Karnataka High Court
Sharad S/O Nagendra Patil vs The State Of Karnataka on 20 February, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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WP No. 100913 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 100913 OF 2024 (ULC)
BETWEEN:
SHARAD S/O NAGENDRA PATIL
AGE 70 YEARS
OCC SERVICE (RETD)
R/O D-2 702 LAKE TOWN CHS
BIBWEWADI PUNE 411 037
...PETITIONER
(BY SRI. S B HEBBALLI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPT BY ITS SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT
M S BUILDING DR AMBEDKAR BEEDHI
BENGALURU 560 001.
2. THE COMPETENT AUTHORITY
BELAGAVI URBAN AGGLOMERATION
THE DEPUTY COMMISSIONER BELAGAVI DISTRICT
BELAGAVI - 590 001.
Digitally signed by B
K 3. THE TAHSILDHAR
MAHENDRAKUMAR
Location: HIGH
BELAGAVI 590 001.
COURT OF ...RESPONDENTS
KARNATAKA
(BY SRI. V.S.KALASURMATH, HCGP FOR R1 TO R3).
THIS WP IS FILED PRAYING TO,A. DECLARE BY APPROPRIATE
WRIT, ORDER OR DIRECTION, DECLARING THAT THE ENTIRE
PROCEEDINGS INITIATED UNDER THE PROVISIONS OF URBAN LAND
CEILING ACT, 1976, IN NO. RB/ULC/D/SR-1136 DT. 01/06/1978
VIDE ANNEXURE-E ON THE FILE OF THE RESPONDENT NO.2, IN
RESPECT OF THE LAND BEARING RS NO. 659/3A OF ANGOL
VILLAGE, TQ. AND DIST. BELAGAVI, MEASURING 01 ACRE 16
GUNTAS, IN VIEW OF REPEALING OF THE SAID ACT, AS ABATED.B.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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WP No. 100913 of 2024
JUDGMENT
The father of the petitioner had filed declaration under
section 6 of the Urban Land (Ceiling and Regulation) Act, 1976
(for short, 'the Act, 1976') which culminated in passing od an
order under Section 10(2) of the Act, 1976 declaring that the
father of the petitioner was holding excess land to an extent of
1 acre 16 guntas in land bearing R.S.No.659/3A of Angol
Village, Taluk and District Belagavi.
2. The Act 1976, was repealed by the Urban Land
(Ceiling and Regulation) Repeal Act, 1999 (for short, 'the Act,
1999') which came into effect from 18.03.1999. Section 3(2) of
the Act, 1999 states that where any land is deemed to have
been vested in the State Government under sub-section (3) of
Section 10 of the principal Act but possession of which has not
been taken over by the State Government or any person duly
authorized by the State Government in this behalf or by the
competent authority, then, such land shall not be restored
unless the amount paid, if any, has been refunded to the State
Government.
3. The petitioner submitted a representation with
respondent No.3 to delete the name of the Government and
substitute the name of the deceased father in the revenue
records in respect of the subject land stating that the lawful
possession of the subject land was not taken, and therefore,
entitled for restoration of the subject land. The issue involved
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in this petition was examined by the co-ordinate Bench of this
Court in W.P.No.103325/2021 wherein it is held as follows:
"8. The points that arise for consideration are as
follows:
i) Whether the lawful possession of the subject land
was taken as specified under Sections 10(5) and (6) of
the Act, 1976?
ii) Whether the petitioners are not entitled for
restoration of the subject land on the ground of
delay and laches?
Reg. Point (i):
9. The full Bench of this Court in the case of
S.M. Kannaiah v. State of Karnataka, [2011 SCC
OnLine Kar 49] at para 12 has held as follows:
"12. We see no reason to differ from the view
taken by the Division Bench in the case of M/s. Hunnikeri
Brothers since we are of the opinion that taking over
possession is one of the functions in the sequence of the
different proceedings in the acquisition process and is
consequential and a function which is not in the nature of
performing a quasi-judicial function or an action calling for
exercise of discretion since by such time all such acts
which require deeper application of mind will already be
completed and a decision to acquire the land would
already be in place. Therefore, the power available to the
Deputy Commissioner/ Assistant Commissioner in charge
of a sub-division of a district/ any officer specially
appointed by the appropriate Government under Section
16(1) of the LA Act cannot be construed to mean that
such power should be exercised by his personal presence
at the spot or location where the acquired property is
situate. It is sufficient if the said power under Section
16(1) of the LA Act is exercised by the said persons by
initiating the process for taking possession by requiring
the subordinate officers including the Revenue Inspector
or Surveyor to visit the spot and take possession. If such
subordinate officer completes the process of taking
possession as per procedure laid down, it cannot be
considered as delegation of power in strict sense so as to
attack the same as impermissible. Instead, it is an
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authorization or a direction of the superior Officer to
enable the completion of the process by utilizing the
services of the subordinate officers who also have
sufficient knowledge of the land revenue process.
However, on taking possession, the officer empowered
under Section 16(1) would have to accept the report of
taking possession."
10. The Hon'ble Supreme Court in the case of
Sulochana Chandrakant Galande v. Pune Municipal
Transport, [(2010) 8 SCC 467] has held as follows:
"13. The meaning of the word "vesting" has been
considered by this Court time and again. In Fruit &
Vegetable Merchants Union v. Delhi Improvement
Trust [AIR 1957 SC 344] this Court held that the meaning
of the word "vesting" varies as per the context of the
statute in which the property vests. While considering the
case under Sections 16 and 17 of the 1894 Act, the Court
held as under : (AIR p. 353, para 19)
"19. ... the property acquired becomes the property
of Government without any conditions or limitations either
as to title or possession. The legislature has made it clear
that the vesting of the property is not for any limited
purpose or limited duration."
(emphasis added)
14. "Encumbrance" actually means the burden
caused by an act or omission of man and not that created
by nature. It means a burden or charge upon property or
a claim or lien on the land. It means a legal liability on
property. Thus, it constitutes a burden on the title which
diminishes the value of the land. It may be a mortgage or
a deed of trust or a lien of an easement. An encumbrance,
thus, must be a charge on the property. It must run with
the property. (Vide Collector of Bombay v. Nusserwanji
Rattanji Mistri [AIR 1955 SC 298] , H.P. SEB v. Shiv K.
Sharma [(2005) 2 SCC 164 : AIR 2005 SC 954] and AI
Champdany Industries Ltd. v. Official Liquidator [(2009) 4
SCC 486] .)
22. In view of the above, the law can be summarised
that once the land is acquired, it vests in the State free
from all encumbrances. It is not the concern of the
landowner how his land is used and whether the land is
being used for the purpose for which it was acquired or for
any other purpose. He becomes persona non grata once
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the land vests in the State. He has a right to get
compensation only for the same. The person interested
cannot claim the right of restoration of land on any
ground, whatsoever."
11. The Division Bench of this Court in the case of
Mangalore Urban Development Authority (supra) referring
to Sections 10(3) and 10(6) of the Act,1976 at para-9 has
held as follows:
"9. Assuming that the Revenue Inspector took
possession of the land, no document is produced to show
that he was the competent authority under Section 10(6)
of ULC Act to take possession of the land which is
declared as surplus urban land under Section 10(3) of the
Act. The language used therein is "the competent
Authority may take possession of the vacant land or cause
it to be given to the State Government or to any person
duly authorized by such State Government in this
behalf........." There is no document in the original file of
the State Government to show that possession of the land
was taken by the competent Authority and given to the
State Government. Even if the alleged mahazar is
construed as the document regarding taking of possession
of the land in question, possession was not given to
Government but was given to Urban Development
Authority. Viewed from any angle, it cannot be said that
possession of the land was taken by competent authority
from the owner of the land in question and given to
Government. Therefore, question of vesting of the surplus
urban land with the Government did not arise at all. In
the circumstances, Section 3(1) of Repeal Act will not
apply to the land in question."
12. The Hon'ble Supreme Court in the case of
Gajanan Kamlya Patil supra at para 9 as held as
follows:
"9. We have, therefore, clearly indicated that it was
always open to the authorities to take forcible possession
and, in fact, in the notice issued under Section 10(5) of
the ULC Act, it was stated that if the possession had not
been surrendered, possession would be taken by
application of necessary force. For taking forcible
possession, certain procedures had to be followed:
Respondents have no case that such procedures were
followed and forcible possession was taken. Further, there
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is nothing to show that the Respondents had taken
peaceful possession, nor there is anything to show that
the Appellants had given voluntary possession. Facts
would clearly indicate that only de jure possession had
been taken by the Respondents and not de facto
possession before coming into force of the repeal of the
Act Since there is nothing to show that de facts
possession had been taken from the Appellants prior to
the execution of the possession receipt in favour of MRDA,
it cannot hold on to the lands in question, which are
legally owned and possessed by the Appellants.
Consequently, we are inclined to allow this appeal and
quash the notice dated 17.2.2005 and subsequent action
taken therein in view of the repeal of the ULC Act. The
above reasoning would apply in respect of other appeals
as well and all proceedings initiated against the
Appellants, therefore, would stand quashed".
13. The Hon'ble Supreme Court in the case of
the State of U.P. v. Hari Ram, [(2013) 4 SCC 280], at
para 42, has held as follows:
"42. The mere vesting of the land under sub-
section (3) of Section 10 would not confer any right on
the State Government to have de facto possession of the
vacant land unless there has been a voluntary surrender
of vacant land before 18.03.1989. State has to establish
that there has been a voluntary surrender of vacant land
or surrender and delivery of peaceful possession under
sub-section (5) of Section 10 or forceful dispossession
under sub-section (6) of Section 10. On failure to
establish any of those situations, the land owner or holder
can claim the benefit of Section 4 of the Repeal Act. The
State Government in this appeal could not establish any of
those situations and hence the high Court is right in
holding that the respondent is entitled to get the benefit
of section 4 of the Repeal Act."
14. In view of the dictum of the Hon'ble Supreme
Court in the aforesaid cases, mere vesting of land under
sub-section (3) of Section 10 would not confer any right
on the State Government to have de facto possession of
the vacant land, unless there has been a voluntary
surrender of vacant land. The State has to establish that
there has been a voluntary surrender of vacant land and
delivery of peaceful possession under sub-section (5) of
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Section 10 or forceful dispossession under sub-section (6)
of Section 10. On failure to establish any of those
situations, the land owner or holder can claim the benefit
of Section 4 of the Repeal Act.
15. The then competent authority in exercise of
the power conferred under Section 10(3) of the Act,
passed an order dated 30.05.1986 declaring that the
declarant was holding an excess land to an extent of
14687.3839 sq. mtrs. and the said order has attained
finality. The respondent-State claims that the possession
of the land declared as excess land was taken in the year
1985 and thereafter, the name of the Government was
mutated in the revenue records in respect of the subject
land vide M.E.No.3388 certified on 18.05.1985 at
Annexure-F. To substantiate the claim that, the lawful
possession of the subject land was taken as specified
under Sections 10(5) or 10(6) of the Act, the respondent
has neither produced any document nor stated in the
statement of objection as to who has taken the possession
of the subject land as specified under Section 10(6) of the
Act. Hence, it is implied that lawful possession of the
subject land was not taken as specified under Section 10
(5 ) or (6) of the Act, 1976.
16. The possession is alleged to have been
taken by the Revenue Inspector by drawing panchanama,
however, the respondents have not placed any material to
substantiate the said claim. Even otherwise, the Revenue
Inspector was not the competent Authority specified in
Section 10(6) of the Act, 1976 to take possession. The
lawful possession of the subject land having not been
taken as specified under Section 10(6) of the Act, 1976,
the petitioners are entitled for restoration of the subject
land as specified under Section 3(2) and Section 4 of the
Repeal Act, 1999, since de jure possession of the subject
land was taken and not de facto possession as held by the
Hon'ble Supreme Court in the case of Gajanan Kamlya
Patil (supra).
17. Even accepting for a moment that, the
possession of the subject land was taken by the Revenue
Inspector concerned by drawing panchanama, the same
cannot be construed as one taken by the competent
Authority, since the Revenue Authority is not the
competent Authority to take possession as held by the
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Division Bench of this Court in the case of Mangalore
Urban Development Authority (supra).
18. Hence, point No.(i) is answered in favour of the
petitioners holding that the lawful possession of the
subject land having not been taken by the competent
Authority under Section 10(5) and (6) of the Act, 1976,
the petitioners are entitled for restoration of the subject
land.
19. Reg. Point No.(ii):
The Division Bench of this Court in the case of
Gawadu Siddappa Patil, since deceased by L.R. Vs.
State of Karnataka and others, (Writ Appeal
No.100102/2019 disposed of on 22.07.2019) at para 19
has held as follows:
"19. Hon'ble Apex Court in this context has held that
even in circumstances where possession has been taken
by the Government without issuing notice to land owner,
it would not vitiate the act of taking possession and more
so in case where land owner had for years not challenged
taking of possession, which parameters are writ large in
the instant case namely (i) possession of the excess
vacant land has been taken way back in the year 1992;
(ii) during the lifetime of the declarant he did not
challenge the taking of possession; and (iii) the writ
petitioner though having attained majority way back in
the year 1982, yet, did not challenge the same till 2018
and thereby he has waived his right even, if any. It is in
this context Hon'be Apex Court in the case of State of
Assam V/s. Bhaskar Jyoti Sarma, reported in 2015 AIR
SCW 548 has held as follows: "11. Section 3 of the Repeal
Act postulates that vesting of any vacant land under sub-
section (3) of Section 10, is subject to the condition that
possession thereof has been taken over by the competent
authority or by the State Government or any person duly
authorised by the State Government. The expression
"possession" used in Section 3 (supra) has been
interpreted to mean "actual physical possession" of the
surplus land and not just possession that goes with the
vesting of excess land in terms of Section 10(3) of the
Act. The question, however, is whether actual physical
possession of the land in dispute has been taken over in
the case at hand by the competent authority or by the
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State Government or an officer authorised in that behalf
by the State Government. The case of the appellant is
that actual physical possession of the land was taken over
on 7th December, 1991 no matter unilaterally and without
notice to the erstwhile land owner. That assertion is
stoutly denied by the respondents giving rise to seriously
disputed question of fact which may not be amenable to a
satisfactory determination by the High Court in exercise of
its writ jurisdiction. But assuming that any such
determination is possible even in proceedings under
Article 226 of the constitution, what needs examination is
whether the failure of the Government or the authorised
officer or the competent authority to issue a notice to the
land owners in terms of Section 10(5) would by itself
mean that such dispossession is no dispossession in the
eye of law and hence insufficient to attract Section 3 of
the Repeal Act. Our answer to that question is in the
negative. We say so because in the ordinary course actual
physical possession can be taken from the person in
occupation only after notice under Section 10(5) is issued
to him to surrender such possession to the State
Government, or the authorised officer or the competent
authority. There is enough good sense in that procedure
inasmuch as the need for using force to dispossess a
person in possession should ordinarily arise only if the
person concerned refuses to cooperate and surrender or
deliver possession of the lands in question. That is the
rationale behind Sections 10(5) and 10(6) of the Act. But
what would be the position if for any reason the
competent authority or the Government or the authorised
officer resorts to forcible dispossession of the erstwhile
owner even without exploring the possibility of a voluntary
surrender or delivery of such possession on demand.
Could such use of force vitiate the dispossession itself or
would it only amount to an irregularity that would give
rise to a cause of action for the aggrieved owner or the
person in possession to seek restoration only to be
dispossessed again after issuing a notice to him. It is this
aspect that has to an extent bothered us. The High Court
has held that the alleged dispossession was not preceded
by any notice under Section 10(5) of the Act. Assuming
that to be the case all that it would mean is that on 7th
December, 1991 when the erstwhile owner was
dispossessed from the land in question, he could have
made a grievance based on Section 10(5) and even
sought restoration of possession to him no matter he
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would upon such restoration once again be liable to be
evicted under Sections 10(5) and 10(6) of the Act upon
his failure to deliver or surrender such possession. In
reality therefore unless there was something that was
inherently wrong so as to affect the very process of taking
over such as the identity of the land or the boundaries
thereof or any other circumstance of a similar nature
going to the root of the matter hence requiring an
adjudication, a person who had lost his land by reason of
the same being declared surplus under Section 10(3)
would not consider it worthwhile to agitate the violation of
Section 10(5) for he can well understand that even when
the Court may uphold his contention that the procedure
ought to be followed as prescribed, it may still be not
enough for him to retain the land for the authorities could
the very next day dispossess him from the same by
simply serving a notice under Section 10(5). It would, in
that view, be an academic exercise for any owner or
person in possession to find fault with his dispossession
on the ground that no notice under Section 10(5) had
been served upon him.
13. Reliance was placed by the respondents upon
the decision of this Court in Hari Ram's case (supra). That
decision does not, in our view, lend much assistance to
the respondents. We say so, because this Court was in
Hari Ram's case (supra) considering whether the word
'may' appearing in Section 10(5) gave to the competent
authority the discretion to issue or not to issue a notice
before taking physical possession of the land in question
under Section 10(6). The question whether breach of
Section 10(5) and possible dispossession without notice
would vitiate the act of dispossession itself or render it
non est in the eye of law did not fall for consideration in
that case. In our opinion, what Section 10(5) prescribes is
an ordinary and logical course of action that ought to be
followed before the authorities decided to use force to
dispossess the occupant under Section 10(6). In the case
at hand if the appellant's version regarding dispossession
of the erstwhile owner in December 1991 is correct, the
fact that such dispossession was without a notice under
Section 10(5) will be of no consequence and would not
vitiate or obliterate the act of taking possession for the
purposes of Section 3 of the Repeal Act. That is because
Bhabadeb Sarma-erstwhile owner had not made any
grievance based on breach of Section 10(5) at any stage
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during his lifetime implying thereby that he had waived
his right to do so."
20. The Division Bench in the aforesaid case,
refused to entertain the writ appeal/writ petition on the
ground that the possession of excess land was taken on
26.07.1982, and the petitioner therein should have
questioned the same at the first available opportunity,
and even if such grievance had been made, at that
relevant point of time, the competent authority would
have undertaken the exercise of taking possession under
Section 10(6) of the Act.
21. In the instant case, the respondent-State
has not produced any document to substantiate its claim
that lawful possession was taken under Section 10(5), or
10(6) of the Act, 1976. The possession of the subject land
having not been taken, the State Government is obligated
under Sections 3(2) & 4 of the Repeal Act to restore the
subject land.
22. The Division Bench of this Court in Mallaiah
Basalingaiah Hiremath supra has held that, when the
competent authority has passed an order without
jurisdiction, even if there is a delay, it was for the learned
Single Judge to set aside the order and give relief to the
parties, and under those circumstances, the appellant
therein cannot be made to lose his valuable agricultural
land and similarly on the ground of delay in approaching
the Court, the legitimate rights of a farmer cannot be
taken away by the Government on technicality.
23. The Division Bench of this Court in
Vaijayanti Vs. State of Karnataka reported in 2014
SCC OnLine Kar 10086, relying on the Division Bench
judgment of this Court in the case of Mallaiah
Basalingaiah Hiremath (supra), at para 9, has held that
the delay of 18 years in filing the writ petition calling in
question the order of the competent authority,
nevertheless since the order is without jurisdiction is non
est, hence the question of delay and laches does not
arise.
24. The Hon'ble Supreme Court in the case of
Tukaram Kana Joshi v. MIDC, [(2013) 1 SCC 353] at
paras 13, 14 and 15 has observed as follows:
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"13. The question of condonation of delay is one of
discretion and has to be decided on the basis of the facts
of the case at hand, as the same vary from case to case.
It will depend upon what the breach of fundamental right
and the remedy claimed are and when and how the delay
arose. It is not that there is any period of limitation for
the courts to exercise their powers under Article 226, nor
is it that there can never be a case where the courts
cannot interfere in a matter, after the passage of a certain
length of time. There may be a case where the demand
for justice is so compelling, that the High Court would be
inclined to interfere in spite of delay. Ultimately, it would
be a matter within the discretion of the Court and such
discretion, must be exercised fairly and justly so as to
promote justice and not to defeat it. The validity of the
party's defence must be tried upon principles substantially
equitable. (Vide P.S. Sadasivaswamy v. State of
T.N. [(1975) 1 SCC 152 : 1975 SCC (L&S) 22 : AIR 1974
SC 2271] , State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC
566 : AIR 1987 SC 251] and Tridip Kumar Dingal v. State
of W.B. [(2009) 1 SCC 768 : (2009) 2 SCC (L&S) 119] )
14. No hard-and-fast rule can be laid down as to
when the High Court should refuse to exercise its
jurisdiction in favour of a party who moves it after
considerable delay and is otherwise guilty of laches.
Discretion must be exercised judiciously and reasonably.
In the event that the claim made by the applicant is
legally sustainable, delay should be condoned. In other
words, where circumstances justifying the conduct exist,
the illegality which is manifest, cannot be sustained on the
sole ground of laches. When substantial justice and
technical considerations are pitted against each other, the
cause of substantial justice deserves to be preferred, for
the other side cannot claim to have a vested right in the
injustice being done, because of a non-deliberate delay.
The court should not harm innocent parties if their rights
have in fact emerged by delay on the part of the
petitioners. (Vide Durga Prashad v. Chief Controller of
Imports and Exports [(1969) 1 SCC 185 : AIR 1970 SC
769] , Collector (LA) v. Katiji [(1987) 2 SCC 107 : 1989
SCC (Tax) 172 : AIR 1987 SC 1353] , Dehri Rohtas Light
Railway Co. Ltd. v. District Board, Bhojpur [(1992) 2 SCC
598 : AIR 1993 SC 802] , Dayal Singh v. Union of
India [(2003) 2 SCC 593 : AIR 2003 SC 1140]
and Shankara Coop. Housing Society Ltd. v. M.
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Prabhakar [(2011) 5 SCC 607 : (2011) 3 SCC (Civ) 56 :
AIR 2011 SC 2161] .)
15. In H.D. Vora v. State of Maharashtra [(1984) 2
SCC 337 : AIR 1984 SC 866] this Court condoned a 30-
year delay in approaching the court where it found
violation of substantive legal rights of the applicant. In
that case, the requisition of premises made by the State
was assailed."
25. The Hon'ble Supreme Court in the case of
Vidya Devi v. State of H.P., [(2020) 2 SCC 569]
referring to the decision in the case of Tukaram Kana
Joshi (supra) has held as follows:
"12.12. The contention advanced by the State of
delay and laches of the appellant in moving the Court is
also liable to be rejected. Delay and laches cannot be
raised in a case of a continuing cause of action, or if the
circumstances shock the judicial conscience of the Court.
Condonation of delay is a matter of judicial discretion,
which must be exercised judiciously and reasonably in the
facts and circumstances of a case. It will depend upon the
breach of fundamental rights, and the remedy claimed,
and when and how the delay arose. There is no period of
limitation prescribed for the courts to exercise their
constitutional jurisdiction to do substantial justice."
26. The Hon'ble Supreme Court in the case of
Kapilaben Ambalal Patel v. State of Gujarat, [(2021)
12 SCC 95] at para 16 and 18 has held as follows:
"16. It is further contended by the appellants that
the purported possession panchnama dated 20-3-1986 is
not a reliable document at all. It is vague and bereft of
details. Its authenticity and contents have been disputed
by the appellants. It is intriguing that although the subject
land is dispersed and not one continuous piece of land,
yet one common possession panchnama is drawn without
any explanation as to the manner in which the possession
of five non-contiguous plots came to be taken by the
authorities concerned. Further, the panchnama does not
bear any time. All these deficiencies lead to the only
conclusion that the possession panchnama was prepared
by the officials sitting in their office without visiting the
site. Secondly, the possession panchnama has not been
signed by any of the twelve (12) landowners. The
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appellants are also relying on the observations made by
the learned Single Judge recording the factum of
possession being in favour of the appellants to hold that
the possession panchnama was illegal.
18. The respondent State, on the other hand, would
urge that the writ petition filed by the appellants was
hopelessly delayed and suffered from laches. The
possession of the suit land was taken under the
possession panchnama dated 20-3-1986. That fact was
within the knowledge of the appellants as is evident from
the record and in particular from the stand taken by the
respondent State to oppose review application in relation
to application under Section 21 of the 1976 Act. It was
clearly stated by the respondent in the said proceedings
that the appellants were not entitled for any relief as
possession has already been taken on 20-3-1986 and that
the subject land had already vested in the State. Thus, it
was within the knowledge of the appellants being party to
the said proceedings. That fact has been recorded in the
order dated 19-9-1998 in review application while
remanding the application (under Section 21) for
reconsideration by the competent authority. The present
writ petition, however, has been filed only in 2001 without
disclosing any cause for such delay and laches, much less
plausible explanation. The Division Bench of the High
Court was, therefore, justified in non-suiting the
appellants including on the ground of delay and laches in
filing of the writ petition. That finding is unexceptionable.
It is urged that before taking possession vide possession
panchnama dated 20-3-1986, notices were duly issued to
the landowners under Section 10(5) of the 1976 Act. The
first notice was issued on 17-12-1985 to Ambalal
Parsottambhai Patel, Bhikhabhai Maganbhai Patel,
Natvarbhai Bhailalbhai Patel and Jayantibhai Babarbhai
Patel. This was duly served. The second notice dated 23-
1-1986 was also issued to Ambalal Parsottambhai Patel,
Bhikhabhai Maganbhai Patel, Natvarbhai Bhailalbhai Patel
and Jayantibhai Babarbhai Patel. The second notice sent
to Ambalal Parsottambhai Patel was returned with
endorsement "said owner has expired". However, the
other noticees--Bhikhabhai Maganbhai Patel, Natvarbhai
Bhailalbhai Patel and Jayantibhai Babarbhai were duly
served with the second notice and their acknowledgments
have been produced on record. Despite those notices, the
appellants concerned failed to remain present for handing
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over the possession on the specified date. Therefore, after
waiting for 30 days' period, the authority proceeded to
take forcible possession on 20-3-1986 vide possession
panchnama. That is permissible in law and was the only
course open to the authority to take forward the
acquisition process of the excess/surplus land. It is urged
that none of the appellants challenged the said notices or
the possession panchnama of 1986. Further, the
appellants have not asked for further relief of declaration
regarding the other proceedings, which have become final
or for that matter that the entire proceedings stood
abated in terms of the Repeal Act, knowing fully well that
such a plea would not be available to them in the light of
having lost possession of the surplus/excess land on 20-3-
1986."
27. The State is under an obligation to follow due
process of law for taking possession of immovable
properties of its citizens. The State cannot deprive the
right over immovable property by taking unlawful
possession and continue to be in unlawful possession
stating that the writ petition is hit by delay and laches,
when the State Government is a welfare state and
governed by rule of law. The petitioner cannot be deprived
of his valuable rights over the immoveable property,
which is not only a constitutional right but also human
right, when there is violation of his substantial legal
rights. Though it is alleged that the subject land is allotted
to the Police Department, no material is placed that the
subject land is developed by putting up any construction,
which implies that the subject land is still vacant.
Admittedly, the lawful possession much less unlawful
possession of the subject land having not been
taken, the petitioners cannot be deprived of their
legitimate right under Section 3(2) and 4 of the Repeal
Act, 1999 only on the ground of delay. The State
Government cannot enrich itself by claiming to be in
possession which is unlawful and the said unlawful
possession does not bestow any right to the State
Government. Hence, the submission of the learned
Additional Government Advocate that the writ petition is
hit by delay and laches is not acceptable, and the delay if
any in filing this writ petition deserves to be condoned.
28. Hence, point No.(ii) is answered in favour of the
petitioners holding that the delay in approaching the Court
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is not a bar for restoring the subject land in favour of the
petitioners in light of Section 3(2) of the Repeal Act, 1999,
since possession muchless lawful possession was not
taken under Section 10(5) and (6) of the Act, 1976 by the
Revenue Inspector.
29. This Court in W.P.No.103654/2017 disposed of
on 09.04.2021, W.P. No.61621/2009 disposed of on
04.09.2019, W.P. No.108986/2017 disposed of on
16.09.2021, W.P.No.100495/2015 C/w W.P.
No.102484/2015, disposed of on 05.10.2021, and W.P.
No.63674/2011 disposed of on 02.11.2011, has held that
the proceedings stand abated since lawful possession of
the land which has been declared as excess land has not
been taken by the competent authority as declared by
Section 10(6) of the 1976 Act. The State Government has
implemented the similar orders passed by this Court in
various writ petitions."
4. Therefore, possession alleged to have been taken
by the revenue inspector is not the competent authority under
Section 10(6) of the Act, 1976 is held to be on without
authority of law and the petitioner is entitled for restoration of
the land is stated under Section 3(2) of the Repeal Act, 1999.
5. The entire proceedings initiated under provision of
the Act, 1976 in No.RB/ULC/D/SR-1136 dated 01.06.1978 at
Annexure-E on the file of respondent No.2 in so far as it relates
to the subject land stands abated.
6. Respondent No.3 is hereby directed to delete the
name of the Government and substitute the name of the
deceased father of the petitioner in the revenue records in
respect of the subject land.
7. Liberty is reserved to the petitioner to file an
appropriate application with respondent No.3 for substituting
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the name of the deceased father in the revenue records in
respect of the subject property, and if such application is filed,
respondent No.3 to consider the same in accordance with law.
Sd/-
JUDGE
SSP
