Shankarbhai Somabhai Parmar ... vs State Of Gujarat
2021 Latest Caselaw 4496 Guj

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SHANKARBHAI SOMABHAI PARMAR SINCE DECEASED & 2 other(s) vs STATE OF GUJARAT & 2 other(s)


          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/LETTERS PATENT APPEAL NO. 8 of 2017
                                   In
               R/SPECIAL CIVIL APPLICATION NO. 6855 of 1996

                                        With

               CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
                                  In
                 R/LETTERS PATENT APPEAL NO. 8 of 2017




HONOURABLE DR. JUSTICE VINEET KOTHARI



HONOURABLE MR. JUSTICE BIREN VAISHNAV

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

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

2      To be referred to the Reporter or not ?

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

4      Whether this case involves a substantial question of

law as to the interpretation of the Constitution of India or any order made thereunder ?

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

1. SHANKARBHAI SOMABHAI PARMAR SINCE DECEASED 1.1 KASHIBEN WD/O SHANKARBHAI PARMAR 1.2. AMARSINH SHANKARBHAI PARMAR 1.3. KAUSHIK S/O SHANKARBHAI PARMAR

2. BHIKHABHAI SOMABHAI PARMAR SINCE DECEASED

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SHANKARBHAI SOMABHAI PARMAR SINCE DECEASED & 2 other(s) vs STATE OF GUJARAT & 2 other(s)

2.1. SAVITABEN WD/O BHIKHABHAI SOMABHAI PARMAR 2.2. KANUBHAI S/O BHIKHABHAI SOMABHAI PARMAR 2.3. LALJIBHAI S/O BHIKHABHAI SOMABHAI PARMAR

3. RAMSINGHBHAI SOMABHAI PARMAR

Versus

1. STATE OF GUJARAT THRU SECRETARY REVENUE DEPT.

2. THE URBAN LAND CEILING TRIBUNAL

3. THE COMPETENT AUTHORITY AND ADDITIONAL COLLECTOR (ULC) ============================================================== Appearance:

MR JITENDRA M PATEL(620) for the Appellant(s) No. 1,1.1,1.2,1.3,2,2.1,2.2,2.3,3

MR KM ANTANI, Assistant Government Pleader for Respondent No. 1,3 ==============================================================

CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI

and HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 22/03/2021

CAV JUDGMENT

(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

1. This Intra­Court Appeal has been filed by Legal Heirs of

Chanchalben daughter of original Land Holder Motibhai

Gamanbhai against the Order of learned Single Jude dated

8.11.2016, by which the learned Single Judge (Coram: Hon'ble

Ms. Justice Bela Trivedi) dismissed the Special Civil

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Application No.6855 of 1996.

2. Said Chanchalben, wife of Somabhai Parmar and

daughter of Motibhai Gamanbhai, died on 6.6.1984, whereas

the original Land Holder - her father Motibhai Gamanbhai

died on 19.3.1980. The proceedings under the provisions of the

Urban Land (Ceiling and Regulation) Act, 1976 (ULC Act,

1976) were initiated and concluded by the Competent Authority

under the ULC Act, 1976, during the lifetime of said

Chanchalben.

3. The Competent Authority passed an Order under Section

8(4) / Section 9 of the ULC Act, 1976 on 31.1.1983 declaring

3225 sq. mtrs. of land bearing Survey Nos.109 and 52,

situated at Manjalpur, as excess vacant land after giving

deduction of 1 unit of 1500 sq.mtrs. to said Chanchalben.

4. In pursuance of the said adjudication under Sections 8(4) /

Section 9 of the ULC Act, 1976, the Declaration under Section

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10(3) of the Act vesting the land in the State was issued on

11.9.1984 and in pursuance thereof Section 10(5) Notice was

also issued to the present Appellants/Petitioners, sons and

Legal Heirs of said Chanchalben. The possession of the

surplus land in question was taken over by the State

Authorities on 14.2.1985 and Compensation Order under

Section 11 of the ULC Act, 1976 was passed on 29.8.1985 in

presence of the Petitioner - Shankarbhai Somabhai Parmar

himself who had remained present before the Authority on

19.4.1985.

5. After the death of their mother Chanchalben, the sole

daughter and legal Land Holder of Motibhai Gamanbhai, the

Appellants/Petitioners - the three brothers appeared to have

laid their first challenge to the Order passed by the Competent

Authority under Section 8 (4) / 9 of the ULC Act, 1976 dated

31.1.1983 by filing an Appeal after 6 years of the same in the

year 1989 viz. Appeal No.47 of 1989 which came to be

dismissed by the learned Tribunal on 30.9.1993. The

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Petitioners thereafter filed a Revision Application before the

State on 22.3.1994 under Section 34 of the ULC Act, 1976

challenging the said Order dated 31.1.1993 and the Order

dated 29.8.1985 passed by the Competent Authority under

Section 11 of the ULC Act, 1976 for payment of compensation,

as also the Order dated 30.9.1993 passed by the Tribunal, but

the State Government also dismissed the said Revision

Application under Section 34 of the ULC Act, 1976 on

20.6.1996 on the ground of non­maintainability.

6. Aggrieved by the same, the present Special Civil

Application No.6855 of 1996 was filed by the Petitioners under

Article 226 of the Constitution of India. The learned Single

Judge, however, dismissed the said Writ Petition by the Order

dated 8.11.2016 aggrieved by which the present Letters Patent

Appeal has been preferred by the Appellants­Petitioners.

7. The two sons of Chanchalben are now represented by

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their Legal Representatives Shankarbhai Somabhai Parmar

through his wife Kashiben, son Amarsinh and another son

Kaushik, whereas other son Bhikhabhai Somabhai Parmar is

represented by his Legal Representatives wife Savitaben, son

Kanubhai, son Laljibhai. The third son Ramsingbhai Somabhai

Parmar is still alive.

8. Mr. Jitendra Patel, learned counsel appearing for the

Appellants sought to emphasise and submit before us that the

land of Survey No.109 was subject matter of land acquisition

for Gujarat Housing Board as would appear from the

Certificate issued on 23.8.1996 by Vadodara Urban

Development Authority on the Application of the Legal

Representatives of Motibhai Gamanbhai dated 14.8.1996 and

therefore, since the land in question of Survey No.109 was

acquired, for which the relevant Notifications under Sections

4 and 6 of the Land Acquisition Act, 1891 were required to be

produced by the Respondent­State as per the Interim Orders

passed by this Court, then such land could not have been

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assessed as excess or surplus land in the hands of their mother

Chanchalben and the entire proceedings under the ULC Act,

1976, therefore, deserve to be quashed and set aside.

9. Mr. Jitendra Patel, learned counsel also contended that

the sons of Chanchalben were entitled to 4 Units as against

only deduction of 1 Unit was given in the hands of their mother

Chanchalben by the Competent Authority by the Order dated

30.1.1983 and he sought to rely upon the case laws with regard

to condonation of delay by the Tribunal for taking a liberal

approach.

10. On the other round of Appeal under Section 33 being filed

by present Petitioners­Appellants after 6 years in the year 1989

viz. Appeal No.47/89 against the Order of the Competent

Authority dated 30.1.1983, the learned counsel sought to

submit that delay was bona fide which occurred on account of

Civil Suits filed by the cousins of Chanchalben namely, Hiraben

and Sonaben, daughters of the Uncle of the petitioners or

brother of Motibhai Gamanbhai which Suit was decided in the

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year 1989 and thereafter only they preferred the said Appeal

No.47/1989 before the ULC Tribunal, which the Tribunal has

erred in dismissing on the ground of delay.

11. Learned counsel further submitted that though Notice

under Section 10(5) of the Act was served upon the Petitioners,

the possession was taken through the Panchnama process in

the absence of any of the Petitioners­Appellants and, therefore,

it could not be said to be a valid taking over the possession and

consequently, with the Repeal of the ULC Act, 1976 w.e.f.

30.3.1999, the land should be deemed to have remained and

vested with the present Petitioners­Appellants and the learned

Single Judge has erred in dismissing the Writ Petition filed by

the Petitioners­Appellants.

12. On the other hand, Mr.K.M. Antani, learned Assistant

Government Pleader appearing for the Respondent­State

vehemently submitted that the Tribunal was perfectly justified

in dismissing the Appeal filed by the present Petitioners­

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Appellants as time barred, as the prescribed time limit for filing

Appeal under Section 33 of the ULC Act, 1976 is only 30

days and even with the power of extending the time given to

the Appellate Tribunal, it could not be stretched for a period of

6 years so as to enable the Appellants, the Legal

Representatives of late Chanchalben to assail with the Order

after lapse of 6 years and that too after conclusion of the

proceedings under Sections 10(3), 10(5) and 10(6) of the ULC

Act, 1976 in the year 1985 itself and therefore, the Tribunal

was justified in dismissing the Appeal as time barred.

13. The learned Assistant Government Pleader further

submitted that the Appellants have deliberately sought to

confuse and mislead this Court by creating a story of land of

Survey No.109 acquired by the Gujarat Housing Board and

except one document issued on the Application of the

Petitioners only, namely the Certificate dated 14.8.1996,

issued by Vadodara Development Authority on 23.8.1996

purportedly saying that the land of Survey No.109 is reserved

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(not acquired) for Gujarat Housing Board, no other

documents have been produced by the Petitioners­Appellants in

proof of the averment made that the land in question stood

acquired by the Gujarat Housing Board.

14. He submitted that no such objection was raised by the

Land Holder - Motibhai Gamanbhai or his daughter

Chanchalben during their lifetime and it is only in the year

1996, much after even the dismissal of the Appeal by the

Tribunal, the said point is sought to be raised by the

Petitioners/Appellants just to create a confusion on wholly

unfounded premise. He further submitted that nothing

prevented the Petitioners/Appellants to produce the

Notifications, if any, were actually issued under the Land

Acquisition Act, 1891 in respect of Survey No.109 under

Section 4 or 6 of the Land Acquisition Act 1891, which

were very much in public domain before any of the Authorities

below or Tribunal or even the State Government when they

approached the State Government under Section 34 by way of

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Revision Application and had it been so, the State

Authorities would not have confirmed the proceedings under

the provisions of ULC Act, 1976 in respect of Survey No.109

and, therefore, the said contention deserves to be ignored or

rejected by the Court.

15. Having heard learned counsel for the parties, we are

satisfied that there is no merit in the present Intra­Court

Appeal and the same deserves to be dismissed. The reasons

are as follows.

16. In our opinion, the learned Tribunal was justified in

rejecting the Appeal filed by the Petitioners/Appellants after 6

years of the impugned Order dated 30.1.1983, in the year

1989. The Appeal being Appeal No.47 of 1989 was filed as an

afterthought, much after the proceedings under ULC Act, 1976

got concluded with the vesting of the land in the State under

Section 10(3) of the ULC Act,1976 and physical possession

taken after serving the Notice under Section 10(5) of the ULC

Act,1976 and in terms of Section 10(6) of the ULC Act,1976.

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Upon service of the Notice under Section 10(5) of the ULC

Act,1976, the presence of any of the Legal Heirs or Occupants of

the land is not even necessary and as held by Hon'ble Supreme

Court in the case of State of Assam vs. Bhaskar Jyoti

Sarma [(2015) 5 SCC 321], and a belated challenge to such

taking over the possession, even where no Notice under Section

10(5) of the Act is served is not sustainable and such

proceedings of taking over the possession under Section 10(6) of

the ULC Act,1976 acquire legitimacy by sheer lapse of time.

17. The said later Judgement of Hon'ble Supreme Court

distinguished the case of State of U.P. vs. Hari Ram [(2013)

4 SCC 280] and these two Judgements have been discussed by

this Court in the recent Judgement in the case of Heirs of Dec.

Jethabhai Ishwarbhai vs. State of Gujarat & Ors. decided

on 22.1.2021. The relevant extract of which is quoted herein

below for ready reference:

"18. Sub­section (5) of Section 10 after vesting of the surplus land with the State

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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 sub­

sections (1) and (2) of Section 10. Once the

land is vested, after dealing with such

objections, in the State Government, the

only activity remaining to be done is to

complete the process and achieve the

object of this Act, was to take over the

physical possession of such declared

excess land. Therefore, a notice in the form

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of an order was prescribed in sub­section (5) to deliver the possession within 30 days of service of the notice.

19. There is no question of any

voluntary handing over of possession on

the part of the land owner. Whatever is done under sub­section (5) is done in pursuance of the notice­cum­order of the Competent Authority under Section 10(5) of the Act.

20. The argument based on the premise of voluntary handing over of the possession within 30 days of the said 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

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of the excess land in question, that can

only fall under Section 10(6) of the Act,

which says that if any person refuses or fails to comply the order made under sub­section (5), then the Competent Authority may take possession of vacant land and may use such force as may be necessary for that purpose. Sub­section (6) does not require any other notice or order once again to be passed by the Competent Authority. It only envisages act of

taking over the physical possession in the

manner known to law including

Panchnama process and presence of the

owner of the land is not a condition precedent for such taking over of the possession. The last part of sub­section (6) is only enabling and empowering provision for the Competent Authority who may use the force for taking over the physical possession, if there is any obstruction or hindrance created by anybody including the land owner in that process.

Otherwise use of force is not necessary. Sub­

section (6), therefore, is not of an

adjudicatory nature, but it only provides

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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 water­ tight compartments. They, on the other hand, provide for a smooth and barrierless process of taking over of the possession under the 1976 Act.

22. In these circumstances, if the possession is not handed over within 30 days

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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

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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

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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.

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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."

18. In the present case, the proceedings under the provisions

of ULC Act, 1976 stood concluded without any demur from the

side of the sole Legal Heir of original Land Holder - Motibhai

Gamanbhai namely, Chanchalben with the passing of the

Order on 31.1.1983 and no challenge was laid by her during

her lifetime upto 6.6.1984. It is only after 6 years that the

said Appeal came to be filed by the present

Petitioners/Appellants, her three sons raising the bogeys viz. -

(i) they were entitled to 4 Units as against 1 Unit

deduction given to their mother Chanchalben;

(ii) the land in question was subject matter of acquisition by

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Gujarat Housing Board.

19. Both these unfounded claims were made without any

basis whatsoever and no such objections were raised in the

contemporary period before the possession was taken over by

the State Authorities and even compensation was determined

under Section 11 of the ULC Act,1976, in which proceedings

the present Petitioners/Appellants themselves were parties,

after the death of Chanchalben and, therefore, they are clearly

estopped from raising these bogey arguments at much belated

stage just to raise a cloud of confusion which does not really

exist. The Certificate issued by Vadodara Urban

Development Authority on 23.8.1986 is a self­serving

document without any basis whatsoever. It could be even with

reference to later on announced Town Planning Scheme.

Nothing prevented the Petitioners to corroborate the act of

acquisition under 1891 Act with the Notifications under

Section 4 or 6 of that Act with the specified details of land in

question being acquired by the State or by the Gujarat Housing

Board. The two proceedings one under the ULC Act, 1976

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against their mother and acquisition of land by Gujarat

Housing Board are self­contradictory as far as Survey No.109

was concerned and it cannot be believed that despite the

matter reaching upto ULC Tribunal under Section 33 and

State under Section 34 of the ULC Act, 1976 such a

significant fact would escape the notice of all these authorities.

A negative burden cannot be put on the State to prove the fact

alleged and averred by the Petitioners that subject matter land

of Survey No.109 was subject of land acquisition for Gujarat

Housing Board. The Notifications issued under the provisions

of Land Acquisition Act, 1891 are fully in public domain and

even individual Notices under Section 9 was the Notice served

on the Petitioners/Appellants only and nothing prevented them

to produce the same. Therefore, effort of the

Petitioners/Appellants to build their case on this premise by

casting a negative burden on the State is neither justified nor

it requires any further investigation by this Court at the

instance of the Petitioners/Appellants. Even if some Interim

directions were given in that regard and the State has not

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adduced the same, no such adverse inference can be drawn in

favour of the Petitioners/Appellants for this reason, who

himself failed to discharge their own burden to prove the fact

alleged by them.

20. As far as ULC Tribunal require to be entertained the

Appeal on merits even after 6 years is concerned, we cannot

accept the submission of learned counsel for the Appellants

Mr.Jitendra Patel that it was incumbent upon the Tribunal to

condone the delay of 6 years and entertain the Appeal on

merits. The delay of 6 years is a huge delay and without any

proper explanation for such delay of 6 years in view of the fact

that the proceedings under ULC stood concluded at the hands

of the Competent Authority in the year 1985, the Tribunal in

our opinion was perfectly justified in dismissing the Appeal as

time barred. The Petitioners/Appellants tried their luck even

under Section 34 of the Act by filing a Revision Petition before

the State and even that too was rejected.

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21. Therefore, in extraordinary writ jurisdiction this Court

could not be called upon to make a fishing and roving inquiry

on these lines and by directing the Tribunal to decide the

Appeal on merits by mandatorily condoning the delay of 6

years. The delay condonation is a matter of discretion for a

Court or the Tribunal and the Higher Courts cannot

mandate such discretion to be exercised in favour of the

Appellants.

22. The learned Single Judge in paragraph 8 of the impugned

Order has clearly noted that the Appellants/Petitioners even

did not file any application for condonation of delay and the

only bald and vague contention was raised that there was some

litigation pending between them and cousin sisters and

therefore delay had occurred. The pendency of Civil Suit did

not bar in any way the filing of the Appeal in due time and

firstly after the Order dated 31.1.1983 by the Land Holder

Chanchalben herself when she was alive and available to do so

during her life time till 6.6.1994 almost 1 ½ years for that

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matter. But she never challenged the Order passed by the

Competent Authority on 31.1.1983. Therefore, we do not find

any good reason to allow the Petitioners/Appellants to assail

the Order of learned Tribunal of not condoning the delay and

dismissing the Appeal as time barred. Thus, on an overall

analysis of the facts and legal position, we do not find any

merit in the present Appeal filed by the Appellants/Petitioners.

The same is liable to be dismissed and the same is accordingly

dismissed. No order as to costs.

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23. Consequently, the Civil Application (For Stay) No.1 of

2017 stands also dismissed.

(DR. VINEET KOTHARI,J)

(BIREN VAISHNAV, J) NAIR SMITA V.