Ravhjibhai Chhotabhai Patel vs Competent Officer & Dy Collector
2021 Latest Caselaw 4724 Guj

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/LETTERS PATENT APPEAL NO. 941 of 2016 In R/SPECIAL CIVIL APPLICATION NO. 2206 of 1986

FOR APPROVAL AND SIGNATURE:

HONOURABLE DR. JUSTICE VINEET KOTHARI and HONOURABLE MR. JUSTICE BIREN VAISHNAV

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

2 To be referred to the Reporter or not ? Yes

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

4 Whether this case involves a substantial question of law Yes as to the interpretation of the Constitution of India or any order made thereunder ?

1.      RAVHJIBHAI CHHOTABHAI PATEL
        1.1        MINABEN RAVJIBHAI CHHOTABHAI PATEL
        1.2        UMESHBHAI RAVJIBHAI CHHOTABHAI PATEL

2.      NARAYANBHAI C PATEL
        2.1        SUMITRABEN WD/O NARANBHAI PATEL
        2.2        KUSUMBEN D/O NARAYANBHAI CHHOTUBHAI
        2.3        MANISHABEN D/O NARAYANBHAI CHHOTUBHAI
        2.4        NAINABEN D/O NARAYANBHAI CHHOTUBHAI
        2.5        SHWETABEN D/O NARAYANBHAI CHHOTUBHAI
        2.6        KAPILBHAI S/O NARAYANBHAI CHHOTUBHAI

3.      MANHARBHAI C PATEL
        3.1        SUSHILABEN WD/O. MANHARBHAI CHHOTABHAI PATEL





 C/LPA/941/2016                                                                      CAV JUDGMENT DT. 25.3.21

RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

3.2 HETALBEN D/O MANHARBHAI CHHOTABHAI PATEL 3.3 NEETABEN D/O MANHARBHAI CHHOTABHAI PATEL 3.4 BHAVIKABEN D/O MANHARBHAI CHHOTABHAI PATEL 3.5 PINKALBEN D/O MANHARBHAI CHHOTABHAI PATEL 3.6 BHAGYESHBHAI S/O MANHARBHAI CHHOTABHAI PATEL

4. SHANTILAL C PATEL

All through the Power of Attorney Holder Shri Anamisharan Narharibhai Brahmbhatt & Smt. Vimlaben Anamisharan Brahmbhatt, Residing at F/1, Tirupati Flats, Old Padra Road, Vadodara­20

Versus

1. COMPETENT OFFICER & DY COLLECTOR

2. STATE OF GUJARAT

3. THE COLLECTOR

Appearance:

MR JITENDRA M PATEL for Appellant(s) No. 1.1,1.2,3.1,3.2,3.3,3.4, 3.5,3.6,4 MR K.M. ANTANI, Assistant Government Pleader for State

CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI and HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 25/03/2021 CAV JUDGMENT (PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

1. With the chequered and littered history of litigation,

present Intra Court Appeal in a dispute arising under provisions

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

1976), has landed on our board from a dispute arising with the

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

execution of a purported Will on 30.5.1974 by one Javerbai w/o

Somabhai Mohanbhai in respect of agricultural land bearing

Survey No.660/2 and Survey No.662 of Village: Kapurai, District:

Vadodara allegedly in favour of the present Petitioners /

Appellants namely, (i) Ravhjibhai Chhotabhai Patel, now

represented by his Legal Heirs namely, daughter Minaben and

son Umeshbhai; (ii) Narayanbhai Chhotabhai Patel; (iii)

Manharbhai Chhotabhai Patel; and (iv) Shantilal Chhotabhai

Patel, all four said to be related to her, being sons of her

husband's brother - Chhotabhai.

2. The learned Single Judge, by the impugned judgment and

order dated 27.7.2016, dismissed Special Civil Application

No.2206 of 1986 after 30 years of its being filed in the High Court

and that too in the second round before the learned Single Judge

only; once the earlier order of learned Single Judge dated

16.6.2000 holding the proceedings under ULC Act, 1976 to have

abated due to Repeal Act coming into force on 30.3.1999 which

was set aside by the Division Bench in Letters Patent Appeal

No.81 of 2002, vide CAV Judgment dated 9.5.2002 and again the

learned Single Judge dismissed the writ petition on 27.7.2016

against which the present Intra Court Appeal was filed in 2016

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

and was taken up after hearing the lengthy arguments of

Mr.Jitendra M. Patel, learned counsel the Appellants and Mr.K.M.

Antani, learned Assistant Government Pleader, the same is being

disposed of by the present judgment.

3. The said litigation is now being conducted by the Power of

Attorney Holder of the Petitioners / Appellants - 4 brothers who

were claiming through the Will dated 30.5.1974 by one

Anamisharan Brahmbhatt and who seems to be introduced in

this litigation in the year 2013 only and whose shoddy role has

come under critical comments by the learned Single Judge in the

impugned order.

4. The litigation under the ULC Act, 1976 actually started and

bloomed out of proportion after the Repeal of the Act itself on

30.3.1999 in the State of Gujarat in pursuance of the enactment

of Urban Land Ceiling Repeal Law by Parliament enacted on

18.3.1999 and the State of Gujarat adopted the same in view of

Article 252 of the Constitution of India with effect from 30.3.1999

and because of Section 4 of the Repeal Act, 1999 providing for the

pending proceeding under the ULC Act, 1976 to be treated as

abated, the spree of litigation, started by various stakeholders,

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

bona fide or other type of persons viz. land grabbers or buyers of

litigation who made all efforts to show that possession under

Section 10(5) / 10(6) of the land in question declared surplus or

excess under the ULC Act, 1976 was actually never taken and they

continued to be in possession and therefore, the proceedings

should be treated as abated and the land should continue to vest

in the land­holders or such successive purchasers, Agreement­

holders or persons claiming under unproved or unsubstantiated

Wills, Power of Attorney Holders, etc. The length of litigation and

series of adjournments in such cases with the ever increasing

prices of the land in the meanwhile made this area of litigation far

more 'valuable' litigation and such cases fought with all possible

weapons in the arsenals of litigants and lawyers.

5. The present case is another such example of the aforesaid

type of litigation. The four brothers - Ravhjibhai Chhotabhai

Patel and three others claimed under the Will dated 30.5.1974 of

Javerbai w/o Somabhai Mohanbhai who died soon after

execution of the said Will dated 30.5.1974 on 11.7.1974 without

proving the said Will in any Court in probate proceedings or

otherwise, they filed Declaration under Section 6 of the ULC Act,

1976 in Form No.1 and vide order dated 30.12.1982, the

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

Competent Authority instead of giving benefit of four deductions

of 1,500 sq.mtrs. of each, gave only deduction of one unit of 1,500

sq.mtrs. treating them as a 'Body of Individuals' or 'Association of

Persons' and thus determined the surplus land of 101 sq.mtrs. of

Survey No.660/2 and 3,154 sq.mtrs. of Survey No.662 which

order dated 30.12.1982 came to be challenged by the Petitioners

on 1.4.1985 after 2 years and 3 months by filing Appeal No.69 of

1985 before the Urban Land Tribunal who dismissed the Appeal

of the Petitioners. The Tribunal refused to condone the delay of 2

years and 3 months in filing the said Appeal under Section 33 of

the ULC Act, 1976 and the Appeal came to be dismissed on

25.9.1985.

6. The Petitioners preferred the present Special Civil

Application No.2206 of 1986 aggrieved by the said order dated

25.9.1985 and it was claimed before the learned Single Judge in

present Special Civil Application in the first round argued by

Mr.Jitendra M. Patel, learned counsel himself that despite service

of Notice under Section 10(5) of the ULC Act, 1976 and

possession allegedly taken over on 19.9.1985, since all the four

Petitioners were not served with the last Notice in the series of

such Notices under Section 10(5) of the ULC Act, 1976 dated

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

31.8.1985 though, the earlier such Notices under Section 10(5)

were served admittedly on all four of them, but since the

possession was taken over on 19.9.1985 in pursuance of the last

Notice dated 31.8.1985 only, which was not served on all four of

them, therefore, relying upon the decision of the Hon'ble

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

SCC 280], the land in question could not be deemed to have

vested in the State under Section 10(3) of the ULC Act, 1976 and

the State cannot be said to have taken over the valid possession

de facto under Section 10(5) of the ULC Act, 1976 and therefore,

all four co­owners of the land under the Will of Javerbai, they

were entitled to challenge the said action of the State. The

learned Single Judge (Coram: B.C. Patel, J.) disposed of this writ

petition being Special Civil Application No.2206 of 1986 in the

first instance on 16.6.2000 treating the proceedings as abated in

view of Repeal of 1976 Act but the Letters Patent Appeal No.81 of

2002 filed by State came to be allowed by the Division Bench

(Coram: J.N. Bhatt & Akshay H. Mehta, JJ.) on 9.5.2002 which

held as under:

"In above view of the matter, we find that the judgment of the learned Single Judge was based on

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

incorrect facts and in consequence thereof the conclusion reached by the learned Single Judge was erroneous. In view of proviso to section 4 order regarding abatement of proceedings could not have been passed by the learned Single Judge. We are, therefore, inclined to accept the main submission of Mr. Pujari and we find no merit in the contention raised by Mr. Vakharia that the possession of the land in question is still with the respondents and the proceedings stand abated. Since the matter is at the stage of section 11, the question regarding abatement does not arise at all.

5. So far the contention raised by Mr. Vakharia with regard to agricultural land and individual holding are concerned, they are purely questions of fact and this Court while exercising appellate powers in proceedings filed under Articles 226 and 227 of the Constitution of India is not inclined to go into questions of fact, more so when in all the three earlier stages, namely, at the stage of proceedings pending before the Competent Authority, pending before the Urban Land Tribunal in appeal and in Special Civil Application before the learned Single Judge of this Court the matter has been proceeded with on the footing that the land in question is not agricultural land and the entire block of land has been treated as one unit, since the proceedings have been dealt with under the provisions of the Act.

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

6. In light of the above discussions, we hold that the judgment of the learned Single Judge is erroneous and it is required to be quashed and set aside and this appeal is required to be allowed.

7. In the result, this appeal is allowed with costs. The appellants are at liberty to proceed further and take all the necessary steps from the stage of section 11 of the Act onwards."

7. After 11 years of a lull and peace, the Power of Attorney

Holder Anamisharan Brahmbhatt took an entry in the litigation

and without any order from the Division Bench allowing him to

join the lis in the capacity of Power of Attorney Holder, he filed a

Misc. Civil Application No.50 of 2013 in Letters Patent Appeal

No.81 of 2002 after 11 years of its decision on 9.5.2002 allowing

State's appeal, the said Misc. Civil Application appears to have

been allowed by another Division Bench of this Court (Coram:

Ravi R. Tripathi & R.D. Kothari, JJ.) on 9.1.2013 and that is how

the matter was again remanded back to the learned Single Judge

to decide the writ petition again.

8. The said Power of Attorney Holder Anamisharan

Brahmbhatt after revival of the petition, filed his own Affidavit on

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

18.6.2015 and another Affidavit­in­Rejoinder on 3.9.2015 before

learned Single Judge and made certain statements in those

Affidavits contrary to the statements made the original petition

filed by the Petitioners - the four brothers regarding the Notice

under Section 10(5) of the ULC Act, 1976 as noted by the learned

Single Judge in para 7 of the impugned order.

9. The said Power of Attorney Holder Anamisharan

Brahmbhatt with his Affidavits dated 18.6.2015 and 3.9.2015 at

this belated stage sought to assail not only the findings of facts

and orders passed by the ULC Tribunal and Declaration /

Notification under Section 10(3) of the ULC Act, 1976 vesting the

land in the State free from all encumbrances but has also tried to

create a confusion that even Panchnama papers were not

properly drawn and with the help of the revenue entries, he had

claimed that the land continued to be in the name of Javerbai

upto the year 2009 and therefore giving the benefit of the ULC

Repeal Law with effect from 30.3.1999, the proceedings should

be deemed to be abated.

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

Government Pleader has ad­seriatium pointed out that the

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

proceedings under the ULC Act, 1976 stood completed in

accordance with the provisions of the ULC Act, 1976. He

submitted that the Declaration in Form No.6 was filed by

Ravhjibhai Chhotabhai Patel himself on 27.8.1982 whereon the

Draft order of the Competent Authority was passed on 8.10.1982

and under Section 8(4) of the ULC Act, 1976 on 30.12.1982. He

further submitted that the Final Statement under Section 9 of the

ULC Act, 1976 was made on 21.12.1983 and the land was

acquired by the State under Section 10(1) of the ULC Act, 1976 on

15.2.1983. The Notification under Section 10(3) of the ULC Act,

1976 vesting the land in question free from all encumbrances in

the State was issued on 9.6.1983 and in pursuance of the Notices

under Section 10(5) of the ULC Act, 1976 dated 29.1.1985, the

possession of the land in question was taken over on 19.9.1985.

Therefore, all the contentions raised by learned counsel for the

Appellants / Petitioners are without any substance and deserve to

be rejected.

11. Defending the order of the learned ULC Tribunal, learned

Assistant Government Pleader submitted that the condonation of

delay of more than 2 years was a matter of discretion of the

learned Tribunal and it was not mandatory or incumbent upon

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

the Tribunal to enter in the appeal on merits. He also submitted

that the Tribunal even dismissed the appeal on merits too

following Full Bench view of Gujarat High Court.

12. Mr. K.M. Antani, learned Assistant Government Pleader also

submitted that the doubt sought to be created by learned counsel

for the Appellants / Petitioners on the basis of Affidavits of the

Power of Attorney Holder Anamisharan Brahmbhatt that the

order dated 30.12.1982 of Competent Authority (Mr. C.R. Shah)

was not signed or that the Panchnama for taking over the

possession was not properly prepared and that the land

continued to be in possession of four brothers, etc. are without

any substance and as an afterthought raised by the said Power of

Attorney Holder who has no locus standi as the cause title was

amended to indicate his name to represent the cause of the

Petitioners / Appellants, without any order or permission of the

Court. He submitted that order of Competent Authority dated

30.12.1982 not only bears the official seal, but a certified copy of

the same has been issued by the Mamlatdar to the Petitioner,

which could not have issued unless the order was signed by the

said Authority (Mr. C.R. Shah) who only later on issued

Notification under Section 10(3) of the Act on 9.6.1983, which is

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

duly signed by him. He also relied upon Section 90 of Evidence

Act to uphold the genuineness of the order dated 30.12.1982.

Therefore, his Affidavits and documents annexed therewith

cannot be relied upon.

13. He further submitted that the case laws relied upon by

learned counsel for the Appellants / Petitioners are also not

applicable to the facts of the present case and the various

contentions raised are now covered by the decision of this Court

in the case of Heirs of Dec. Jethabhai Ishwarbhai vs. State of

Gujarat & Ors. ­ Letters Patent Appeal No.405 of 2017 decided

on 22.1.2021 and therefore, the present Letters Patent Appeal

deserves to be dismissed.

14. He also questioned the role of Power of Attorney Holder

and relied upon the judgment of the Hon'ble Supreme Court in

the case of Suraj Lamp & Industries Pvt. Ltd. vs.. State of

Haryana, [(2012) 1 SCC 656], where the Hon'ble Supreme Court

deprecated such litigation in no uncertain terms. He further

submitted that the earlier judgment of the Hon'ble Supreme

Court in the case of Hari Ram (supra) is stood watered­down and

distinguished in the later decision of the Hon'ble Supreme Court

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

in the case of State of Assam vs. Bhaskar Jyoti Sarma [(2015) 5

SCC 321] and therefore, the contentions raised by learned

counsel for the Appellants Mr. Jitendra M. Patel are without any

substance and deserve to be rejected and therefore, the order

impugned in the present Appeal passed by the learned Single

Judge deserves to be confirmed.

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

record and judgments cited at the bar. We do not find any merit

in the present Appeal filed by the Appellants represented by their

Power of Attorney Holder Anamisharan Brahmbhatt who

introduced himself in the litigation as late as in 2013 in the writ

petition filed way back in the year 1986 and was able to persuade

the Co­ordinate Bench of this Court to recall the earlier order

dated 9.5.2002 allowing on merits the Letters Patent Appeal

No.81 of 2002 filed by State and get the matter restored for re­

decision by the learned Single Judge who has dismissed the same

again now with costs of Rs.50,000/­ by order dated 27.7.2016.

16. None of the contentions raised by the learned counsel

Mr.Jitendra M. Patel has impressed us and the concluded

proceedings under the ULC Act, 1976 have been assailed

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

unnecessarily and this litigation has been kept alive for such a

long period on wholly untenable grounds.

17. The first contention of Mr. Jitendra M. Patel, learned

counsel that the four Petitioners claiming through the Will of

Javerbai w/o Somabhai Mohanbhai were entitled to four units

deduction, is a misconceived claim. The alleged Will dated

30.5.1974 soon after which the said testator Javerbai w/o

Somabhai Mohanbhai expired on 11.7.1974 was never proved in

any proceedings whatsoever. Therefore, the Competent Authority

was justified in passing the order giving deduction of only one

unit treating four brothers as a 'Body of Individuals' or

'Association of Persons' and no valid exception to the same could

be taken. The appeal against that order also failed as time barred,

as the same was filed belatedly after 2 years and 3 months as well

as it was dismissed on merits relying on Full Bench decision of

this Court. The writ petition filed against that order of Tribunal

came to be disposed of as abated but the State's Letters Patent

Appeal came to be allowed by Division Bench of this Court on

9.5.2002 but somehow at the instance of the Power of Attorney

Holder, a later Co­ordinate Bench of this Court was pleased to

recall the said order dated 9.5.2002 and directed the learned

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

Single Judge to decide the same on merits, which the learned

Single Judge painstakingly collated all the facts and dismissed the

writ petition again by the detailed order with costs discussing the

facts as well as the case laws cited at the bar.

18. The judgments relied upon by learned counsel for the

Appellants with regard to condonation of delay viz. in the case of

Haribhai Lakhubhai Seedhav vs. State of Gujarat [2010 (2) GLH

97]; in the case of Babubhai Bhagwanji Mehta vs. State of

Gujarat Special Secretary [2003 (0) GLHEL­HC 201089]; in the

case of State of Karnataka vs. Y. Moideen Kunhi (Dead) By LRs.

[AIR 2009 SC 2577], etc. are all distinguishable on facts and in the

peculiar facts of those cases merely because delay came to be

condoned by the Court, the said cases have no application to the

facts of the present case as ultimately it remains a matter of

discretion for the Competent Court or Tribunal to look into the

reasons assigned for delay in filing the appeal then fairly

exercising such discretion either to condone or not to condone

this such delay.

19. In the present case, only ignorance of law was given out as

reason for seeking delay condonation which was not found to be

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

cogent reasons by the Tribunal and the Tribunal dismissed the

appeal on 25.11.1985 not only as barred by limitation but

following the Full Bench Judgment of Gujarat High Court in the

case of Shah Jitendra Nanalal vs. Patel Lallubhai Ishverbhai

Patel [1984 (2) GLR 1001] also dismissed the appeal on merits as

well holding that in view of Full Bench Judgment of Gujarat high

Court, the appeal could not be allowed, after the Notification

under Section 10(3) of the ULC Act, 1976 was already issued on

9.6.1983 vesting the land in the State. The said Full bench view of

Gujarat High Court clearly was binding on the Tribunal and it still

holds the field and equally binds us too.

20. The Full Bench of Gujarat High Court in the case of Shah

Jitendra Nanalal (supra) held as under:

"17. At the commencement of the Act, persons may be "holding vacant land in excess of ceiling limit", but as the 'vacant land' does not automatically 'vest' in the State Government, they hold it subject to certain obligations. There are restrictions imposed concerning dealing with such land. Until a notification issued under sec. 10(3), the land does not vest in the Government and that is why we have referred to the situation as one of 'suspense' till that date. Once the land 'vests' in the State Government, there is no

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

question of invoking the 'exemption' clause under sec. 20(1)(a) and (b); but until then, there is a right to move the Government for exemption and there is an 'obligation' on the Government to 'exempt' the land in case the conditions which warrant the exemption sought are satisfied. In case such conditions are shown to be satisfied, it is not as if the power of exemption could be exercised at the sweet will and pleasure of the State Government. The State Government has necessarily to be guided by the policy indicated in the provision itself and cannot traverse that policy. Consequently, the Government cannot also refuse to exempt if the case falls within those subsections. Therefore, until 'vesting' is under sec. 10(3) of the Act, there is always a possibility of 'defeasance of such vesting' on a motion for such exemption. If so, in a case where the person holding excess land is under a contractual obligation to convey property under an agreement to another, could he defeat that obligation by contending that transfer by him would be void and at the same time seeking exemption and obtaining benefit of such exemption in respect of such land?

18. So long as the provision declaring the transfer under sec. 5(3) as void is subject to the right to move for exemption, obtain exemption and transfer the property, the power of an owner of vacant land in excess of the ceiling limit to 'alienate' such land is dormant in him and such power could be exercised by

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

him in case he seeks exemption, satisfies the Government that the grounds for exemption exist, and obtains such exemption. That being the case, a decree cannot be defeated on the ground that 'transfer' inter partes would not be possible. The possibility of obtaining exemption survives till the notification under sec. 10(3) of the Act is issued. That being the situation, until then, a plaintiff seeking specific performance cannot be told that the terms of the contract cannot be fulfilled. Once it is said so, the plaintiff loses his right to get a decree for specific performance, though, invoking the provisions of the very Act, based on which the plaintiff was told that he could not get conveyance of the property agreed to be sold to him, the owner of excess land obtains exemption and continues in possession of property and perhaps even alienates it later. We see no reason either in law or in logic to countenance such a situation. There is nothing prohibiting a decree being passed for specific performance, with, of course, such alternative remedies as may be called for in a situation where that decree may become inoperative. The decree for specific performance may be made conditional on the exemption under sec. 20(1)(a) or

(b) operating. Of course, it is not for us in this reference to envisage how safeguards should be built in such a decree. Resourcefulness, of course, must necessarily find answer to possible situations."

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

21. The said Full Bench view was approved by Hon'ble

Supreme Court in the case of Van Vibhag Karamchari Griha

Nirman Sahakari Sanstha Maryadit (Regd.) vs. Ramesh

Chander [(2010 14 SCC 596].

22. So far as the judgment in the case of Chhaganlal

Trikamdas Thakker & Ors. vs. Competent Authority, Rajkot &

Ors. [1994 (1) GCD 1 (Guj)] relied upon by the learned counsel

for the Appellants Mr. Jitendra M. Patel on the issue of 'Tenants

in Common' not to be treated as 'Association of Persons' or 'Body

of Individuals' is concerned, the Division Bench of this Court has

clearly held that it is the nature and scope of holding that is

decisive on this point if individuals, with specified shares, though

acquired under or through a single source or transaction of

dealing, then they may not come within the ambit of 'Association'

or 'Body of Individuals' holding the land. The said judgment is of

no avail to the present Appellants because as already stated

above the source of their own claim viz. Will of Javerbai was not

proved before any Competent Authority or Tribunal and

therefore, merely on the basis of declaration in Form No.6, they

could not be treated as Tenants in common or co­owners of the

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

property. This contention also loses its significance in view of

Full Bench view of Gujarat High Court in the case of Shah

Jitendra Nanalal (supra) in view of conclusion of ULC

proceedings by Notification under Section 10(3) of the ULC Act,

1976 dated 9.6.1983 and possession taken on 19.9.1985.

23. Another judgment, which was heavily relied upon by the

learned counsel for the Appellants for condonation of delay, of

the learned Single Judge in the case of Dahyabhai M. Patel vs.

Competent Authority [1988 AIR 52 (Guj)] holding that the delay

in filing the appeal under Section 33 of the Act should be

condoned usually and liberal approach as adopted by the

Hon'ble Supreme Court in the case of Collector, Land

Acquisition vs. Katiji [AIR 1987 SC 1353] and the learned Single

Judge condoned the delay in filing the appeal which was of 10

months. The said judgment of the learned Single Judge also, in

our opinion, is distinguishable as the delay in the present case

was not a minor delay but a huge delay of 2 years and 3 months

and no sufficient reasons with the delay of condonation

application were furnished by the Appellants at all except

pleading ignorance of law before the Tribunal and the Tribunal,

even after discussing the case laws, found that the facts did not

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

deserve any condonation of delay and that exercise of discretion

in favour of the Appellants is untenable. The Tribunal also

discussed merits of the case and dismissed the appeal on merits

following Full Bench decision of Gujarat High Court.

24. The observations made by the learned Single Judge in the

said judgment (Coram: A.P. Ravani, J.) about Section 10(3)

declaration vesting the land absolutely in the State Government

free from all encumbrances and possession proceedings under

Section 10(5) of the Act also being subject to appeal under

Section 33 of the Act is an obiter of the learned Single Judge

which is clearly contrary to the decision of Full Bench of this

Court in Shah Jitendra Nanalal (supra). Therefore, it has to be

treated as impliedly overruled and no longer a good law. We

need not express our further opinion in the present case on hand

about the interpretation of Section 10 vis­a­vis adjudicatory

process in Sections 8 and 9 subject to appeal under Section 33 of

the Act and revision by the State under Section 34 of the Act

which will be discussed in some other appropriate case on merits.

Since on merits, we have found in the present case that the

proceedings under the ULC Act, 1976 were concluded properly in

accordance with the provisions of the ULC Act, 1976 and the

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

Tribunal was justified in rejecting the appeal filed belatedly after

2 years and 3 months as time barred as well as on merits, we do

not find any merit in the contentions raised by learned counsel

for the Appellants relying upon these judgments and they are

found to be distinguishable on facts, as aforesaid.

25. We are not at all satisfied with the entry of the Power of

Attorney Holder at a belated stage for the same being for any

bona fide reasons. Such strangers without proper right or interest

in the property cannot be permitted to continue with the

vexatious litigation in this manner. The Notarised (not

registered) Power of Attorney in her favour dated 24.10.2009

bearing Registration No.1187 dated 12.3.2010 in the office of

Mr.A.L. Vohara, Notary, only shows that he is neither related to

the executants nor he has any interest in the property but he was

a 'man of confidence' for them. The Hon'ble Supreme Court

deprecated such practices in the judgment in the case of Suraj

Lamp & Industries Pvt. Ltd. (supra), the relevant part which is

quoted below for ready reference:

"1. By an earlier order dated 15.5.2009 [reported in Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr. ­ 2009 (7) SCC 363], we had referred to the ill ­

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

effects of what is known as General Power of Attorney Sales (for short `GPA Sales') or Sale Agreement / General Power of Attorney / Will transfers (for short `SA/GPA/WILL' transfers). Both the descriptions are misnomers as there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and Will. As noticed in the earlier order, these kinds of transactions were evolved to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty and registration charges on deeds of conveyance, to avoid payment of capital gains on transfers, to invest unaccounted money (`black money') and to avoid payment of `unearned increases' due to Development Authorities on transfer.

2. The modus operandi in such SA/GPA/WILL transactions is for the vendor or person claiming to be the owner to receive the agreed consideration, deliver possession of the property to the purchaser and execute the following documents or variations thereof:

(a) An Agreement of sale by the vendor in favour of the purchaser confirming the terms of sale, delivery of possession and payment of full consideration and undertaking to execute any document as and when required in future.

Or

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

An agreement of sale agreeing to sell the property, with a separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute sale deed whenever required.

(b) An Irrevocable General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing him to manage, deal with and dispose of the property without reference to the vendor. Or A General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing the attorney holder to sell or transfer the property and a Special Power of Attorney to manage the property.

(c) A Will bequeathing the property to the purchaser (as a safeguard against the consequences of death of the vendor before transfer is effected).

These transactions are not to be confused or equated with genuine transactions where the owner of a property grants a power of Attorney in favour of a family member or friend to manage or sell his property, as he is not able to manage the property or execute the sale, personally. These are transactions, where a purchaser pays the full price, but instead of getting a deed of conveyance gets a SA/GPA/WILL as a mode of transfer, either at the instance of the vendor or at his own instance.

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

Ill ­ effects of SA/GPA/WILL transactions:

3. The earlier order dated 15.5.2009, noted the ill­ effects of such SA/GPA/WILL transactions (that is generation of black money, growth of land mafia and criminalization of civil disputes) as under:

"Recourse to `SA/GPA/WILL' transactions is taken in regard to freehold properties,even when there is no bar or prohibition regarding transfer or conveyance of such property, by the following categories of persons:

(a) Vendors with imperfect title who cannot or do not want to execute registered deeds of conveyance.

(b) Purchasers who want to invest undisclosed wealth/income in immovable properties without any public record of the transactions. The process enables them to hold any number of properties without disclosing them as assets held.

(c) Purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to these methods to avoid multiple stamp duties/registration fees so as to increase their profit.

Whatever be the intention, the consequences are disturbing and far reaching, adversely affecting the

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

economy, civil society and law and order. Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the government and the public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption. This kind of transactions have disastrous collateral effects also. For example, when the market value increases, many vendors (who effected power of attorney sales without registration) are tempted to resell the property taking advantage of the fact that there is no registered instrument or record in any public office thereby cheating the purchaser. When the purchaser under such `power of attorney sales' comes to know about the vendors action, he invariably tries to take the help of musclemen to `sort out' the issue and protect his rights. On the other hand, real estate mafia many a time purchase properties which are already subject to power of attorney sale and then threaten the previous `Power of Attorney Sale' purchasers from asserting their rights. Either way, such power of attorney sales indirectly lead to growth of real estate mafia and criminalization of real estate transactions."

It also makes title, verification and certification of title, which is an integral part of orderly conduct of

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

transactions relating to immovable property, difficult, if not impossible, giving nightmares to bonafide purchasers wanting to own a property with an assurance of good and marketable title.

4. This Court had, therefore, requested the learned Solicitor General to give suggestions on behalf of Union of India. This Court also directed notice to States of Delhi, Haryana, Punjab, Uttar Pradesh to give their views on the matter. The four states have responded and confirmed that SA/GPA/WILL transfers required to be discouraged as they lead to loss of revenue (stamp duty) and increase in litigations due to defective title. They also referred to some measures taken in that behalf. The measures differ from State to State.

In general, the measures are:

(i) to amend Registration Act, 1908 by Amendment Act 48 of 2001 with effect from 24.9.2001 requiring documents containing contract to transfer for consideration (agreements of sale etc.) relating to any immoveable property for the purpose of section 53A of the Act, shall be registered; and

(ii) to amend the stamp laws subjecting agreements of sale with delivery of possession and/or irrevocable powers of attorney in favour of non­family members authorizing sale, to the same stamp duty as deed of

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

conveyance. These measures, no doubt, to some extent plugged the loss of revenue by way of stamp duty on account of parties having recourse to SA/GPA/WILL transactions, instead of executing deeds of conveyance. But the other ill­effects continued. Further such transaction which was only prevalent in Delhi and the surrounding areas have started spreading to other States also. Those with ulterior motives either to indulge in black money transactions or land mafia continue to favour such transactions. There are also efforts to thwart the amended provisions by not referring to delivery of possession in the agreement of sale and giving a separate possession receipt or an affidavit confirming delivery of possession and thereby avoiding the registration and stamp duty. The amendments to stamp and registration laws do not address the larger issue of generation of black money and operation of land mafia. The four States and the Union of India are however unanimous that SA/GPA/WILL transactions should be curbed and expressed their willingness to take remedial steps."

25.1 The Hon'ble Supreme Court then proceeded to give

detailed reasoning for laying down the law in this regard in the

following epoch­making words:

"16. Section 54 of TP Act makes it clear that a contract

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A.Kamtam and Anr., (1977) 3 SCC 247, observed:

A contract of sale does not of itself create any interest in,or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR 293). The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein." In India, the word `transfer' is defined with reference to the word `convey'. The word `conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership... ...that only on execution of conveyance ownership passes from one party to another....".

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [2004 (8) SCC 614] this Court held:

"Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party." [This clinches the issue involved before us].

18. It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred. It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

registered as required by law), no right, title or interest in an immoveable property can be transferred.

19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.

Scope of Power of Attorney

20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

does not have the effect of transferring title to the grantee.

21. In State of Rajasthan vs. Basant Nahata ­ 2005 (12) SCC 77, this Court held :

"A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.

Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers­of­Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf.

Except in cases where power of attorney is

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."

An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.

Scope of Will

22. A Will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a Will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. It is said that so long as the testator is alive, a Will is not be worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the Will, by operation of law, the Will stands

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

revoked. (see sections 69 and 70 of Indian Succession Act, 1925). Registration of a Will does not make it any more effective.

Conclusion

23. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank - 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction"

when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.

24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."

26. That as far as the proceeding under provisions of the ULC

Act, 1976 is concerned, in the present case, we are satisfied that

the same stood concluded and closed way back in the year 1985

itself and therefore, there was no occasion to claim that the

possession continued to be with the land holders viz. these four

brothers and mere revenue entry continuing in the name of

Javerbai does not upset the declaration of vesting of land in the

State under Section 10(3) of the ULC Act, 1976 nor the factum of

possession taken over by the Competent Authorities under

Section 10(5) / 10(6) of the ULC Act, 1976. The alleged minor

irregularity of non­serving of the Notices under Section 10(5) of

the ULC Act, 1976 on all the four brothers though admittedly

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

some of such notices were served on all four of them or that the

possession was taken in the absence of these brothers at the site

on the date of taking over the possession, is of no consequence

and the law in this regard has been settled by the Hon'ble

Supreme Court in the case of Bhaskar Jyoti Sarma (supra)

which has been followed by this Court in the case of Heirs of Dec.

Jethabhai Ishwarbhai (supra) distinguishing the earlier decision

of the Hon'ble Supreme Court in the case of Hari Ram (supra).

The relevant extract of the judgment in the case of Heirs of Dec.

Jethabhai Ishwarbhai (supra) is quoted below for ready

reference:

"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

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

objections to such declaration of surplus land is already taken care in sub­sections (1) and (2) of Section 10. Once the land is vested, after dealing with such objections, in the State Government, the only activity remaining to be done is to complete the process and achieve the object of this Act, was to take over the physical possession of such declared excess land. Therefore, a notice in the form of an order was prescribed in sub­section (5) to deliver the possession within 30 days of service of the notice.

19. There is no question of any voluntary handing over of possession on the part of the land owner. Whatever is done under sub­section (5) is done in pursuance of the notice­cum­order of the Competent Authority under Section 10(5) of the Act.

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

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

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 sub­ section (6) is only enabling and empowering provision for the Competent Authority who may use the force for taking over the physical possession, if there is any obstruction or hindrance created by anybody including the land owner in that process. Otherwise use of force is not necessary. Sub­section (6), therefore, is not of an adjudicatory nature, but it only provides for a physical process to take de facto possession with or without the use of force. Then the proceedings under ULC Act get concluded under Section 10(6) of the Act. Both these sub­sections are not necessary to be operated and invoked in each and every case. The proceedings under ULC Act can get concluded either under Section 10(5) or 10(6) of the Act as indicated above.

21. Therefore, in our opinion, the arguments raised

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

before us that sub­section (5) envisages voluntary handing over of possession and sub­section (6) talks of forcible taking over possession, both are incomplete and misleading arguments. The scheme of this two sub­sections as explained above does not put these two provisions in silos or water­tight compartments. They, on the other hand, provide for a smooth and barrierless process of taking over of the possession under the 1976 Act.

22. In these circumstances, if the possession is not handed over within 30 days of service of notice under Section 10(5), it will amount to failure to comply with the order under sub­section (5) and thereafter whenever the possession is taken by the State authorities, even though after 6 years, as it has happened in the present case through Panchnama process in the absence of physical presence of the land owner, it does not vitiate those proceedings which will fall under Section 10(6) of the Act. The taking over of the possession through Panchnama process in the presence of two witnesses is a well recognised process for taking over the possession in law and cannot be said to be void, non est or illegal in any manner. The land owner cannot claim that since such possession was taken over after a belated period after expiry of 30 days as prescribed in Section 10(5) of the Act, he was entitled to again a notice in this regard requiring his presence on the spot giving him option

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

either to voluntarily surrender such possession or obstruct the same. No such notice or opportunity is intended to be given under Section 10(6) of the Act. Therefore, in the present facts before us, the possession taken over by the State authority on 24.11.1993 was justified and legally undertaken through Panchnama process and in our opinion, no valid exception to the same can be taken by the Appellant.

23. As far as reliance placed on the case of Hari Ram (supra) is concerned, we are of the clear opinion that the learned Single Judge was right in distinguishing the said judgment as it is not a case before us where no notice under Section 10(5) of the Act was issued to the land owner. On the contrary, it is admitted position that such notice was given to the land owner on 4.6.1988. The later judgment of the Hon'ble Supreme Court fully explained the purport of the decision in the case of Hari Ram (supra) in the case of Bhaskar Jyoti Sarma (supra) where even Section 10(5) notice was not given and still taking over the possession was held as valid, as quoted in extenso by the learned Single Judge and that in our respectful understanding, clinches the issue in favour of the State.

24. As far as the question of exemption under Section 21 as sought by the Appellant land owner is concerned, we are of the opinion that it was the just an excuse or ruse to save the land in the hands of the land owners

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

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."

27. The matter also stands covered by Full Bench decision in

the case of Shah Jitendra Nanalal (supra) quoted above.

28. In view of the aforesaid factual and legal position, we are

satisfied that the learned Single Judge was perfectly justified in

dismissing the writ petition filed by the Petitioners / Appellants

C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed

and pursued later on by the Power of Attorney Holder with costs

of Rs.50,000/­ and we have no reason to take a different view of

the matter and therefore, the present Letters Patent Appeal

deserves to be dismissed. The same is accordingly dismissed and

the judgment and order of the learned Single Judge dated

27.7.2016 is upheld. No further costs.

(DR. VINEET KOTHARI,J)

(BIREN VAISHNAV, J) Bharat