Gujarat High Court
Vipinchandra Vadilal Bavishi And Anr. vs State Of Gujarat And Ors. on 17 June, 2002
Equivalent citations: (2002)3GLR744
Author: Jayant Patel
Bench: Jayant Patel
JUDGMENT Jayant Patel, J.
1. The short facts leading the case are that the petitioners were the owners of the land in question situated at Rajkot and when the Urban Land (Ceiling & Regulation) Act, 1976, (hereinafter referred to 'the Act') came into force on 20th August, 1976, form No, 1 under Section 6 of the Act was filed by the petitioner No. 1 and in the said form it was inter alia declared by the petitioner vide item No. ,4 that the petitioner is holding the land situated at Village Nana Mava bearing Survey No. 71, Plot No. 36 to 43 admeasuring 4610.41 Sq. Mtrs. It was also stated that the holding of his wife Ushaben Vipinchandra Bavisi who is petitioner No. 2 herein, has also filed separate form on 3-11-1982.
2. The draft statement was prepared which was served upon the petitioner and thereafter, the matter was considered under Section 8 of the Act by the Addl. Collector and the Competent Authority under the U.L.C, Rajkot and the decision was rendered on 27-2-1986, whereby vide the item No. 3 of the operative portion of the order it was inter alia decided that for the land bearing Survey No. 71 of Plot Nos. 36 to 43, admeasuring 4610 Sq. Mtrs. the exemption application was made for commercial use. However, the same has been rejected by the Government in the year 1983, and therefore, the said land is not retainable land, and hence, the land bearing Survey No. 71 of Plot No. 16, is to be treated as the holding by the petitioner. However, instead of recording the actual measurement of 4610 Sq. Mtrs. measurement mentioned was 9031 Sq. Mtrs, In the very order, thereafter, vide Para No. 6, the details of lands which were declared surplus were mentioned. So far as the land situated at Nana Mava, bearing Survey No. 71, (hereinafter referred to as the land in question for the purpose of indicating the village and Survey numbers) is concerned, in column No. 4, instead of mentioning 16 plots or Plot Nos. 36 to 43, it was mentioned as Plot No. 1 to 16 and in the column No. 5, of the measurement instead of 4610 Sq. Mtrs. it was mentioned as 9031.71 Sq. Mtrs.
3. Thereafter, on 24-3-1986, the notification under Section 10(1) of the Act was published declaring the land in question together with the other land as surplus land. However, the numbers of plots and the measurements were described as Plot Nos. 1 to 16, instead of either 16 plots or Plot Nos. 36 to 43 and the area was mentioned as of 9030.71 Sq. Mtrs. instead of 4610 Sq. Mtrs.
4. Thereafter, on 16-6-1986, the notification under Section 10(3) was published showing the details of the land in question as they were shown in the notification under Section 10(1) of the Act, Against the order dated 27-2-1986 for declaring the land in question together with the other land as surplus land, the petitioner preferred appeal being No. Rajkot/41/86, before the Urban Land Tribunal and on 17-6-1986, in the said appeal, the interim stay was granted against the publication of the notification under Section 10(3) of the Act. However, prior thereto, i.e. on 16-6-1986, the notification under Section 10(3) of the Act as stated above, was already published. On 20-12-1988, the Urban Land Tribunal decided the appeal preferred by the petitioner as well as by his wife and dismissed both the appeals. However, so far as the land in question is concerned, the Tribunal vide Para No. 4 of the judgment in the Appeal No. 41 of 1986 of the petitioner considered that the land in question bearing Plot Nos. 36 to 43 admeasuring 4610 Sq. Mtrs. was declared as land under holding of the petitioner and had also recorded that the declaration under Section 10(3) of the Act was issued on 16-6-1986.
5. On 26-6-1989, the corrigendum was issued for correcting the mistake occurred in the description of plot number and areas of the land in question and as per the said order, it was mentioned that the plot numbers are to be correctly read as 16 to 23 and 36 to 43. It is the case of the respondent authorities that on 26-6-1989, the possession of the land in question bearing Plot Nos. 16 to 23 and Plot Nos. 36 to 43 were taken over and the panchnama is also drawn to that effect. In the panchnama dated 26-6-1989, it has also been mentioned that over the land in question Plot Nos. 16, 17, 23 and 24, the construction of houses are made.
6. On dated 18-10-1989, the petitioner preferred Spl.C.A. No. 3456 of 1989 before this Court against the order dated 27-2-1986 passed by the Urban Land Authority and order dated 28-12-1988 passed by the Urban Land Tribunal. In the said Spl. Civil Application, this Court passed an order of issuing notice and directed the parties to maintain the status quo as on that day. The pertinent aspect is that in the memo of Spl. C.A. the petitioner at Para 5(2) has mentioned as under:-
"The Survey No. 71, Plot Nos. 36 to 43, admeasuring 4610 Sq. Mtrs. of village Nana Mava has also been declared as vacant land within the meaning of U.L.C. Act, 1976."
"The petitioners say that the said land is not vacant land and the respondents have not applied their mind and have passed the order which are wrong in law and without jurisdiction."
The said petition was admitted subsequently, and ultimately, on 19-7-.1993, the petition was finally heard and dismissed by this Court.
7. The petitioner had preferred Spl. Leave Petition (S.L.P.), before the Hon. Supreme Court of India against the decision of this Court for dismissing the Spl.C.A. and the S.L.P. before the Hon. Supreme Court bearing No. 15853 of 1993 has been dismissed and the said statement is made by the respondent which is not denied by the petitioner.
8. On 22nd March, 1999, the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Hereinafter referred to 'as Repeal Act') came into force and it is the case of the petitioner that on account of the same, on 30th March, 1999, the Act stood repealed. In September, 2000, the petitioner preferred this petition for declaration that the respondent Nos. 1 and 2 have no powers or authority to take the possession of the land in question and has also prayed for the permanent injunction against the respondent Nos. 1 and 2 for dealing or disposing of the land in question pending this petition. The petitioner came to know that the land in question admeasuring 2100 Sq. Mtrs. has been allotted to one Shram Deep Co-op. Housing Society, by the State Government as per the order dated 12th Sept., 2000, and therefore, the petitioners have also challenged the legality and validity of the said order for allotment of the land.
9. Mr. Nanavati appearing with Mr. Thackar, mainly contended that, in view of the Repealed Act, 1999, the principal Act stood repealed, and as per Section 3 of the Repealing Act, if the vesting is made under Section 10(3) and possession of the land in question is taken over by the State Government then only the proceedings may continue or the action taken under the Act will not be effected. Mr. Nanavati submitted that in the present case, there is neither vesting under Section 10(3) of the land in question bearing Survey No. 71 Plot Nos. 36 to 43 admeasuring 4610.10 Sq. Mtrs. nor the possession thereof is taken over prior to the Repealing Act and therefore, Mr. Nanavati submitted that on account of the Repealing Act, the petitioners continued to be the owner of the land in question and the respondents have no authority to deal with the property nor they have any right to allot the same to any one else. Mr. Nanavati, further submitted that the petitioners are concentrating the case only on land situated at Nana Mava and he further submitted that even upon the evidence produced by the respondents themselves, it cannot be said that the land is vested with the respondent nor the possession thereof is taken over by the respondent-authority. Mr. Nanavati also submitted that, for saving the action taken under the Act, the crucial aspect is vesting of the land and vesting of the land in the Government under Section 10(3) of the Act, and taking over of the possession and since both the things are not available in the present case, the petitioners are entitled to the benefit of Repealing Act and the respondent-authority ceased to have any lawful authority over the land in question in any case prior to 1976.
10. Mr. Nanavati, submitted that even if one factum is missing from and amongst the two conditions precedent, mainly the vesting and of taking over the possession, the authority under the Act, in view of the Repeal Act, would cease. Mr. Nanavati, in furtherance to his submission also contended that corrigendum is beyond the scope of the provisions of Section 45 of the Act and the alternatively submitted that even if it is presumed for the sake of arguments that the corrigendum is under Section 45 of the Act, then also there are no fresh proceedings including under Section 10 of the Act after the corrigendum, and therefore, it cannot be said that the land in question is lawfully vested to the State Government. Mr. Nanavati also relied upon the judgment of the Apex Court in case of Yara Singh v. State of Punjab, reported in 2000 (3) CLT 274 to show that the scope and ambit of the corrigendum under Section 45 of the Act.
11. Mr. Nanavati also submitted that in any case, from the documentary evidence produced by the respondents themselves, drawing of the panchanama for taking over the possession of the land in question, are not only bogus but the same cannot be relied upon at all and he submitted that the petitioners have continued to pay the land revenue and in reality, the possession of the land in question, is that of the petitioner. Mr. Nanavati has put reliance on a judgment of the Division Bench of this Court, dated 4-10-2001 passed in L.P.A. Nos. 698 and 699 of 1995, for contending that if the possession is taken over without giving any intimation regarding the date on which the respondent-authority went to take the possession, the action of the respondent-authority of taking over the possession of the land in question cannot be said to be valid in eye of law. Mr. Nanavati submitted that in the present case, since no affidavit supporting the stand taken by the Government is filed, by the maintenance surveyor, it cannot be said that the possession of the land in question is taken over. Mr. Nanavati also placed reliance upon the judgment of this Court in Spl.C.A. No. 8402 of 1999 decided in December, 2000 to contend that if at the time of taking over the possession, boundary, pillars and erection of fencing is not made, then it cannot be said that the possession is taken over and the drawing of the panchnama is not sufficient. Mr. Nanavati, therefore, submitted that in any case, since the possession of the land in question, is not taken over on the day when the Repeal Act came into force, the petitioners have continued to enjoy the ownership of the land in question, and therefore, the respondents have no authority to deal with the land in question of the land which was declared as surplus land bearing Survey No. 71 of village Mava. Mr. Nanavati also relied on a judgment in case of Rajkot Municipal Corporation v. Lavjibhai M. Patel, reported in 2000 (3) GLR 2293 to show that if the possession of the land in question is not taken over by the Government, on enforcement of the Repeal Act, the land will vest in the owner and the State Government would not become the owner of such land.
12. Mr. Nanavati submitted that, in any case, so far as the allotment of the portion of the land admeasuring 2100 Sq. Mtrs. from the land in question to the respondent No. 3-Society is concerned, the same is without any authority and he also submitted that in any case, the land could not have been allotted by the State Government in purported exercise of the powers under Section 23 of the Act to a housing society which is not a co-operative society of the industrial workers. Mr. Nanavati submitted that the petitioner is entitled to the declaration of the permanent injunction so far as the land in question is concerned.
13. Mr. Nanavati submitted that in any case, even if the petition fails on the contentions that the land continues to be the petitioners then also the State Government cannot continue to allot the land under the Section 23 of the Act and he submitted that in any case, the proper proceedure of holding public auction for the allotment of such land is not held, and therefore, the allotment of the land to the respondent No. 3-Society is therefore illegal and against the settled norms for disposal of the public properties, and hence, the order for allotment of the land in any case deserves to be quashed and set aside.
14. On behalf of the respondent Nos. 1 and 2 Mr. S.N. Shelat, learned A.G. with Mr. I.M. Pandya, submitted that, the present petitioner is barred by the principle of res judicata inasmuch as the petitioners from the very beginning were aware of the fact that the land in question is declared as surplus land and they have failed in litigation regarding the declaration of the land in question as the surplus land and have also failed upto the Supreme Court, and having lost in the litigation, the petitioners cannot be allowed to reopen the issue by raising the contentions that the possession of the land is not taken over or that the corrigendum is not acted upon or that the land is not vested to the Government. Mr. Shelat submitted that there is no mistake whatsoever, so far as the description of the land in respect of the village and Survey number is concerned. It is also submitted that, it is true that the mistake occurred in mentioning the plot number and areas, but for the said purpose, the corrigendum was issued and they have submitted that in any case, the petitioners were also aware and they have accepted throughout in the earlier proceedings that the land belonging to them situated at village Nana Mava, is declared as surplus land and the said decision is not interfered by any forum and is upheld and even at the time, neither the petitioners have contended that the corrigendum is illegal nor the petitioners have submitted before this Court or before any other authority that the possession of the land is not taken over.
15. Mr. Shelat submitted that out of the land which was declared as surplus, the land, the portion of the said land, has been sold by the Government but no dispute is raised in respect of the other land which shows that, the order for declaring the land has been acted upon. Mr. Shelat submitted that after taking over the possession of the land in question there are also communication showing that the petitioners were trying to make the encroachment over the land in question and this shows that the possession is genuinely taken and if anybody has made encroachment over the land in question, he cannot be allowed to take undue benefit by contending that now on account of the Repealing Act, he continued to be owner of the land, and therefore, the Government should be restrained from dealing with the land. Mr. Shelat relied upon the judgment reported at 1988 (1) GLR 205 in the case of Himatlal J. Vakharia v. Urban Land Tribunal and Ors., and contended that when the mistakes are corrected under Section 45 of the Act, it take effect from the date on which the original order was passed and he submitted that since the mistake is purely a clerical and typographical mistake, which does not require publication in the Gazette. Mr. Shelat submitted that this Court would not entrust the writ to the person who has made encroachment unauthorisedly over the land in question after the State Government has taken over the possession of the land in question and he submitted that in any case, the petition for declaration would not be maintainable before this Court, when it is the stand of the Government that the possession of the land in question is already taken over as back as in the year 1989. Mr. Shelat submitted that once the land is declared as surplus land the Government has power to allot the land and is not affected by the Repeal Act. The Government has powers to allot the same to the respondent No. 3-Society, and therefore, he ultimately, concluded his argument by submitting that the petition is deserved to be dismissed considering all above aspects.
16. Mr. Shelat also relied on a judgment of the Apex Court, in case of . Larsen & Toubro Ltd. v. State of Gujarat and Ors. reported at 1998 (3) GLR 2012 (SC) : AIR 1998 SC 1608 to contend that normal procedure for the taking over the possession of the land is by way of panchnama and once the panchnama is drawn and the panchas have put their signature, even if the panchas subsequently, files affidavit to the effect that, they had not gone to the spot, then also the Court cannot accept such affidavit and would go by record of the panchnamas.
17. On behalf of the respondent No. 3-Society, Mr. A.J. Patel, learned Counsel with Mr. C.L. Soni, submitted that, the petitioner lacks the bona fide inasmuch as the petitioner from the very beginning is aware of the fact that the land in question is declared as surplus land and he has not challenged the action of issuing the corrigendum or any action pursuant thereto either by preferring the appeal before the Court of law or any lawful forum. Mr. Patel submitted that even by the corrigendum instead of larger area the smaller area is mentioned and the survey number is the same, and therefore, no prejudice is caused to the petitioner. He submitted that, when corrigendum is not challenged and his right to challenge the corrigendum has expired or gone and in reality lost, after the Repeal Act, the petitioners cannot be allowed to raise the contentions that the possession is not taken over or that the corrigendum is not published in the final Gazette etc. with a view to show that all the proceedings and the action taken by the authority and confirmed by the Hon. Supreme Court are wiped out and the petitioners can enjoy the land. He submitted that the litigation is not bona fide and is an ingenuine device to reopen the issues which were available under the law by way of remedy of the appeal and also in the earlier proceedings before this Court and he submitted that petition is barred by res judicata and constructive res judicata.
18. Mr. Patel submitted that after the declaration of the land as surplus land, in the year 1996, the land situated at village Kotharia which is a part of the land which are declared as surplus land, the petitioner has not raised any objection when it was sold by Govt. However, in the year 2000 after the Repealing Act and grievance is voiced by the present petitioners which is barred under the law. Mr. Patel submitted that Section 3(A) of the Act is for the purpose of continuous or abatement of the proceedings whereas in the present case, the proceedings were already over on the date on which the Repealing Act came into force, and therefore, the petitioner is not entitled to the benefit of the Repealing Act. Mr. Patel has put the reliance on a judgment of Apex Court reported in AIR 1981 SC 2198 in the case of Gulam Abbas and Ors. v. State of V.P. to contend that the doctrine of res judicata is applicable to all the proceedings including the proceedings under Article 226 and rights which are already adjudicated cannot be allowed to be reopened in the subsequent proceedings. Mr. Patel also put reliance on a judgment reported at AIR 1992 SC 1018 in the case of State of Rajasthan v. Bhavani Singh and Ors., to contend that the writ petition for the declaration of the title of the petitioner and the disputed property is misconceived and the petition is not maintainable. Mr. Patel submitted that, when the land is declared as surplus land, the Government has authority to allot the same and he submitted that after the Repealing Act on 15-4-1999, the guidelines are issued by the State Government wherein it has been mentioned that if the payment is already received pursuant to the earlier allotment order, the another land can be allotted. Therefore, he submitted that it is not required by the Government to hold the public auction for the allotment of the land and since in the present case, the respondent No. 3-Society has already made the payment in the year 1991, the Government is justified in allotting the land admeasuring 2100 Sq. Mtrs. from the land in question to the respondent No, 3-Society as per the guidelines and the instruction dated 15-4-1999. Mr. Patel therefore, submitted that in any case, the judicial discretion demands that the Court may not allow the petitioner to raise the contentions of non-vesting of the land or not taking over the possession of the land. He submitted that, the petition deserves to be dismissed.
19. In view of the above, the point which arises for the consideration of this Court would be as under :-
(I) Whether the petitioner would be entitled to claim the benefit of Repealed Act, when he has lost in the litigation upto the Supreme Court;
(II) Whether the Government would be legally justified in allotting the land under Section 23 of the Act after the Repealed Act or the only mode for disposal is by public auction which is settled norms for the disposal -of the public properties.
19A While examining the question, it will have to be considered that what shall be the scope and ambit of Repealed Act; and As to whether there is prima facie material to show that the land has vested in the Government and whether the possession is taken over prior Repealed Act thereto or not. In any case, the question of constructive res judicata would arises by way of necessary consequences which will have to be considered by this Court.
20. There is considerable force in the contentions raised by Mr. Shelat, learned A.G. as well as Mr. A.J. Patel learned Counsel appearing for the respondent No. 3 on the point of the conduct of the petitioner and on the point of the constructive res judicata. It has come on record and there is no dispute on the point that the land bearing Survey No. 71 situated at Nana Mava which was held by the petitioner is declared as surplus land. Not only that, but there is no dispute on the point that challenge made by the petitioner to the declaration of the land in question as surplus land has failed upto the Supreme Court, The cause which is sought to be canvassed on behalf of the petitioner is that the land in question which is declared as surplus land was not correctly described, so far as the plot number and areas are concerned, and therefore, the contentions is raised that the land which is declared as surplus land of the land and of which the possession is taken over, is a land and other than land belonging to the petitioner, and hence, the petitioner should be allowed to raise this contention and incidental contentions is also raised on behalf of the petitioner that, the corrigendum dated 26-6-1989 in purported exercise of the powers under Section 45 of the Act is not a corrigendum in eye of law because the same is beyond the scope of the ambit of Section 45 of the Act, and in any case, the same is not notified in the Official Gazette.
21. The perusal of the record shows that after the corrigendum dated 26-6-1989, was issued, the panchnama for taking over the possession of the land in question was drawn by the authority on the very day i.e. on 26-6-1989 and at this stage, the appeal preferred by the petitioner before the Urban Land Tribunal was decided but the petitioner had not preferred the petition before this Court against the order dated 28-12-1988 of the appellate Tribunal.
22. After the panchnama was drawn on 23-10-1989, it was reported by the maintenance surveyor to the competent authority under the U.L.C., that unauthorised construction of the compound wall was going on at the instance of the petitioner No. 1 though he has not been found on the site, and therefore, immediately on 23-10-1989, by Registered Post A.D., the competent authority under the U.L.C. intimated the petitioner in writing that the possession of the land is already taken over in presence of the panchas on 26-6-1989, and thereafter, it has been reported that any illegal construction of compound wall is going, and therefore, the same may immediately be stopped and the construction be removed otherwise, the action shall be taken in accordance with law. The copy of the said communication which was made by Registered Post A.D., dated 23-10-1989, is placed at page 256 to the compilation of this petition. Not only that, but on 25-10-1989, the maintenance surveyor was also instructed for communication of the notice additionally to the petitioner No. 1 and the said notice was also ordered to be published at the site on 27-10-1989. It appears that the maintenance surveyor has made a report to the competent authority under the U.L.C. for publication of the notice issued to the petitioner No. 1 by drawing the Rojkam in presence of two panchas viz. Ramjibhai and Jivraj Nanji.
23. The above clearly shows that, not only the possession of the land in question was already taken over on 26-6-1989, but thereafter, the petitioner had also made attempt to make the encroachment over the land in question and the proceedings of the same were also initiated. I do not accept the contention of Mr. Nanavati that in absence of the affidavit of the maintenance surveyor, the Court cannot rely upon the panchnama itself for taking over the possession and overall stand of the Government that the possession of the land in question is taken over on 26-6-1989 for the simple reason that the maintenance surveyor is a officer below the rank of Competent Authority and when the Competent Authority himself has filed the affidavit stating the aforesaid aspect together with the proof of documentary evidence which is part of the Government record the same cannot be disbelieved merely because the maintenance surveyor has not filed the affidavit. This prima facie shows that the possession of the land in question was already taken over. The perusal of the panchnama drawn on 26-6-1989 shows that the same was after the corrigendum dated 26-6-1989 was issued, and hence, I am prima facie of the view that when the petitioner has preferred the Spl. Civil Application No. 3456 of 1989 before this Court, on 18-10-1989 he was fully aware that the possession of the land in question is taken over by the Government and it can also be said that he was aware about the corrigendum dated 26-6-1989 since the proceedings to take over the possession of the land are pursuant to the corrigendum so far as the land in question is concerned. However, on 18-10-1989, when the petition was preferred by the petitioner as stated above, the petitioner himself has made a statement that the land bearing Survey No. 71, Plot Nos. 36 to 43 admeasuring 4610 Sq. Mtrs. situated at village Nana Mava, has been declared as vacant land therefore, the petitioner was fully aware about the declaration of the land as vacant land and inspite of that, the petitioner has neither challenged the corrigendum dated 26-6-1989 nor he has made any whisper regarding the factum of the taking over of the possession on 26-6-1989. Not only that but in any case, when the aforesaid Spl.C.A. came to be heard finally, by this Court on 19-7-1993, the petitioner has not made any whisper regarding the proceedings initiated against him for unauthorized encroachment over the land in question for the construction of compound wall etc.
24. Therefore, from the record of the case, it appears that on 19-7-1993, when the aforesaid Spl.C.A. No. 3456 of 1989 came to be decided by this Court, the petitioner could have and ought to have raised the dispute or challenged the corrigendum and also the drawing of the panchnama and of taking over the possession of the land in question and initiation of the proceedings against the unauthorised encroachment etc. However, the petitioner has not raised any grievance whatsoever regarding the same. The scope of constructive res judicata and the principle of res judicata are well settled and the same principles which are analogous under Section 11 of the C.P.C. are also applicable to the proceedings in the petition under Article 226 of the Constitution of India. The basis of applicability of principle of res judicata and constructive res judicata is to attach the finality on the question raised and could have been raised, which are decided or as deemed as decided by the competent Court. Such applicability is by way of public policy as observed by the Apex Court in numbers of judgments. If the finality is not given to the judicial decision rendered by the Competent Court, it may result into a chaotic situation and the litigant by way of ingenuine device or by way of logical ground bring about a new contention and may initiate the proceedings which would not only create the clog over the rights of the either party but would also, make the litigation endless. If the finality is not given to the decision rendered by the Competent Court, either party would deprived of the fruits of litigation which would adversely affect the principle underlined for rendering the justice by the Competent Court, through the system of Administration of Justice. Therefore, it is in the larger interest of the all concerned, not to allow the litigations to be endless raising new contentions one by one. The underlined one of the purpose of principle of res judicata is to bar the raising of a new contention which could have or ought to have been raised in the earlier litigation. So far as the present case is concerned, as observed above, the petitioner could have raised the challenge to the corrigendum and could also challenge the factum of taking over the possession in the proceedings of Spl.C.A. No. 3456 of 1989. However, the same has not been raised nor has been made. The said aspect is coupled with the fact that in any event, the petitioner should have and could have raised the said challenged before the Apex Court in the proceedings on S.L.P. which has also not been done. In view of these circumstances, I am of the view that as the principle of constructive res judicata, the petitioners cannot be allowed to reopen the issue regarding the declaration of the land as the surplus land and regarding taking over the possession of the land in question.
25. As it appears from the record that after panchnama was drawn, the petitioner has made attempt to encroach over the land again by constructing compound wall and proceedings for such encroachment were also initiated. Not only that but it has also come on record that after the failing in the litigation upto the Supreme Court, regarding, the declaration of various land as surplus land, one of the land forming part of the surplus land, situated at village Kotharia has been sold by the Government by way of public auction in the year 1997 tor which the final order has been passed on 31-12-1999, the copy whereof, is produced at page 225 of the compilation, which shows that not only the land were declared as surplus land, but also the possession was taken over and the part of the same was also sold by public auction. The petitioner has kept silence about the said land situated at village Kotharia, which came to be sold as back as in the year 1996-97. Surprisingly, in the year 2000, the present petition is filed by the petitioner, though the petitioner was fully aware that he has lost at the litigation upto the Supreme Court and the possession of the land in question including the land in question was taken over. Not only that but one of the portion of the land is also sold by public auction by the State Government. However, the show is made by the petitioner that all the proceedings of drawing panchnama are mere paper panchnama and they are neither acted upon nor they are genuine. In view of the fact that the proceedings for encroachment in respect of the land in question were initiated against the petitioner and in view of the facts that the portion of the other land which was also declared as surplus land together with the land in question is disposed of by the State Government by public auction, it cannot be said that panchnama are not genuine or that the panchnama are not acted upon.
26. The fact remains that the petitioner should have and could have disclosed the said aspect but the petitioners have for the reasons best known to mem not disclosed the said aspect in the memo of petition. The facts regarding the corrigengum, panchnama, proceedings for encroachment and disposal of the land have come on record when the affidavit is filed on behalf of the respondent Nos. 1 and 2, and therefore, there is consideration force in the contentions raised by Mr. Shelat as well as Mr. A. J. Patel, that the petition lacks the bona fide. The said aspect is coupled with the facts that the petitioners were fully aware that they have lost in the litigation against the vesting of the land all throughout upto the Supreme Court. Therefore, I am of the view that the petition lacks the bona fide, so far as the challenge to the corrigendum and vesting of the land in question and the factum of possession is concerned.
27. Mr. Nanavati made strenuous efforts for contenting that even if the land is vested with the Government on account of the failure in the litigation upto the Supreme Court level, he submitted that there is ample material on record produced by the respondent to show that the possession in reality is not taken of the land in question and in any case, he submitted that the possession is not taken in accordance with law, and therefore, this Court should ignore the fact of taking possession and the petitioner be granted the benefit of Repeal Act. The contention, prima facie appears to be attractive, but upon detailed scrutiny, it transpires that the facts remains that the possession is already taken over in view of the evidence produced on behalf of the respondent Nos. 1 and 2 which has been discussed earlier and not only that, but, the panchanama which has been prepared for taking over the possession is acted upon. So far as the other land is concerned, the same have been dispose of by public auction in the year 1996-97 and all these circumstances go to show that the possession is taken over by drawing the panchnama. Not only that, but thereafter, proceedings for encroachment were also made against the petitioner and in that view of the matter, merely because the entry is not mutated in the revenue record, regarding vesting of the land in the Government or merely because in the revenue record the petitioner has continued to pay the revenue, the same cannot be. given such a weightage to wipe out the real and lawful effect of the order and the action taken and acting upon the order and the action taken by the Government authority which is found to be in accordance with law. It is well settled that the revenue entry or revenue record carries lawful effect only for the fiscal purpose of collection of revenue and the same cannot be a material to nullity the lawful order or lawful vesting or lawful action taken by the competent authority.
28. In the case of Lavjibhai (supra) the facts were that the final order came to be passed by the authority under the Section 8 of the U.L.C. Act, to the effect that the petitioner had no surplus land or excess land, and thereafter, the land which was declared as retainable land was sold by the petitioner to various persons and they had made construction over the land, and thereafter, in the year 1984, i.e. after the period of about 5 years, the matter was taken in review under Section 34 of the Act and the order was passed by the State Government in exercise of the powers under review for declaring certain area of land as surplus land and that order tor declaring the land as surplus land was under challenge before the Division Bench. The learned single Judge had dismissed the petition on 28-2-1995, which was carried in L.P.A. before the Division Bench. Pending L.P.A. before the Division Bench, the Repeal Act, came into force and Division Bench while examining the merits of the appeal found that the bona fide buyers have made construction and the Court also found at Para 24 that Shri Nathubhai was not having any surplus land, and therefore, there is no question of taking land by Government, from his possession. Therefore, in facts of that case, the Court found that the bona fide buyers before the Division Bench were different, I do not agree with the submission made by Mr. Nanavati that Division Bench has laid down any principle that if the possession is taken over by drawing the panchnama, the same cannot be said to be valid action for taking over the possession or that, if the prior intimation is not given well in advance, the action of taking possession would be vitiated. In the case before the Division Bench, the intimation was given in the year 1988 whereas the possession is taken over lately on 26-3-1996, i.e. after about 8 years. Whereas in the present case, the intimation was given on 18-1-1989 but the petitioner did not remain present to hand over the possession and ultimately, the possession was taken over on 26-6-1989, and hence, I am of the view that the facts before the Division Bench were different and the judgment relied upon by Mr. Nanavati, is of no help to the petitioners and it cannot be said that the possession is not taken over by any lawful procedure.
29. In the case of Ambalal Purshottam Patel (supra), this Court (Coram: Mr. D.C. Srivastava, J. as he then was), was considering the legality and validity of the declaration of the land as surplus land, pending the application under Section 21 of the Act before the State Government. In the said case, it was found by the learned single Judge that the possession of the land is not taken over by the person authorised by the State Government to take over the possession nor the Competent Authority has taken over the possession. Therefore, it was found that in view of these infirmity, it cannot be said that the possession is taken over in accordance with law. I do not agree with the contention of Mr. Nanavati, that the judgment has laid down general principle that in every case, possession must be taken over by erecting boundary pillars or demarcation of land or by putting watch guard or fencing etc. In any case, so far as the present case is concerned, the facts are altogether different inasmuch as, not only the panchnama was prepared, but the factum of acting over the panchnama for taking over the possession of the various land has taken place and further that the another parcel of land is also sold away by the State Government as back as in the year 1996-97. All these clearly go to show that not only the panchnama was prepared at the time of taking over of the possession, but the said aspect of taking over of the possession is further acted upon and the proceedings against the petitioner for encroachment over the land in question was also initiated.
30. The above is also coupled with the fact that the petitioner could have raised these contention in earlier proceedings, but has not raised the same, and therefore, he cannot be allowed to reopen the issue in this proceedings. Under these circumstances, the decision of this Court in the case of Ambalal Purshottam Patel (supra) is of no help to the petitioner.
31. At this stage, it is worthwhile to refer to the judgment relied upon by Mr. Shelat, of the Apex Court in the case of L. & T. (supra) wherein the Apex Court at Para 15 and 16 by making reference to its earlier judgment, in the case of T.N. State Housing Board v. A. Vishwam, reported at 1996 (8) SCC 259 and in the case of Balmukund Khatri v. State of Punjab, reported at 1996 (4) SCC 212 has also observed that it is now well settled legal position that it is difficult to take the physical possession of land in compulsory acquisition. Normally, the mode of taking over the possession is drafting the panchnama in presence of the panchas and taking the possession and giving deliver to the beneficiary is accepted mode of taking over the possession of the land. Therefore, when in the present case, the possession is taken over in the presence of the panchas by drawing the panchnama and when it is also acted upon by initiating the proceedings against the petitioner for encroachment and unauthorised construction, it cannot be said that the possession is not taken over lawfully. As I have found, the possession of the land in question is already taken over as back as on 26-6-1989, the conditions precedent for application of the act of vesting of the land and taking over of possession both are satisfied, hence, it cannot be said that the petitioner would be entitled to avail the benefit of the Repeal Act, so as to contend that he continues to be an owner of the land, and therefore, the above-referred contentions raised by Mr. Nanavati must necessarily fail.
32. Mr. Nanavati also made efforts to contend that whatever vesting to the Government is the land in question bearing different plots numbers, and not the Plot Nos. 36 to 53 admeasuring 4610.10 Sq. Mtrs., and therefore, he submitted that vesting cannot be valid vesting because the corrigendum is not published in the Official Gazette. This contention is devoid of the any merits because from the very beginning until the losing in the litigation upto to the Supreme Court the petitioners had accepted that the land in question bearing Plot Nos. 36 to 43 admeasuring 4610,10 Sq. Mtrs. is declared as surplus land and as stated above the corrigendum in any case is nothing but a correction of mistake which would fall within the scope and ambit of Section 45 of the Act. Once the correction is made, by way of corrigendum under Section 45 of the Act, in view of the decision of this Court, in case of Himatlal J. Vakharia (supra) it will take effect from the day on which the original order was passed, and therefore, the corrigendum would revert back to the earlier date and in that view of the matter, as observed earlier the petitioner in the writ petitioner pending before this Court, has not raised any contention regarding the legality and validity of the corrigendum including on the point that the said corrigendum is not notified in Official Gazette. The said aspect is also to be considered that the reality that the petitioner has of his own not only accepted that the land in question bearing Plot Nos. 36 to 43 admeasuring 4610.10 Sq. Mtrs., is declared as surplus but the petitioner, until the present petition is filed, accepted the position that the possession is also taken over and in any case so far as the Government is concerned, pursuant to the said corrigendum the possession of the land in question is also taken over. Moreover, there is no mistake whatsoever, relating to the village and Survey numbers of the land and instead of larger area, 9103, the smaller area is marked, and therefore, when the village and survey numbers were perfect even in the earlier order, it cannot be said that there is any material change in the identity of the land.
33. Moreover, when in place of larger area, the smaller area is declared as surplus land, it cannot be said that any prejudice will be caused to the petitioner more particularly, when the petitioner also understood and accepted that the actual land which is declared as surplus and whose possession is taken over pursuant thereto, is admeasuring 4610.10 Sq. Mtrs., and therefore, I am of the view that even on merits, there is no case for the petitioner to contend that the corrigendum is not corrigendum in the eye of law or that there is no lawful vesting of the land in question in the Government, and therefore, the said contention of Mr. Nanavati consequently fails.
34. In view of the above discussion, observations and findings, the only conclusion would be that the petitioner would not be entitled to the benefit of the Repeal Act and as a result thereof, the petitioner cannot have the benefit of the title over the land in question or permanent injunction against the respondent Nos. 1 and 2 on the basis of his claim of the ownership of the land in question.
35. The second part of the argument of Mr. Nanavati, regarding disposal of the land which originally belongs to the petitioner in purported exercise of the powers under Section 23 of the Act to the respondent No. 3-Society, deserves consideration. Of course, Mr. A.J. Patel, submitted that once the land is vested to the State Government, the petitioner is 3rd party and the only manner in which the challenge can be made to the allotment by the petitioner would be by the public interest litigation and not in the present petition.
36. It is true that as found earlier the land has vested to the State Government and the action taken pursuant to the Act are legal, more particularly, when the possession is also taken over. But I cannot accept the contention of Mr. A. J. Patel, that the original owner of the land whose land is declared as surplus land which is sought to be disposed of by the State Government in purported exercise of the powers under Section 23 of the Act more particularly, after the Repeal Act has no locus standi to challenge the legality and validity of the order for allotment of the land. He is not, in any case, after the Repeal Act, in the matter of disposal of the land under the Act cannot be said to be a stranger or 3rd party. On account of the Act, the land is acquired or taken over by the State Government by paying the compensation subject to the limit of maximum as per the provisions of the Act. Those who voluntarily surrendered the land to the Government for the larger interest of the society, in view of the provisions of the Act, or those who had to surrender the land on account of the declaration of the land as surplus land are those persons who may carry feeling that had they continued with the litigation or avoided the proceedings for taking over the possession they would have been benefited by the Repeal Act for the purpose of saving their land. If, a person who has continued with the litigations against the proceedings of declaration of the land as surplus and if the land is allotted to somebody in purported exercise of the powers under Section 23 of the Act, more particularly, after the Repeal Act, he can legitimately challenge the action of the Government for allotment of the land on the ground, that he had interest over the land in question, which has been taken over by the State Government for the objects of the Act and now the Govt. is disposing the property illegally or arbitrarily.
37. I find no reason to deprive the original owner of the land to challenge the action of the Government for allotment of the land in purported exercise of the powers under Section 23 of the Act, even if, either he has voluntarily surrendered the land as law-abiding citizen or he had to surrender the land on account of termination of the proceedings for declaration of the land as surplus land. In any case, he is not a stranger when the property is rather taken over for the larger benefit of the public at large and for such property are disposed of by the Government or attempt is made by the Government to dispose of such property, in the larger public interest, he cannot be said to be a total stranger, nor he can be said to be a third party to challenge against the allotment of the land. I am therefore, of the view that even the original owner of the land who has either surrendered the land voluntarily or who had to surrender the land under the provisions of the Act, can legitimately challenge the action of the Government for allotment of the land under the Act more particularly, after the Repealed Act, has come into force. In the present case, petitioners while claiming their right in the land in question are simultaneously also challenging the action of disposal, therefore, in any case, it cannot be said to be a litigation by the person who is totally stranger or third party. Therefore, Mr, Patel is not right in contending that the only mode open to the petitioner is to challenge by way of public interest litigation and not in the present petition.
38. Sub-section (1) of Section 3 of the Repeal Act provides that the principal act shall not be affected if the vesting of the land under Section 10(3) and the possession of the same has been taken over by the State Government. Clause B of Sub-section (1) of Section 3 of the Repeal Act provides that the repealing would not affect the validity of any order granting exemption under Sub-section (1) of Section 20 or any action taken thereunder. Clause "C" provides that any payment made to the Government for grant of exemption under Sub-section (1) of Section 20 of the Act, shall also not be affected. Sub-section (2) of Section 3 provides that where any land is deemed to have been vested to the State Government under Section 10(3) of the Principal Act, but the possession of which is not taken and the amount has been paid by the State Government, then such land shall not be restored unless the amount paid is refunded to the State Government. The above are the only saving the provisions made in the Repeal Act. Therefore, the Repeal Act does not save the action taken for allotment of the land under Section 23, but it can reasonably to be construed that any action taken prior to the Repeal Act, under Section 23 of the Act for allotment of the land which is acquired by the Government under the Act, would not be affected.
39. The attempt is made on behalf of the respondent No. 3-Society to justify the action for allotment of the land in question to the respondent No. 3-Society as per the order dated 12th Sept. 2000 contending that by the Government instructions, dated 15-4-1999, which have been issued by way of circular after the Repeal Act, has come into force on 30th March, 1999. The said circular dated 15th April, 1999 is produced on record by the respondent No. 3. The reliance is placed on Clause-J, of the said instruction of the State Government, in which it has been stated that the procedure for allotment of the land under Section 23 which is vested to the Government under the Principal Act, and whose possession is taken over shall stand cancelled. However, in the case, where the approval was granted by the State Government and payment of the same was already made by the person concerned, the order can be passed for allotment of such land. Mr. Patel, submitted that in the present case, the respondent No. 3-Society was already allotted the land on 29th October, 1991 against the consideration of Rs. 13,85,063/- admeasuring 2100 Sq. Mtrs. and the payment is already made. However, since the land which was allotted bearing Survey Nos. 74, 73, 75, 70 were required in ring road, the possession of the said land could not be given, and therefore, the petitioner had to file the Spl. Civil Application No. 4868 of 1999 and the orders were passed by this Court pursuant to which allotment order has been issued. The respondent No. 3, has paid balance amount of Rs. 1,69,037-20 ps. on 7-9-2000 and in place of the original land bearing Survey Nos. 74, 73, 75 and 70, the land in question is allotted and the Plot Nos. 36, 43, 47 of the land in question of the same area is allotted to the respondent society. On perusal of the order passed by this Court, in Spl.C.A. No. 3567 of 1996, preferred by the petitioner society, who is respondent No. 3 herein, shows that on 19-1-1999, this Court had passed an order and the relevant portion is as under :-
"Para 5 :- Hence, in view of the aforesaid, facts, and circumstances, it would be just and proper to issue the following directions :-
(i) Whatever land which still remains with the respondent out of Plot Nos. 14 and 19 in Survey No. 74, and Plot No. 21 in Survey No. 70 paiki in the Rajkot Urban Agglomeration shall be handed over to the petitioner. In case, the petitioner is not in a position to utilise the said land on account of the reduced size or area so as to comply with the building regulations of the concerned local authority the petitioner shall intimate to respondent No. 2 herein without one month from today. The petitioner-society shall also be at liberty to apply to respondent Nos. 1 and 2 for allotment of other parcel/s of land in the Rajkot Urban Agglomeration so as to provide housing site to all the 20 members of the petitioner-society. Such an application shall be made within one month from today.
(ii) Upon receipt of such intimation/application the respondents shall take appropriate decision within one month from the date of receipt of the intimation/ application to ensure that the members of the petitioner society who have already contributed sizeable amounts as far back as in 1991, are provided with the land for housing at the earliest.
Para 6 :- At this stage, Mr. Lakhani, learned Counsel for the petitioner submits that since the petitioner had deposited the full amount of Rs. 13.85.063/- for the said parcels of land which may be allotted to the petitioner the price should be fixed as on 4-5-1991 when the petitioner had paid the aforesaid amount. Mr. PateJ for the respondents however, opposes the said request and submits that the price will have to be fixed as on the date of fresh allotment.
Para 7 :- Looking to the fact that the petitioner had paid the full amount of Rs. 13,85,063/- to the State Government as far back as on 4-5-1991 and that the respondents have not handed over possession of any parcel of land till now, it would be just and proper to direct the respondents to charge the petitioner the price of land as on 4-5-1991 because the members of the petitioner society have neither got possession of the land nor have they received any interest on the amount paid by them to the Government on 4-5-1991. The petition is accordingly allowed to the aforesaid extent and in terms of the aforesaid directions."
40. Therefore, this Court had given direction to hand over the possession of available land from the land which was already allotted to the respondent No. 3-Society pursuant to the earlier order dated 29-10-1991. Thereafter, on 30th March, 1999, there is no dispute on the point that on principal Act is Repealed and Government has issued the instructions on 15th April, 1999, for not to continue with the allotment of the land under Section 23 of the Act save and except the land were already allotted and the payment was already received. The perusal of impugned order dated 12-9-2000 shows that the petitioner applied for the different land. In view of the Repeal Act, the powers of the Government to allot different land under Section 23 had ceased and the petitioner which was preferred being Spl.C.A. No. 4868 of 1999 seeking allotment of the land for which the order has been passed by the Court on 26-6-2000 is only for withdrawal of the petition. Therefore, the facts remains that this Court has not passed any order for allotment of new land after Repeal Act came into force. Therefore, in view of the above, it appears that on 19-1-1999 this Court has passed the order to hand over the possession of the original land which was already allotted to the respondent No. 3-Society, of the area which had remained with the authority. As regards other area of the land, the liberty was reserved to the petitioner therein, who is respondent No. 3 herein to apply for the allotment of the land. On reasonable construction of the order dated 19-1-1999 it can be said that the land which was in possession of the respondent authority, out of Plot Nos. 14 and 19, bearing Survey No. 74, was to be handed over to the respondent No. 3-Society and for balance land the petitioner therein who is respondent No. 3 had to apply for other parcel of land.
41. It is true that while allotting the other parcel of land, it was observed by the Court to keep the valuation in mind as on 4-5-1999. However, on 19-1-1999, the principal Act was in force and the Repeal Act has come into force on 30th March 1999. Once the Repeal Act has come into force, on 30th March 1999, read with the instruction dated 15-4-1999, it can be said that the respondent No. 3 could have been handed over the possession of the land available from the land which were already allotted to it bearing Survey No. 74 and of which payment was made because even in instruction under Clause-J, the provisions is made for allotment of such land (would be the land of which the proposal as accepted and for which the price is paid). The said instructions vide Clause-J, also shows that the provisions of allotment of the land under Section 23 shall stand cancelled. Therefore, after the Repeal Act, came into force, on 30th March, 1999, the respondent Nos. 1 and 2 authority or the State Government had no authority to exercise the powers under Section 23 for allotment of the land in question, because the land in question was neither allotted to the respondent No. 3 nor the consideration was paid by the respondent No. 3-Society of the land in question. Therefore, I am of the view that after the Repeal Act, even if the instruction issued as per the circular dated 15-4-1999, are taken into consideration, the State Government had no authority whatsoever, to continue to exercise the powers under Section 23 of the Act, for the land in question and it could not have been allotted to respondent No. 3 or to any one else in purported exercise of the powers under Section 23 of the Act and the only mode for disposal of such land would be by way of public auction at market price. If on account of the situation beyond control of the State Government, the allotment of the land which was made prior to the Repealing Act came into force, is not given effect or possession thereof, could not be handed over then at the most, the allottee would be entitled to refund the amount with reasonable rate of interest. But if the authority of the State Government has ceased under Section 23 of the Act on account of the Repeal Act, certainly, the allotment cannot be made of new land like land in question.
42. So far as the land which has been vested to the State Government is concerned, after the Repeal Act, the same shall continue to be a property of the Government and for disposal of the property of the Government whatever the norms are settled would be applicable to such land which have been acquired or which has been vested to the State Government under the Principal Act then prevailing. The normal course is by way of public auction, with a view to see that every body gets opportunity to purchase the land and the Government receives the maximum price of the land. There is no reason to make departure from the settled norms for the disposal of the property by the authority to allot the land and as matter of fact, reading of such powers and procedure would be in the larger public interest because the State Government had acquired the land under the Principal Act, with a view to see that the same can be allotted to the needy class of society. When the authority for allotment of the land ceased, on account of the Repeal of the Principle Act, the only proper mode would be to realise the money by public auction which ultimately are to be used by the State exchequer for public at large. It is a matter of fact that the land in question has not been allotted to the respondent No. 3-Society by public auction and nor the opportunity had been given to all other interested housing societies to purchase the land, and therefore, the order dated 12-9-2000 issued by the State Government for allotment of the land in question to the respondent No. 3-Society is without any authority and is also against the well settled norms for disposal of the public property, and hence, the same deserves to be quashed and set aside.
43. In view of the above discussion, the only conclusion would be that the State Government was not legally justified in disposing the land in question after the Repeal Act and since the same has been disposed of without observing the settled norms for disposal of the public property.
44. In view of the above, the order dated 12-9-2000 (Ann. "I") whereby, the land in question is allotted to the respondent No. 3-Society, deserves to be quashed and set aside and is hereby quashed and set aside. The petition is partly allowed to the aforesaid extent. Rule is made absolute accordingly. There shall be no orders as to costs.