Dalwadi Muljibhai Mathurbhai ... vs State Of Gujarat Through ...
2021 Latest Caselaw 2043 Guj

C/LPA/555/2011                                                       CAVJUDGMENT
LPA/555/2011 DALWADI MULJIBHAI MATHURBHAI SINCE DECD. THROUGH HEIRS vs. STATE OF
GUJARAT THROUGH SECRETARY & Ors.                                           Decidedon 11.2.2021


            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

1.               R/LETTERS PATENT APPEAL NO. 555 of 2011
                                    In
                 R/SPECIAL CIVIL APPLICATION NO. 15043 of 2010
                                   With
2.                  CIVIL APPLICATION (FOR STAY) NO. 2 of 2011
                                    In
                  R/LETTERS PATENT APPEAL NO. 555 of 2011

FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE VINEET KOTHARI

and

HONOURABLE MS. JUSTICE GITA GOPI

=============================================================

1 Whether Reporters of Local Papers may be allowed to see the Yes judgment ?

2     To be referred to the Reporter or not ?                                   Yes

3     Whether their Lordships wish to see the fair copy of the                  Yes
      judgment ?

4     Whether this case involves a substantial question of law as to            Yes

the interpretation of the Constitution of India or any order made thereunder ?

============================================================= DALWADI MULJIBHAI MATHURBHAI SINCE DECD. THROUGH HEIRS Versus STATE OF GUJARAT THROUGH SECRETARY & 2 other(s) ============================================================= Appearance:

MR MIHIR THAKORE SR. ADV.

with MR SAQUIB S ANSARI(7152) for the Appellant(s) No. 1,1.1,1.1.1,1.1.2,1.2,1.3,1.4,1.5,1.6

MR UTKARSH SHARMA ASST.GOVERNMENT PLEADER(1) for the

MR HARESH J TRIVEDI(927) for the Respondent(s) No. 3

C/LPA/555/2011 CAVJUDGMENT LPA/555/2011 DALWADI MULJIBHAI MATHURBHAI SINCE DECD. THROUGH HEIRS vs. STATE OF GUJARAT THROUGH SECRETARY & Ors. Decidedon 11.2.2021

CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI and HONOURABLE MS. JUSTICE GITA GOPI

Date : 11 /02/2021

CAV JUDGMENT

(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

1. Though the controversy involved in the present case is squarely covered by the judgement of this Bench recently rendered on 22.1.2021 in the case of Heirs of Dec. Jethabhai Ishwarbhai vs. State of Gujarat & Ors., Mr. Mihir Thakore, learned senior counsel appearing for the petitioners-appellants sought to raise certain questions of facts, which in his submission, would set apart this case from the boundaries of the judgement rendered by us on 22.1.2021.

2. In that case interpreting the provisions of Section 10(5) and 10(6) of Urban Land (Ceiling and Regulation) (Repeal) Act, 1999 (hereinafter referred to as 'the Act') and other relevant provisions of the Urban Land Ceiling Act, we had held as under:

"18. Sub-section (5) of Section 10 after vesting of the surplus land with the State Government provides that the Competent Authority may, by notice in writing, order any person who may be in possession of it, to surrender or give the possession thereof to the State Government or any person duly authorised by the State Government within 30 days of service of notice. The plain language of sub-section (5) of Section 10 means and envisages a notice in writing in the form of an order to surrender or make over the possession to the State. Sub-section (5) notice is not in the form of a show cause notice but in the form of an order

C/LPA/555/2011 CAVJUDGMENT LPA/555/2011 DALWADI MULJIBHAI MATHURBHAI SINCE DECD. THROUGH HEIRS vs. STATE OF GUJARAT THROUGH SECRETARY & Ors. Decidedon 11.2.2021 apparently because the process of hearing the objections to such declaration of surplus land is already taken care in sub-sections (1) and (2) of Section 10. Once the land is vested, after dealing with such objections, in the State Government, the only activity remaining to be done is to complete the process and achieve the object of this Act, was to take over the physical possession of such declared excess land. Therefore, a notice in the form of an order was prescribed in sub-section (5) to deliver the possession within 30 days of service of the notice.

19. There is no question of any voluntary handing over of possession on the part of the land owner. Whatever is done under sub-section (5) is done in pursuance of the notice-cum-order of the Competent Authority under Section 10(5) of the Act.

20. The argument based on the premise of voluntary handing over of the possession within 30 days of the said notice-cum-order under Section 10(5) of the Act is, therefore, a misnomer. If the possession is handed over in compliance with the notice-cum-order under Section 10(5) of the Act to the State authorities or person nominated by the State, the proceedings under the ULC Act get concluded under Section 10(5) of the Act. If that is not done by the land owner in pursuance of notice-cum-order under Section 10(5) of the Act, whatever thereafter is done to take over the physical possession of the excess land in question, that can only fall under Section 10(6) of the Act, which says that if any person refuses or fails to comply the order made under sub-section (5), then the Competent Authority may take possession of vacant land and may use such force as may be necessary for that purpose.

Sub-section (6) does not require any other notice or order once again to be passed by the Competent Authority. It only envisages act of taking over the physical possession in the manner known to law including Panchnama process and presence of the owner of the land is not a condition precedent for such

C/LPA/555/2011 CAVJUDGMENT LPA/555/2011 DALWADI MULJIBHAI MATHURBHAI SINCE DECD. THROUGH HEIRS vs. STATE OF GUJARAT THROUGH SECRETARY & Ors. Decidedon 11.2.2021 taking over of the possession. The last part of sub- section (6) is only enabling and empowering provision for the Competent Authority who may use the force for taking over the physical possession, if there is any obstruction or hindrance created by anybody including the land owner in that process. Otherwise use of force is not necessary. Sub-section (6), therefore, is not of an adjudicatory nature, but it only provides for a physical process to take de facto possession with or without the use of force. Then the proceedings under ULC Act get concluded under Section 10(6) of the Act. Both these sub-sections are not necessary to be operated and invoked in each and every case. The proceedings under ULC Act can get concluded either under Section 10(5) or 10(6) of the Act as indicated above.

21. Therefore, in our opinion, the arguments raised before us that sub-section (5) envisages voluntary handing over of possession and sub-section (6) talks of forcible taking over possession, both are incomplete and misleading arguments. The scheme of this two sub-sections as explained above does not put these two provisions in silos or water-tight compartments. They, on the other hand, provide for a smooth and barrierless process of taking over of the possession under the 1976 Act.

22. In these circumstances, if the possession is not handed over within 30 days of service of notice under Section 10(5), it will amount to failure to comply with the order under sub-section (5) and thereafter whenever the possession is taken by the State authorities, even though after 6 years, as it has happened in the present case through Panchnama process in the absence of physical presence of the land owner, it does not vitiate those proceedings which will fall under Section 10(6) of the Act. The taking over of the possession through Panchnama process in the presence of two witnesses is a well recognised process for taking over the possession in law and cannot be said to be void, non est or illegal in any manner. The

C/LPA/555/2011 CAVJUDGMENT LPA/555/2011 DALWADI MULJIBHAI MATHURBHAI SINCE DECD. THROUGH HEIRS vs. STATE OF GUJARAT THROUGH SECRETARY & Ors. Decidedon 11.2.2021 land owner cannot claim that since such possession was taken over after a belated period after expiry of 30 days as prescribed in Section 10(5) of the Act, he was entitled to again a notice in this regard requiring his presence on the spot giving him option either to voluntarily surrender such possession or obstruct the same. No such notice or opportunity is intended to be given under Section 10(6) of the Act. Therefore, in the present facts before us, the possession taken over by the State authority on 24.11.1993 was justified and legally undertaken through Panchnama process and in our opinion, no valid exception to the same can be taken by the Appellant.

23. As far as reliance placed on the case of Hari Ram (supra) is concerned, we are of the clear opinion that the learned Single Judge was right in distinguishing the said judgment as it is not a case before us where no notice under Section 10(5) of the Act was issued to the land owner. On the contrary, it is admitted position that such notice was given to the land owner on 4.6.1988. The later judgment of the Hon'ble Supreme Court fully explained the purport of the decision in the case of Hari Ram (supra) in the case of Bhaskar Jyoti Sarma (supra) where even Section 10(5) notice was not given and still taking over the possession was held as valid, as quoted in extenso by the learned Single Judge and that in our respectful understanding, clinches the issue in favour of the State.

24. As far as the question of exemption under Section 21 as sought by the Appellant land owner is concerned, we are of the opinion that it was the just an excuse or ruse to save the land in the hands of the land owners themselves as neither any concrete scheme for development of dwelling units for weaker sections was ever placed by the land owner before the Competent Authority or before this Court, nor the said application appears to have been pursued by the Appellant in an appropriate manner. Mere filing of the application could not have led the authorities to grant exemption to

C/LPA/555/2011 CAVJUDGMENT LPA/555/2011 DALWADI MULJIBHAI MATHURBHAI SINCE DECD. THROUGH HEIRS vs. STATE OF GUJARAT THROUGH SECRETARY & Ors. Decidedon 11.2.2021 such excess or surplus land under Section 21 of the Act and save the said land from the rigour and scheme of the 1976 Act of taking over of excess land in the larger public interest and therefore, the learned Single Judge was right in rejecting the said contention as well.

25. Thus, on the overall analysis of the facts and legal position as discussed above, we do not find any merit in the present appeal filed by the Appellant and the same is liable to be dismissed. The appeal is accordingly dismissed. No order as to costs.

26. Consequently, the Civil Application stands also dismissed"

3. Mr.Mihir Thakore, learned senior counsel, however, in the present case sought to urge the fact that the possession of the land in question was taken over from the land holders after the Order under Section 10(3) of the Act was passed in 19.3.1985 was not proved and the Possession Report dated 11.4.1986 Annexure-H on the record was signed only by the son of the land holder Dalwadi Muljibhai Mathurbhai. The said possession is said to have been taken in the presence of the son of Dalwadi Muljibhai Mathurbhai and other two witnesses on 11.4.1986. However, Mr.Mihir Thakore, learned senior counsel for the appellants- petitioners submitted that even after the alleged possession was taken over, the Vadodara Municipal Corporation has given the Notices for recovery of tax to the heirs of the Dalwadi Muljibhai Mathurbhai upto 11.2.1992 vide Annexure R and even Town Planning Authority, Vadodara, gave a Notice dated 7.1.1986 to the said land holder Dalwadi Muljibhai Mathurbhai and his three sons Jitendrabhai, Narendrabhai and Vishnubhai for Survey No.822 and other survey numbers whose new number was 129, therefore, the learned Senior Counsel sought to urge that the possession was actually not taken over upto the ULC Repeal Act, 1999 and upto the cut off date 30.3.1999 and therefore, as per Section 4

C/LPA/555/2011 CAVJUDGMENT LPA/555/2011 DALWADI MULJIBHAI MATHURBHAI SINCE DECD. THROUGH HEIRS vs. STATE OF GUJARAT THROUGH SECRETARY & Ors. Decidedon 11.2.2021

of the said Repeal Act, the proceedings would abate and the possession should be deemed to be with the land holders only.

4. These contentions were sought to be refuted by the learned Assistant Government Pleader by referring to Form No.7 and 12 under the Bombay Land Revenue Act (page 94-B of the paper book) and in the later years after 1991-92 the land in question of Survey No.822 was divided in two parts in the name of Madhuben Muljibhai padtar (uncultivated) to the extent of 0 Hectare, 06 Ares and 60 Meters, whereas the major portion was recorded in the name of Sarkar (Government) to the extent of 0 Hectare, 86 Ares and 48 Meters. The learned Assistant Government Pleader, Mr.Utkarsh Sharma also drew our attention to the Tax Notices issued by the Vadodara Municipal Corporation and submitted that Survey No.822 referred in those Tax Notices was only to the extent of land retained by the land holders within the permissible limits of ULC Act and not for the land vested in the State under Section 10(3) of the Act, 1985 Order and in pursuance of which the possession was taken over by the State on 11.4.1986.

5. These facts speak from the Documents relied upon by Appellants themselves and, therefore, we were unable to agree with the submissions made by the learned Senior Counsel Mr.Mihir Thakore seeking to distinguish the facts of this case from the case decided by us in case of Heirs of Dec. Jethabhai Ishwarbhai (supra) .

6. Learned senior counsel Mr.Mihir Thakore, also referred to the Full Bench decision of this Court in the case of Avanti Organization vs. Competent Authority and Additional Collector, Urban Land Ceiling, Rajkot and Anr. [1989 (1) GLR 586], in which, the Full Bench of this Court held that if an exemption application under Section 20(1) of the Act

C/LPA/555/2011 CAVJUDGMENT LPA/555/2011 DALWADI MULJIBHAI MATHURBHAI SINCE DECD. THROUGH HEIRS vs. STATE OF GUJARAT THROUGH SECRETARY & Ors. Decidedon 11.2.2021

is pending before the competent authority, without deciding that application, the authorities should not proceed with the further action under ULC Act, 1976 including passing of the Vesting Order under Section 10 (3) of the Act vesting the excess land in the State and taking the possession under Section 10(5)/10(6) of the Act. The relevant portion of Head Notes of the said judgement of Full Bench of Gujarat High Court is quoted below and for ready reference:

"After the competent authority has disposed of the objections, the draft statement has to be altered in accordance with the orders passed on the objections. S.10(1) next requires that the competent authority is to issue a notification giving particulars of the vacant lands held by the concerned person in excess of the ceiling limits to be published in Official Gazette requiring all persons interested in such vacant lands to make their claims. After such claims are disposed of, the competent authority is empowered by S.10(3) to issue a further notification in the Official Gazette declaring that the excess vacant lands set out in the notification under S.10(1) shall, with effect from the specified date, be deemed to have been acquired by the State Government and thereupon such lands shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the specified date. S.11 provides for payment of compensation to persons interested in such lands. It was rightly argued that if the

C/LPA/555/2011 CAVJUDGMENT LPA/555/2011 DALWADI MULJIBHAI MATHURBHAI SINCE DECD. THROUGH HEIRS vs. STATE OF GUJARAT THROUGH SECRETARY & Ors. Decidedon 11.2.2021

acquisition process is allowed to be completed before the exemption application under S.20 (1) is disposed of and if the lands in respect of which exemption is claimed stand acquired and vest in the State Government, it would cause an anomalous position if the State Government ultimately decides to grant exemption in respect of the said lands. Such a situation cannot be allowed and it would therefore, be in the fitness of things that the proceedings should in no case be allowed to proceed beyond the S.10(2) stage if the exemption application has not been disposed of by then. If the process is not arrested at the end of S.10(2) stage and is allowed to proceed upto S.10(3) stage, a difficult and tricky situation may arise in that, on the one hand the acquisition of the excess lands would be completed and the lands would vest in the State Government absolutely free from all encumbrances whereas on the other hand the State Government may grant exemption in respect of the very same lands from the application of the provisions of Chapter III (Ss. 3 to 24) of the Act. Such a situation can best be avoided by arresting the process at the end of S.10(2) stage. Even the learned Government Pleader fairly conceded that if the exemption application is not disposed of by then, it would not be permissible for the competent authority to proceed beyond the S.10(2) stage."

C/LPA/555/2011 CAVJUDGMENT LPA/555/2011 DALWADI MULJIBHAI MATHURBHAI SINCE DECD. THROUGH HEIRS vs. STATE OF GUJARAT THROUGH SECRETARY & Ors. Decidedon 11.2.2021

7. On the other hand, later on Hon'ble Supreme Court in the case of Smt. Darothi Clare Parreira & Ors. vs. State of Maharashtra {(1996) 9 SCC 633], has held that even pendency of such Application is no bar to proceed under Section 10(3), vesting the land in the State and to take possession under Section 10 (5)/10(6) of the Act. The relevant extract from the said Supreme Court decision is quoted below for ready reference:

"The scheme of the Act indicates that on publication of the notification under Section 10(3) and after putting a date from which the land stands vested in the State and after publication of the notification in the Gazettee and on and from the date mentioned therein, the excess vacant land stands vested in the State free from all encumbrances, subject to the decision in appeal, if any, filed accordingly to law. The previous owner stands divested of right, title and interest in the land subject to the right to make application provided under Sections 20 and 21. Therefore, it is not possible to accept the contention that the competent authority has no power to have the notification under Section 10(3) published in the Gazette until the application either under Section 20 or 21 is disposed of. The power of examination and exemption would arise only when the Government becomes the owner and the erstwhile owner seeks to obviate the hardships under Section 20 or to subserve the housing scheme for weaker sections under Section 21 as envisaged thereunder. In this case the application under Section 21 came to be filed much

C/LPA/555/2011 CAVJUDGMENT LPA/555/2011 DALWADI MULJIBHAI MATHURBHAI SINCE DECD. THROUGH HEIRS vs. STATE OF GUJARAT THROUGH SECRETARY & Ors. Decidedon 11.2.2021

after the date of the vesting and publication of the notification under Section 10(3) of the Act. The effect of the vesting is not contingent upon filing an application for disposal under either Section 20 or 21.

The correctness of the order passed by the Government under Section 21 need not be gone into for the reason that it would be open to the Government and the Government have stated in their order that they have already decided to allot the land for another equally efficacious public purpose. Therefore, the Court cannot sit over the decision taken by the Government holding it illegal."

7.1. To the same effect, later on again the Hon'ble Supreme Court reiterated the same view in Special Officer & Competent Authority, Urban Land Ceilings, Hyderabad and Anr. vs. P.S.Rao [(2000) 2 SCC 451].

8. Firstly, we do not find any such similar facts in the present case, as no such Application is shown to be pending under Section 20 or Section 21 of the Act prior to the order under Section 10(3) of the Act was passed by the competent authority on 19.3.1985. Secondly, the Full Bench view of this Court should be deemed to be impliedly overruled by the aforesaid later Supreme Court decisions. Therefore, the said Full Bench judgement is of little avail to the appellants-petitioners in the present case.

9. Consequently, we are of the opinion that present appeal filed by the land holders and Legal Representatives of Dalwadi Muljibhai Mathurbhai against the order of learned Single Judge dated 9.12.2010 in Special Civil

C/LPA/555/2011 CAVJUDGMENT LPA/555/2011 DALWADI MULJIBHAI MATHURBHAI SINCE DECD. THROUGH HEIRS vs. STATE OF GUJARAT THROUGH SECRETARY & Ors. Decidedon 11.2.2021

Application No.15043 of 2010, has no merit and the issues being covered by the aforesaid judgement of this Bench following the Supreme Court judgement in the case of State of Assam vs. Bhaskar Jyoti Sarma [(2015) 5 SCC 321] and distinguishing the earlier judgement in the case of State of U.P. vs. Hari Ram [(2013) 4 SCC 280], the appeal is liable to be dismissed and the same is dismissed. No order as to costs.

10. Consequently, the Civil Application (For Stay) No.2 of 2011 also stands dismissed.

(DR. VINEET KOTHARI,J)

(GITA GOPI,J)

After pronouncement of the judgement, Mr.Mihir Thakore, learned senior counsel briefed by Mr.Saquib Ansari submitted that the operation of this judgement may be stayed for a period of six weeks.

We do not consider it necessary to grant the said prayer because the judgement rendered by us is covered now by Supreme Court decisions and our own previous judgement dated 22.1.2021. Therefore, the said request is turned down.

(DR. VINEET KOTHARI,J)

(GITA GOPI,J) NAIR SMITA V.