Gujarat High Court

Nav Sarjan Industrial Co-Op. ... vs Secretary on 29 June, 2021

Bench: Vineet Kothari, B.N. Karia

       C/LPA/197/2017                                                 ORDER DATED: 29/06/2021
            NAV SARJAN INDUSTRIAL CO-OP. HOUSING SOCIETY LTD. Versus SECRETARY & 2 other(s)


             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                 R/LETTERS PATENT APPEAL NO. 197 of 2017
              In R/SPECIAL CIVIL APPLICATION NO. 6148 of 1990
                                    With
                 CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
                In R/LETTERS PATENT APPEAL NO. 197 of 2017
                                    With
                 R/LETTERS PATENT APPEAL NO. 195 of 2017
                                     In
                 SPECIAL CIVIL APPLICATION NO. 3370 of 2004
==========================================================
        NAV SARJAN INDUSTRIAL CO-OP. HOUSING SOCIETY LTD.
                              Versus
                      SECRETARY & 2 other(s)
==========================================================
Appearance:
NONE for the Appellant(s) No. 1
DS AFF.NOT FILED (R)(71) for the Respondent(s) No. 1,2,3
MR SOAHAM JOSHI for the Respondent-State
==========================================================
     CORAM:HONOURABLE DR. JUSTICE VINEET KOTHARI
           and
           HONOURABLE MR. JUSTICE B.N. KARIA
                      Date : 29/06/2021

                        ORAL ORDER

(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

1. None appears for the appellant.

2. Heard learned Government Counsel. Learned

Government Counsel in the first round of hearing undertook

to inform the learned counsel for the appellant Mr.Harnish

V. Darji to join in the meeting and make his submissions,

but despite such information given to him, the said learned

counsel has not joined the meeting today. Therefore, we

have heard the learned Government Counsel.

C/LPA/197/2017 ORDER DATED: 29/06/2021 NAV SARJAN INDUSTRIAL CO-OP. HOUSING SOCIETY LTD. Versus SECRETARY & 2 other(s)

3. We find that the controversy involved in the present

case is squarely covered by number of decisions rendered by

this Court in recent past under the provisions of ULC Act,

1976.

4. The relevant facts and reasons given by the learned

Single Judge in the order impugned before us dated

25.01.2016 & 01.12.2016 dismissing Special Civil

Application No.6148 of 1990 with Special Civil Application

No.3370 of 2004 are quoted below for ready reference:

"14. The Respondent No.2- Competent Authority in its reply has specifically stated that the notice issued under section 10(5) was received by the Respondent No.2 on 31.08.1989 and thereafter, the possession of the land in question was taken over on 16.03.1990 by drawing the panchnama, the communication of which was also issued to the Respondent No.3Chhotubhai on 09.08.1990. Thereafter, the amount of compensation was also fixed under section 11 as per the order dated 20.08.1990. The mutation entry being No.1321 in respect thereof was made in the revenue record.

Though it has been contended by learned Senior Counsel Mr.Kavina for the petitioner relying upon certain the documents annexed to the affidavit filed on behalf of the petitioner in October, 2014 that the members of the petitioner Society were in possession of the lands in question, even after the said

C/LPA/197/2017 ORDER DATED: 29/06/2021 NAV SARJAN INDUSTRIAL CO-OP. HOUSING SOCIETY LTD. Versus SECRETARY & 2 other(s)

possession was taken over by the State Government by drawing panchnama, the said submissions cannot be accepted. When the receipt of notice issued under section 10(5) of the ULC Act and taking over possession of the lands in question from the original owner Respondent No.3Chhotubhai has not been disputed by the said Respondent, the petitioner Society who had purchased the lands in question in contravention of the provisions of ULC Act, cannot be permitted to raise the contention that the possession was not taken over from the original owner in accordance with law. As per the position of law settled by the Supreme Court in the case of Balmokand Khatri Educational and Industrial Trust, Amritsar Vs. State of Panjab and Ors. reported in (1996) 4 SCC 212, and in the case of Banda Development Authority, Banda Vs. Motilal Agarwal and Ors. reported in (2011) 5 SCC 394, when a possession is to be taken of a large track of land, then it is permissible to take possession by a properly executed Panchnama. If any person is subsequently found to be in possession of such land, such possession could not be said to be a legal possession.

15. It is further pertinent to note that the dispute with regard to the possession was raised by the petitioner only in the affidavit filed on 10.10.2014 i.e. about 15 years after the ULC Repeal Act came into effect, for raising the plea inter alia that the proceedings had abated in view of section 4 of the said Repeal Act. In

C/LPA/197/2017 ORDER DATED: 29/06/2021 NAV SARJAN INDUSTRIAL CO-OP. HOUSING SOCIETY LTD. Versus SECRETARY & 2 other(s)

this regard, a very pertinent observation made by the Supreme Court in the case of State of Assam vs. Bhaskar Jyoti Sarma and Ors., reported in (2015) 5 SCC 321, is required to be reproduced, which reads as under:

"16. The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile land owner on 7th December, 1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure."

16. In view of the abovestated position of law settled by

C/LPA/197/2017 ORDER DATED: 29/06/2021 NAV SARJAN INDUSTRIAL CO-OP. HOUSING SOCIETY LTD. Versus SECRETARY & 2 other(s)

the Supreme Court, it is too late in the light of the day for the petitioner to contend that the possession of the land in question was not taken over by the respondents in accordance with law. Even otherwise, the Court having found that the petitioner Society had suppressed the material facts from the Court, the petitioner would not be entitled to grant of any equitable relief in the writ petition filed under Article 226/227 of the Constitution of India. The Special Civil Application No.6148 of 1990 deserves to be dismissed on the ground of suppression of material facts as well as on merits.

17. So far as the Special Civil Application No.3370 of 2004 is concerned, the same has been filed by the petitioner challenging the show cause notice dated 19.04.2004 issued by the Mamlatdar in the inquiry under section 84C of the Tenancy Act. The petitioner instead of responding the said notice and without exhausting the alternative remedy available to it rushed to this Court by filing the present petition. It was contended by learned Senior Counsel Mr.Kavina that the said notice was issued without any jurisdiction and without any authority of law by the Mamlatdar and ALT and that too after a gross delay. Though there is some substance in the said submission, the Court is not inclined to accept the said submission at this juncture as all such contentions can be raised by the petitioner before the said authority by filing reply to the said show cause

C/LPA/197/2017 ORDER DATED: 29/06/2021 NAV SARJAN INDUSTRIAL CO-OP. HOUSING SOCIETY LTD. Versus SECRETARY & 2 other(s)

notice. It is needless to say that the Mamlatdar and ALT has the authority and jurisdiction to make the inquiry under section 84C of the Tenancy Act, if the Mamlatdar has reason to believe that any transfer or acquisition of any land was invalid under the provisions of Tenancy Act. The show cause notice itself would not create any cause of action as the authority after considering the reply of the petitioner may drop the proceedings. In that view of the matter, without expressing any opinion on the merits on the impugned show cause notice, the Court is not inclined to interfere with the same at this juncture.

18. For the reasons stated above, both the petitions being devoid of merits are dismissed. Rule is discharged in both the matters.

19. Learned Counsel Mr. Harnish Darji for the petitioner requests to extend the order of interim relief for a reasonable period to enable the petitioner to approach the higher Forum. In view of the reasons statedabove, the request of learned Counsel Mr.Darji cannot be accepted."

5. This Court in recent following judgments has decided

various aspects of the controversies involved in this case

which are cited below for ready reference:

(i) Dineshkumar Jagubhai Patel Vs. State of Gujarat, (Page-55 Judgement)

C/LPA/197/2017 ORDER DATED: 29/06/2021 NAV SARJAN INDUSTRIAL CO-OP. HOUSING SOCIETY LTD. Versus SECRETARY & 2 other(s)

Letters Patent Appeal No.332 of 2017, Decided on 05.03.2021;

(ii) Ganesh Industrial Estate (Proprietor Vashrambhai Punjabhai Patel) through LRs Proprietor (Laxmi Saw Mills) Vs. Additinal Deputy Collector and another (Page-55 Judgement) Letters Patent Appeal No.263 of 2013, Decided on 20.04.2021;

(iii) Ravhjibhai Chhotabhai Patel Vs. Competent Officer and others (Page-43 Judgement) Letters Patent Appeal No.941 of 2016; Decided on 25.03.2021;

(iv) Prabhatbhai Shivabhai Solanki Vs. State of Gujarat and others (Page-46 Judgement) Letters Patent Appeal No.1281 of 2016; Decided on 23.03.2021;

(v) Heirs of Deceased Jethabhai Ishwarbhai Vs. State of Gujarat and others (Page-17 Judgement) Letters Patent Appeal No.405 of 2017; Decided on 22.01.2021

(vi) Dalwadi Muljibhai Mathurbhai Vs. State of Gujarat (Page-12 Judgement) Letters Patent Appeal No.555 of 2011; Decided on 11.02.2021;

(vii) Chandralal Bulchand Ambavani and another Vs. State of Gujarat and others (Page-24 Judgement)

C/LPA/197/2017 ORDER DATED: 29/06/2021 NAV SARJAN INDUSTRIAL CO-OP. HOUSING SOCIETY LTD. Versus SECRETARY & 2 other(s)

Letters Patent Appeal No.1411 of 2016; Decided on 22.02.2021;

6. In view of the controversy being covered, we do not find

any merit in these appeals and the same are liable to be

dismissed and accordingly, Letters Patent Appeal is hereby

dismissed. No order as to costs.

7. The copy of this order may be sent to the appellant as

well as the learned counsel whose name is shown in the

cause list i.e. Mr.Harnish V. Darji.

(DR. VINEET KOTHARI,J)