Heirs Of Dec Jethabhai Ishwarbhai vs State Of Gujarat
2021 Latest Caselaw 1040 Guj

        C/LPA/405/2017                             CAV JUDGMENT



      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/LETTERS PATENT APPEAL NO. 405 of 2017
                             In
        R/SPECIAL CIVIL APPLICATION NO. 11044 of 2000
                           With
         CIVIL APPLICATION (FOR STAY) NO. 2 of 2017
                             In
          R/LETTERS PATENT APPEAL NO. 405 of 2017

FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE VINEET KOTHARI                          Sd/-
and
HONOURABLE MS. JUSTICE GITA GOPI                               Sd/-

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

1 Whether Reporters of Local Papers may be Yes allowed 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 ?

================================================== HEIRS OF DEC JETHABHAI ISHWARBHAI Versus STATE OF GUJARAT & 2 other(s) ================================================== Appearance:

MR MEET M THAKKAR, ASSISTANT GOVERNMENT PLEADER(1) for the Respondent(s) No. 1,2,3 ==================================================

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

Date : 22/01/2021

CAV JUDGMENT (PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

1. This Letters Patent Appeal arises out of the judgment and

order of the learned Single Judge dated 4.10.2016, by which the

learned Single Judge was pleased to dismiss Special Civil

Application No.11044 of 2000 in a matter arising under provisions

of the Urban Land (Ceiling and Regulation) (Repeal) Act, 1999

(hereinafter referred to as 'the Repeal Act').

2. The learned Single Judge dismissed the writ petition in a

second round of litigation by the same Appellant, where a

coordinate bench of this Court vide order dated 29.9.2014 set

aside the earlier order of the learned Single Judge dated 25.6.2013

dismissed this earlier Special Civil Application No.11044 of 2000

and the Division Bench set aside that order and restored the

matter on the file of learned Single Judge to decide the writ

petition again and in the second round of position, the learned

Single Judge, by detailed order dated 4.10.2016, again dismissed

the writ petition, out of which the present Letters Patent Appeal

arises.

3. The facts, in nutshell, giving rise to the present litigation

noted by the learned Single Judge, are reiterated hereunder for

ready reference.

4. One Jethabhai Ishwarbhai was owner of certain land

bearing Survey No.369/1, Vadsar, District Vadodara, admeasuring

about 1863 sq. mtrs., which was declared surplus under

provisions of the ULC Act, 1976 by the Competent Authority vide

order dated 29.9.1986. The said land was earlier exempted under

Section 20 of the said Act, however, the said exemption was

withdrawn on 5.6.1986 and under provisions of Section 10(3) of

the Act, the said 1863 sq. mtrs. of land was declared excess under

the said provision of the Act and was vested in the State

Government. A notice under Section 10(5) of the Act was issued

to the said owner on 28.11.1987 directing the owner of land to

hand over the vacant possession of such surplus land

admeasuring 1863 sq. mtrs. However, the same was not handed

over to the State within the stipulated period of 30 days, but after

a gap of about 6 years, the possession of the said excess land was

taken over by the concerned authorities on 24.11.1993 by

drawing a Panchnama, during which proceedings, apparently the

owner of the land was not present. The 1976 Act came to be

repealed in the year 1999 with effect from 30.3.1999 and Section 4

of the said Repeal Act, 1999 provided for abatement of the

pending legal proceedings and it is this provision which seems to

have given rise to a spate of litigation not only in this case but lot

of such other cases.

5. What was intended to be wiped out by the Repeal Act of

1999, in fact, cropped up more litigation after the Repeal Act

rather than under the 1976 Act itself when it lived its life for a

period of about 23 years and it is now about 23 years after the

Repeal, the Courts are still struggling to settle the variety of issues

arising under the said Repeal Act and the case in hand is one such

example.

6. Reliance was placed upon the decision of the Hon'ble

Supreme Court in the case of State of U.P. vs. Hari Ram [(2013) 4

SCC 280] and it was sought to be contended that the proceedings

abated under the Repeal Act, 1999 and therefore, the land should

be handed over back to the owner of the land who now came to

be represented by the Legal Representative upon the death of the

original owner.

7. Another plea raised in the present writ petition by the land

owner was that he moved an application for exemption from

Ceiling law in terms of Section 21 of the Act of 1976, which

permitted such exemption in case the surplus land was to be used

for construction of dwelling units for the weaker sections of the

society and upon such application, an order could be passed by

the Competent Authority for not taking over the possession of the

excess land and allowing it to be utilised for the construction of

the dwelling units for weaker sections of the society. Such

application also was filed by the Petitioner on 28.1.1988, on

which a notice was issued on 4.6.1988 and against the rejection

of such application, an appeal was also preferred by the land

owner which never seems to have been decided till the Repeal Act

came into force in 1999.

8. The Petitioner, therefore, filed in the writ petition in this

Court.

9. The learned Single Judge, however, dismissed the writ

petition filed by the Petitioner relying over the later decision of

the Hon'ble Supreme Court in the case of State of Assam vs.

Bhaskar Jyoti Sarma [(2015) 5 SCC 321] and explaining why the

earlier decision of the Hon'ble Supreme Court in the case of State

of U.P. vs. Hari Ram (supra), would not apply in this case. The

learned Single Judge held that the challenge to possession taken

through Panchnama process on 24.11.1993 could be challenged

by the Petitioner if at all within a reasonable time only and not

after a huge delay and in case, there was a long delay, the sheer

lapse of long time in laying such challenge will justify the

possession taken by the State authorities and the land owner

should be deemed to have waived his right under Section 10(5) of

the Act.

10. Aggrieved by the said order of the learned Single Judge, the

Legal Representatives of deceased land owner are before us in the

present intra­court appeal.

11. Mr. B.K. Raj, learned counsel for the Appellant has

submitted before us that if the Petitioner or land owner did not

hand over the possession voluntarily under Section 10(5) of the

Act within 30 days of the Notice under Section 10(5) of the Act,

which was served upon him on 4.6.1988, the only option

available to the State was to take forcible possession under

Section 10(6) of the Act and since that procedure was not

followed, the Petitioner should be deemed to be in continued

possession of the land in question and the proceedings under the

1976 Act should be deemed to have abated in view of Section 4 of

the Repeal Act of 1999. Learned counsel for the Appellant heavily

relied upon the decision of the Hon'ble Supreme Court in the

case of State of U.P. vs. Hari Ram (supra).

12. On the other hand, Mr. Meet M. Thakkar, learned Assistant

Government Pleader supported the impugned order of the

learned Single Judge and submitted that the judgment of the

Hon'ble Supreme Court in the case of State of U.P. vs. Hari Ram

(supra) has no application to the facts of the present case and the

learned Single Judge was justified in relying upon the later

decision of the Hon'ble Supreme Court in the case of State of

Assam vs. Bhaskar Jyoti Sarma (supra). He also submitted that

the possession of the land in question taken through Panchnama

process in the presence of two witnesses on 24.11.1993 which

should be deemed to have been taken under Section 10(6) of the

Act only and even though the owner of the land was not present

at the site on that day, it will not render such de facto possession

taken under Section 10(6) of the Act non est or void. He,

therefore, submitted that since the possession of the land in

question was taken over by the State well before the Repeal Act

came in 1999, there is no question of abatement of any pending

proceeding under the 1976 Act and the present Writ Appeal has

no merit and the same deserves to be dismissed.

13. We have heard learned counsel at length and perused the

relevant material on record and decisions cited at the bar.

14. The avowed object of ULC Act, 1976 was to impose a ceiling

on the vacant land in the urban areas and acquisition of such

excess land over ceiling limit to provide the same to the State for

equitable distribution of land to sub­serve common good for

larger public interest and to prevent the concentration of urban

land in the hands of few persons.

15. There is no dispute before us that the proceedings under

Section 10(3) of the Act declaring the 1863 sq.mtrs. of land in the

present case as surplus land was duly undertaken and notified by

the Competent Authority vesting such land in the State

Government, but, however, the dispute is regarding the

possession of the same taken over by the State authorities.

16. In order to understand the said controversy in a proper

perspective, let us quote Section 10 of the Act in extenso

hereunder:

"10. Acquisition of vacant land in excess of ceiling limit. -

(1) As soon as may be after the service of the statement under section 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that -

       (i)       such vacant land is to be acquired by the
       concerned State Government; and

       (ii)      the claims of all person interested in such

vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land,

to be published for the information of the general public in the Official Gazette of the State concerned and in such other manner as may be prescribed.

(2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under sub­section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit.

(3) At any time after the publication of the notification under sub­section (1) the competent authority may, by notification published in the

Official Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under sub­section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified.

(4) During the period commencing on the date of publication of the notification under sub­section (1) and ending with the date specified in the declaration made under sub­section (3) -

(i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and

(ii) no person shall alter or cause to be altered the use of such excess vacant land.

(5) Where any vacant land is vested in the State Government under sub­section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver

possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice.

(6) If any person refuses or fails to comply with an order made under sub­section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary.

Explanation.--In this section, in sub­section (1) of section 11 and in sections 14 and 23, "State Government", in relation to -

(a) any vacant land owned by the Central Government, means the Central Government;

(b) any vacant land owned by any State Government and situated in the Union territory or within the local limits of a cantonment declared as such under section 3 of the Cantonments Act, 1924 (2 of 1924), means that State Government."

17. While the declaration under Section 10(3) of the Act is not

in dispute before us, sub­section (4) providing for transfers of

land in question during the pendency of the proceeding is also

not very relevant here in the present case.

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 notice­cum­

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 notice­cum­

order under Section 10(5) of the Act is, therefore, a misnomer. If

the possession is handed over in compliance with the notice­

cum­order 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 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. 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 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 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 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.

Sd/-

(DR. VINEET KOTHARI,J)

Sd/-

(GITA GOPI,J) Bharat