Gujarat High Court
Chandralal Bulchand Ambavani vs State Of Gujarat on 22 February, 2021
Bench: Gita Gopi
C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021
CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
1. R/LETTERS PATENT APPEAL NO. 1411 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 9559 of 1995
With
2. CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2016
In
R/LETTERS PATENT APPEAL NO. 1411 of 2016
With
3. CIVIL APPLICATION (FOR STAY) NO. 3 of 2016
In
R/LETTERS PATENT APPEAL NO. 1411 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
================================================================
1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy YES
of the judgment ?
4 Whether this case involves a substantial question YES
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
CHANDRALAL BULCHAND AMBAVANI & 1 other(s)
Versus
STATE OF GUJARAT & 2 other(s)
================================================================
Appearance:
MR PM BHATT(183) for the Appellants
G B PATEL(7818) for the Appellants
MR MEET THAKKARM, ASSISTANT GOVERNMENT PLEADER for the
Page 1 of 24
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CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
Respondent Nos. 1,2
MR PARTHIV A BHATT(5331) for the Respondent(s) No. 3.1,3.2,3.3,3.4,3.6.1
NOTICE SERVED BY DS(5) for the Respondent(s) No.
3.1,3.2,3.3,3.4,3.5,3.6.1,3.6.2,3.6.3,3.6.4
==========================================================
CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 22/02/2021
ORAL JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. This IntraCourt Appeal is directed against the order of the
learned Single Judge dated 5.8.2016 dismissing the Special Civil
Application No.9559 of 1995 filed by Baldevbhai Shivabhai Patel
through his Legal Representatives and two subsequent Purchasers
of the land in question (Chandralal Mulchand Ambavani and
Jyotiprasad Devkinandan Chiripal).
2. The proceedings under challenge are under the Urban Land
(Ceiling and Regulation) Act, 1976 ('the ULC Act' for short) and the
sole argument on which the entire Letters Patent Appeal is based, is
on the anvil of one alleged order under Section 20 of the ULC Act, by
which the original owner - Khumanbhai Vanabhai Vagri is said to
have been permitted under the said Act to retain the agricultural
land in question and also sell it further, however, for the
agricultural purpose only. The said Khumanbhai is said to have
C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021
CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
sold the land in question to the Respondent No.3 - Original
Petitioner No.1 (Baldevbhai Shivabhai Patel) under a Sale Deed
dated 5.7.1979, who, instead of doing agricultural on the same, is
said to have further sold the land in question by another Sale Deed
dated 17.1.2007 in favour of Vishnubhai Patel and Balvantbhai
Patel, who, in turn, have sold the land further to the Appellant
Nos.2 and 3 - Chandralal Bulchand Ambavani and Jyotiprasad
Devakinandan vide Sale Deed dated 4.1.2008. Thus, a series of Sale
Deeds were executed in respect of the same land bearing Survey
No.387/2 situated at Village Zundal.
3. On the other hand, the original owner - Khumanbhai through
his Legal Representatives represented before the Competent
Authority in the ULC proceedings and the Respondent No.2 -
Deputy Collector, U.L.C., Ahmedabad passed an order under Section
8(4) of the ULC Act on 21.12.1987 declaring 3947 Sq. Mtrs. of said
Survey No.387/2 belonging to Khumanbhai Vaghri as excess vacant
land under the provisions of the ULC Act. Thereafter, the
Notification under Section 10(3) of the ULC Act was issued on
30.6.1989. Consequently, Section 10(5) Notice to handover
possession was issued by the Competent Authority to the Legal
C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021
CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
Representatives of Khumanbhai on 13.7.1990 and through
Panchnama process, the possession is said to have taken in August,
1990. Thereafter, the State Government under Section 23 of the
ULC Act is said to have allotted the plots of the land on such excess
land vested in the State Government in favour of 83 allottees vide
order dated 8.10.1991 / 17.12.1991 as per the List produced on
record at AnnexureR10. Thus, while on the one hand, the
Competent Authorities took the proceedings under ULC Act and the
land upon vesting in the State stood allotted to 83 persons, who are
not parties before us, the present writ proceedings were initiated by
Baldevbhai Shivabhai Patel, the first Purchaser under Sale Deed
dated 5.7.1979 represented by his Legal Representatives even
though he executing Sale Deed in favour of Vishnubhai Patel and
Balvantbhai Patel on 17.1.2007, who, in turn, further sold the land
in question on 4.1.2008 as aforesaid. Thus, a person, who had
actually no interest in the land at that point of time, initiated these
legal proceedings before this Court under Article 226 of the
Constitution of India.
4. As stated above, the claim was based on an alleged exemption
given under Section 20 of the ULC Act vide order dated 19.4.1979
C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021
CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
which the learned Single Judge, upon perusal of the original record
summoned, found that no such order under Section 20 of the ULC
Act was on record of the Competent Authorities nor discussed
anywhere and except a mention in Reference Item No.2 of the
preamble of said order, which also was found to be scored out in the
original order produced before the learned Single Judge, was made
the basis of this entire litigation. The learned Single Judge,
therefore, found that not only the claim based on Section 20
exemption / permission to sell for agricultural purpose was available
to the present Writ Petitioner / Respondent No.3 Baldevbhai
Shivabhai Patel but, he was litigating before this Court though
actually he on his own showing had sold the land, albeit illegally, to
Vishnubahi Patel and Balvantbhai Patel. The relevant extract of the
findings given by learned Single Judge, after elaborately and
painstakingly going through the entire original record, are quoted
below for ready reference :
"[13] It is further pertinent to note that the order dated
29.07.2004 passed by the Division Bench in the Letters
Patent Appeal being No. 978 of 2001 and connected
petitions, was made applicable to the present petition vide
the afore stated order dated 15.03.2005 passed in the
C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021
CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
Letters Patent Appeal (Stamp Number) No. 2209 of 2004,
and therefore, the parties were required to maintain
statusquo with regard to the land in question till the
final disposal of the present petition. However, as per
the additional affidavitinreply, filed on 03.12.2009 by the
petitioner No. 1/3 Arvindbhai Baldevbhai Patel, the
original petitioner Baldevbhai had sold out the land
in question pending the petition to one Vishnubhai
Madhabhai Patel and Balvant Purshottamdas Patel
on 17.01.2007 by executing a registered sale deed, and
the said purchasers had further sold out the land to the
petitioners Nos. 2 and 3 by executing a registered sale deed
on 04.01.2008. Apart from the fact that the said
Baldevbhai could not have sold out the land in view of the
order passed by the Division Bench directing the parties to
maintain statusquo as regards the land in question, he
could also not have sold out the land in view of the
condition imposed in the order dated 19.04.1979 passed by
the respondent No. 1 granting exemption under Section 20
of the said Act to the original landholder Khumabhai. The
said order has not only been relied upon by the petitioners,
but has been made basis for challenging the impugned
order passed by the competent authority. One of the
conditions mentioned in the said order dated 19.04.1979
was that the land in question shall not be sold or
transferred without prior permission of the Government,
and hence the sale made by the original petitioner
C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021
CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
Baldevbhai in favour of the subsequent purchasers, and the
sale made by the subsequent purchasers in favour of the
present petitioners Nos. 2 and 3, were in violation of the
said order passed by the State Government, and in utter
disregard of the order passed by the Division Bench. The
original petitioner Baldevbhai having abandoned his right
in the land by selling it out to the third party who are not
the party to the petition, his legal heirs could not be said to
have any right in the land in question. Similarly the
Petitioners Nos. 2 and 3 having purchased the land from
the third party, who had no valid title in respect of the
land, also could not be permitted to prosecute the present
petition challenging the proceedings conducted under the
ULC Act in respect of the land belonging to the original
owner Khumabhai, when Khumabhai or his heirs had not
chosen to challenge the said proceedings. As held by the
Supreme Court in the case of State of Punjab versus
Suraj Prakash, 1963 AIR (SC) 507, the existence of a
right and infringement thereof are the foundation of the
exercise of the jurisdiction of High Court under Article 226
of the Constitution of India. The right that can be enforced
under Article 226 of the Constitution must be the personal
or individual right of the petitioners. It is also settled
proposition of law that a person can claim to be aggrieved,
if his legal rights are directly affected. In the instant case,
the Petitioner Nos.2 and 3 having failed to establish
any legal right in the land in question, much less
C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021
CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
infringement of their personal right, no relief as
prayed for in the petition could be granted at their
instance.
[14] Though it is sought to be submitted by learned
advocates for the petitioners that the competent authority
could not have declared the land in question as the excess
vacant land, as the same was granted exemption under
Section 20 of the said Act, to the original owner
Khumabhai, the Court does not find any substance in
the said submission also. Apart from the fact that the
original landholder Khumabhai or his heirs had never
bothered to challenge the order passed by the competent
authority declaring the said land as excess vacant land, the
order granting exemption under Section 20 passed by
the respondent No.1 was never produced by them before
the respondent No.2. The Court had perused the original
file of the proceedings conducted by the respondent No.2,
produced by the AGP for perusal of the Court, and had
found that the original owner Khumabhai had received the
notices issued by the respondent No.2 by registered post
while processing his form filed under Section 6 of the said
Act. It is also pertinent to note that by way of said notices,
the respondent No.2 had called upon the said Khumabhai
to produce the necessary documents as mentioned therein,
and more particularly, the order, if any passed under
Section 20 or 21 of the said Act, however, neither the said
C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021
CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
Khumabhai nor his legal heirs had filed any reply to the
said notices, nor had produced any such documents. Merely
because the copy of the order dated 19.04.1979 passed by
the State Government was shown to have been forwarded to
the respondent competent authority, it cannot be presumed
that the respondent No.2 had received it, nor be expected
that the respondent competent authority was aware about
the said order. A faint attempt was sought to be made by
the learned counsels for the petitioners to submit that there
was a reference of the order passed under Section 20 in the
preamble of the impugned order, passed by the competent
authority, however, on perusal the original order from
the file, the Court had found that the impugned order
was passed on the cyclostyled form, and from the list
of documents mentioned at the top of the impugned
order, the serial No.2, with regard to the order under
Section 20 was scored out, meaning thereby, no such
order was there on record or perused by the
respondent No.2. There cannot be any disagreement with
the ratio laid down by the Supreme Court in the cases
relied upon by the petitioners, however, they have no
application to the facts of the present case. The Court has
found that the impugned order having remained
unchallenged by the legal heirs of the original landholder,
and also by the original petitioner Baldevbhai for about
eight years, the proceedings under the ULC Act had stood
concluded in the meantime, and that the land in question
C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021
CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
had vested in the Government, which was further disposed
of by allotting the same to the poor and needy persons by
the State Government under Section 23 of the said Act. If at
this juncture, any order is passed by this Court disturbing
the impugned order, that would certainly adversely affect
the said persons, who are not party to this petition. Though
it is sought to be submitted by the learned advocates for the
petitioners that the possession of the land had remained
with the petitioners even after the proceedings under
Section 10(5), the said submission has no substance. The
Supreme Court in the latest decision in the case of
State of Assam versus Bhaskar Jyoti Sarma, (2015) 5
SCC 321 has inter alia held that if the owner did not
challenge the action of the respondent authorities of taking
over possession under Section 10(5) of the Act, forcible
taking over possession would acquire legitimacy by
sheer lapse of time. The question whether actual physical
possession was taken over or not remains a seriously
disputed question of fact, which is not amenable to a
determination by the High Court in proceedings under
Article 226 of the Constitution."
5. Mr.P.M. Bhatt, learned counsel appearing for the Appellants,
urged before us that the Appellants are bona fide Purchasers for
consideration and on the basis of the order under Section 20 of the
ULC Act which empowered Khumanbhai and his Legal
C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021
CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
Representatives to sell the land in question on the basis of such
Section 20 order of 1979, were entitled to challenge the proceedings
as once the exemption under Section 20 is there, excess land in
question could not have been so declared under the provisions of
Section 8(4) of the ULC Act nor the Notification could be issued
under Section 10(3) of the ULC Act and, therefore, the Writ Petition
filed in 1995 by the Appellants after 8 years of passing of that order
in 1989 was justified and, therefore, the present IntraCourt Appeal
of 2016 deserves to be allowed.
6. On the other hand, Mr.Meet Thakkar, learned Assistant
Government Pleader for the State, vehemently opposed these
submissions and taking us through the aforequoted Paragraph
Nos.13 and 14 of the learned Single Judge and referring to the
documents on record, he submitted that not only the first sale by
Khumanbhai and his Legal Representatives on 5.7.1979 was illegal
and against the provisions of the ULC Act, as the land in question
could not have been sold by the said Khumanbhai without taking
prior permission of the State even if it was to be believed that
Section 20 exemption was granted in favour of Khumanbhai. He
submitted that Section 20 order was never referred and placed
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CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
before the Competent Authority while he took the proceedings under
Sections 8(4) and 10(3) of the ULC Act and it is only for the first
time that the Purchaser under the said Sale Deed dated
5.7.1979 (Baldevbhai Shivabhai Patel) challenged these
proceedings after 8 years of passing of the order under
Section 10(3) of the ULC Act in writ jurisdiction and that too,
without filing any Appeal against the order under Section 10(3) of
the ULC Act. He further submitted that Sections 10(5) and 10(6)
proceedings were also taken and after taking over the possession of
the land vested in the State Government, the land already stands
now allotted to 83 persons who were also never arrayed as party in
the present litigation by the person, who had no locus standi to file
such Writ Petition.
7. He further submitted that the said alleged sale of land in
question was also in contravention of the statusquo order passed by
the Division Bench of this Court on 15.3.2005 in Letters Patent
Appeal (St.) No.2209 of 2004 and, therefore, sale made on 17.1.2007
and 4.1.2008 were apparently in contravention of the aforesaid
statusquo order granted by the Division Bench of this Court in the
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CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
aforesaid Letters Patent Appeal.
8. Therefore, he submitted that the first sale by Khumanbhai in
favour of Bharatbhai Patel and subsequent sales are void and non
est, based on an alleged exemption under Section 20 of the ULC Act
which never fructified in favour of original owner - Khumanbhai,
who, in fact, faced the proceedings under Sections 8 and 10 of the
ULC Act and the proceedings stood concluded with the vesting order
under Section 10(3) and subsequent taking of possession under
Sections 10(5) / 10(6) and allotment in favour of 83 persons under
Section 23 of the Act. Therefore, he submitted that present Appeal
deserves to be dismissed with costs.
9. Having heard the learned counsels appearing for the parties
and upon perusal of the record and going through the order of the
learned Single Judge, who jotted down of all the facts after detailed
perusal of the original record of the Competent Authority, we find
that the present Appeal is a misuse of process of law by the
Appellants before this Court. We are a bit dismayed to find that
instead of producing the original orders or even authenticated
photocopies of the same supported by proper affidavits, the Writ
Petitioners before this Court produced surprisingly only the typed
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CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
copies which are full of blanks and may be even typing errors.
Without proper verification and comparison with the original orders,
such typed documents are not even worth the paper they were typed.
10. A feeble effort was made before the learned Single Judge as
well as before us to base the claim of the Appellants, who claimed to
be bona fide Purchasers under the Sale Deed alleged to have been
executed by Khumanbhai or his Legal Representatives are void and
nonest sales for three reasons; (i) they are in contravention of the
ULC proceedings which stood concluded under the law by
appropriate proceedings (2) two of the subsequent sales were
apparently in conflict with the statusquo order granted by the
Division Bench of this Court. Such blatant and bold effort of the
private parties to execute such Sale Deeds which fly in the face of
legal provisions and the Court orders have to be just kept aside and
ignored without allowing any semblance of rights to be claimed by
such nonchalant litigants through such illegal documents, who
knocked the doors of the Court without even preparing and
presenting their documents properly. The burden is thus cast upon
the respondents and the Courts to look into the original records and
documents produced by the other side to authenticate and verify
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CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
such flimsy documents. We strongly deprecate this practice of the
litigants.
11. The another reason which makes Appellants before us
disentitled to any relief is their locus standi. The Writ Petitioner
No.1 - Baldevbhai Shivabhai Patel based his claim on an order of
exemption under Section 20 of the ULC Act in favour of their Vendor
Khumanbhai, which order was not even still born on the record of
the Competent Authority and except a reference of the same at
Serial No.2 in the preamble part of the order of the Competent
Authority under Section 10(3) of the ULC Act, which reference at
Serial No.2 was also found upon verification by the learned Single
Judge to have been struck off, there was absolutely no material on
record to claim such exemption under Section 20 of the ULC Act.
12. Assuming that any such order like AnnexureA dated
19.4.1979 under Section 20 of the ULC Act ever existed, even that
has lost its significance altogether, once the Competent Authority
passed an order under Section 10(3) of the Act vesting the excess
vacant land in the State under Section 10(3) of the ULC Act. The
exemption, if validly granted and availed could survive in favour of
C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021
CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
the party only if it was properly used it as a defence in the
proceedings under Section 8(4) / 10(3) of the ULC Act before the
Competent Authority. The original owner of the land in question -
Khumanbhai and his Legal Representatives, though were facing
these proceedings under ULC Act before the Competent Authority,
they never brought it to the notice of the Competent Authority any
such exemption and purportedly having sold the land in question to
Baldevbhai Shivabhai Patel on 5.7.1979 and, therefore, they lost
interest in the proceedings under Section 10(3) of the ULC Act, it
was for so called Purchaser under the Sale Deed dated 5.7.1979,
Baldevbhai Shivabhai Patel to defend in those proceedings under
Section 10(3) of the ULC Act, which he never did during the
contemporary period. The first challenge from his side comes after 8
years of the order under Section 10(3) of the ULC Act in 1995 before
the learned Single Judge only by way of filing this writ petition,
without availing the alternative remedy of a Regular Appeal under
the provisions of the ULC Act.
13. That petition remained on the Board of the learned Single
Judge for 21 years, who after taking lot of pains of going through the
original record so meticulously and returning findings of fact on the
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CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
basis of the original record, the Single Judge found that Section 20
order actually never existed and even the reference thereto in the
preamble part of the order was struck out. Therefore, initial
challenge by the said alleged Purchaser - Baldevbhai Shivabhai
Patel under an illegal Sale Deed dated 5.7.1979 after 8 years was
without any substance. But, it took 21 years for the learned Single
Judge of this Court to find this truth and then, only could dismiss
the Petition. The said litigant without any locus standi and
apparently having lost interest in the land also, if his subsequent
Sale Deeds were to be believed, kept lis alive by filing this Intra
Court Appeal, still basing some alleged rights on the basis of Section
20 order in favour of Khumanbhai, his Vendor under the Sale Deed
dated 5.7.1979 in his own favour.
14. The present Letters Patent Appeal is filed on 29.10.2016 and
again, it is the lapse of five years after which we have been able to
take up this matter for final disposal now through Video Conference
with the assistance of learned counsels, during Covid19 period.
15. We are neither finding anything different or new, valid or of a
substance, to take even a slightest possible different view from the
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CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
one taken by the learned Single Judge. On the contrary, we find that
the appellants, a series of so called bona fide Purchasers, have kept
this lis alive against the State Government and those 83 allottees,
who were allotted their lands out of such excess land vested in the
State Government being kept in dark by the present Appellants.
They have dealt with the land in sequence of Sale Deeds completely
ignoring concluded proceedings under the provisions of the ULC Act
as if those proceedings had no meaning for them. This is precisely
what we wish to put down with the strong iron hands of justice and
such litigants if they were to be allowed to abuse the process of law
unpunished, we feel, more such litigants will join their queue.
16. The concept of the justice is based on the foundation of truth
and those who do not approach the Court with truth and clean
hands, do not deserve any sympathy. As far as interpretation of legal
provisions of ULC Act are concerned, this Court recently gave a
detailed judgment in the case of Heirs of Deceased Jethabhai
Ishwarbhai v. State of Gujarat & Others rendered in Letters
Patent Appeal No.405 of 2017, dated 22.1.2021, following the series
of Supreme Court's judgments on the provisions of the ULC Act and
we find it opportune to quote some part of it for ready reference.
C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021
CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
"18. Subsection (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 subsection (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. Subsection (5) notice is not in
the form of a show cause notice but in the form of an
order apparently because the process of hearing the
objections to such declaration of surplus land is already
taken care in subsections (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 subsection (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 subsection (5) is done in
pursuance of the noticecumorder 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
C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021
CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
noticecumorder under Section 10(5) of the Act is, therefore,
a misnomer. If the possession is handed over in compliance
with the noticecumorder 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 noticecumorder 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
subsection (5), then the Competent Authority may take
possession of vacant land and may use such force as may be
necessary for that purpose. Subsection (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 taking over
of the possession. The last part of subsection (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. Subsection (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 subsections are not necessary to be
operated and invoked in each and every case. The
C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021
CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
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 subsection (5) envisages voluntary handing
over of possession and subsection (6) talks of forcible taking
over possession, both are incomplete and misleading
arguments. The scheme of this two subsections as explained
above does not put these two provisions in silos or
watertight 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 subsection (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 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
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CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
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
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CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
Appellant in an appropriate manner. Mere filing of the
application could not have led the authorities to grant
exemption to 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."
17. Therefore, the proceedings of ULC Act having been concluded
is not only too late in the day for these Appellants to keep the lis
alive but, we find them to have approached the Court even initially
with unclean hands and without any purpose whatsoever. Therefore,
the Appeal is dismissed. We would have imposed costs on all the 3
Appellants in view of aforesaid misuse of legal process, but taking a
sympathetic view and with a warning for other similar litigants, we
make the costs easy in this case.
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CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
18. Consequently, connected Civil Applications also stand
dismissed.
(DR. VINEET KOTHARI,J)
(GITA GOPI,J)
V.J. SATWARA
