The same can be said to be a new cause of action and learned Single Judge ought not to have allowed the petitioners to amend the petitions as the reliefs prayed for in the captioned petitions at the time of filing the petitions were different. Thus, the learned Single Judge has committed an error while allowing the petitions relying upon the statutory notices which are issued on 01.08.2016. 9. Learned advocate for the appellant further submits that after 2013-14, position of Gujarat Housing Board is different and approximately 49,000 houses are constructed by the Gujarat Housing Board and therefore the appellant Board is in need of the land and wanted to acquire the land in question. However, the learned Single Judge has committed an error while allowing the petitions and holding that the reservation of the land in question designated in the development plan published under notification dated 02.09.2004 has statutorily lapsed and therefore ceased to be in force. 10. Learned advocate for the appellant has referred to the provisions contained in Sections 20 and 21 of the Act and thereafter placed reliance upon the decision rendered by the Division Bench of this Court in the judgment dated 22nd & 25th August, 2014 in Letters Patent Appeal Nos. 1263 of 2011 and allied matters. 11. Learned advocate Mr. Ravani submitted that similar issue with regard to interpretation of provisions of Sections 19, 20 and 21 of the Act is pending before the Hon'ble Supreme Court in certain matters and therefore till the said issue is decided, learned Single Judge ought not to have allowed the petitions. He, therefore, urged that the impugned order passed by the learned Single Judge be set aside. 12. On the other hand, learned Senior Counsel Mr. He, therefore, urged that the impugned order passed by the learned Single Judge be set aside. 12. On the other hand, learned Senior Counsel Mr. Sanjanwala has supported the reasonings recorded by the learned Single Judge and submitted that the decision rendered by the Division Bench of this Court in Letters Patent Appeal No.1481 of 2013 upon which the reliance is placed by the learned advocate for the appellant has been challenged before the Hon'ble Supreme Court by filing Special Leave Petition (C) No.2364 of 2015 and the Hon'ble Supreme Court has granted stay against the said order. It is further submitted that the issue involved in the present matter is squarely covered by the decision rendered by the Division Bench of this Court in the case of Palitana Sugar Mills Pvt. Ltd. v. State of Gujarat, (2001) 2 GLH 294 as well as the decision rendered by the Hon'ble Supreme Court in the case of Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 . Thus, learned Single Judge has not committed any error while allowing the petitions. 13. Learned counsel thereafter submitted that the petitions filed by the petitioners cannot be said to be premature. It is submitted that at the time of filing the petitions the petitioners have challenged the notification issued in the year 2004 as well as the issuance of zoning certificate in the year 2007, however, during the pendency of the petition, when the period of 10 years from coming into force of the revised development plan has expired in the year 2014, the petitioners issued the statutory notices under Section 20(2) of the Act on 01.08.2016. However, during the period of 6 months from the date of receipt of notice, no action has been taken by the appellant Gujarat Housing Board for acquisition of the land in question. Petitioners, therefore, submitted the draft amendment which has been allowed by the learned Single Judge. The appellant has not challenged the order passed by the learned Single Judge granting such an amendment and therefore the order passed by the learned Single Judge granting amendment has attained finality and therefore it is not proper on the part of the appellant to submit that the learned Single Judge has committed an error while allowing the petitions on that ground. 14. Learned counsel Mr. 14. Learned counsel Mr. Sanjanwala thereafter placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke and Chemicals Ltd. and others, (2007) 8 SCC 705 , and more particularly, referred para 53 of the said decision. Relying upon the same, it is submitted that the right of property is now considered to be not only constitutional right but also human right. 15. It is further submitted that owner or any person interested in the land can give the notice under Section 20(2) of the Act and therefore the submission of the learned advocate for the appellant that petitioners are the subsequent purchasers who purchased the land in the year 2008 be estopped from raising any objection, is misconceived. 15.1 At this stage, it is submitted that the reservation attaches to the land and not to the owners and therefore this Court may not entertain the submissions canvassed by the learned advocate for the appellant. 16. Learned counsel Mr. Sanjanwala has placed reliance upon the following decisions in support of his contentions:- "1. Bhavnagar University v. Palitana Sugar Mill (P.) Ltd. and others, (2003) 2 SCC 111 . 2. Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke and Chemicals Ltd. and others, (2007) 8 SCC 705 . 3. Bhikhubhai Vithlabhai Patel and others v. State of Gujarat & another, (2008) 4 SCC 144 . 4. Godrej and Boyce Manufacturing Company Ltd. v. State of Maharashtra and others, (2015) 11 SCC 554 . 5. Palitana Sugar Mills Pvt. Ltd. v. State of Gujarat, (2001) 2 GLH 294. 6. Hariben Meghajibhai Jasoliya and others v. State of Gujarat through Secretary and others, rendered in Special Civil Application No.1653 of 2014 and allied matter. 7. Airport Authority of India v. Mahadevbhai Harrai Naik and others, rendered by the Division Bench of this Court in Letters Patent Appeal No.1188 of 2013. 8. State of Gujarat through Secretary and another v. Hariben Meghajibhai Jasoliya and others, rendered by the Division Bench of this Court in Letters Patent Appeal No.1244 of 2015 and allied matter. 9. Jayantibhai Shamjibhai Vasoya and others v. State of Gujarat and others, rendered in Special Civil Application No.7147 of 2008 and allied matters. 10. Order dated 16.12.2016 passed by the Hon'ble Supreme Court in petitions for Special Leave to Appeal (C) Nos. 19279-19280/2016. 11. 9. Jayantibhai Shamjibhai Vasoya and others v. State of Gujarat and others, rendered in Special Civil Application No.7147 of 2008 and allied matters. 10. Order dated 16.12.2016 passed by the Hon'ble Supreme Court in petitions for Special Leave to Appeal (C) Nos. 19279-19280/2016. 11. Kunhayammed and others v. State of Kerala and another, (2000) 6 SCC 359 ." 17. Learned counsel, therefore, urged that the learned Single Judge has not committed any error while allowing the petitions and therefore this Court may not entertain these appeals. 18. Having heard the learned advocates appearing for the parties and having gone through the material produced on record, it has emerged that the principal development plan was sanctioned by SUDA which came into force w.e.f. 03.03.1986 having validity till 02.03.1996. Thereafter on 19.03.1993, SUDA passed a Resolution proposing a revised development plan, and thereafter in the year 1996, draft revised plan was submitted to the State Government, wherein the land in question was reserved for Gujarat Housing Board. Modified draft revised development plan was published in the year 1997 and the same was submitted to the State Government. Certain modifications were suggested by the State Government and ultimately revised development plan came into force on 15.09.2004. The petitioners have purchased the land in question in the year 2008 by a registered sale deed from the original owners and it is the case of the petitioners that their predecessors-in-title have suffered the reservation for a period of more than 20 years. It is required to be noted that the petitioners at the time of filing the petitions in the year 2008, challenged the final notification dated 02.09.2004 as well as zoning certificate dated 17.04.2007 issued by SUDA regarding land in question. However, during the pendency of the petitions, the petitioners sought amendment, which was granted by the learned Single Judge, by which, petitioners were permitted to amend the prayer clause. It is further required to be noted that the petitioners, during the pendency of the petitions, issued statutory notices dated 01.08.2016. However, though such notices were received by the appellant Board, no action was taken for acquisition of the land in question. Petitioners, therefore, prayed for the declaration that the reservation of the land in question has lapsed under Section 20(2) of the Act. As stated above, the amendment was granted by learned Single Judge. 19. However, though such notices were received by the appellant Board, no action was taken for acquisition of the land in question. Petitioners, therefore, prayed for the declaration that the reservation of the land in question has lapsed under Section 20(2) of the Act. As stated above, the amendment was granted by learned Single Judge. 19. For considering the issued involved in the present group of appeals, the provisions contained in Sections 20 and 21 of the Act are required to be examined. 19.1. Section 20 of the Act provides as under: "20. Acquisition of land: (1) the area development authority or any other authority for whose purpose land is designated in the final development plan for any purpose specified in clause (b), clause (d), clause (f), clause (k), clause (k), clause (n) or clause (o) of subsection (2) of Section 12 , may acquire the land,- (a) by an agreement, or; (b) in lieu of any development right by granting the owner against the area of land surrendered free of cost and free from all encumbrances; (c) under the provision of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2) If the land referred to in sub-section (1) is not acquired by agreement within a period of ten years from the date of the coming into force of the final development plan or if proceeding under the Land Acquisition Act, 1894 (1 of 1894) are not commenced within such period, the owner or any person interested in the land and of within six months from the date of service of such notice the land is not acquired or no steps are commenced for its acquisition, the designation of the land as aforesaid shall be deemed to have lapsed." 19.2. Section 21 of the Act provides as under: "Revision of development plan.- At least in ten years from the date on which a final development plan comes into force, the area development authority shall revise the development plan after carrying out, if necessary, a fresh survey and the provisions of Sections 9 to 20, shall, so far as may be, apply to such revision." 20. In the case of Bhavnagar University, the Hon'ble Supreme Court has considered the provisions contained in Sections 20 and 21 of the Act and held in para 30, 34, 36, 38 and 40 as under: "30. In the case of Bhavnagar University, the Hon'ble Supreme Court has considered the provisions contained in Sections 20 and 21 of the Act and held in para 30, 34, 36, 38 and 40 as under: "30. Sections 20 and 21 of the said Act are required to be read conjunctively with Sections 12 and 17. We may notice that clause (k) of sub-section (2) of Section 12 does not find mention in sub-section (2) of Section 17 as regards proposed reservation for the State and other statutory authorities but clauses (n) and (b) of sub-section (2) of Section 12 are specifically mentioned in Section 20. In Section 20, provisions of clauses (b), (d), (f), (k) and (o) of sub-section (2) of Section 12 have specifically been mentioned. The High Court has proceeded on the basis that the words 'designation' or 'reservation' are interchangeable for the purpose of the Act. The said finding of the High Court is not in question. xxx xxx xxx 34. The relevant provisions of the Act are absolutely clear, unambiguous and implicit. A plain meaning of the said provisions, in our considered view, would lead to only one conclusion, namely, that in the event a notice is issued by the owner of the land or other person interested therein asking the authority to acquire the land upon expiry of the period specified therein viz. ten years from the date of issuance of final development plan and in the event pursuant to or in furtherance thereof no action for acquisition thereof is taken, the designation shall lapse. xxx xxx xxx 36. The question, however, is as to whether only because the provision of Section 20 has been referred to therein; would it mean that thereby the Legislature contemplated that the time of ten years specified by the Legislature for the purpose of acquisition of the land would get automatically extended? The answer to the said question must be rendered in the negative. Following the principle of interpretation that all words must be given its full effect, we must also give full effect to the words "so far as may be" applied to such revision. xxx xxx xxx 38. The answer to the said question must be rendered in the negative. Following the principle of interpretation that all words must be given its full effect, we must also give full effect to the words "so far as may be" applied to such revision. xxx xxx xxx 38. Section 21 does not envisage that despite the fact that in terms of subsection (2) of Section 20, the designation of land shall lapse, the same, only because a draft revised plan is made, would automatically give rise to revival thereof. Section 20 does not manifest a legislative intent to curtail or take away the right acquired by a landowner under Section 22 of getting the land defreezed. In the event the submission of the learned Solicitor-General is accepted the same would completely render the provisions of Section 20(2) otiose and redundant. xxx xxx xxx 40. The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof. 21. The Hon'ble Supreme Court, thereafter, in the case of Bhikhubhai Vithlabhai Patel and others has also considered the decision rendered in the case of Bhavnagar University in para 13. 22. In the case of Hariben Meghajibhai Jasoliya and others, the Division Bench of this Court held in para 9 as under: "9. The attempt made to contend that the petitions could be said as infructuous on the date when the same were filed in the year 2014 because of the new draft development plan or revised draft development plan were published on 17.12.2013, in our view, cannot be accepted for two reasons; first is that the deeming fiction for lapsing of the reservation is not to adversely affect even if the land is re-reserved under Section 21 of the Act and the second is that if the deeming fiction has already come into operation and the reservation has lapsed and the re-reservation is not to dilute the effect of lapsing of the reservation, it cannot be said that the right of the holder of the land would cease in the property. On the contrary, the right so revived on account of the lapsing of the reservation would continue even after the re-reservation. Hence, the said contention cannot be accepted." 23. From the aforesaid decisions rendered by the Hon'ble Supreme Court as well as Division Bench of this Court, it is clear that Sections 20 and 21 of the Act are required to be read conjunctively with Section 17 of the Act. Section 21 of the Act imposes a statutory obligation on the part of the State and the appropriate authorities to revise the development plan and for the said purpose Sections 9 to 20 so far as may be' would be applicable thereto, but thereby the rights of the owners in terms of Section 20(2) of the Act are not taken away. Section 21 does not envisage that despite the fact that in terms of Section 20(2) of the Act, the designation of land shall lapse, the same, only because a draft revised plan is made, would automatically give rise to revival thereof. It is further clear that Section 20 does not manifest a legislative intent to curtail or take away the right acquired by the land owner under Section 20(2) of the Act of getting the land de-reserved. The deeming fiction for lapsing of the reservation is not to adversely affect even if the land is re-reserved under Section 21 of the Act. If the deeming fiction has already come into operation and the reservation has lapsed and the re-reservation is not to dilute the effect of lapsing of the reservation, it cannot be said that the right of the holder of the land would cease in the property. The right so revived on account of the lapsing of the reservation under Section 20(2) of the Act would continue even after the re-reservation. Thus, we are of the view that issue involved in the present appeals is squarely covered by the aforesaid decisions rendered by the Hon'ble Supreme Court as well as the Division Bench of this Court. 24. The contention raised by the learned advocate Mr. Ravani appearing for the appellant Board that at the time of filing the petitions, when the petitions were premature, the learned Single Judge ought not to have allowed the amendment and ought not to have granted the relief on the basis of such an amendment in favour of the petitioners. 24. The contention raised by the learned advocate Mr. Ravani appearing for the appellant Board that at the time of filing the petitions, when the petitions were premature, the learned Single Judge ought not to have allowed the amendment and ought not to have granted the relief on the basis of such an amendment in favour of the petitioners. However, the said contention is misconceived. As observed hereinabove, during the pendency of the petitions, period of 10 years was over in the year 2014. Even thereafter no steps were taken by the appellant Board for acquisition of the land in question and therefore petitioners issued statutory notice under Section 20(2) of the Act on 01.08.2016. Even after the period of six months was over, no steps were taken by the appellant Board and therefore the amendment was moved. Learned Single Judge allowed the amendment. The said order granting amendment has attained finality and the appellant Board has not challenged the said order by filing an appeal. Thus, at this stage, it is not proper on the part of the appellant to contend that the learned Single Judge has committed an error in allowing the petitions on the ground of lapsing of the reservation. 25. Learned advocate Mr. Ravani further contended that the petitioners, who have purchased the land in question in the year 2008, cannot object for the reservation of the land in question as they have not suffered any hardship. However, the said contention is also misconceived. If the provisions contained in sub-section (2) of Section 20 of the Act is carefully seen, it is clear that if the land is not acquired by agreement within a period of ten years from the date of the coming into force of the final development plan or if proceeding under the Land Acquisition Act, 1894 (1 of 1894) are not commenced within such period, the owner or any person interested in the land can issue the notice. In the present case, the original owners suffered reservation and the petitioners are the purchasers of the land in question from the original owners and when the land in question is not acquired by the appellant within the stipulated time limit, the petitioners can also be said to be the persons interested as well as the owners who can issue the notice under Section 20(2) of the Act. 26. 26. The decision rendered by the Division Bench of this Court in the case of Babubhai Kurjibhai Radadiya would not be applicable to the facts of the present case. In the said case the statutory notice was issued during the time when the final development plan was in force and therefore it was considered as premature. Even otherwise, against the said order, the aggrieved parties have filed petition for Special Leave to Appeal(C) No. 2364 of 2015 before the Hon'ble Supreme Court wherein the Hon'ble Supreme Court has granted stay by an order dated 02.02.2015. The said SLP is still pending and therefore the aforesaid decision would not render any assistance to the appellant. 27. The last contention raised by learned advocate Mr. Ravani appearing for the appellant Board is that the issue with regard to interpretation of Sections 20 and 21 of the Act is pending before the Hon'ble Supreme Court in some other matters and therefore the learned Single Judge ought not to have allowed the petitions. However, we are of the view that the issue involved in the present appeals is already decided by the Hon'ble Supreme Court in the case of Bhavnagar University. At this stage, we would like to refer to the decision rendered by the Hon'ble Supreme Court in the case of Kunhayammed and others wherein the Hon'ble Supreme Court has discussed about the exercise of jurisdiction by the Hon'ble Supreme Court under Article 136 of the Constitution of India and legal position when the SLP is filed before the Hon'ble Supreme Court. In para 14, the Hon'ble Supreme Court has observed as under: "14. The exercise of jurisdiction conferred on this Court by Article 136 of the Constitution consists of two steps: (i) granting special leave to appeal; and (ii) hearing the appeal. This distinction is clearly demonstrated by the provisions of Order 16 of the Supreme Court Rules framed in exercise of the power conferred by Article 145 of the Constitution. Under rule 4, the petition seeking special leave to appeal filed before the Supreme Court under Article 136 of the Constitution shall be in Form No.28. No separate application for interim relief need be filed, which can be incorporated in the petition itself. If notice is ordered on the special leave petition, the petitioner should take steps to serve the notice on the respondent. No separate application for interim relief need be filed, which can be incorporated in the petition itself. If notice is ordered on the special leave petition, the petitioner should take steps to serve the notice on the respondent. The petition shall be accompanied by a certified copy of the judgment or order appealed from and an affidavit in support of the statement of facts contained in the petition. Under Rule 10 the petition for grant of special leave shall be put up for hearing ex parte unless there be a caveat. The court if it thinks fit, may direct issue of notice to the respondent and adjourn the hearing of the petition. Under Rule 13, the respondent to whom a notice in special leave petition is issued or who had filed a caveat, shall be entitled to oppose the grant of leave or interim orders without filing any written objections. He shall also be at liberty to file his objections only by setting out the grounds in opposition to the questions of law or grounds set out in the SLP. On hearing, the Court may refuse the leave and dismiss the petition for seeking special leave to appeal either ex parte or after issuing notice to the opposite party. Under Rule 11, on the grant of special leave, the petition for special leave shall, subject to the payment of additional court fee, if any, be treated as the petition of appeal and it shall be registered and numbered as such. The appeal shall then be set down for hearing in accordance with the procedure laid down thereafter. Thus, a petition seeking grant of special leave to appeal and the appeal itself, though both dealt with by Article 136 of the Constitution, are two clearly distinct stages. In our opinion, the legal position which emerges is as under: 1. While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to enter the appellate arena of Supreme Court. Whether he enters or not would depend on the fate of his petition for special leave; 2. The petitioner is still outside the gate of entry though aspiring to enter the appellate arena of Supreme Court. Whether he enters or not would depend on the fate of his petition for special leave; 2. If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the Court was not made out; 3. If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for entry in appellate arena is opened. The petitioner is in and the respondent may also be JJ called upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the court may dismiss the appeal without noticing the respondent. 4. In spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge. 28. At this stage, we would also like to refer to the decision rendered by the Hon'ble Supreme Court in the case of Chairman, Indore Vikas Pradhikaran, wherein the Hon'ble Supreme Court has held that the right of property is now considered to be not only constitutional right but also human right. 29. In view of the aforesaid discussion and in view of the reasoning recorded by the learned Single Judge, we are of the view that learned Single Judge has not committed any error while allowing the petitions and therefore no interference is required in these appeals. Accordingly, appeals are dismissed. Consequently, all connected civil applications also stand disposed of.