Gujarat High Court
State Of Gujarat & vs Pravinkumar R Patel on 15 July, 2016
Author: Anant S.Dave
Bench: Anant S. Dave, A.S. Supehia
C/LPA/420/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 420 of 2011
In
SPECIAL CIVIL APPLICATION NO. 3327 of 1989
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
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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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STATE OF GUJARAT & 1....Appellant(s)
Versus
PRAVINKUMAR R PATEL....Respondent(s)
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Appearance:
MR PRAKASH JANI ADDL. ADVOCATE GENERAL WITH MR VENUGOPAL
PATEL AGP for the Appellant(s) No. 1 - 2
MR A J PATEL, ADVOCATE for the Respondent(s) No. 1
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HC-NIC Page 1 of 32 Created On Wed Jul 20 01:24:35 IST 2016
C/LPA/420/2011 CAV JUDGMENT
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 15/07/2016
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) 1 The appellant - State of Gujarat has filed this appeal under Clause 15 of the Letters Patent challenging order dated 16/17.06.2009 passed by the learned Single Judge in Special Civil Application No.3327 of 1989 allowing the petition filed by the original petitioner / land holder quashing and setting aside the order dated 30.04.1986 passed by the competent authority under Section 8(4) of the ULC Act, which was confirmed by the Tribunal by order dated 03.02.1989 in Appeal No.158 of 1986.
2 The facts leading to filing the present appeal are as under:
2.1 On 13.09.1976 the petitioner had filed a form under Section 6(1) of the ULC Act in respect of land bearing Survey No.628, admeasuring 5362 square meters. On 24.12.1982 draft statement Page 2 of 32 HC-NIC Page 2 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT served on landowner. On 30.04.1986 the competent authority and an Additional Collector passed an order declaring land admeasuring 4478 square meters of moje : Chandkheda to be surplus. On 30.05.1986 final statement under Section 9 was issued and served to the owner. On 21.07.1986 the petitioner applied for agricultural exemption under Section 20 of the ULC Act. On 07.08.1986 notification under Section 10(1) was issued.
Appeal No.158 of 1986 filed on 31.07.1986 under Section 33 of the ULC Act was rejected by the Tribunal on 03.02.1989.
2.2 That notification dated 15.03.1989 under Section 10(3) was annexed for onward publication by letter dated 10.07.1989 by competent authority to the Manager, Government Press to publish the above notification in the Gazette of Government of Gujarat. The record further reveals that on 24.07.1989 the competent authority addressed communication to the Government Press not to publish the above notification dated 15.03.1989, but somehow the notification under Section 10(3) came to be published in the official gazette of Government of Gujarat on 03.08.1989. That after publication of notification in the Government Gazette as above, upon receipt of communication dated 24.07.1989 of competent authority, Manager, Government Press addressed letter dated Page 3 of 32 HC-NIC Page 3 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT 11.08.1989 to the competent authority to issue another notification cancelling notification under Section 10(3) so that it can be published in the Government Gazette. Accordingly, the competent authority thereafter cancelled the notification under Section 10(3) and communicated on 26.09.1989 to the government Press. Till 26.04.2006 no record is available and a letter was addressed by the Manager, Government Press on 26.04.2006 to the competent authority that cancellation notification of Section 10(3) dated 26.09.1989 was not received by the Government Press and thereafter not published in the Government Press.
2.3 On 30.06.1990 Notice under Section 10(5) was given to the landlord for which acknowledgment receipt was received and on 31.08.1990 Panchnama of taking over possession was drawn. On 23.11.1991 the competent authority rejected application under Section 20 of the Act and on 28.11.1991 letter was sent to Talati, Chandkheda to make entry in revenue record. 13.05.1999 Entry reflected in village form 6 and the said entry is certified on 09.12.2000. Even in village form 7/12 extracts also show government name for 4478 square meters land as occupants.
Page 4 of 32HC-NIC Page 4 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT 2.4 According to the ULC Authority, in the year 1990 possession is said to have been taken over by the Maintenance Surveyor in presence of the panchas.
2.5 An Application filed by the original petitioner under Section 20 of the ULC Act was rejected by the State Government on 23/28.11.1991. In January, 1992, the petitioner filed Special Civil Application No.258 of 1992 challenging the order passed on the application under section 20 of the Act. Learned Single Judge vide order dated 18.01.1992 issued rule making it returnable on 04.02.1992 and granted interim relief in terms of paragraph 11(C) of the petition viz. status quo qua the subject land and the said petition was ordered to be heard with Special Civil Application No.3327 of 1989. On 07.05.1999 ultimately on repeal of the ULC Act, Special Civil Application No.3327 of 1989 was declared to be abated as this Court found that the possession was not taken over and the learned Government Pleader did not controvert that aspect. On 11.10.1999 Special Civil Application No. 258 of 1992 was withdrawn.
2.6 Against the order dated 07.05.1999 passed by the learned Single Judge Letters Patent Page 5 of 32 HC-NIC Page 5 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT Appeal No.136 of 2002 was filed by the present appellant State Government. The petitioner herein has filed reply affidavit in that appeal and on 02.04.2002 Letters Patent Appeal No.136 of 2002 was withdrawn by the State Government so as to file review. On 11.07.2002 Misc. Civil Application No.1286 of 2002 was filed by the State Government in Special Civil Application No.3327 of 1989 wherein affidavit was filed by the petitioner and on 20.09.2002 said Misc. Civil Application was rejected by the learned Single Judge.
2.7 In the year 2005, the State Government filed Letters Patent Appeal No.836 of 2005 against the order passed in Misc. Civil Application No.1286 of 2002. On 24.08.2005 partly allowed Letters Patent Appeal No.836 of 2005 and remitted the matter being Misc. Civil Application No.186 of 2002 for fresh hearing. Upon revival, the petitioner has filed reply affidavit in Misc. Civil Application No.1286 on 04.10.2005 and on 18.01.2006 Misc. Civil Application No.1286 of 2002 came to be dismissed.
2.8 On 08.08.2006 the State Government filed Letters Patent Appeal No.1211 of 2006 against the above order passed in Misc. Civil Application No.1286 of 2002. A Division Bench of this Court Page 6 of 32 HC-NIC Page 6 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT vide order dated 29.07.2008 allowed the Letters Patent Appeal and set aside all the orders and restored the main petition being special Civil Application No.3327 of 1989.
2.9 Finally, the learned Single Judge, after hearing learned counsel for the parties, vide order dated 16/17.06.2009 allowed the petition filed by the original petitioner quashing and setting aside the order dated 30.04.1986 passed by the competent authority under Section 8(4) of the ULC Act, which was confirmed by the Tribunal by order dated 03.02.1989 in Appeal No.158 of 1986.
3 Shri P.K.Jani, learned Additional Advocate General assailed order of learned Single Judge mainly on the ground that the learned Single Judge has failed to appreciate that before passing of order of status quo the notification under Section 10(3) of the Act was published declaring that the excess vacant land referred to in the notification published under Section 10(1) of the Act shall be deemed to have been acquired by the State Government and such land shall be deemed to have vested absolutely in the State Government free from all encumbrances and Page 7 of 32 HC-NIC Page 7 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT thereafter possession was taken over after following due procedure. It is next contended that Section 3 of the Repeal Act provides saving clause and, therefore, when there is vesting of any waste land under Section 10(3) of the Act and possession is taken over by the State Government or authorized officer or competent authority, the provisos of the Repeal Act will not effect and/or alter possession. That main thrust of the arguments of learned Additional Advocate General was based on absence of any publication of notification in the gazette of Government of Gujarat with respect to cancellation of the notification published under Section 10(3) of the Act and it cannot be treated as cencelled only on the fact that there was some internal communication between the authority and the Manager of the Government Press. Inter alia, it is contended that once the competent authority had issued notice under section 10(5) of the Act, then land owner in absence of order of stay or injunction was obliged to hand over possession and in case if such possession is not handed over then also the Government had authority under Section 10(6) of the Act to enter upon land and take the possession. In the facts of the case, section 10(5) notice was issued to the land owners and failure to hand over possession of the land, the officers of the State Government by Page 8 of 32 HC-NIC Page 8 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT following procedure including that of drawing panchnama in presence of panchas had taken over possession. It is further submitted that after possession was taken over by the competent authority / authority of the State Government, the learned Single Judge admitted writ petition being Special Civil Application No.3327 of 1989 on 19.01.1991 and also granted the order of status quo. Even another order is passed in Special Civil Application No.258 of 1989 on 19.01.1991 and also granted the order of status quo. Even another order is passed in Special Civil Application No.258 of 1992 on 18.01.1992 whereby the State Government was directed not to take possession of the land in question. The above fact was not brought to the notice of the learned Single Judge and accordingly the order deserves to be quashed and set aside.
3.1 Learned Additional Advocate General has relied on the following decisions:
[1] Publication of notification in official gazette is mandatory requirement:
[a] State of Uttar Pradesh v. Hari Ram [(2013)4 SCC 280] Page 9 of 32 HC-NIC Page 9 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT [b] Shri Rangaswami, The Textile Commissioner & Ors. v. The Sagar Textile Mills (P) Ltd. & Anr. [(1977)2 SCC 578].
[c] Sardar Govindrao v. State of Madhya Pradesh [AIR 1965 SC 1222] [d] Rajendra Agricultural University v. Ashok Kumar Prasad [2010(1) SCC 730].
[2] With regard to submission that if cancellation procedure not followed, then notification would remain in operation, reliance is placed on the decision of the Apex Court in the case of Jeewan Nath Wahal v. State of Uttar Pradesh & Ors. (2011)12 SCC 769 [3] With regard to submission that Notification cannot be superseded by non statutory executive order:
[a] Union of India v. Diljeet Sing [(1999)2 SCC 672] [b] Union of India & Anr. v. Kartick Chandra Mondal & Anr. [(2010)2 SCC 422].
[4] With regard to submission that Notings in Page 10 of 32 HC-NIC Page 10 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT departmental files do not have the sanction of law to be an effective order reliance is placed on the decision of the Apex Court in the case of M/S Sethi Auto Service Station v. Delhi Development Authority & Ors. [(2009)1 SCC 180].
4 Mr. A.J.Patel, learned counsel for the respondent, at the outset has relied on the panchnamas drawn in the year 1990 while taking over possession by the authority and has submitted that one of the panchas is minor and there are many gaps which are left unfilled and no specific date is mentioned of taking over possession of the subject land. Further, it appears that panchnama was drawn so casually and not even at the place where the subject land is situated. The record reveals, according to learned counsel for the respondent - original petitioner that possession of the subject land was not taken over and it is evident on perusal of revenue record of village forms, where entry was made after repeal of the ULC Act. On 12.05.1999 entry No.6920 was mutated in village forms and it was certified on 09.12.2000 i.e. almost after 9 to 10 years of the alleged taking over over of possession. That other revenue records of the subject land reveal that it was cultivated by the writ petitioner up to 200304, Page 11 of 32 HC-NIC Page 11 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT will go to show that the subject land remained in possession of the petitioner throughout. Learned counsel has further relied on observations and findings of learned Single Judge of this Court in various proceedings undertaken with regard to same subject land before it finally came to be remanded to be decided on merit by the Division Bench.
4.1 Learned counsel for the respondent submitted that the panchnama that is alleged to have been executed on 31.08.1990 is a document worth seeking. This is the document which was condemned by this Hon'ble Court [Coram : Hon'ble Mr. Justice K.R.Vyas][as His Lordship then was] when the review was taken. In the panchnama, the date of notification, it would appear that there are many gaps. The gaps are indicative of the fact that the panchnama was executed in the office of the competent authority and, therefore, no reliance can be placed on this panchnama for the purpose of taking valuable land of a citizen when the Act is an expropriatory and, therefore, it had been held to be mandatory, noncompliance of any provision of law would vitiate the ultimate action that is alleged to have been taken.
4.2 Learned counsel for the respondent -
Page 12 of 32HC-NIC Page 12 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT original writ petitioner has taken us through the manner in which executive powers have been exercised while issuing notification under Section 10(3), communication addressed to the Government Press by the competent authority not to publish such notification and in spite of the above, Section 10(3) notification was published. Thereafter, the Government Press, addressed letter to the competent authority ULC that notification was already published but in case if the competent authority wants to cancel notification, another order is required to be passed and though such order was again passed cancelling the notification under Section 10(3) and forwarded to the Government Press it was not published in the Government Gazette and after 3 years a letter was addressed by the Government Press to competent authority that in the record of Government Press order cancelling notification under Section 10(3) was not received.
4.3 Therefore, learned counsel for the respondent - original writ petitioner would contend that the case on hand is full of negligence, carelessness, irregularity and illegally while exercising power from time to time in taking over the possession of the subject land of the petitioner in absence of any error either on law or on facts, and order passed by Page 13 of 32 HC-NIC Page 13 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT the learned Single Judge deserves to be sustained and no interference is called for.
4.4 Learned counsel for the respondent relied on following case law on various issues:
With regard to submissions based on Section 20 of the ULC Act, it is submitted that when application was pending under Section 20 of ULC Act, no possession could have been taken.
Reliance is placed on the decision of this Court in the case of Samrathben Manilal Chokshi & Anr. v. State of Gujarat & Anr. [1994(1) GLR 203]. On the aspect of court shall prejudice no man, reliance is placed on the decision of this Court in the case of Savitaben Ramanbhai Patel v. State of Gujarat & Ors. [1999(1) GLR 860]. Reliance is also placed on the decision of the Apex Court in the case of Jang Singh v. Brij Lal [AIR 1986 SC 1631]. On the point that of competent authority has trappings of court, reliance is placed on the decision in the case of P. Sarathy v. State Bank of India [AIR 2000 SC 2023]. On the point about possession of the subject land in the context of factual scenario of this case, reliance is placed in the case of State of U.P. v. Hari Ram reported in [2013 AIR SCW 1683], in which the Apex Court Page 14 of 32 HC-NIC Page 14 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT has considered the word `may' and `shall' in the context of section 10(3), (5) an (6) of the ULC Act, 1976. Reliance is also placed on the decision of the Apex Court in the case Vinayak Kashinath Shilkar v. Deputy Collector and Competent Authority & Ors. 2012(4) SCC 719 about effect of Repeal Act, 1999 and ULC Ceiling and Regulation Act, 1976 is an expropriatory piece of legislation and therefore should be construed strictly.
5 Heard learned Additional Advocate General appearing for the State of Gujarat and learned counsel for the respondent and perused record, including the impugned judgment in juxtaposition to orders passed by this court earlier in various proceedings to which reference is already made in earlier paragraphs, the facts that barring the aspect of taking over possession of the subject land and effect of orders passed initially of granting status quo qua the subject land in both the writ petitions viz. Special Civil Application Nos.3327 of 1989 and 258 of 1992, issuance of notification under Section 10(1), 10(3), 10(5) remained undisputed. Further, after publication of notification dated 15.03.1989 under Section 10(3) of the Act in Government Gazette on 03.08.1989, a further communication dated 24.07.1989 came to be issued Page 15 of 32 HC-NIC Page 15 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT by the competent authority under the ULC Act to Government Press to publish the notification dated 15.03.1989 [under section 10(3) of the Act] also remained undisputed so are the facts about a communication by Manager, Government Press dated 11.08.1989 to the competent authority under ULC Act to issue fresh notification cancelling earlier notification under Section 10(3) was necessary since government press had already published the above notification dated 15.03.1989 in Government Gazette before communication dated 24.07.1989 by the competent authority, ULC not to publish the notification could be received.
5.1 Thus, communication of competent authority under ULC Act was clear to the extent that notification dated 15.03.1989 under Section 10(3) which was published earlier was to be cancelled. This exercise of administrative power by ULC authority cannot be termed as noting or a decision on the file, but a step ahead viz. order is already passed and notification did exist. Had there been timely receipt of communication dated 24.07.1989 from the competent authority, ULC, to Government Press, no publication would have been made in the Government Gazette on 03.08.1989. The above exercise of issuance of notification by competent authority, ULC is to be considered in juxtaposition to other facts galore on the record Page 16 of 32 HC-NIC Page 16 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT about exercise undertaken by the officers of the Government to take over the possession and drawing panchnana if the3 subject land on 31.08.1990. At this stage, we would like to refer to paras 7 to 10 of the judgment dated 16 17.06.2009 passed by the learned Single Judge in Special Civil Application No.3327 of 1989, which reads as under:
"7. As noted once having issued notification under Section 10(3) of the Act and having also send the same for publication in Official Gazette, the competent authority realized the mistake in proceeding further beyond the stage of Section 10(3) notification when Section 20 application for exemption was pending. He therefore, immediately communicated to the Government Press on 24.7.89 not to publish notification. Notification in the meantime was already published. Government Press therefore, required that a separate order for cancellation of notification be passed. This was also done by the competent authority on 26.9.89 and duly communicated to the Government Press. Insofar as the competent authority is concerned, therefore, Section 10(3) notification stood cancelled. The fact that same cancellation was not subsequently published in the Official Gazette would not in my opinion alter the situation insofar as position of existence of Section 10(3) notification is concerned. For all purposes in eye of law, Section 10(3) notification stood cancelled. Even if such cancellation was Page 17 of 32 HC-NIC Page 17 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT not subsequently published in Official Gazette, the same could not have been acted upon. The competent authority himself having taken a conscious decision that issuance of notification under Section 10(3) was a mistake and having thereafter, canceled the same, it was thereafter, not open to proceed to the next stage of issuance of notice under Section 10(5) of the Act.
8 Section 10(3) of the Act provides that at any time after the publication of the notification under subsection(1), the competent authority may, by notification published in the Official Gazette declare that excess vacant land shall with effect from such date as may be specified, be deemed to have been acquired by the State Government and upon the publication of declaration, such land shall be deemed to have vested absolutely in the State Government.
8.1 Subsection(5) of Section 10 in turn provides that where any vacant land is vested in the State Government under subsection(3), the competent authority may by notice in writing order taking possession of such land by the State Government.
8.2 Under subsection(6) of Section 10 of the Act it is provided that if any person refuses to handover the possession under Section 10(5), competent authority may take possession of the vacant land or require the authorized officer to do so.
9 It can thus be seen that under Page 18 of 32 HC-NIC Page 18 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT subsection(5) of Section 10, Government or authorized officer can take possession of such excess vacant land which has vested in the Government under Section 10(3) of the Act. Issuance and publication of of notification under Section 10(3) is therefore, sinequanon for proceedings further with issuing of Section 10(5) notice and further step of actually taking possession under Section 10(6) of the Act.
10 In the present case, undisputedly Section 10(3) notification though once having been actually issued and published was subsequently cancelled by the competent authority by giving reasons. The fact that such subsequent cancellation of notification was not published, would not dilute the fact of cancellation of the notification itself. Since Section 10(3) notification stood cancelled, it was not open for the competent authority thereafter, to proceed to further steps of issuing notice under Section 10(5) of the Act or taking possession under Section 10(6) of the Act. Entire exercise of issuance of notice under Section 10(5) and the so called taking over possession under Section 10(6) of the Act suffers from legal infirmities".
Thus, nonpublication of cancellation notification by communication dated 24.07.1989 by the competent authority, ULC to Government Press, which was not received within the time i.e. on or Page 19 of 32 HC-NIC Page 19 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT before the publication of notification 15.03.1989 would ipso facto not fatal or under which competent authority, ULC can take shelter to justify taking over possession of the subject land. In a given case, publication of notification may be sine qua non to give effect to the decision or order of the authority, but having taken conscious decision to cancel earlier notification under section 10(3) of the Act failure of publication of such cancellation notification Government Gazette would not deprive the land holder of right accruing under the Act, which is expropriate piece of legislation.
5.2 The decisions relied on by the learned Additional Advocate General appearing for the appellant - State of Gujarat are briefly discussed on the issue involved in this appeal in in the backdrop of facts and circumstances of the case:
[1] State of Uttar Pradesh v. Hari Ram [(2013)4 SCC 280].
This case is with regard to power of forcible dispossession of land owner who failed to deliver peaceful possession and word `may' used in subsections (5) and (6) of Section 10 is mandatory and in both the subsections Page 20 of 32 HC-NIC Page 20 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT it has to be understood as `shall' because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Para 39 of the very decision mention that mere vesting of the land under subsection (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.03.1999 when the Repeal Act came into force. Thus, vesting of the subject land automatically will not follow transfer / shifting of the possession. Para 39 reads as under:
"39. The mere vesting of the land under subsection (3) of Section 10would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under subsection (5) of Section 10 or forceful dispossession under subsection (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in Page 21 of 32 HC-NIC Page 21 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT 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 3 of the Repeal Act."
[2] Shri Rangaswami, The Textile Commissioner & Ors. v. The Sagar Textile Mills (P) Ltd. & Anr. [(1977)2 SCC 578].
In this case, in the context of Section 3 of Essential Supplies [Temporary Powers] Act, 1946, the Apex Court considered earlier decision in the case of the State of UP v. Jogendra Singh [AIR 1963 SC 1618] and held that the word `may' is capable of meaning `must' or `shall' in the light of the context and where a discretion is conferred upon a public authority coupled with an obligation, the word `may' which discretion should be construed to mean a command.
[3] Sardar Govindrao v. State of Madhya Pradesh [AIR 1965 SC 1222]. In this case, the Apex Court considered Section 5(3) of Central Provinces and Berar Revocation of Land Revenue Exemption Act, 1948 with regard to grant of money or pension thereunder and claim was rejected by State Government without giving any reason. The Apex Court Page 22 of 32 HC-NIC Page 22 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT quoted a para from a book interpreting a statute by Maxwell and considering the Scheme of the Act, nature of obligation upon the Government and requirement of conditions to be fulfilled, it was held that the word `may' in the above Section 5(3) must be interpreted as mandatory when the condition precedent, viz. the existence of religious, charitable or public institutions which ought to be continued or descendants of former ruling chiefs will be established.
[4] Rajendra Agricultural University v. Ashok Kumar Prasad [2010(1) SCC 730].
This case is in the context of Sections 35 and 36 of the Bihar Agricultural University Act, 1987 whereby assent of the Vice Chancellor of the University should be published in the official gazette was considered as an integral part of the process of statute making under section 36 of the Act. In para 13 of the said decision it is held by the Apex Court that once the law lays down that publication of a statute in the Official Gazette is a part of the process of making a statute, the object of making such a provision for publication recedes into the background and becomes irrelevant, and on the Page 23 of 32 HC-NIC Page 23 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT other hand, fulfillment of the requirement to make public the statute by publication in the Official Gazette becomes mandatory and binding.
[5] Union of India v. Diljeet Sing
[(1999)2 SCC 672].
This decision is arising out of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and order passed by the detaining authority under Section 3(1) of the above Act upon report sent by the State Government Under Section 3(2). In the above case, the Apex Court considered the decision in the case of D.Rana [1998 Cri. LJ 354], where the Division Bench of Delhi High Court took the view that 1991 notification stood superseded by the 1996 Order and accordingly held that the disposal of the representation by the Joint Secretary was no disposal in the eye of law, as the representation remained undisposed of, the continued detention of the detenue was illegal and the detenu was entitled to be released. Having made reference to the above issue in para 12 of the judgment, the Apex Court found it difficult to endorse the view of the Delhi High Court and approved judgment Page 24 of 32 HC-NIC Page 24 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT of the Madras High Court in the case of Rosana Begum [1999 Mad. LJ (Cri.) 121]. Thus, notification cannot be superseded by the non statutory executive order.
[6] Union of India & Anr. v. Kartick Chandra Mondal & Anr. [(2010)2 SCC 422].
In this decision, the Apex Court reiterated that administrative orders / decisions / executive instructions / orders unless issued in accordance with law and publicized cannot amount to Government order and internal communications and office notes cannot constitute orders issued by competent authority.
[7] Darothi Clare Parreira & Ors vs State Of Maharashtra & Ors. [(1996)9 SCC 633].
This decision is in the context of Section 10(3), 20, 21 of ULC Act, 1976 where publication of notification vesting the excess land in Government was considered under Section 10(3) of the Act was considered and that competent authority was not required to wait till the application under Sections Page 25 of 32 HC-NIC Page 25 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT 20 and 21 is disposed of. In the above case, the decision was already taken by the Government to allot land in question for other pubic purpose, when housing scheme [8] M/S Sethi Auto Service Station v. Delhi Development Authority & Ors. [(2009)1 SCC 180].
The Apex Court has rendered this judgment in the context of doctrine of legitimate expectation and it is held that, at the best the appellant had an expectation of being considered for recitement with regard to petrol pump site and gas godown. Further, notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decisionmaking authority in the department gets its approval and the final order is communicated to the person concerned.
[9] Shanti Sports Club v. Union of India [(2009)15 SCC 705] This case is in the context of decision rendered by the Division Bench Delhi High Court whereby it refused to interfere with the Central Government's decision not to Page 26 of 32 HC-NIC Page 26 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT exercise discretion under Section 48(1) of the Land Acquisition act, 1894 where one of the issues was opinion recorded by the competent authority in the file on merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Article 77(1) and (2) or Article 166(1) and (2) of the Constitution of India.
[10] Ritesh Tewari & Anr vs State Of U.P.& Ors. [(2010)10 SCC 677].
In this case, the Apex Court held that reliance placed by the appellant on the entire departmental communication between the officer of the State Government cannot be a subject mater of the writ petition and further factum of not taking possession by the statutory authority on account of coming into force of the ULC Repeal Act, 1999 it was held that all proceedings under the Act, 1976 automatically abated.
5.3 Our view, as above, on effect of non publication of notification in the gazette keeping in mind decision of the Apex Court interpreting the word `may' and `shall', as the Page 27 of 32 HC-NIC Page 27 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT case may be under various statutes. We would like to address the issue about fact of taking over possession of the land by the competent officer in this case.
5.4 The following are flaws / lacunas in the panchnama drawn for taking possession of the subject land.
In the panchnama, the date of notification, it would appear that there are many gaps. The gaps are indicative of the fact that the panchnama was executed in the office of the competent authority and, therefore, no reliance can be placed on this panchnama for the purpose of taking valuable land of a citizen when the Act is an expropriatory and, therefore, it had been held to be mandatory, noncompliance of any provision of law would vitiate the ultimate action that is alleged to have been taken.
5.5 When specific lacunas as above were found from the record of the case, it cannot be said that the competent authority has exercised power in accordance with law while taking possession on 31.08.1990 of the subject land. We get adequate reasonings and support from para 39 of the decision in the case of State of U.P. v.
Page 28 of 32HC-NIC Page 28 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT Hariram [supra] relied upon by the learned counsels for the parties. Para 39 of the said judgment reads as under:
"39. The mere vesting of the land under subsection (3) of Section 10would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under subsection (5) of Section 10 or forceful dispossession under subsection (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act."
5.6 Further, from the record, it is revealed from the orders passed in the earlier proceedings, the competent authority under ULC Act, categorically declared on oath that, an order under Sec. 8(4) dated 30.4.86 was passed by the Competent Authority and Deputy Collector, Ahmedabad in respect of the vacant land held by the petitioner. After hearing the party and considering the objections, a final statement Page 29 of 32 HC-NIC Page 29 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT dated 30.5.1986 under sec. 9 was served on him. Pursuant thereto notification under sec. 10(1) read with Rule 6 was issued on 7.8.1986. Notification u/s.10(1) was published in the Gazette on 2.10.86 An appeal was preferred by the petitioner being Appeal No. 158/86 dated 24.7.86 before the Urban Land Tribunal. Notification under sec.10(3) was sent to the Govt. Press for Publication in the Gazette vide letter dated 10.7.89. Pursuant to which the said notification u/s. 10(3) was published in the Gazette on 3.8.89. That the Competent Authority by his letter dated 24.7.89 addressed to the Government Press informed the press that a proclamation dated 10.7.89 u/s. 10(3) of the ULC Act for publication is not required to be published as an application u/s. 20 of the said Act for exemption is still pending. In view of the provision of the Act and the recent decision of the Hon'ble High Court of Gujarat till the said application u/s 20 is not disposed of, notification u/s.10(3) cannot be advertised. Vide letter dated 11.8.89 the Govt. Press, Gandhinagar asked the respondents to pass the necessary orders and send it to them. Subsequently, vide letter dated 26.9.1989 No. ULC/Unit2/493chandkheda/299.G/1954 competent Authority and Deputy Collector, Ahmedabad ordered the Government Press Gandhinagar to cancel the 10(3) notification. Therefore, possession Page 30 of 32 HC-NIC Page 30 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT allegedly taken on 30/31.08.1990 by the competent authority cannot be said to be possession recognized by the procedure in accordance with law.
5.7 Therefore, throughout various proceedings were undertaken before this Court by the original petitioner viz. land holder was protected qua possession of the subject land by grant to status quo and panchnama drawn for taking over possession of the subject land by competent authority and other offices of the Government is an exercise undertaken by them not in accordance with law and procedure established by law. Such panchnama is a piece of paper creating or vesting no right in favour of competent authority and that name of Government was entered in revenue records on 13.05.1999 which was certified on 09.12.2000 and actual cultivation of the land was carried out by petitioner and record so reveals up to 200304.
5.6 Therefore, in the facts of this case, nonpublication of cancellation notification Government Gazette would ultimately not create any right in favour of the Government and a conscious decision was taken which was culminated into notification to cancel earlier notification under Section 10(3) of the Act coupled with Page 31 of 32 HC-NIC Page 31 of 32 Created On Wed Jul 20 01:24:35 IST 2016 C/LPA/420/2011 CAV JUDGMENT failure on the part of the Government authority to take over possession of the subject land by following procedure recognized by the law, we find no reason to interfere with the order passed by the learned Single Judge in Special Civil Application No.3327 of 1989.
6 In view of the above discussion, considering the facts and circumstances of the cases, and law as above laid by the Apex Court, this appeal fails and is hereby dismissed.
(ANANT S.DAVE, J.) (A. S. SUPEHIA, J.) pvv Page 32 of 32 HC-NIC Page 32 of 32 Created On Wed Jul 20 01:24:35 IST 2016