Gujarat High Court
Dineshkumar Jagubhai Patel vs State Of Gujarat on 5 March, 2021
Bench: Gita Gopi
C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021
DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
1. R/LETTERS PATENT APPEAL NO. 332 of 2017
IN
R/SPECIAL CIVIL APPLICATION NO. 3776 of 1997
WITH
CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
IN
R/LETTERS PATENT APPEAL NO. 332 of 2017
AND
2. R/LETTERS PATENT APPEAL NO. 334 of 2017
IN
SPECIAL CIVIL APPLICATION NO. 3776 of 1997
WITH
CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
IN
R/LETTERS PATENT APPEAL NO. 334 of 2017
IN
SPECIAL CIVIL APPLICATION NO. 3776 of 1997
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 ?
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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 ?
================================================================
LETTERS PATENT APPEAL NO. 332 of 2017
DINESHKUMAR JAGUBHAI PATEL
Versus
1. STATE OF GUJARAT
2. THE COMPETENT AUTHORITY & DEPUTY
COLLECTOR
3. VINODBHAI JERAMBHAI
4. VALLABHBHAI PADAMSIBHAI
5. VIJAYKUMAR VALLABHBHAI
6. DHARMESHBHAI PADAMSHIBHAI
7. GHANSHYAMBHAI RAVJIBHAI
8. KANUBHAI RAVJIBHAI
9. BABUBHAI LALJIBHAI
10. KIRITKUMAR SHANTILAL PATEL
================================================================
Appearance:
LETTERS PATENT APPEAL NO. 332 of 2017
MR. DHAVAL C. DAVE, Senior Counsel with MR. JIGAR P
RAVAL(2008) for the Appellant
MR. UTKARSH SHARMA, Assistant Government Pleader for the
LETTERS PATENT APPEAL NO. 334 of 2017
MR. MC BHATT, Senior Counsel with MS SHACHI G. MATHUR for
Appellants
MR. UTKARSH SHARMA, Assistant Government Pleader for the
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Notice Served (4) for the Respondent(s) No.32
===============================================================
CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 05/03/2021
CAV JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. These two IntraCourt Letters Patent Appeals are directed
against the common order of the learned Single Judge (Coram : Bela
M. Trivedi, J.), dismissing the Special Civil Application No.3776 of
1997 (Dineshkumar Jagubhai Patel & Others v. State of
Gujarat & Others) and Special Civil Application No.2612 of 1997
(Jagubhai Dayabhai Patel & Others v. Competent Authority
& Additional Collector) . The matter arises under the provisions
of the Urban Land (Ceiling and Regulation) Act, 1976 ('the ULC Act'
for short) and though we, prima facie, found the controversy to be
covered by our decision 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, Mr.Dhaval
C. Dave, learned Senior Counsel appearing for the Appellants -
Petitioners, urged and took almost entire day of hearing for taking
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us through a complex matrix of facts and Documents with their
widespread litigative history of the present case, pertaining to the
land admeasuring 36,827 Sq. Mtrs. declared as excess or surplus
land under the provisions of the ULC Act which, according to the
said enactment, would vest with the State Government once the
draft order under Section 8(4) and final order under Section 9 of the
ULC Act is made by the Competent Authority and a Notification
under Section 10(3) of the ULC Act is issued by the State
Government vesting the surplus land in the State free from all
encumbrances. Thereafter, a NoticecumOrder under Section 10(5)
of the ULC Act has to be served on the land owners or occupants of
the land in question and if the possession is not handed over to the
State Authorities within 30 days in compliance of such Noticecum
Order under Section 10(5) of the ULC Act, the State Authorities can
take forcible possession of the land in question under Section 10(6) of
the ULC Act and then, allot the same to needy persons in terms of
Section 23 of the Act.
2. The exception to compulsory take over of the surplus / excess
land beyond the prescribed limits of the urban ceiling in the Act is
provided under Sections 20 and 21 of the ULC Act, where the State
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Government has power to exempt and let the land remain with the
landholder under Section 20 of the ULC Act in the given
circumstances or under Section 21 of the ULC Act, upon a Scheme
for housing for Weaker Section of the Society, if approved, as
submitted by the land owner, his land can be so exempted under
Sections 20 or Section 21 of the ULC Act.
3. What the Division Bench of this Court held in the case of
Heirs of Deceased Jethabhai Ishwarbhai (Supra) following the
Supreme Court decision in the case of State of Assam v. Bhaskar
Jyoti Sarma, reported in (2015) 5 SCC 321, is that earlier
judgment in the case of State of U.P. v. Hari Ram, reported in
(2013) 4 SCC 280 was watered down and distinguished and it was
held that no Notice under Section 10(6) of the ULC Act is required to
be given and if the possession in pursuance of the NoticecumOrder
under Section 10(5) of the ULC Act is not handed over and an
objection against that is raised belatedly, the taking over of the
possession under Section 10(6) of the ULC Act even through
Panchnama process, even in the absence of land owner, would get
legitimacy and later on, such belated challenges cannot be accepted
and will be deemed to have been waived by the landholder.
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4. We deem it appropriate to quote here the relevant part of the
aforesaid Judgment rendered by this Division Bench in the case of
Heirs of Deceased Jethabhai Ishwarbhai (Supra) on 22.1.2021,
about a month ago, after discussing both the aforesaid Supreme
Court judgments through its relevant extract as under :
"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.
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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
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
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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
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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.
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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."
5. Mr.Dhaval C. Dave, learned Senior Counsel, however,
emphasized more on the factual aspects of the matter, that the land
in question was exempted by the Competent Authority under
Section 20 of the ULC Act vide order dated 5.10.1979 but, the very
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foundation of this argument was doubtful, as the learned Single
Judge, after specially summoning and perusing in detail the original
record of the Competent Authority, found that there was no such
exemption order under Section 20 of the ULC Act available on the
record and the said Document as produced by Appellants -
Petitioners appeared to be forged and concocted by the Petitioners.
6. Since the very basic foundation of case thus became a very
seriously disputed question of fact and doubtful, normally it cannot
be even expected to be decided in writ jurisdiction, but we still
permitted the learned counsel for the Appellants, Mr.Dhaval C.
Dave to take us through the other Documents and earlier orders
passed by the Court in this matter in the earlier round of litigation
also, to test his argument and to give at least the satisfaction of full
hearing to the Appellants.
7. While on the State Government side, it was pinpointed and
emphasized before us that not only a Draft order under Section 8(4)
of the ULC Act was made, but a Final order under Section 9 of the
ULC Act was also passed by the Competent Authority after hearing
the objections during which no such case of exemption under Section
20 of the ULC Act was made out and then determining the surplus
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or excess land of 36,827 Sq. Mtrs., the Notification under Section
10(3) of the ULC Act was also issued on 3.4.1986 vesting the surplus
land in the State free from any encumbrance and consequently, by a
Panchnama process, in the presence of two independent witnesses,
namely, (i) Ramanbhai Maganbhai Patel and (ii) Chhaganbhai
Devjibhai, the physical possession of the land in question was taken
over by the State Authorities on 9.9.1986 and even Mutation Entry
No.770 was recorded in favour of State on 20.4.1988 .
8. While reiterating that the exemption order under Section 20 of
the ULC Act dated 5.10.1979 was a forged and concocted Document,
the learned Assistant Government Pleader also drew our attention
to another unsigned order dated 7.10.1979 produced as AnnexureR
3 with the Affidavit of Mr.N.R.Dhadhal, Deputy Collector (L.R.)
dated 15.12.2016, with which the alleged exemption under Section
20 of the ULC Act for Survey No.11 of Village Parvat for 36,827
Sq.Mtrs. of land was mentioned in the Table but, the said order was
never signed by any Authority, but was available in the record.
9. The learned Senior Counsel for the Appellants, Mr.Dhaval C.
Dave, sought to submit that on the top of the said unsigned
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Document, some other Survey No.73/1 was mentioned, even though
in the Table in the middle part of the said order, Survey No.11 of
Village Parvat with which only the Appellants are concerned in
this case was also mentioned and, therefore, it could only be a Draft
of said order under Section 20 of the ULC Act which was not signed
by the Competent Authority, whereas he claimed that a duly signed
order by one Mr.A.A. Dudani was produced with the Affidavit of
Kirtikumar Shantilal Patel, the Purchaser from the Petitioner -
Appellant (Dineshkumar Jagubhai Patel) dated 12.9.2016 after 19
years of filing of Special Civil Application No.3776 of 1997 by said
landholder Mr.Dineshkumar Jagubhai Patel and the said purported
order under Section 20 of the ULC Act dated 5.10.1979 was signed
by Mr.A.A.Dudani as Deputy Secretary Revenue Department, Surat.
He also submitted that no controverting Affidavit of Mr.A.A.Dudani
has been filed by the State.
10. While obviously the writ Court under Article 226 of the
Constitution of India could not enter into such seriously disputed
questions of facts and decide the same, we appreciate, that still the
learned Single Judge took the pains to summon the Original Record
and after going through it thoroughly, recorded a definite finding of
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fact in the impugned judgment that there was no such exemption
order dated 5.10.1979 signed by Mr.A.A.Dudani available in the
Original Record of the said Revenue Department, Surat. We have no
reason to even doubt this finding of fact of learned Single Judge,
what to talk of setting it aside. Therefore, obviously the production
of such a document after 19 years of pendency of Writ Petition by a
subsequent Purchaser of the land in question, Mr.Kirtikumar
Shantilal Patel, the validity of such Sale in his favour itself being
questionable as the land stood vested in the State Government way
back in the year 1986, in our opinion, creates a very serious doubt
about the existence and veracity of said Document and it disentitles
the subsequent Purchasers from claiming any relief in the present
matter on the anvil of exemption under Section 20 of the ULC Act in
the present case.
11. Another main plank of the arguments of Mr.Dhaval C. Dave,
learned Senior Counsel about the factual possession of the land in
question still being with the Appellants - Petitioners and
subsequent Purchasers was the interim orders passed by the learned
Single Judge of this Court in the earlier round of disposal of this
very Special Civil Application No.3776 of 1997, against which
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present Letters Patent Appeal No.332 of 2017 is filed by
Dineshkumar Jagubhai Patel.
12. Mr.Dhaval C. Dave, learned Senior Counsel, first drew our
attention towards the order passed on 9.5.1997 (Coram : R.R.Jain,
J.). In the said adinterim order, the learned Single Judge observed
as under :
"Draft amendment is allowed, Para (B) of the draft
amendment suggests the exemption under Section 20 of
the Act granted on 5.10.1979 qua the land in question is
in force. Therefore, in the face of it, the land cannot be
considered as holding for all purpose under the Act and
cannot be declared as excess land yet the record shows that
the land has been declared as surplus. Hence, it requires
consideration. Rule returnable on 27.6.1997, statusquo
qua the land in question. Notice as to interim relief in
terms of Para 6(B)."
13. The said adinterim order, learned Senior Counsel urged, came
to be confirmed by another learned Single Judge (Coram : H.L.
Gokhle, J.) on 9.9.1997 after hearing both the parties. The said
interim order date 9.9.1997 is also quoted below for ready reference :
"Heard Mr.Pahwa with Mr.Thakkar for the petitioner and
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Mr.Sompura for the respondents. The order of status quo
granted on 9th May 1997 in terms of para 6(B) is
hereby confirmed. This is with a rider that both the
parties will maintain status quo with respect to the
land. The petitioner will continue to use it only for
agricultural purposes and will not create any third
party rights whatsoever. In the event of any breach of
this order detected by the respondents, they will have liberty
to apply to this Court for getting the interim relief vacated.
Liberty to the respondents also in the event of any
difficulty."
14. The present Special Civil Application No.3776 of 1997
(Dineshkumar Jagubhai Patel v. State of Gujarat) thus earlier
came to be disposed of by the learned Single Judge on 10.5.1999
after the Urban Land (Ceiling and Regulation) Repeal Act, 1999 was
enforced w.e.f. 31.3.1999 and the learned Single Judge (Coram :
Kundan Singh, J.) held that the proceedings under the Act shall
stand abated. The said order dated 10.5.1999 is also quoted below
for ready reference :
"The learned counsel for the petitioner states that
proceedings under section 20 of the Urban Land
(Ceiling and Regulation) Act, 1976 were pending. The
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possession of the land was not taken over by the
Government.
Learned counsel for the petitioner has brought to the notice
of this Court the Urban Land (Ceiling and Regulation)
Repeal Act, 1999 which, according to him, has already
come into force on 30.3.99, in view of the Resolution passed
by the Legislative Assembly under Article 252 of the
Constitution. Section 4 of the aforesaid Repealing Act, 1999
reads as under:
"4. All proceedings relating to any order made or
purported to be made under the principal Act pending
immediately before the commencement of this Act,
before any Court, Tribunal or other authority shall
abate;
Provided that this section shall not apply to the
proceedings relating to sections 11,12,13 and 14 of the
principal Act in so far as such proceedings are
relatable to the land, possession of which has been
taken over by the State Government or any person duly
authorised by the State Government in this behalf or
by the competent authority."
Proceedings in this petition therefore, abate. Orders
accordingly. Rule is discharged with no order as to costs.
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Interim relief, if any, stands vacated. The petition
stands disposed of. "
15. The State filed a Review Application against the said order of
learned Single Judge, namely, Misc. Civil Application No.1583 of
1999 in Special Civil Application No.3776 of 1997 (State of
Gujarat v. Dineshkumar Jagubhai Patel) which was dismissed
by the same learned Single Judge (Coram : Kundan Singh, J.) on
12.1.2001. The said order is also quoted below for ready reference :
"Special Civil Application No.3776 of 1997 was filed for
quashing and setting aside the notifications issued by the
competent authority and the Government under sections
10(3) and 10(5) of the Act on 3.4.86 and 26/27.5.86 as
also the orders passed by the Competent Authority dated
8.11.85 being illegal, arbitrary, without application of
mind and violative of principles of natural justice. The said
petition was under the provisions of Urban Land (Ceiling
and Regulation) Act, 1976. The State of Gujarat has passed
Urban Land (Ceiling and Regulation) Repeal Act, 1999
which came into force on 30th March 1999. On the basis of
the said Act, Special Civil Application No. 3776 of 1997
was decided by the order dated 10.5.99. It is mentioned in
the order that the learned counsel for the petitioner stated
that the possession of the land was not taken over by the
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Government. This review application has been filed on the
ground that the possession of the excess vacant land was
taken over by the Government of Gujarat in presence of the
panchas on 9.9.86 and mutation entry no. 770 was also
effected on 20.4.88 in the register of village form no.6. It
is also stated on behalf of the applicant that the aspect
regarding taking over the possession by the Government on
9.9.86 was not brought to the notice of this Court partly due
to inadvertence and partly due to mistake and therefore, in
view of the fact and circumstances, the writ petition will
not abate under section 4 of the Repeal Act of 1999.
2. Heard the learned A.G.P.Mr. H.H.Patel for the
applicant and learned Senior Advocate Mr. P.M.Thakkar
for the respondent. The learned counsel for the respondent
submitted that the land was declared excess on 8.11.85.
In the counter affidavit, the State has requested the Court
that the respondent no. 2 (prescribed authority) may be
permitted to proceed further under section 23 of the
Urban Land (Ceiling and Regulation) Act, 1976 as to use
of the land of the petitioner for being allotted to the
poor persons of the city of Surat as per the policy
decision taken by the Government of Gujarat to allot 25
sq.mtrs. of land to each poor person. The learned counsel
for the petitioner also submitted that the Government of
Gujarat by an order dated 5.10.79 has already exempted
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the land under the Ceiling Act and that is in respect of
survey nos. 11/1 and 11 and the main petition no.3776 of
1997 was filed only in respect of these two survey numbers.
It was also mentioned in the counteraffidavit that the
Court has taken into consideration the assertions made in
the counteraffidavit that the possession of the surplus land
was taken by the Government and mutation entry no.770
dated 20.4.88 recorded in the revenue recorded and
that affidavit was filed on 14.7.97. The petitioners
challenged the ceiling proceedings in the main petition and
the proceedings of the petition have abated due to Repeal
Act. It appears that this Court found the original petitioner
present opponent in possession and order of status quo
granted on 9.5.97 in terms of para 6(B) was confirmed
whereby both the parties were directed to maintain status
quo with respect to the property in question. It is also
mentioned in the order that the petitioner will continue
to use it only for agricultural purpose and will not
create any third party rights whatsoever by an order
dated 9.9.97. As such, it appears that after hearing both
the parties, this Court came to the conclusion that the
opposite party was the only party in possession and that
party was permitted to continue in possession only to use it
for agricultural purpose. The contention of the learned
counsel for the applicant is that due to inadvertence and
mistake, the applicant could not point out at the time
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of passing the order sought to be reviewed.
3. Considering the facts and circumstances of the case, I
do not find any reason to review the order passed by
this Court in the Special Civil Application and that is in
accordance with the provisions of law and it appears that
the opposite party was already found in possession as
noticed by this Court in the order dated 9.9.97 and he was
permitted to continue in possession for the agricultural
purpose. This Review application is therefore, misconceived
and is liable to be dismissed. It is accordingly, dismissed. "
16. However, the Appeal filed against the said order of the learned
Single Judge, namely, Letters Patent Appeal No.1777 of 2003 in
Misc. Civil Application No.1583 of 1999 in Special Civil Application
No.3776 of 1997 (State of Gujarat v. Dineshkumar Jagubhai
Patel) came to be allowed by the Division Bench of this Court
(Coram : B.J. Shethna & M.C. Patel, JJ.) and the matter was
remanded back to learned Single Judge for deciding again the
Special Civil Application No.3776 of 1997 in accordance with law.
17. Thereafter, by the impugned order dated 18.1.2017, the
learned Single Judge (Coram : Bela M. Trivedi, J.) dismissed the
writ petition by the aforesaid detailed order which is now under
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Appeal before us in the present IntraCourt Letters Patent Appeal
No.332 of 2017 before us.
18. From the aforesaid two adinterim orders dated 9.5.1997
(Coram : R.R.Jain, J.) and order dated 9.9.1997 (Coram :
H.L.Gokhle, J.), though these orders lost their existence and
significance altogether once the Division Bench of this Court set
aside the final order also passed by learned Single Judge on
19.8.2004 and thus, the matter was restored on the file of learned
Single Judge to decide Special Civil Application No.3776 of 1997
again, Mr.Dhaval C. Dave, learned Senior Counsel, still tried to rely
upon the observations made by the earlier learned Single Judges in
the orders dated 9.5.1997 and 9.9.1997, to submit that they proved
the possession of the land in question with the Appellant -
Petitioner (Dineshkumar Jagubhai Patel) at that point of time.
19. We are not at all impressed by these submissions and
purported inferences sought to be drawn by the learned counsel for
the Appellants, because those observations tentatively made in the
interim orders on the basis of averments made in the writ petition
and arguments are in the nature of reasons for grant of interim
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relief and are made without any crossverification from the other
side. They are of no significance while finally arriving at any finding
of fact. Even otherwise, we need not over emphasize that interim
orders passed by the Court stand merged with the final order and in
the present case, even the final order lost its existence and
significance when it was set aside by the Division Bench of the Court
on 19.8.2004. The Appellants - Petitioners cannot rely upon such
tentative observations of learned Single Judge made at that point of
time, while passing adinterim order or stay order on the Stay
Application in the first round of disposal of the Special Civil
Application No.3776 of 1997.
20. Mr.Utkarsh Sharma, learned Assistant Government Pleader,
on the other hand, heavily relied upon the findings of facts recorded
by the learned Single Judge in the order dated 18.1.2017 (Coram :
Bela M. Trivedi, J.) that while both father and son, namely,
Dineshkumar S/o Jagubhai Patel, who is said to have born in the
year 1963, filed separate writ petitions, namely, Special Civil
Application No.3776 of 1997 (Dineshkumar Jagubhai Patel) and
Special Civil Application No.2612 of 1997 (Jagubhai Patel
himself) and both came to be dismissed by learned Single Judge on
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18.1.2017 by common order. But the father - Jagubhai Patel did not
file any Letters Patent Appeal against the dismissal of Special Civil
Application No.2612 of 1997. This was explained by Mr.Dhaval C.
Dave, learned Senior Counsel, by submitting that said Jagubhai
Patel had expired on 27.6.2001 and a copy of Death Certificate
No.0279754 dated 19.3.2010 issued by Surat Municipal Corporation
was produced before us which was taken on record.
21. Mr.Utkarsh Sharma, learned Assistant Government Pleader,
further urged before us that sales made by Dineshkumar Jagubhai
Patel in 3 parts under 3 different Sale Deeds, the details of which
are given below, were illegal as land stood vested with the State
Government by issuing Notification under Section 10(3) of the Act on
3.4.1986, therefore, no right enures to such Purchasers either to
claim any interest in the said land or to even contest this litigation.
He submitted that following Sale Deeds were executed with regard
to said land in question admeasuring 36,827 Sq. Mtrs. situated in
Village Parvat; (i) Sale Deed dated 30.7.2001 by Dineshkumar
Jagubhai Patel in favour of Jerambhai Padamshibhai, whose Legal
Representatives are now Respondent Nos.3 to 9 before the learned
Single Judge, purportedly selling 11,705 Sq.Mtrs. of land of Survey
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No.11, Block No.14 situated in Village Parvat, (ii) The second
Sale Deed dated 4.5.2002 executed by Dineshkumar Jagubhai Patel
in favour of Kirtibhai Shantibhai Patel, who is Respondent No.10
before the learned Single Judge, to whom one 1 Hectare 67 Ares 22
Sq.Mtrs. (total 16,722 Sq.Mtrs.) is alleged to have been sold vide
Sale Deed dated 4.5.2002 and (iii) The 3rd Sale Deed is said to have
been executed on 24.12.2001 by Dineshkumar Jagubhai Patel in
favour of Jerambhai Padamshibhai and others for 8361 Sq.Mtrs.
22. Mr.Utkarsh Sharma, learned Assistant Government Pleader,
therefore, submitted that such sales based on the foundation of
Section 20 exemption claimed by the Appellant - Petitioner
(Dineshkumar Jagubhai Patel) were nonest in the eye of law and
deserve to be ignored as the land in question stood vested in the
State Government and the possession of the same was also taken
over by Panchnama process on 9.9.1996. He drew our attention to
AnnexureRI, the said Panchnama dated 9.9.1986 which was
executed in the presence of two independent witnesses, namely, (i)
Ramanbhai Maganbhai Patel and (ii) Chhaganbhai Devjibhai, in
which Panchnama Report dated 9.9.1986 prepared by the Deputy
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Collector, Surat in which at Serial No.2 the land of Survey No.11
admeasuring 36,827 Sq.Mtrs. of Village Parvat is also included.
23. Mr.Dhaval C. Dave, learned Senior Counsel for the Appellants
- Petitioners sought to raise a doubt of the said Panchnama dated
9.9.1986 merely by submitting that it was not possible for the said
Deputy Collector to take possession of 4 parcels of land situated at 3
different Villages Parvat, Dumbhal and Limbayat as it would
apparent from the details given. On the Court question, both
Mr.Dhaval C. Dave, learned Senior Counsel and Mr.Utkarsh
Sharma, learned Assistant Government Pleader, fairly informed the
Court that all the 3 Villages are within the periphery of 15 kms.
only. Therefore, we cannot accept as truth the said doubt expressed
by Mr.Dhaval C. Dave, learned Senior Counsel appearing for the
Appellants - Petitioners that such Panchnama process could not be
carried out in a area of 15 kms. only in one day on 9.9.1986 in the
year of 1986 when fast modes of transportation were also available.
The signatures, presence and availability of persons who signed, the
said Panchnama is not otherwise disputed and, therefore, merely
casting a shadow of doubt on such a flimsy basis cannot be accepted.
The same is accordingly rejected, as there is no other reasons
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available to discard the said Panchnama Possession Report
dated 9.9.1986. The absence of landholder - Dineshkumar Jagubhai
Patel and even his father - Jagubhai Patel, who was alive in the
year 1986 at the site, does not affect the validity of the same as the
Supreme Court and this Court have time and again held that
absence of landholder or occupant will not vitiate the possession
taken over under Section 10(6) of the ULC Act.
24. Yet another argument which was raised by Mr.Dhaval C.
Dave, learned Senior Counsel and with which also, we are not
impressed is that in the year 2012, on the directions of the learned
Single Judge of this Court, the concerned Mamlatdar, Surat sent a
Report on 15.2.2012 in pursuance of the Court order dated
27.1.2012 in Misc. Civil Application No.1560 of 2011 in Special Civil
Application No.2612 of 1997 filed by Jagubhai Patel with which the
Panchnama for taking over the possession was also annexed. But,
however, such Panchnama was not so actually annexed with the said
letter addressed to Government Authorities which was produced at
AnnexureRII by the State Government. The doubt expressed by
Mr.Dhaval C. Dave, learned Senior Counsel, was that such
Panchnama was, therefore, prepared only in the year 2012 when the
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Report dated 15.2.2012 was forwarded by the concerned
Mamlatdar, Surat to learned Government Advocate with reference
to aforesaid Court order dated 27.1.2012.
25. The said argument of Mr.Dhaval C. Dave, learned Senior
Counsel is also without any substance and merit. Firstly, it is an
internal communication between the client and the Advocate,
namely, the Mamlatdar of Revenue Department and the learned
Government Advocate under the Communication dated 16.2.2012 in
compliance with the Court order. Secondly, the Report of the
Mamlatdar dated 15.2.2012 does not refer to any date of the
Panchnama which is sought to have been annexed with the said
Report. Even the Panchnama of 9.9.1986 might have been annexed
with the Report dated 15.2.2012 of the Mamlatdar. Therefore, it
cannot be validly said that the possession of the surplus land in
question was not actually taken over on 9.9.1986 but, after the
repeal of the Act in the year 1999, in the year 2012. Such Reports
and Communications during the process of long litigation without
any definite material is not enough to draw unnecessary inferences
or assumptions as Mr.Dhaval C. Dave, learned Senior Counsel, was
trying to draw and wanted us to believe him.
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26. In fact, we may observe, with great respects to learned Senior
Counsel, that almost all his arguments in the present Letters Patent
Appeal raised before us, were largely based on suspicions and
surmises, assumptions and presumptions, bereft of Documents and
Evidences and findings of facts. This is coupled with a very serious
case of forgery apparently made out against the Appellants -
Petitioners and even subsequent Purchasers, who have produced the
exemption order under Section 20 of the ULC Act dated 5.9.1979
which was not even found to be existing on record by the learned
Single Judge. We could have directed prosecution of such litigants,
who not only seek to mislead the Court by producing false and forged
documents after 19 years of pendency of Writ Petition itself, making
the fulcrum of justice dirty by such long drawn litigation and
contrary to the letter and spirit and scheme of the ULC Act, under
which not only the land vested in the State Government free from
any encumbrances as per Section 10(3) of the ULC Act but it was
also dealt with and sold by landholder - Dineshkumar Jagubhai
Patel in series of alleged sales to multiple Purchasers, who would
buy such litigation from the original landholders and then, fight
such unfounded litigation in the Courts for long number of years,
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either in the name of original landholders or in their own name
under the purported Sale Deeds which have no legal sanction or
value and also hit by Section 10(4) of the ULC Act. While we are not
directing any such criminal prosecution for now, we leave it free for
the concerned Government Authorities to file appropriate
proceedings in the Competent Court.
27. From the record, it also transpires that the litigation in the
present case was mainly taken up by such alleged subsequent
Purchaser, namely, Kirtibhai Shantibhai Patel in the year 2016
much even after the purported Sale Deeds in his favour executed in
the year 200102 i.e. after 14 years as aforesaid and even the said
concocted exemption order under Section 20 of the ULC Act was
produced with the Additional Affidavit of the said Kirtibhai
Shantibhai Patel only filed in this Court, namely, Additional
Affidavit dated 12.9.2016 as AnnexureIIA (Page263 of the Paper
book) but, the explanation for such a huge delay in producing the
same as given in Para.1 of his Affidavit which is rather curious. The
Para.1 and 2 of the said Additional Affidavit are quoted below for
ready reference :
"1. I submit that after respondent no.3 to 10 were
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joined as party as Respondents an affidavit dated
12.8.2016 is filed. In respect one document i.e.
permission granted under Section 20 of ULC Act dated
5.10.1979 some disputes are raised by the authority,
some procedure was followed for obtaining another
signature of the concerned Officer (what was that
procedure is not explained or detailed here) and
I have been able to obtain the ultimate opinion of the
handwriting expert dated 30.8.2016 and therefore it has
become necessary to file additional affidavit.
2. According to the contention of the land owners,
authority had granted permission under Section 20 of ULC
Act granting exemption of the questioned land for the
purpose of carrying out agricultural activities. This
permission was granted by order dated 5.10.1979. A copy of
the order dated 5.10.1979 passed by Under Secretary,
Revenue Department, State of Gujarat (Mr.A.A.Dudani) is
annexed herewith and marked as AnnexureIIA."
28. Thereafter, in the same Additional Affidavit, Mr.Kirtibhai
Shantibhai Patel further goes on to build falsehood by submitting
that through the process of RTI Application, he came to know that
the concerned Outward Register was not traceable despite all
efforts and, therefore, he obtains the so called HandWriting
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Expert's opinion to justify the signatures of A.A.Dudani on the said
concocted document. This Affidavit dated 23.5.2016 is nothing but
tissues of lies to justify a 'procured' order, concocted and forged by
the interested parties to justify the exemption and sales made of the
land in question which stood vested in the State way back in the
year 1986, one ought to know that 'no one can pass a Title, if he does
not have it.'
29. The said Affidavit was controverted by the reply counter
Affidavit from the side of the State Government. An Affidavit of
N.R.Gandhal, Deputy Collector (L.R.), Office of the Collector,
Surat dated 15.12.2016 with which not only the Panchnama dated
9.9.1986 has been produced but, the unsigned purported order under
Section 20 of the ULC Act which was never signed has also been
produced at AnnexureR3 and, therefore, the alleged order under
Section 20 of the ULC Act was not even still born in the Revenue
Department, what to talk of a final exemption order passed
purportedly on 5.10.1979. Had there been any such order given in
favour of Petitioners on 5.10.1979, nothing prevented them to
produce before the Competent Authority during the contemporary
period straightway in the form of a valid objection even during the
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proceedings under Section 8(4) of the ULC Act or Section 9 of the
ULC Act and that could have prevented even the issuance of the
Notification under Section 10(3) of the ULC Act and vesting the land
in the State on 3.4.1986. All these subsequent efforts of the vested
interest parties to create a story of exemption order dated 5.10.1979
has no substance and is a flimsy ground to justify the execution of
such multiple Sale Deeds and buying the litigation from the original
landholders and then, create 'Castles in the Air' as it were.
30. Even the Rejoinder Affidavit dated 15.12.2016 in the same
spirit was filed by said Purchaser Kirtibhai Shantibhai Patel,
with which again an effort was made to cast doubt on the real
Panchnama Report dated 9.9.1986 by relying upon a Document
(AnnexureR4) dated 9.9.1986 delegating the Authority to take
possession in favour of Deputy Collector by the learned Collector
himself. Mr.Dhaval C. Dave, learned Senior Counsel, sought to draw
our attention that at the bottom of the said Letter dated 9.9.1986
itself, it is stated that copy is forwarded by Regd. Post A.D. and,
therefore, how despite the letter for delegation of authority not even
reaching the Deputy Collector, he could take the physical possession
on 9.9.1986.
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31. In our opinion, this argument is also equally misconceived as
the copy only is said to have been sent by Regd. Post A.D. It does not
mean that original order or another copy thereof could not be made
available to the concerned Authority on the same day and a copy
thereof could be sent by Regd. Post also. In any case, even without
such delegation also, the Deputy Collector or the Competent
Authority could proceed under Section 10(6) of the ULC Act to take
possession of the land in question on 9.9.1986 and then, take ex post
facto approval. The said Document also clearly reflects that it was
issued from the office of the Additional Collector at Surat and
copies were endorsed to Deputy Collector at Surat only.
Therefore, the question of it being not available with the Deputy
Collector is not of any significance. The said Competent Authority,
therefore, could very well proceed to the site in question in Village
Parvat and take the possession of the land in question in the
presence of two independent witnesses, which he did on 9.9.1986
and even mutation entries were made in favour of State vide No.770
on 20.4.1988. Then, what can be the justification or validity of such
Sales Deeds executed in 2001 and 2004 of such Government land, in
favour of private parties. Obviously None !
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32. Therefore, having dispelled and rejected all the arguments and
submissions of Mr.Dhaval C. Dave, learned Senior Counsel
appearing on behalf of the Appellants - Petitioners, namely, original
land owners and the alleged subsequent Purchasers, we do not find
even an iota of merit in these Letters Patent Appeals and they
deserve to be rejected. On the other hand, the learned Single Judge,
who recorded the detailed findings of facts going deeper into all the
details and documents, are found to be unassailable findings of facts.
33. Likewise, Mr.M.C.Bhatt, learned Senior Counsel appearing for
the Purchasers in connected Letters Patent Appeal No.334 of 2017,
while supporting and adopting the arguments raised by Mr.Dhaval
C. Dave, learned Senior Counsel in Letters Patent Appeal No.332 of
2017, also relied upon the said exemption order under Section 20 of
the ULC Act and the observations made by the learned Single
Judges' in the interim orders passed in the earlier round of disposal
of Special Civil Application No.3776 of 1997. Mr.M.C. Bhatt,
learned Senior Counsel, additionally also relied upon the Report of
the HandWriting Expert - Mr.Vijaysing Jhala for verification of the
signatures of Mr.A.A. Dudani on the said exemption order dated
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5.9.1979 and sought to urge that the Respondent - State ought to
have filed the Affidavit of A.A. Dudani to disown the said order
dated 5.7.1979 under Section 20 of the ULC Act.
34. The said argument of Mr.M.C.Bhatt is also equally devoid of
merit and no such negative burden can be cast upon the State to
disprove a nonexistant document. The Petitioner, who comes to the
Court, has to prove his case and no Petitioners or Applicants can be
allowed to strengthen his case on the basis of any short coming in
the defence of other side. No such short coming in the defence of
State in the present case even exists. It is well settled proposition of
law and it does not entitle the Petitioners - Appellants to claim any
such inquiry or rebuttal on the part of State Government.
35. Therefore, we are of the clear opinion that all the proceedings
under the ULC Act for acquiring the surplus or excess land was duly
undertaken by the Competent Authority in the present case and
such findings are unassailable and validly rendered.
36. The reliance placed by learned counsel for the Appellants on
the case of Hari Ram (Supra) and the decision of the Division
Bench of this Court in the case of Mamtaben d/o Narottambhai
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Chandulal Zaveri v. Urban Land Tribunal rendered in Letters
Patent Appeal No.1458 of 2015, decided on 1.12.2016 by the Bench
headed by the then Hon'ble the Chief Justice, does not support the
case of the Appellants - Petitioners much.
37. Firstly, the conduct of the Petitioners disentitles them from
any relief and raising the said argument of the applicability of the
judgments to their facts. If their case itself is founded on concocted
and forged document and said litigation is pursued by purported
Purchasers or land grabbers, who illegally encroached on the land of
the State under the purported Sale Deeds. Therefore, this Court
cannot grant any such indulgence to such litigants to raise the legal
question of interpretation of the provisions of the Act or judgments.
38. Nonetheless, even if such argument was to be considered, we
do not find any merit in that too as the judgment of Supreme Court
in the case of Hari Ram (Supra) stood watered down substantially
and distinguished in the later judgment in the case of Bhaskar
Jyoti Sarma (Supra) which we have discussed in our recent
judgment delivered on 22.1.2021 in the case of Heirs of Deceased
Jethabhai Ishwarbhai (Supra) which we have already quoted
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above. The judgment in the case of State of U.P. v. Hari Ram
(Supra) heavily relied upon by learned counsel for the Appellants,
Mr.Dhaval C. Dave was decided in the context of following facts.
Paragraph Nos.2 to 4 of the said judgment are quoted below for
ready reference:
"2. Hari Ram, respondent herein, had filed a statement on
28.9.1976 giving details of the vacant land he was
holding in excess of ceiling limit prescribed under the Act,
as provided under Section 6 of the Act. The competent authority
under the Act surveyed the land and the respondent was served
with a draft statement under Section 8(3) of the Act on
13.5.1981, calling for objection to the draft statement within
thirty days. No objection was preferred by the respondent
and it was found that he was holding excess land measuring
52,513.30 sq. meters and an order to that effect was passed by
the competent authority under Section 8(4) of the Act, vide his
proceeding dated 29.6.1981.
3. The competent authority later issued a notification
dated 12.6.1982 under Section 10(1) of the Ceiling Act,
which was published in the Government Gazette on 12.6.1982
giving the particulars of the vacant land held by the
respondent. The competent authority then issued a
notification dated 22.11.1997, which was published on the
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same date, stating the land shall be deemed to have been
vested with the Government from 12.6.1982, free from all
encumbrances. On 10.6.1999, the competent authority vide its
letter dated 10.6.1999 informed the Bandobast Chakbandi
Adhikar that the surplus land declared as per the Notification
stood vested in the State Government. On 19.6.1999, the
prescribed authority issued a notice under Section 10(5) of
the Act directing the respondent to hand over possession of the
land declared as surplus to a duly authorized person.
Aggrieved by the same, the respondent preferred an appeal
No.29 of 1999 before the District Judge, Varanasi under
Section 33 of the Act, contending that before passing the
order under Section 8(4) of the Act, no notice, as
contemplated under Section 8(3) of the Act, was served
on him. The appeal was allowed and the order dated
29.06.1981 was quashed, vide judgment dated 14.12.1999.
4. Aggrieved by the said order, State of U.P., through the
competent authority, preferred Civil Misc. Petition No. 47369 of
2000 before the High Court of Allahabad under Article 226 of
the Constitution of India, and the High Court, after elaborately
considering the various contentions, took the view that
subsection (3) of Section 10 does not envisage, taking
physical and de facto possession of the surplus land, for
which proceedings under subsection (5) of Section 10
have to be followed. On facts also, the Division Bench found
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no reason to interfere with the order of the District Judge, and
the appeal was dismissed, against which this appeal has been
preferred. Following the judgment in Writ Petition No.47369 of
2000, several writ petitions were disposed of by the High Court
against which appeals are pending before this Court."
38.1 In the context of the aforesaid facts, the two Judges' Bench of
the Supreme Court in Hari Ram's case (Supra) held in Paragraph
Nos.42 and 43 specifically finding that the State has not produced
any documents to show that the State Authorities have dispossessed
the landholders from the land in question. Paragraph Nos.42 and 43
are reproduced below for ready reference :
"42. The mere vesting of the land under subsection (3) of
Section 10 would not confer any right on the State
Government to have de facto possession of the vacant land
unless there has been a voluntary surrender of vacant land
before 18.3.1999. State has to establish that there has been a
voluntary surrender of vacant land or surrender and
delivery of peaceful possession under subsection (5) of
Section 10 or forceful dispossession under subsection (6)
of Section 10. On failure to establish any of those situations,
the land owner or holder can claim the benefit of Section 3 of
the Repeal Act. The State Government in this appeal could
not establish any of those situations and hence the High
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Court is right in holding that the respondent is entitled
to get the benefit of Section 3 of the Repeal Act.
43. We, therefore, find no infirmity in the judgment of the
High Court and the appeal is, accordingly, dismissed so also
the other appeals. No documents have been produced by
the State to show that the respondents had been
dispossessed before coming into force of the Repeal Act
and hence, the respondents are entitled to get the benefit of
Section 3 of the Repeal Act. However, there will be no order as
to costs."
38.2 These significant contextual facts are missing in the case in
our hands where Sections 10(3), 10(5) and 10(6) proceedings have
been established with the documents on record, which were not the
facts available in the case of Hari Ram (Supra).
39. The judgment in the case of Hari Ram (Supra), in our
humble opinion, was watered down, explained and distinguished by
the two Judges' Bench of the Supreme Court in the case of State
Assam v. Bhaskar Jyoti Sarma (Supra). The facts of Bhaksar
Jyoti Sarma's case (Supra) were noted by the Supreme Court in
the following manner :
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"The father of the respondents was recorded as Pattadar of the
land in dispute. In 1976, after adoption of the Urban Land
(Ceiling and Regulation) Act, 1976, the father of the
respondents submitted returns. After completing legal
proceedings, it was concluded that the father of the respondent
had land measuring 7981 sq m to be in excess of
permissible limits and a declaration to that effect was issued
vide statement dated 3.8.1982 and Notification under
Section 10(1) dated 16.5.1984. Thereafter, in November
1984 the father of the respondents sold the lands to 6
persons under six different sale deeds. In 1987, the appellant
State issued a Notification under Section 10(3) of the Act to
the effect that surplus land of the father of the respondents
belonged to the Government. Consequently, no tax was
collected on that land and name of father of the respondents
was deleted from revenue records. It was contended that
possession of land was taken in 1992. The subsequent
owners challenged the proceedings but were unsuccessful up to
the Supreme Court. Thereafter, in 2003, the appellant State
allotted land measuring 8.03 ares to Guwahati
Metropolitan Development Authority (GMDA).
On 12.12.2003, the Urban Land (Ceiling and Regulation) Act,
1976 was repealed by coming into force of the Repeal Act on
6.8.2003. On 25.12.2003, GMDA was handed over the allotted
land. This action was challenged before the High Court. The
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Single Judge upheld the allotment in favour of GMDA.
Whereas in the appeal, the Division Bench of the High Court
reversed findings of the Single Judge and ordered for
restoration of possession of land. Hence, these appeals."
39.1 On these facts, the Supreme Court held that even if Notice
under Section 10(5) of the ULC Act is not served and the same is not
challenged for a long period, the take over of possession would
acquire legitimacy by sheer lapse of time and in such a situation, the
owner or the person in possession must be deemed to have waived
his right under Section 10(5) of the ULC Act. Distinguishing the
judgment in the case of Hari Ram (Supra), the Supreme Court held
that any other view would 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 of the fortuitous circumstance of
the Repeal Act, tempting to raise the issue regarding dispossession
being in violation of the prescribed procedure. The relevant portion
of the judgment of the Supreme Court in the case of Bhaskar Jyoti
Sarma (Supra) from the Head Note is quoted below for ready
reference :
"In the ordinary course actual physical possession can be taken
from the person in occupation only after notice under Section
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10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 is
issued to him to surrender such possession to the State
Government, or the authorized officer or the competent
authority. There is enough good sense in that procedure
inasmuch as the need for using force to dispossess a
person in possession should ordinarily arise only if the
person concerned refuses to cooperate and surrender or
deliver possession of the lands in question. That is the
rationale behind Sections 10(5) and (6) of the Act.
(Para.14)
The High Court held that the alleged dispossession was
not preceded by any notice under Section 10(5) of the
Act. Assuming that to be the case all that it would mean is
that on 7.12.1991 when the erstwhile owner was dispossessed
from the land in question, he could have made a grievance
based on Section 10(5) and even sought restoration of
possession to him no matter he would upon such restoration
once again be liable to be evicted under Sections 10(5) and (6)
of the Act upon his failure to deliver or surrender such
possession. In reality therefore unless there was
something that was inherently wrong so as to affect the
very process of taking over possession such as the
identity of the land or the boundaries thereof or any
other circumstance of a similar nature going to the root
of the matter hence requiring an adjudication, a person
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who had lost his land by reason of the same being declared
surplus under Section 10(3) would not consider it
worthwhile to agitate the violation of Section 10(5) for he
can well understand that even when the Court may uphold his
contention that the procedure ought to be followed as
prescribed, it may still be not enough for him to retain the land
for the authorities could the very next day dispossess him
from the same by simply serving a notice under Section
10(5). It would, in that view, be an academic exercise for any
owner or person in possession to find fault with his
dispossession on the ground that no notice under Section 10(5)
had been served upon him. (Para 15)
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
landowner on 7.12.1991 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
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the Act. Any other view would 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.
(State of U.P. v. Hari Ram (2013) 4 SCC 280 : (2013) 2
SCC (Civ) 583, distinguished on facts.
The fact that the dispossession was without a notice
under Section 10(5) in the present case will be of no
consequence and would not vitiate or obliterate the act
of taking possession for the purposes of Section 3 of the
Repeal Act. That is because the erstwhile owner that is the
father of the Respondents had not made any grievance based on
breach of Section 10(5) at any stage during his lifetime
implying thereby that he had waived his right to do so.
Hence, the order of the Single Judge of the High Court is
restored. (Para. 17)
39.2 Paragraph No.17 of the said judgment (Bhaskar Jyoti
Sarma (Surpa)) is also relevant and, therefore, quoted below:
"17. Reliance was placed by the respondents upon the decision
of this Court in Hari Ram case. That decision does not, in
our view, lend much assistance to the respondents. We
say so, because this Court was in Hari Ram case, considering
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whether the word 'may' appearing in Section 10(5) gave to
the competent authority the discretion to issue or not to issue a
notice before taking physical possession of the land in question
under Section 10(6). The question whether breach of Section
10(5) and possible dispossession without notice would
vitiate the act of dispossession itself or render it non est
in the eye of the law did not fall for consideration in
that case. In our opinion, what Section 10(5) prescribes is
an ordinary and logical course of action that ought to be
followed before the authorities decided to use force to dispossess
the occupant under Section 10(6). In the case at hand if the
appellant's version regarding dispossession of the erstwhile
owner in December 1991 is correct, the fact that such
dispossession was without a notice under Section 10(5)
will be of no consequence and would not vitiate or obliterate
the act of taking possession for the purposes of Section 3 of the
Repeal Act. That is because Bhabadeb Sarma, erstwhile owner,
had not made any grievance based on breach of Section 10(5) at
any stage during his lifetime implying thereby that he had
waived his right to do so."
40. Thus, in our understanding, the judgment of the Supreme
Court in the case of Hari Ram (Supra), not only stands fully
explained, distinguished and watered down by the later judgment in
the case of Bhaskar Jyoti Sarma (Supra), but, the facts of the
present case also are poles apart from the facts in the case of Hari
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Ram (Supra) and, therefore, it has no application in the facts of the
present case before us.
41. Likewise, for the same reasons, the Division Bench's judgment
in the case of Mamtaben d/o Narottambhai Chandulal Zaveri
v. Urban Land Tribunal (Supra) rendered in Letters Patent
Appeal No.1458 of 2015, decided on 1.12.2016, will also not apply to
the facts of the present case and is of little help to the Appellants -
Petitioners before us. The rival contentions of the Appellants -
Petitioners and the State, as noted by the Coordinate Division Bench
in the case of Mamtaben d/o Narottambhai Chandulal Zaveri
(Supra), are quoted below for ready reference :
"9. Further it is also submitted by the learned counsel that
the appellant petitioner continued in possession of the land
which is declared surplus and which is allegedly taken
possession by the respondent authorities by drawing
Panchnama. It is submitted that after dismissal of the writ
petition for non prosecution when the authorities were
interfering with the possession, the appellant
has filed Civil Suit No.1 of 2011 in the City Civil Court at
Ahmedabad, in which Court Commissioner was appointed,
who had inspected the property and submitted report which
shows that the appellant is in fact in physical
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possession of the property in question. It is submitted that
in any event even according to the case of the respondent
authorities, no notice has been issued as contemplated
under section 10(6) of the Urban Land (Ceiling and
Regulation) Act, 1976, and thus, the appellant is entitled to the
benefits of section 3 of the Act. It is submitted that the alleged
taking over of possession by drawing Panchnama even
without issuing notice under section 10(6) of the Act is
per se illegal. Such possession cannot be recognized to accept
the plea of the respondents. It is submitted that in view of the
Repeal Act all the proceedings are entitled to be lapsed, the
appellant petitioner is entitled to hold the property which is
allegedly declared excess, taken possession by drawing
Panchnama.
Affidavit in reply is filed in the Special Civil Application. In
the affidavit in reply, while denying various allegations made
by the appellant petitioner, it is stated that the petition was
filed in the year 1991 and the same was dismissed for non
prosecution, viz for non removal of objections and the same
was restored by order dated 11.04.2014. It is submitted that as
restoration application was filed with gross delay of 20 years,
while opposing amendment which was sought to add
additional pleas, it is submitted that the appellant petitioner
Mamtaben, daughter of Narottambahi Zaveri has filed
declaration on 11.09.1976 and the same was scrutinized on
03.12.1982 under section 8(1) of the Act. Order under section
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8(4) of the Act was passed on 13.06.1988, based on which
notification under section 10(1) of the Act was published on
11.04.1989. While referring to dismissal order of the Appellate
Authority dated 31.08.1990 it is stated that possession of the
land in question admeasuring 642.45 sq meters was taken
over after issuance of notice under section 10(5) of the Act
on 08.02.1991. While pleading that possession of surplus land
was taken in accordance with law while drawing Panchnama,
it is the case of the respondents that it is not open to the
appellant to raise any objection with regard to validity of
taking possession at this stage. With reference to the
allegation of the appellant petitioner that she was not
served with notice as contemplated under section 10(6)
of the Act following averment is made in para 11 of the
affidavit in reply:
"11. I most humbly say and submit that thereafter the
occupant of the land in question was paid to hand over
the possession as per notice under section 10 (five) of the
act and therefore, the position (sic. possession) of the
land in question was taken over by drawing Panchnama
on 30.04.1991 is provided under section 10(6) of the Act."
10. The learned Assistant Government Pleader (AGP)
appearing for respondent no.3, after verifying the record,
fairly admitted that notice under section 10(6) of the Act
was not issued. However, possession was taken by drawing
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Panchnama on 30.04.1991, after issuing notice under
section 10(5) of the Act. It is submitted by the learned AGP
that when possession was not handed over after issuance of
notice under section 10(5) of the Act it is always open for the
respondents to take possession by drawing Panchnama. The
learned AGP placed reliance on the very judgment which was
referred to by the learned Single Judge in the case of State of
Assam Vs. Bhaskar Jyoti Sarma and others reported in
(2015) 5 SCC 321."
42. Thus, it is clear that on the concession from the learned
Government counsel side, though no Notice under Section 10(6) of
the ULC Act was issued and even though the possession was taken
by drawing Panchnama on 30.4.1991 after issuing Notice under
Section 10(5) of the ULC Act on 8.2.1991, the Court proceeded to
hold in favour of landholders, after distinguishing the judgment of
the Supreme Court in the case of Bhaskar Jyoti Sarma (Supra) in
the following manner :
"17. We also feel that there is logic behind such provision
under section 10(6) of the Act that when declarant failed to
deliver possession even after issuance of notice under section
10(5) of the Act. The authorities can notify date for taking
possession by issuing notice under section 10(6) of the
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Act. If such notice under section 10(6) of the Act is not
issued, declarant owner will be in dark as to on which
date possession will be taken. In view of the aforesaid
provision and having regard to the judgments relied on by the
learned counsel for the appellant, we are of the view that the
plea of the appellant petitioner deserves to be accepted.
The respondents have not taken possession in accordance with
law. As it is not in dispute that the respondent
authorities have not issued notice under section 10(6) of
the Act, the alleged taking over of possession on 30.04.1991
by drawing Panchnama is no possession in the eye of
law, which can be reckoned to accept the plea of the
respondents. Further it is also clear from the material placed
on record that in Civil Suit No.1 of 2011 filed by the
appellant petitioner in the City Civil Court at Ahmedabad,
Court Commissioner was appointed. The Court
Commissioner clearly revealed that the appellant petitioner
is in physical and actual possession of the land in
question. For the aforesaid reasons and having regard to the
facts and circumstances of the case, we are of the view that the
learned Single Judge has committed error in placing
reliance on the judgment of the Hon'ble Supreme Court
in the case of State of Assam Vs. Bhaskar Jyoti Sarma
and others reported in (2015) 5 SCC 321. From perusal of
the judgment of the Hon'ble Supreme Court in the aforesaid
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case of State of Assam, it is to be noticed that the persons
claiming possession were third parties and when owners
failed to challenge any proceedings taken under section 10(5) of
the Act, in the present case when the very declarant
before this Court challenging the orders of the
authorities, it is also to be noticed that when the order
restoring the writ petition and order allowing to raise
additional pleas have become final and merely on the ground
that alleged possession was taken by drawing Panchnama
about 22 years back, is no ground to deny the statutory benefits
conferred on the declarant - appellant under the provisions of
the Urban Land (Ceiling and Regulation) Repeal Act, 1999. As
much as we are of the view that no possession is taken in
accordance with law by issuing notice under section
10(6) of the Act, we are of the clear view that the appellant
petitioner is entitled to have benefits under the provisions of the
Urban Land (Ceiling and Regulation) Repeal Act, 1999. No
steps can be taken further. All the proceedings stand abated. "
43. With great respects, we may only observe and as we have held
in the case of Heirs of Deceased Jethabhai Ishwarbhai (Supra),
decided on 22.1.2021, that Section 10(6) of the ULC Act does not
envisage the issuance of any Notice at all and nor the judgment of
the Supreme Court in the case of Bhaskar Jyoti Sarma (Supra)
said so that such a further Notice even after NoticecumOrder is
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given under Section 10(5) of the ULC Act is necessary, if possession
is taken under Section 10(6) of the ULC Act by the State Authorities.
Therefore, again, the facts of the case decided by the Coordinate
Bench of this Court in the case of Mamtaben d/o Narottambhai
Chandulal Zaveri (Supra) being different, we cannot apply the
same to the facts of the present case.
44. We have discussed the aforesaid case laws in little more detail,
even though we have indicated above that the Appellants -
Petitioners are not entitled to raise these questions of law in view of
its own reprehensible and abhorrent conduct in producing a false
and fabricated document in the form of Exemption Order under
Section 20 of the ULC Act, which the learned Single Judge as well as
we have found to be a nonexistent document, a false and forged
document produced by a subsequent Purchaser of Government land
in question under a Sale which itself stands vitiated and that too,
after a delay of 19 years in a pending Writ Petition. Therefore, while
we are imposing costs on the Appellants - Petitioners while
dismissing the present Letters Patent Appeals, we have left it for
State Authorities to file prosecution proceedings against the
Appellants Petitioners.
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45. Therefore, we do not find any substance in the arguments
raised by learned counsel for the side of Petitioners - Appellants and
we find the judgment and order of the learned Single Judge
absolutely unassailable.
46. The present Letters Patent Appeals are accordingly dismissed
with cost of Rs.50,000/ (Rupees Fifty Thousand only) to be paid by
the Appellants - Petitioners for each of the two Appeals to the
Respondent - State within a period of 3 months from today.
(DR. VINEET KOTHARI,J)
(GITA GOPI,J)
Ms.Shachi Mathur, learned counsel appearing for the
Appellant - Vinodbhai Jerambhai, heir of deceased Jerambhai
Padamsibhai in Letters Patent Appeal No.334 of 2017, after
pronouncement of the judgment, made an oral request for staying
the operation of the said judgment for a period of 8 weeks.
We do not consider it appropriate to grant the said request.
Therefore, same is declined.
(DR. VINEET KOTHARI,J)
(GITA GOPI,J)
VJ SATWARA
