Raniben Ramdevbhai Odedara vs State Of Gujarat
2022 Latest Caselaw 4207 Guj

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6937 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

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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 ?

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                       RANIBEN RAMDEVBHAI ODEDARA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR SHALIN N MEHTA, SENIOR ADVOCATE WITH ANAND B GOGIA(5849)
for the Petitioner(s) No. 1,10,11,12,13,14,15,16,2,3,4,5,6,7,8,9
 for the Respondent(s) No. 2,3,4,5,6,6.1,6.2,6.3,6.4,7,8,9
MS ASMITA PATEL, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
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    CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                     Date : 19/04/2022
                     ORAL JUDGMENT

By this petition, inter alia, under Articles 226 and 227 of the Constitution of India, the petitioners have sought for declaration, declaring the notices, all dated 28.3.2022, as unwarranted, illegal and therefore, be quashed.

2. The facts, in a nutshell, are :-

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2.1      The petitioners, are residing at Uday Nagar Society (proposed)

of Mavdi area of Rajkot. The petitioners almost, 35 years ago, have constructed small houses on land bearing survey no.126, bearing plot nos.11, 29 and 31 respectively. The occupation of the petitioners relate back to agreements executed, somewhere in the year 1988. According to the petitioners, the respondent no.6 (now deceased) had entered into an agreement on stamp paper in the year 1985 with respondent no.9 and one another for 2000 sq. yards of survey no.126 and in lieu whereof, respondent no.6 had received consideration amount of Rs.50,000/-.

2.2 It is also the case of the petitioners that the deceased respondent no.6 had executed an agreement for sale dated 4.2.1988 with respect to land bearing survey no.126 for consideration of Rs.2,00,000/- in favour of the respondent no.9 and one another. According to the said agreement, the respondent no.9 was empowered to sell the land for which, the amounts were also received and paid. Apropos the agreements executed in the year 1985 and 1988, the petitioners were allowed to occupy different pieces of land and the area was ranging from 50 yards to 150 sq. yards. Accordingly, the petitioners have constructed small houses with their hard earned money and, since then, have been residing there. It is the case of the petitioners that they being illiterate, belonging to the lower strata of the society, bonafidely believed that they have been conferred the ownership with respect to the land in question. The petitioners were also assured by the respondent nos.6 and 9 that the sale deeds will be executed in their favour; however, no sale deeds were executed in their favour.

2.3 According to the petitioners, the respondent no.6, so also the respondent no.9 only with a view to evading the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred

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to as 'the Act of 1976'), that the respective agreements were executed and the sale in favour of the petitioners. Apropos the provisions of the Act of 1976, the proceedings were initiated. As can be culled out from the petition memo, initially, the Competent Authority, Urban Land Ceiling, Rajkot vide its order dated 31.12.1987, declared the land to be excess vacant land. Aggrieved by the order dated 31.12.1987, the appeal was preferred before the Appellate Authority, which came to be dismissed vide order dated 18.8.1988, followed by filing of review application before the State Government under Section 34 of the Act of 1976, which also came to be dismissed vide order dated 4.5.1989. Reference is also made of a writ petition filed in the year 1990 before the learned single Judge, Letters Patent Appeal before the Division Bench and the order dated 14.3.2000 passed in the said Letters Patent Appeal partly allowing the same. The Additional Collector passed an order dated 7.9.2002 holding in favour of the respondent no.6 and one another that they are entitled to hold one unit of 1500 sq. mts each. Land admeasuring about 32.52 sq. mts. was declared as surplus land.

2.4 The respondent no.6, somewhere in the year 2007, preferred a writ petition being Special Civil Application no.9886 of 2007 seeking direction to the State Authorities to hand over the vacant land in view of the order dated 7.9.2002 of the Additional Collector, Rajkot. Notices were issued by the Mamlatdar, which led to the filing of the Civil Application no.10422 of 2007 by some of the petitioners for being impleaded as party respondents, so also challenging the notices issued by the Mamlatdar under the provisions of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as 'the Code'). The Civil Application for impleadment was rejected followed by filing appeal and rejection of the same in the year 2014

2.5 According to the petitioners, some of the petitioners, had filed

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a civil suit, however, the petitioners could not get any protection from demolition. A writ petition being Special Civil Application no.12605 of 2014 came to be filed before this Court with a prayer for interim protection, which was not acceded to and therefore, Letters Patent Appeal no.1032 of 2014 was preferred before the Division Bench. The Division Bench passed an order dated 11.9.2014, directing the authorities not to demolish the construction in question. The writ petition being Special Civil Application no.9886 of 2009 as well as Special Civil Application no.12605 of 2014 were, thereafter, were heard together and the learned single Judge, vide oral judgment dated 20-21.10.2016, dismissed both the writ petitions. Aggrieved, two Letters Patent Appeals were filed, being Letters Patent Appeal no.1457 of 2016 by the Chandrprabha Nathalal Damani and others and Letters Patent Appeal no.869 of 2017 by some of the petitioners. The Division Bench, allowed the Letters Patent Appeal no.1457 of 2016 filed by Chandrprabha Nathalal Damani and others; whereas, Letters Patent Appeal no.869 of 2017 filed by some of the petitioners, came to be rejected. Some of the petitioners preferred Special Leave to Appeal before the Apex Court, which came to be dismissed vide order dated 19.1.2021. Apropos the culmination of the proceedings, Mamlatdar, Rajkot (South), issued notices, all dated 28.3.2022, requiring the petitioners to hand over the possession of revenue survey no.126 on or before 31.3.2022. hence, the present writ petition.

3. Mr Shalin N. Mehta, learned Senior Advocate assisted by Mr Anand B. Gogia, learned advocate appearing for the petitioners has made submissions along the lines of the averments made in the captioned writ petition. It is submitted that the notices, all dated 28.3.2022, have been issued by the Mamlatdar under the provisions of Section 202 of the Code, requiring the petitioners to vacate the land in question within a period of three days. It is submitted that

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the act of issuing notices, is on an erroneous basis inasmuch as, after the proceedings which were initiated before this Court and confirmed up to the Apex Court, the land, does not belong to the State Government. Despite that the notices have been issued, as if, the land is of the ownership of the State Government.

3.1 It is further submitted that the respondent no.6 - Nathalal Jethalal Damani and one another, were the owners of the land bearing survey no.126 and they, only with a view to evading the provisions of the Act of 1976, entered into an agreement with the respondent no.9 and one another. Apropos which, various agreements were executed by them in favour of the petitioners. The petitioners, bonafidely, believing that sale deeds would be executed, had paid the considerable amount and carried out construction over the land in question. It is submitted that the agreements were executed on the stamp paper. Unfortunately, despite the petitioners having paid the amount, the registered sale deeds were not executed owing to the proceedings under the provisions of the Act of 1976. It is submitted that the respondent no.6 - Nathalal Jethalal Damani and one another, have been litigating, just to claim their rights, under the Act of 1976.

3.2 It is submitted that the Damani brothers, so also the petitioners, challenged the action of the respondent - State and this Hon'ble Court, vide oral judgment dated 20-21.10.2016, dismissed both the petitions. Mr Mehta, learned Senior Advocate, invited the attention of this Court to the observations made in the oral judgment dated 20-21.10.2016. It is submitted that the Letters Patent Appeal no.869 of 2017 against the judgment of the learned single Judge of the petitioners, came to be rejected; whereas, the Letters Patent Appeal no.1457 of 2016 by Damani brothers, came to be allowed. It is also submitted that some of the petitioners have challenged the

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common CAV judgment before the Apex Court and the Apex Court, did not interfere with the judgment passed by the High Court.

3.3 It is submitted that though the proceedings have been culminated against the petitioners, the petitioners as per the provisions of Section 125A of the Code had submitted an application before the Collector to determine their rights. It is submitted that Chapter IX-A is a newly added chapter titled 'of lands within transitional areas'. The provisions are made for the purpose of regularising the claim of the concerned parties; however, without any decision on the claim/representation of the petitioners, the Mamlatdar, has issued the notices, all dated 28.3.2022, which would be unjust and illegal. It is submitted that the Collector, is yet to conclude the inquiry with respect to the transaction entered into by the respondents and without there being any inquiry, the notices, all dated 28.3.2022, have been issued. It is also submitted that settled possession of a person, without title, which would entitle him to protect his possession, even against the true owner, has not been determined. It is submitted that the said concept of settled possession and the right of the possessor, to protect his possession against the rule, has been settled by various judgments. It is therefore, submitted that the notices issued by the respondent authority under Section 202 of the Code, are bad in law on the ground that the petitioners were neither heard nor inquiry is held, which is mandatory in view of the full Bench decision of this Court in the case of Government of Gujarat vs. Amraji Motiji Thakor, reported in 1991 (2) GLH 606. It is therefore, urged that the notices, issued, deserve to be quashed and set aside and the respondent be directed to decide the claim of the petitioners under the provision of the Code.

4. On the other hand, Ms Asmita Patel, learned Assistant

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Government Pleader, appearing on advance copy, has vehemently opposed the entertainment of the writ petition. It is submitted that in view of the judgment rendered by this Court in Special Civil Application no.12605 of 2014, so also the rejection of the Letters Patent Appeal no.869 of 2017 by the Division Bench and further rejection of the SLP by the Apex Court, vide order dated 19.1.2021, the present writ petition, by the petitioners, challenging the notices dated 28.3.2022, is nothing, but an abuse of process of Court.

4.1 It is submitted that the issue and rights stand concluded against the petitioners and therefore, the petitioners have no right, whatsoever, to challenge the notice under Section 202 of the Code. It is submitted that the arguments advanced by the learned Senior Counsel, were very much advanced before the learned single Judge in the earlier round of litigation and therefore, in view of the dismissal of the writ petition, the self same arguments, do not deserve to be accepted. It is submitted that the Letters Patent Appeal was also filed wherein similar arguments were advanced, which were not accepted.

4.2 It is next submitted that the contention raised as regards recognition of rights of the petitioners under the provisions of 125A of Chapter XI-A, is misplaced in view of the disposal of the writ petition, so also the dismissal of the Letters Patent Appeal. It is submitted that the said contention is only raised with a view to delaying the action and hence, the same does not deserve to be entertained. The claim of the petitioners to consider their applications under the provisions of the Code and further seeking grant of certificate of possession by charging amount of Rs.2,00,000/-, is also misconceived and the same cannot be entertained. It is therefore, urged that the petition deserves to be dismissed in limine without grant of any relief.

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5. In the aforementioned factual background, heard the learned counsel appearing for the respective parties, perused the documents available on the record and accorded thoughtful consideration to the rival submissions.

6. The petitioners, by way of the present writ petition, seek to challenge the notices, all dated 28.3.2022, issued by the Mamlatdar under the provisions of Section 202 of the Code. As per the said notice, petitioners have been required to vacate the land in question.

7. The issue revolves around the land bearing survey no.126. As is discernible from the record, the Damani brothers purchased the land in question out of the earnings of Batukbhai and Nathabhai in the name of Narendrabhai by way of a registered sale deed in the year 1965. Upon enactment of the Act of 1976, Narendrabhai Jethalal Damani filled in form no.1 under sub-section (1) of Section 6 of the Act of 1976, declaring his holdings including the land in question. The Competent Authority vide order dated 31.12.1987, declared the land in question to be excess vacant land. The said order was challenged before the Tribunal who, vide order dated 18.8.1988, dismissed the appeal, which was challenged before the State Government under Section 34 of the Act of 1976 and the said review application came to be dismissed vide order dated 4.5.1989.

8. Writ petition being Special Civil Application no. 4825 of 1990 was dismissed but Letters Patent Appeal no. 318 of 1995 came to be partly allowed and ultimately, as a result of directions issued in the Letters Patent Appeal, the Competent Authority passed an order dated 7.9.2002 holding that Batukbhai Jethalal Damani and Nathalal Jethalal Damani were entitled to one unit of 1500 sq. meters each and declaring 32.52 sq. meters land as excess vacant land. Owing to the proceedings, in the interregnum, the land stood

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vested in the State Government from 1987 to 2005. During this time, it is alleged that kaccha pukka construction was erected over the land in question and therefore, the respondent authority could not hand over the possession of the land, earlier declared as excess vacant land.

9. As a result of non-handing over of the possession, the heirs of the respondent no.6 and others preferred a writ petition being Special Civil Application no.9886 of 2007, which was pending wherein, the applications were also filed by the petitioners for being impleaded and the same came to be rejected, which led to filing of the Letters Patent Appeal, which also subsequently came to be dismissed vide order dated 16.1.2014. After the rejection of the Letters Patent Appeal, the petitioners preferred a writ petition being Special Civil Application no.12605 of 2014 before this Court, inter alia, challenging the notices issued by the Mamlatdar. The said notices, as can be culled out from the record, were issued in the year 2007, calling upon the petitioners to remove the encroachment, giving reference to the orders passed by the High Court. This Court, after having heard the learned counsel for both the parties and considering the documents on record, held and observed that the petitioners have tried to misuse the process of law by filing the proceedings and taking the Courts for a ride. This Court in paragraphs 8, 9, 12 to 14, 19 and 20 has observed thus:-

"8. In the meantime, the Mamlatdar initiated the proceedings against the said applicants/ alleged encroachers under section 61 of the said Code and passed the order on 13.08.2007 calling upon them to remove the encroachments giving reference to the orders passed by the High Court in the first petition. The said orders have been produced by the petitioners as AnnexureP1 collectively. It appears that thereafter the Mamlatdar issued the notices against the said alleged encroachers on 22.08.2014 under section 202 of the said Code. The said notices dated 22.08.2014 have been challenged by the said alleged encroachers by

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filing the second petition. said alleged encroachers by filing the second petition.

9. The petitioners of the second petition have stated in their petition inter alia that they are residing with their families in the small houses constructed on the lands bearing Survey No.126 of village Mavadi since last more than 25 years. According to the said petitioners, they were allowed to occupy the said small plots by the Respondent Nos.4 and 5 i.e. Narendra Jethabhai Damani and Nathalal Jethbhai Damani, through Respondent Nos.6 to 8 to circumvent the provisions of the ULC Act. According to these petitioners, they were bonafide purchasers of the lands in question and were made victims of the dirty games played by the Respondent Nos.4 to 8. The said petitioners have also produced the affidavit filed by the Respondent No.8 to substantiate their contentions that the Respondent Nos.6 to 8 had sold out the plots in question to the petitioners as per the authority and instructions of the Respondent No.5-Nathalal Jethabhai Damani.

12. However, learned Senior Counsel Shri Shalin Mehta appearing with learned Advocate Shri Anand B. Gogia for the petitioners in the second petition submitted that the said petitioners had become the victims of the dirty games played by the Respondent Nos.4 to 8. According to him eventhough, possession of the lands in question was taken over by the Respondent State Authorities, the respondent Nos.4 and 5 had sold out the lands to the respondent Nos.6 to 8, who in turn had further sold out the same to the petitioners. He further submitted that the State Authorities were forced to take action against the petitioners of the second petition, in view of the interim orders passed by the Court in the first petition filed by the Respondent No.5, otherwise the lands in question being not Government land, no action could have been initiated by the respondent authorities under section 202 of the said Code. He further submitted that the impugned notices issued by the Mamlatdar under section 202 of the said Code being without any authority of law, deserve to be quashed and set aside. He also submitted that nondisclosure of filing of the suits by the petitioners could not be said to be suppression of material facts inasmuch as in none of the suits the impugned notices, which are the subject matter of second petition, were challenged. Relying upon the various judgments of the Supreme Court, he submitted that the question of resjudicata also did not arise as there was no adjudication on issue relating to the title and possession between the petitioners and the Respondent Nos.4 and 5 in any Civil Court or in any other Court, and that the observations made by the Division Bench in the Letters Patent Appeal were only in respect of the issue whether the petitioners should have been joined as party respondents in the first petition or not.

13. After having heard learned Counsels for the parties in both the petitions and having taken into consideration the

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documents on record, it appears that the petitioners of both the petitions have tried to misuse the process of law by filing the proceedings and taking the Courts for a ride. As stated hereinabove, the second petition being Special Civil Application No.12605 of 2014 has been filed by the petitioners challenging the impugned notices issued by the Mamlatdar under section 202 of the said Code. The said notices appear to have been issued in view of the interim orders passed by this Court in the first petition. The main contention raised by Shri Mehta therefore was that the respondent authorities had taken the action against the petitioners under the pressure of the Court, though the petitioners of the first petition themselves had not come with clean hands, and though the petitioners of second petition had filed the Civil suits before the Competent Courts against the respondent authorities and also the said petitioners of first petition. It was also sought to be submitted by Mr. Mehta that the petitioners were inducted at the instance of the petitioners of the first petition through the Respondent No.6 to 8, and in respect of which the Respondent No.8 has also filed the affidavit. In the opinion of the Court, though there is some substance in the said submissions made by Shri Mehta for the petitioners of the second petition, the Court is not inclined to accept the same, in view of the contentions raised by Shri Oza for the Respondent Nos.4 and 5 in the second petition to the effect that the said petitioners had not disclosed the correct facts in their petition, more particularly about their filing of the Civil Suits and not obtaining of any interim orders in the said suits from the Civil Court.

14. It is needless to say that the petitioners invoking extraordinary jurisdiction under Article 226 of the Constitution of India are bound to disclose true and correct facts and cannot play hide and seek with the Court. It transpires from the affidavit in reply filed by the Respondent Nos.4 and 5 of the second petition that the petitioners had filed Regular Civil Suit No.1517 of 1996, Suit No.72 of 2014 and Civil Suit No.192 of 2014 in respect of the lands in question against the respondent authorities and also against the private respondents and had also tried to obtain interim reliefs pending the said suits, however, the said petitioners had not disclosed the said facts in their petition. Even the orders passed by the Mamlatdar under section 61 of the said Code, prior to issuance of the impugned notices under section 202 of the said Code have also not been disclosed. Such suppression of facts being material, the second petition deserves to be dismissed on that ground alone.

19. Again at this juncture, it is required to be noted that as per the case of the petitioners of the first petition, the possession of the lands in question was already taken over by the State authorities in 1987- 1988 and since then, it was with the Respondent authorities, however, after the order passed by the Additional Collector (Coordination) in 2005, the possession was not handed over back to the petitioners.

    This Court fails    to    understand     as    to     how      the





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    proceedings under the          ULC Act       would    have    survived

when admittedly the lands in question had already vested in the Government and the possession thereof was already taken over by the State Government in 1987-88 i.e. much prior to the enforcement of the Repeal Act. Section 3 of the ULC Repeal Act specifically states that the repeal of Principal Act shall not affect the vesting of any vacant land under sub section 3 of section 10 of the Repeal Act, possession of which has been taken over by the State Government or any person duly authorized by the State Government or by the Competent Authority. Section 4 of the said Repeal Act states that all proceedings relating to any order made or purported to be made under the Principal Act pending immediately before commencement of the Act before any Court, Tribunal or other authority shall abate. In the instant case, the possession of lands having already been taken over after following the due procedure, prior to commencement of the Repeal Act, the lands had stood legally vested in the State Government, and the proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the Court or other authority had also stood abated. Though it is true that even after the repeal of the ULC Act, the Additional Collector (Coordination) had to decide the forms filed by the petitioners, pursuant to the order passed by the Division Bench of this Court, and that in normal course possession would have been restored to the petitioners if the ULC Act was still in force, it is difficult to grant the prayer of the petitioners in the present petition for handing them over the possession of the subject lands, in view of the intervening circumstances and events having taken place and in view of the third party rights having been created on the subject lands. Further, there is also some substance in the submission of Mr. Mehta that even the persons who are in illegal possession of the land for long time, could not be evicted without following the due process of law. It is also true that the State Authorities have taken action against the petitioners of the second petition in view of the interim orders passed by the Court in the first petition, however, it is needless to say that any observation made by the Court in the interim order would be only prima facie observation, and that it is the final decision rendered by the Court after considering the factual and legal aspects, which would govern the rights of the parties.

20. As stated hereinabove, the petitioners of the second petition have also filed the suits, which are pending before the concerned Courts. As regards the allegations that they were inducted by the petitioners of the first petition themselves pending the ULC proceedings, the Court does not express any opinion as the same could be examined by the Civil Courts in the pending suits. Suffice is to say that there are number of disputed questions of facts involved in both the petitions, which could not be gone into by this Court in the petitions filed under Article 226 of the Constitution of India. The judgments cited by Mr. Oza on the principles of resjudicata and

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for removal of unauthorised constructions have hardly any application to the peculiar facts of this case and therefore do not deserve any further Court in the petitions filed under Article 226 of the Constitution of India. The judgments cited by Mr. Oza on the principles of resjudicata and for removal of unauthorised constructions have hardly any application to the peculiar facts of this case and therefore do not deserve any further consideration."

10. In para 12 of the judgment, the submissions made on behalf of the petitioners about sale by the Damani brothers and Rajput brothers and the petitioners becoming the victims; issuance of notices by the Mamlatdar as a result of proceedings before this court and the aspect of allegation of supression of material facts so on and so forth, have been recorded. Ms Asmita Patel, learned Assistant Government Pleader is right in contending that all the submissions made except the submission of application under section 125A of the Code were very much forming part of the earlier round of litigation before this Court.

11. Perceptibly, some of the petitioners and the heirs of the respondent no.6, being aggrieved, preferred Letters Patent Appeal no.869 of 2017 as well as Letters Patent Appeal no.1457 of 2016. The Division Bench, after hearing the parties, in paragraphs 17 to 20, has held and observed thus:-

"17. Having heard the learned counsel for the parties, we have carefully perused the entire material on record. As some constructions came up on the lands in question and as there was a move for settlement between the owners and the persons who are in possession of the lands in question, these matters were adjourned from time to time. Though number of opportunities were given, as the matter was not settled, we have heard both these Letters Patent Appeals and dispose them of on merits by this common judgment.

18. Deceased-Nathalal Jethabhai Damani Narendra Jethabhai Damani and Batukbhai Jethabhai Damani are real brothers. It is the case of Batukbhai and Nathabhai that they were staying in Sudan and with the money sent by them, the lands were purchased by way of registered sale deed in the year 1965 in the name of Narendra Jethabhai Damani. When the Urban Land (Ceiling & Regulation) Act, 1976 came into force in 1976,

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Narendrabhai filed a declaration in form no.1 under section 6(1) of the ULC Act, 1976, declaring his holding including the lands in question. At the first instance, the Competent Authority passed an order on 31st December, 1987, declaring the lands in question as excess vacant lands. But coming to know of the orders of the Competent Authority, Shri Batukbhai and Nathabhai filed review petition before the government under section 34 of the ULC Act, 1976. On dismissal of the said review petition, they approached this Court by filing Special Civil Application No. 4825 of 1990 under Article 226 of the Constitution of India. The said Special Civil Application also came to be dismissed by order dated 27.3.1995, against which, Letters Patent Appeal No. 318 of 1995 was preferred, which came to be allowed by order dated 14.3.2000, the relevant portion of which is referred by us hereinabove. From a careful perusal of the judgment, particularly para-6, it is clear that after purchase of the land by registered sale deed dated 15th November, 1965, registered deed of transfer was executed by Narendrabhai Jethabhai Damani on December 14, 1966 in favour of other two brothers making it manifest that Narendrakumar Jethabhai Damani had purchased the lands from the moneys, which were remitted by other brothers, and the appellants were real owners of the property. By extracting relevant receipts of the documents and by considering the effect of provisions of Benami Transactions (Prohibition) Act, 1988, a Division Bench of this court set aside the order of primary authority, directing the authorities to pass an order under section 8(4) of the ULC Act, 1976. Even after the judgment dated 14th March, 2000 passed in Letters Patent Appeal No. 318 of 1995, when immediate steps were not taken by the authorities, other two brothers approached this Court and ultimately the Competnt Authority passed an order on 5.4.2005, holding that Batukbhai and Nathabhai were entitled to hold one unit of 1500 sq.mts and only an extent of 32.52 sq.mts of land was excess land. It is relevant to note that by virtue of the orders of the Division Bench passed in Letters Patent Appeal No. 318 of 1995 and the consequential order passed by the Competent Authority dated 5.4.2005, only land to the extent of 32.52 sq.mt was declared as excess vacant land under the provisions of the ULC Act, 1976. It is true that after the earlier orders were passed, particularly, order dated 31.12.1987, by the Competent Authority, declaring the lands in question as excess vacant lands, possession was taken over by the government, but once such order of Competent Authority and after further order passed by the government rejecting the application of the appellants herein under section 34 of the Act, are set aside remanding the matter, all consequential steps will not survive. The stand of the respondents is that possession was taken over pursuant to earlier order of the Competent Authority declaring the lands as excess vacant lands, but no reason is given to retain the same with the authority, particularly in the order passed in Letters Patent Appeal No. 318 of 1995 and consequential order dated 5.4.2005. When the judgment dated 14.3.2000 passed in Letters Patent Appeal No. 318 of 1995 has attained finality and further consequential order dated 5.4.2005 has also become final, it was obligatory

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on the part of the respondents to restore the possession of the lands to the appellants in Letters Patent Appeal No. 1457 of 2016. Having regard to the orders passed by this Court, it cannot be said that the appellants have abused the process of law. At the same time, we are also not in agreement with the view taken by the learned single Judge that as the lands are already vested with the State in the year 1987-88, the proceedings under the provisions of ULC Act, 1976 will abate, in view of the enforcement of provisions of the Urban Land (Ceiling & Regulation) Repeal Act, 1999. Once the order dated 31.12.1987 is set aside in Letters Patent Appeal No. 318 of 1995, the respondent authorities cannot claim vesting of their lands, pursuant to the said judgment. When the order of Competent Authority is quashed, all consequent steps including taking possession will stand quashed. 19. It is also not in dispute that when possession of lands was taken over pursuant to the first order of the Competent Authority, declaring the lands in question as excess vacant lands, the said lands were vacant and clear. Only due to the negligence on the part of the concerned authorities, encroachers who are appellants of Letters Patent Appeal No. 869 of 2017 have stepped into the land and made kachchapucca constructions and therefore, their claim also cannot be accepted that they purchased the land from respondent nos. 6 to 8 therein. During the course of arguments, learned counsel for the appellants in Letters Patent Appeal No.869 of 2017 submitted that the said appellants are agents of original owners but no document of authorization is produced in support of their claim. In the absence of any valid documents for transfer of title from the original owners, their claim cannot be accepted. In any event, no transfer can be made of the excess lands in view of the provision under section 5(3) of the ULC Act, 1976 and even if transfer is made by original owners also, such transfer is null and void. In the case on hand, there is no document at all in support of the appellants in Letters Patent Appeal No. 869 of 2017 to justify their title and possession of the lands. Their claim that they have purchased the lands from third parties on instructions from original owners of the lands cannot be accepted to believe their possession. As they are encroachers on the lands in question and such encroachments have come up during the custody of possession of the lands with the government, it was obligatory on the part of the authorities to take appropriate steps against such encroachers and hand over actual and vacant possession of lands to its original owners, who are the appellants in Letters Patent Appeal No. 1457 of 2016. So far as Letters Patent Appeal No. 869 of 2017 is concerned, there is absolutely no basis to accept the claim of the appellants in the said appeal that they have purchased the lands from third parties other than the owners on instructions from the owners. Such a stand cannot be countenanced at all to seek protection for their possession. Further, it is also clear from the material on record that the appellants in Letters Patent Appeal No. 869 of 2017 have approached this Court by suppressing material facts of pendency of the civil suits which are referred earlier by us. Having filed civil suits against the government and private parties, they have not disclosed the said fact before this Court,

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which is nothing but material suppression of facts, which disentitles them for any relief under Article 226 of the Constitution of India. Further, we are also constrained to hold that the said appellants have no right to claim title and possession of the lands. In view of the same, Letters Patent Appeal No. 869 of 2017 filed by the encroachers deserves to be rejected.

20. For the aforesaid reasons, we allow Letters Patent Appeal No. 1457 of 2016 and set aside the judgment dated 20- 21.10.2016 passed by the learned single Judge in Special Civil Application No.9886 of 2007 and consequently we direct to restore the possession of the lands which were taken from the possession of appellants of Letters Patent Appeal No. 1457 of 2016, pursuant to order dated 31.12.1987 passed by the Competent Authority under the provisions of the ULC Act, 1976. Such possession shall be restored to them within a period of 4 months from the date of receipt of this judgment. It will be open for the authorities to take necessary steps against third parties- encroachers to hand over vacant possession of the lands to the appellants of Letters Patent Appeal No. 1457 of 2016."

12. While dealing the Letters Patent Appeal no.869 of 2017 filed by the petitioners, it has been held and observed that there is no document at all in support of the appellants in Letters Patent Appeal No.869 of 2017 to justify their title and possession of the lands. It has also been held and observed that their claim that they have purchased the lands from third parties on instructions from original owners of the lands, cannot be accepted to believe their possession. As they are encroachers on the lands in question and such encroachments have come up during the custody of possession on the lands with the Government, it was obligatory on the part of the authorities to take appropriate steps against such encroachers and hand over actual and vacant possession of lands to its original owners, who are the appellants in Letters Patent Appeal No.1457 of 2016. So far as the Letters Patent Appeal No.869 of 2017 is concerned, there is absolutely no basis to accept the claim of the appellants in the said appeal that they have purchased the lands from third parties other than the owners on instructions from the owners.

13. The Division Bench did not accept the contentions raised and

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dismissed the Letters Patent Appeal filed by the petitioners by concluding that it will be open for the parties to take necessary steps against the third parties to hand over the actual and vacant possession of lands to the appellants of Letters Patent Appeal no.1457 of 2016. The Division Bench was also of the opinion that there was suppression of material facts on the part of the appellants, i.e. the petitioners inasmuch as, the petitioners, i.e. the appellants therein, have not disclosed the facts of pendency of the civil suit filed by them against the State Government. Therefore, the Division Bench dismissed the Letters Patent Appeal filed by the petitioners, inter alia, on the grounds, namely, observing that the petitioners are encroachers and have no right over the land in question and secondly, on the ground that there was a suppression of material facts on the part of the petitioners.

14. It is also not in dispute that the common CAV judgment of the Division Bench was challenged before the Apex Court and the Apex Court, vide order dated 19.1.2021, dismissed the SLP. As is clear from the directions contained in the judgment of the Division Bench, the petitioners have been declared as enroachers and it has been left open to the respondent authorities, to take all the consequential steps, including taking of the possession. Therefore, when the proceedings have been concluded against the petitioners, the challenge to the consequential notices, all dated 28.3.2022 by the Mamlatdar , once again in this writ petition , on the ground of pendency of the application of the petitioners before the Collector , for determining their claim under Section 125A, is nothing, but only stated to be rejected.

15. According to the petitioners, owing to the fact that the petitioners are in settled possession, they have all the right to get the application decided under Section 125A of the Code inasmuch

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as, the petitioners fall within the transitional areas as specified in the Code. This Court, is of the opinion that the said provision, cannot come to the rescue of the petitioners in view of the directions contained in the CAV judgment dated 18.7.2017 passed by this Court. In view of the discussion made herein above, so also the observations made in the judgment of the Division Bench and rejection of the Special Leave Petition, this Court does not find any error on the part of the Mamlatdar in issuing the notices dated 28.3.2022 to the petitioners, requiring them to vacate the possession inasmuch as, the said notices are nothing, but in furtherance of the directions contained in the CAV judgment dated 18.7.2017 of the Division Bench.

16. Therefore, the petition is dismissed in limine. No order as to costs.

(SANGEETA K. VISHEN,J) BINOY B PILLAI