Gujarat High Court
Legal Heirs Of Prabhatbhai Shivabhai ... vs State Of Gujarat on 23 March, 2021
Author: Vineet Kothari
Bench: Vineet Kothari, Biren Vaishnav
C/LPA/1281/2016 JUDGMENT DT. 23.3.21
PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others
In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1281 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 5985 of 1999
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2016
In
R/LETTERS PATENT APPEAL NO. 1281 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
==================================================================
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment?
2 To be referred to the Reporter or not? Yes
3 Whether their Lordships wish to see the fair copy of the Yes
judgment?
4 Whether this case involves a substantial question of law Yes
as to the interpretation of the Constitution of India or
any order made thereunder?
==================================================================
1. PRABHATBHAI SHIVABHAI SOLANKI THROUGH LEGAL HEIRS
1.1 RAJUBHAI PRABHATBHAI SOLANKI
1.2 MANUBHAI PRABHATBHAI SOLANKI
Versus
1. STATE OF GUJARAT
2. COMPETENT AUTHORITY AND DY COLLECTOR
3 COMPETENT AUTHORITY AND ADDL COLLECTOR (ULC)
4. URBAN LAND TRIBUNAL
5. VADODARA MUNICIPAL CORPORATION
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C/LPA/1281/2016 JUDGMENT DT. 23.3.21
PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others
In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
Appearance:
MR P.M. BHATT(183) for the Appellant(s) No. 1,1.1,1.2
MR. K.M. ANTANI, Assistant Government Pleader for Respondent No.1,2,3
MR NILESH A PANDYA(549) for the Respondent(s) No. 5
NOTICE UNSERVED(8) for the Respondent(s) No. 4
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CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 23/03/2021
ORAL JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. This Intra Court Appeal is directed against the Judgment and Order dated 3031.8.2016, by which the learned Single Judge dismissed Special Civil Application No.5985 of 1999 - Heirs & Legal Representatives of Deceased Prabhatbhai Shivabhai Solanki vs. State of Gujarat & Others.
2. The case arose under provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (ULC Act, 1976) and the proceedings under the ULC Act, 1976 stood concluded with the following dates worth noting.
3. The declaration under Section 6 of the ULC Act, 1976 was filed by the Petitioners in 1986 and vide order dated 29.10.1986, the Competent Authority declared following excess vacant / Page 2 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
surplus land from the holding of the land owners:
(i) 3943 sq. mtrs., out of total area of 3943 sq. mtrs., of the Survey No.692, Final Plot No.501;
(ii) 23 sq. mtrs., out of total area of 1523 sq. mtrs., of the Survey No.964, Final Plot No.463; and
(iii) 506 sq. mtrs., out of total area of 506 sq. mtrs., of the Survey No.926, Final Plot No.501, as excess vacant land.
4. The land holder made an application seeking exemption under Section 21 of the ULC Act, 1976 on 1.5.1987 which came to be rejected by the Competent Authority on 20.6.1988. The matter was taken up by the land holder before the Tribunal which was also rejected by the Tribunal on 30.8.1990. A writ petition being Special Civil Application No.4853 of 1993 was filed in this Court and on the alleged ground of breach of principles of natural justice, this Court, vide order dated 7.2.1993, allowed Special Civil Application No.4853 of 1993 and remanded back to the case to the Tribunal for deciding the appeal afresh after affording reasonable opportunity of hearing to both the parties. The Page 3 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
Tribunal, vide its order dated 30.12.1994, allowed the appeal and set aside the order passed by the Competent Authority dated 20.6.1988 and remanded the case back to the Competent Authority for deciding the application under Section 21 of the ULC Act, 1976 afresh. It is stated that the said application was not decided until the ULC Act, 1976 came to be repealed with effect from 30.3.1999.
5. But much before the remand by order dated 30.12.1994, the Notification under Section 10(3) of the ULC Act, 1976 was issued by the Competent Authority on 13.7.1989 which was duly published in the Official Gazette on 3.8.1989 vesting the land in the State free from all encumbrances. After that a Notice under Section 10(5) of the ULC Act, 1976 was issued on 29.8.1989 which was duly served upon Prabhatbhai Shivabhai Solanki by R.P.A.D. and by drawing Panchnama in presence of the panch witnesses, the possession of the land in question was taken over on 1.4.1992 (AnnexureR/1 colly.). The proceedings under ULC Act, 1976, thus, stood concluded even before the remand and these proceedings were never challenged by the Petitioners / Appellants.
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6. The present writ petition thereafter came to be filed by the Petitioners which came to be dismissed by the learned Single Judge with the following discussion which is found not only opportune to reproduce the lengthy extract but which, in our opinion, meticulously and rightly discusses the legal position in the following terms:
"7. In the instant case, it appears that the Form No.1 filled up by the deceased Prabhatbhai Shivabhai Solanki was finalized by the competent authority vide the order dated 29.10.1986 as per AnnexureB. The said order remained unchallenged at the instance of the said Prabhatbhai Shivabhai Solanki. It further appears that earlier the said Prabhatbhai was granted exemption under Section 20(1) of the said Act in respect of the land bearing Survey No.692, however, the said exemption was withdrawn by the competent authority on 26.9.1986. Thereafter, the said Prabhatbhai Shivabhai Solanki had made an application seeking exemption under Section 21 of the ULC Act for putting up constructions of dwelling units for weaker section of the society on 24.11.1986. The said application came to be dismissed by the competent authority vide the order dated 20/6/1988. The said order was confirmed by the Tribunal in the appeal preferred by the said Prabhatbhai, however, the said order of the Tribunal having been challenged by Page 5 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
the petitioners as the legal heirs of the said Prabhatbhai, before this Court by way of SCA No.4853 of 1993, this Court vide the order dated 7.2.1993 remanded the case to the Tribunal for deciding it afresh. The Tribunal again remanded the case to the competent authority for deciding the application of the petitioners afresh. In the meantime, the Notification under Section 10(3) of the ULC Act was issued on 3.8.1989, which was duly published in the official gazette. The possession of the excess vacant land was also taken over by the State Government on 1.4.1992 by drawing the panchnama after issuing notice under Section 10(5) of the ULC Act on 29.8.1989. It is pertinent to note that as per the legal position prevailing at the relevant point of time, when the application under Section 20 or 21 was pending for consideration before the competent authority, the competent authority could not proceed with the proceedings beyond the stage of Section 10(3) of the said Act. However, in the instant case, the order of the competent authority declaring the land admeasuring 4472 sq. mtrs., as the excess vacant land, had remained unchallenged at the instance of the said Prabhatbhai i.e. the predecessor of the petitioners and the possession was taken over as stated herein above. The said Prabhatbhai or the present petitioners also did not challenge the Notification issued under Section 10(3) or the notice under Page 6 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
Section 10(5) of the said Act at any point of time. The present petition has been filed after the repeal of the ULC Act in the year 1999, disputing that the possession was not taken over by the State Government. Under the circumstances, a very pertinent observations made by the Supreme Court in the latest decision in case of State of Assam Vs. Bhaskar Jyoti Sarma & Ors. (supra) are required to be reproduced, which read as under: "13. The case of the appellant is that actual physical possession of the land was taken over on 7th December, 1991 no matter unilaterally and without notice to the erstwhile land owner. That assertion is stoutly denied by the respondents giving rise to seriously disputed question of fact which may not be amenable to a satisfactory determination by the High Court in exercise of its writ jurisdiction. But assuming that any such determination is possible even in proceedings under Article 226 of the constitution, what needs examination is whether the failure of the Government or the authorised officer or the competent authority to issue a notice to the land owners in terms of Section 10(5) would by itself mean that such dispossession is no dispossession in the Page 7 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
eye of law and hence insufficient to attract Section 3 of the Repeal Act. Our answer to that question is in the negative.
14. We say so because in the ordinary course actual physical possession can be taken from the person in occupation only after notice under Section 10(5) is issued to him to surrender such possession to the State Government, or the authorised officer or the competent authority. There is enough good sense in that procedure inasmuch as the need for using force to dispossess a person in possession should ordinarily arise only if the person concerned refuses to cooperate and surrender or deliver possession of the lands in question. That is the rationale behind Sections 10(5) and 10(6) of the Act. But what would be the position if for any reason the competent authority or the Government or the authorised officer resorts to forcible dispossession of the erstwhile owner even without exploring the possibility of a voluntary surrender or delivery of such possession on demand.
Could such use of force vitiate the dispossession itself or would it only amount to an irregularity that would give Page 8 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
rise to a cause of action for the aggrieved owner or the person in possession to seek restoration only to be dispossessed again after issuing a notice to him. It is this aspect that has to an extent bothered us.
15. The High Court has held that the alleged dispossession was not preceded by any notice under Section 10(5) of the Act.
Assuming that to be the case all that it would mean is that on 7th December, 1991 when the erstwhile owner was dispossessed from the land in question, he could have made a grievance based on Section 10(5) and even sought restoration of possession to him no matter he would upon such restoration once again be liable to be evicted under Sections 10(5) and 10(6) of the Act upon his failure to deliver or surrender such possession. In reality therefore unless there was something that was inherently wrong so as to affect the very process of taking over such as the identity of the land or the boundaries thereof or any other circumstance of a similar nature going to the root of the matter hence requiring an adjudication, a person who had lost his land by reason of the same being declared surplus under Page 9 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
Section 10(3) would not consider it worthwhile to agitate the violation of Section 10(5) for he can well understand that even when the Court may uphold his contention that the procedure ought to be followed as prescribed, it may still be not enough for him to retain the land for the authorities could the very next day dispossess him from the same by simply serving a notice under Section 10(5). It would, in that view, be an academic exercise for any owner or person in possession to find fault with his dispossession on the ground that no notice under Section 10(5) had been served upon him.
16. The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile land owner on 7th December, 1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time Page 10 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
of such dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure."
8. The Supreme Court in the said judgement has clearly observed that whether the actual physical possession of the land was taken over or not would be a disputed question of fact, which cannot be gone into in the writ petition under Article 226 of the Constitution. It is also held that if the alleged dispossession under Section 10(5) or Section 10(6) was not challenged by the concerned person, it would be deemed to have been waived. The Supreme Court in the said judgement, also considered the decision in case of State of U.P. Vs. Hari Ram (supra), relied upon by Mr.Bhatt, and observed in paragraph 17 as under: Page 11 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
"17. Reliance was placed by the respondents upon the decision of this Court in Hari Ram's case (supra). That decision does not, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Ram's case (supra) considering whether the word 'may' appearing in Section 10(5) gave to the competent authority the discretion to issue or not to issue a notice before taking physical possession of the land in question under Section 10(6). The question whether breach of Section 10(5) and possible dispossession without notice would vitiate the act of dispossession itself or render it non est in the eye of law did not fall for consideration in that case. In our opinion, what Section 10(5) prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). In the case at hand if the appellant's version regarding dispossession of the erstwhile owner in December 1991 is correct, the fact that such dispossession was without a notice under Section 10(5) will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Page 12 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
Section 3 of the Repeal Act. That is because Bhabadeb Sarma erstwhile owner had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying thereby that he had waived his right to do so."
9. In the instant case, the petitioners or the predecessor of the petitioners had not challenged the order of the competent authority passed on 29.10.1986, nor had they challenged the notification under Section 10(3) or notice under Section 10(5) of the said Act, and therefore they had waived their right to challenge the same. The present petition having been filed after the repeal of the ULC Act, the submission of Mr.Bhatt, learned Counsel for the petitioners that such possession even if taken over was required to be restored, as the petitioners' application under Section 21 was pending and that the petitioners were entitled to the benefit of the Repeal Act, can not be accepted. In similar case as the present one, this Court in case of Om Prakash B. Khare Vs. State of Gujarat (supra), has held as under in paragraph 48: "48. It is an undisputed fact that the appellant has neither challenged the order of Competent Authority passed on 5.1.1987, nor the Notifications issued under Section 10(1) and 10(3) of the ULC Act, issued on Page 13 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
12.3.1987 and 17.9.1987 respectively. The appellant has also not challenged the notice issued under Section 10(5) of the ULC Act, nor challenged the action of the State Government of taking possession of the suit land on 16.1.1990. Mere filing of an application under Section 21(1) of the Act, which fact is also in dispute or mere raising an objection to the notice under Section 10(5) of the ULC Act are not sufficient. As soon as Notification under Section 10(3) is issued, the suit land is vested in the State Government and as soon as the possession of the suit land is taken over by the State Government, the appellant has lost all his rights in the suit land till the said action is declared to be illegal or null and void by the appropriate Court, authority or tribunal. If, on the date when the Repeal Act has come into force, no rights are created or are in existence in favour of the appellant, mere pendency of his application under Section 21 of the ULC Act would not come to his rescue, as all proceedings including proceedings under Section 21 of the Act, are, therefore, abated."
10. In view of the aforestated legal position, the Page 14 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
Court is of the opinion that merely because the application under Section 21 was pending for reconsideration, it could not be said that the Notification under Section 10(3) or the subsequent proceedings taking over possession after following the procedure under the ULC Act were illegal or unlawful. As held by the Supreme Court in the case of State of Assam Vs. Bhaskar Jyoti Sarma and Ors. (supra), the alleged dispossession having not been challenged by the petitioners or their predecessor, the fortuitous circumstance of Repeal Act cannot permit the petitioners to raise the issue with regard to dispossession being in violation of the prescribed procedure. The provisions contained in Section 7 of the General Clauses Act also would not lend any assistance to the petitioners as there was no vested right accrued in favour of the petitioners under Section 21 of the said Act. The petitioners had only right to make application seeking exemption under Section 21 of the said Act. Such application was already rejected once by the competent authority. Hence, pendency of such application for reconsideration did not create any right in favour of the petitioners. Hence, as rightly submitted by the learned AGP, the possession of excess vacant land having already been taken over, on the Repeal Act having come into force, the proceedings of Section 21 would stand abated.
11. In that view of the matter, no such declaration as Page 15 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
sought by the petitioners could be granted. The petition being devoid of merits deserves to be dismissed, and is hereby dismissed. Interim relief, if any granted earlier, stands vacated forthwith. Rule is discharged. No order as to costs."
7. Mr. P.M. Bhatt, learned counsel for the Appellants urged before us that after remand of the proceedings by the Tribunal, Section 21 Application for exemption never came to be decided by the Competent Authority, but he proceeded to issue the Declaration under Section 10(3) of the Act on 13.7.1989 and subsequently, possession of the land in question was also taken over on 1.4.1992, but this proceedings cannot be sustained in view of the fact that the Application under Section 21 of the ULC Act, 1976 upon remand by the Tribunal in pursuance of the directions of this Court ought to have been first decided by the Competent Authority.
8. On the other hand, Mr. K.M. Antani, learned Assistant Government Pleader for the State supported the impugned order of the learned Single Judge and submitted that once the Declaration under Section 10(3) of the ULC Act, 1976 is issued and the land is vested in the State Government free from all encumbrances, the Application under Section 20 or for that Page 16 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
matter Section 21 of the ULC Act, 1976 should be deemed to have been rejected and they are fait accompli and vesting the land in the State under Section 10(3) of the ULC Act, 1976 cannot be upset or disregarded by the Competent Authority or the Tribunal.
9. Mr. Nilesh A. Pandya, learned counsel for Respondent No.5
- Vadodara Municipal Corporation, has also drawn our attention to the Affidavit filed by the Town Planning Officer Mr. Jitesh Ramanlal Trivedi dated 12.3.2021, in which he has stated that Town Planning Scheme has been finalised on 29.6.1985 and the same has come into force from 3.10.1985. He has submitted that on Final Plot No.501, there are 7 houses constructed without due permission on the north west side of the land in question and 1 house is constructed without any permission and accordingly, there are 8 constructions illegally raised in the Final Plot No.501.
In para 2 of his Affidavit, he has further stated that in the Revenue Survey No.692 of Village: Bapod, Town Planning Scheme No.3( Final) has been notified and in Revenue Survey No.692, the same is given original Plot No.89 which is admeasuring 4,350 sq.mtrs. of land and at the time of final scheme, the said land is given Final Plot No.501, admeasuring 3,943 sq.mtrs.
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10. Having considered rival submissions, we are of the opinion that the present Appeal filed by the original land holders is without any merit and deserves to be dismissed. The reasons are as follows.
11. In our opinion, the learned Single Judge was perfectly justified in holding that once the Notification under Section 10(3) has been issued in the present case on 3.8.1989 vesting the land in the State free from all encumbrances and in pursuance thereof, upon issuance of Notice under Section 10(5) of the ULC Act, 1976, the possession also has been taken over by the State Government on 1.4.1992 under Section 10(6) of the ULC Act, 1976 through Panchnama Process, there was no question of deciding the pending Application under Section 21 of the ULC Act, 1976 upon remand by the Tribunal and that too should be deemed to have stood abated. The learned Single Judge has further noted in the extract of judgment quoted above that Notification under Section 10(3) of the ULC Act, 1976 and the proceedings of taking over the possession under Section 10(5) / 10(6) of the ULC Act, 1976 have not been assailed by the Petitioners at all and he is merely banking upon the pendency of the Application under Section 21 of the ULC Act, 1976 and have sought the benefit of Section 4 of Page 18 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
the Repeal Act treating the proceedings concluded under Section 10(3) Notification as well as under Section 10(5) and Section 10(6) of the ULC Act, 1976 as null and void or non est.
12. We find considerable force in the submission made by learned Assistant Government Pleader that once the land is vested in the State free from any encumbrance, the question of granting exemption under Section 20 and Section 21 of the ULC Act, 1976 cannot arise and even if such proceedings as on 30.3.1999 are pending on the basis of application originally filed or upon remand by the higher authority, the same loses its significance and they are fait accompli and vesting the land in the State under Section 10(3) of the ULC Act, 1976 cannot be upset or disregarded by the Competent Authority. Such pending applications will abate and will have to be treated as rejected, as no question of granting exemption can arise thereafter.
13. We find this proposition of law concluded by the Full Bench Judgment of Gujarat High Court in the case of Shah Jitendra Nanalal vs. Patel Lallubhai Ishverbhai Patel [1984 (2) GLR 1001], in which the Full Bench of this Court dealing with the case upon reference by the Division Bench on a question whether a Page 19 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
decree for specific performance can be granted by the Court where the proceedings under ULC Act, 1976 have been undertaken by the State and can the Defendant raise a plea in the Court that such decree for specific performance cannot be granted in view of the action of compulsory acquisition under provisions of the ULC Act, 1976. The Full Bench of this Court answered the question in the following manner:
"17. At the commencement of the Act, persons may be "holding vacant land in excess of ceiling limit", but as the 'vacant land' does not automatically 'vest' in the State Government, they hold it subject to certain obligations. There are restrictions imposed concerning dealing with such land. Until a notification issued under sec. 10(3), the land does not vest in the Government and that is why we have referred to the situation as one of 'suspense' till that date. Once the land 'vests' in the State Government, there is no question of invoking the 'exemption' clause under sec. 20(1)(a) and (b); but until then, there is a right to move the Government for exemption and there is an 'obligation' on the Government to 'exempt' the land in case the conditions which warrant the exemption sought are satisfied. In case such conditions are shown to be satisfied, it is not as if the power of exemption could be exercised at the sweet will and pleasure of the State Government. The State Government has Page 20 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
necessarily to be guided by the policy indicated in the provision itself and cannot traverse that policy. Consequently, the Government cannot also refuse to exempt if the case falls within those subsections. Therefore, until 'vesting' is under sec. 10(3) of the Act, there is always a possibility of 'defeasance of such vesting' on a motion for such exemption. If so, in a case where the person holding excess land is under a contractual obligation to convey property under an agreement to another, could he defeat that obligation by contending that transfer by him would be void and at the same time seeking exemption and obtaining benefit of such exemption in respect of such land?
18. So long as the provision declaring the transfer under sec. 5(3) as void is subject to the right to move for exemption, obtain exemption and transfer the property, the power of an owner of vacant land in excess of the ceiling limit to 'alienate' such land is dormant in him and such power could be exercised by him in case he seeks exemption, satisfies the Government that the grounds for exemption exist, and obtains such exemption. That being the case, a decree cannot be defeated on the ground that 'transfer' inter partes would not be possible. The possibility of obtaining exemption survives till the notification under sec. 10(3) of the Act is issued. That being the situation, until then, a plaintiff seeking specific performance cannot be told that the terms of the Page 21 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
contract cannot be fulfilled. Once it is said so, the plaintiff loses his right to get a decree for specific performance, though, invoking the provisions of the very Act, based on which the plaintiff was told that he could not get conveyance of the property agreed to be sold to him, the owner of excess land obtains exemption and continues in possession of property and perhaps even alienates it later. We see no reason either in law or in logic to countenance such a situation. There is nothing prohibiting a decree being passed for specific performance, with, of course, such alternative remedies as may be called for in a situation where that decree may become inoperative. The decree for specific performance may be made conditional on the exemption under sec. 20(1)(a) or (b) operating. Of course, it is not for us in this reference to envisage how safeguards should be built in such a decree. Resourcefulness, of course, must necessarily find answer to possible situations."
14. The aforesaid judgment, in our view, concludes the issue about fate of exemption applications under Sections 20 and 21 of the ULC Act, 1976 also while the Full Bench answered the question of discretion of the Court to grant decree of specific performance subject to the fate of application under Sections 20 and 21 of the ULC Act, 1976. In para 17, the significant words are 'therefore, until 'vesting' is under sec. 10(3) of the Act, there is Page 22 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
always a possibility of 'defeasance of such vesting' on a motion for such exemption'. In para 18, the same view was reiterated by the Full Bench in the following manner viz. 'the possibility of obtaining exemption survives till the notification under sec.
10(3) of the Act is issued'. These two ratio decidendi portion of the Full Bench, in our opinion, clinches the issue and it can be safely held that no pending application under Section 20 or 21 will have any meaning and should be deemed to have been rejected with the issuance of Notification under Section 10(3) of the ULC Act, 1976 vesting the land in question free from all encumbrances. It is a significant event happening under the ULC Act, 1976 viz. vesting of the land in the State free from all encumbrances which cannot be made dependent on the adjudicatory process under Sections 8, 9 or even appeal under Section 33 or application under Section 20 or 21 of the ULC Act, 1976.
15. The adjudicatory process comes to an end with the issuance of Notification under Section 10(3) of the ULC Act, 1976 and thereafter, the formal conclusion of the proceedings under the ULC Act, 1976 can take place either under Section 10(5) or Section 10(6) of the ULC Act, 1976 by taking over the possession, Page 23 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
as we have explained in our recent judgment in the case of Heirs of Dec. Jethabhai Ishwarbhai vs. State of Gujarat & Ors. Letters Patent Appeal No.405 of 2017 decided on 22.1.2021. The relevant portion of that judgment is quoted below, for ready reference:
"18. Subsection (5) of Section 10 after vesting of the surplus land with the State Government provides that the Competent Authority may, by notice in writing, order any person who may be in possession of it, to surrender or give the possession thereof to the State Government or any person duly authorised by the State Government within 30 days of service of notice. The plain language of subsection (5) of Section 10 means and envisages a notice in writing in the form of an order to surrender or make over the possession to the State. Subsection (5) notice is not in the form of a show cause notice but in the form of an order apparently because the process of hearing the objections to such declaration of surplus land is already taken care in subsections (1) and (2) of Section 10. Once the land is vested, after dealing with such objections, in the State Government, the only activity remaining to be done is to complete the process and achieve the object of this Act, was to take over the physical possession of such declared excess land. Therefore, a notice in the form of an order was Page 24 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
prescribed in subsection (5) to deliver the possession within 30 days of service of the notice.
19. There is no question of any voluntary handing over of possession on the part of the land owner. Whatever is done under subsection (5) is done in pursuance of the noticecumorder of the Competent Authority under Section 10(5) of the Act.
20. The argument based on the premise of voluntary handing over of the possession within 30 days of the said noticecumorder under Section 10(5) of the Act is, therefore, a misnomer. If the possession is handed over in compliance with the noticecumorder under Section 10(5) of the Act to the State authorities or person nominated by the State, the proceedings under the ULC Act get concluded under Section 10(5) of the Act. If that is not done by the land owner in pursuance of noticecumorder under Section 10(5) of the Act, whatever thereafter is done to take over the physical possession of the excess land in question, that can only fall under Section 10(6) of the Act, which says that if any person refuses or fails to comply the order made under subsection (5), then the Competent Authority may take possession of vacant land and may use such force as may be necessary for that purpose. Subsection (6) does not require any other notice or order once again to be passed by the Competent Authority. It only envisages act of taking over the Page 25 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
physical possession in the manner known to law including Panchnama process and presence of the owner of the land is not a condition precedent for such taking over of the possession. The last part of sub section (6) is only enabling and empowering provision for the Competent Authority who may use the force for taking over the physical possession, if there is any obstruction or hindrance created by anybody including the land owner in that process. Otherwise use of force is not necessary. Subsection (6), therefore, is not of an adjudicatory nature, but it only provides for a physical process to take de facto possession with or without the use of force. Then the proceedings under ULC Act get concluded under Section 10(6) of the Act. Both these subsections are not necessary to be operated and invoked in each and every case. The proceedings under ULC Act can get concluded either under Section 10(5) or 10(6) of the Act as indicated above.
21. Therefore, in our opinion, the arguments raised before us that subsection (5) envisages voluntary handing over of possession and subsection (6) talks of forcible taking over possession, both are incomplete and misleading arguments. The scheme of this two subsections as explained above does not put these two provisions in silos or watertight compartments. They, on the other hand, provide for a smooth and barrierless process of taking over of the possession Page 26 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
under the 1976 Act.
22. In these circumstances, if the possession is not handed over within 30 days of service of notice under Section 10(5), it will amount to failure to comply with the order under subsection (5) and thereafter whenever the possession is taken by the State authorities, even though after 6 years, as it has happened in the present case through Panchnama process in the absence of physical presence of the land owner, it does not vitiate those proceedings which will fall under Section 10(6) of the Act. The taking over of the possession through Panchnama process in the presence of two witnesses is a well recognised process for taking over the possession in law and cannot be said to be void, non est or illegal in any manner. The land owner cannot claim that since such possession was taken over after a belated period after expiry of 30 days as prescribed in Section 10(5) of the Act, he was entitled to again a notice in this regard requiring his presence on the spot giving him option either to voluntarily surrender such possession or obstruct the same. No such notice or opportunity is intended to be given under Section 10(6) of the Act. Therefore, in the present facts before us, the possession taken over by the State authority on 24.11.1993 was justified and legally undertaken through Panchnama process and in our opinion, no valid exception to the same can be taken by the Appellant.Page 27 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021
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23. As far as reliance placed on the case of Hari Ram (supra) is concerned, we are of the clear opinion that the learned Single Judge was right in distinguishing the said judgment as it is not a case before us where no notice under Section 10(5) of the Act was issued to the land owner. On the contrary, it is admitted position that such notice was given to the land owner on 4.6.1988. The later judgment of the Hon'ble Supreme Court fully explained the purport of the decision in the case of Hari Ram (supra) in the case of Bhaskar Jyoti Sarma (supra) where even Section 10(5) notice was not given and still taking over the possession was held as valid, as quoted in extenso by the learned Single Judge and that in our respectful understanding, clinches the issue in favour of the State.
24. As far as the question of exemption under Section 21 as sought by the Appellant land owner is concerned, we are of the opinion that it was the just an excuse or ruse to save the land in the hands of the land owners themselves as neither any concrete scheme for development of dwelling units for weaker sections was ever placed by the land owner before the Competent Authority or before this Court, nor the said application appears to have been pursued by the Appellant in an appropriate manner. Mere filing of the application could not have led the authorities to grant exemption to such excess or surplus land under Section 21 of the Page 28 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
Act and save the said land from the rigour and scheme of the 1976 Act of taking over of excess land in the larger public interest and therefore, the learned Single Judge was right in rejecting the said contention as well.
25. Thus, on the overall analysis of the facts and legal position as discussed above, we do not find any merit in the present appeal filed by the Appellant and the same is liable to be dismissed. The appeal is accordingly dismissed. No order as to costs.
26. Consequently, the Civil Application stands also dismissed."
16. The Hon'ble Supreme Court has deprecated such practices of Power of Attorney Holders, etc. fighting such litigation in land matters in the judgment in the case of Suraj Lamp & Industries Pvt. Ltd. [(2012) 1 SCC 656], the relevant part which is quoted below, for ready reference:
"1. By an earlier order dated 15.5.2009 [reported in Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr. 2009 (7) SCC 363], we had referred to the ill effects of what is known as General Power of Attorney Sales (for short `GPA Sales') or Sale Agreement / General Power of Attorney / Will transfers (for short `SA/GPA/WILL' transfers). Both the descriptions are misnomers as there cannot be a Page 29 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and Will. As noticed in the earlier order, these kinds of transactions were evolved to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty and registration charges on deeds of conveyance, to avoid payment of capital gains on transfers, to invest unaccounted money (`black money') and to avoid payment of `unearned increases' due to Development Authorities on transfer.
2. The modus operandi in such SA/GPA/WILL transactions is for the vendor or person claiming to be the owner to receive the agreed consideration, deliver possession of the property to the purchaser and execute the following documents or variations thereof:
(a) An Agreement of sale by the vendor in favour of the purchaser confirming the terms of sale, delivery of possession and payment of full consideration and undertaking to execute any document as and when required in future.
Or An agreement of sale agreeing to sell the property, with a separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute sale deed whenever required.
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(b) An Irrevocable General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing him to manage, deal with and dispose of the property without reference to the vendor. Or A General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing the attorney holder to sell or transfer the property and a Special Power of Attorney to manage the property.
(c) A Will bequeathing the property to the purchaser (as a safeguard against the consequences of death of the vendor before transfer is effected).
These transactions are not to be confused or equated with genuine transactions where the owner of a property grants a power of Attorney in favour of a family member or friend to manage or sell his property, as he is not able to manage the property or execute the sale, personally. These are transactions, where a purchaser pays the full price, but instead of getting a deed of conveyance gets a SA/GPA/WILL as a mode of transfer, either at the instance of the vendor or at his own instance.
Ill effects of SA/GPA/WILL transactions:
3. The earlier order dated 15.5.2009, noted the ill effects of such SA/GPA/WILL transactions (that is generation of black money, growth of land mafia Page 31 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
and criminalization of civil disputes) as under:
"Recourse to `SA/GPA/WILL' transactions is taken in regard to freehold properties,even when there is no bar or prohibition regarding transfer or conveyance of such property, by the following categories of persons:
(a) Vendors with imperfect title who cannot or do not want to execute registered deeds of conveyance.
(b) Purchasers who want to invest undisclosed wealth/income in immovable properties without any public record of the transactions. The process enables them to hold any number of properties without disclosing them as assets held.
(c) Purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to these methods to avoid multiple stamp duties/registration fees so as to increase their profit.
Whatever be the intention, the consequences are disturbing and far reaching, adversely affecting the economy, civil society and law and order. Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the government and the public. Secondly, such transactions enable persons Page 32 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption. This kind of transactions have disastrous collateral effects also. For example, when the market value increases, many vendors (who effected power of attorney sales without registration) are tempted to resell the property taking advantage of the fact that there is no registered instrument or record in any public office thereby cheating the purchaser. When the purchaser under such `power of attorney sales' comes to know about the vendors action, he invariably tries to take the help of musclemen to `sort out' the issue and protect his rights. On the other hand, real estate mafia many a time purchase properties which are already subject to power of attorney sale and then threaten the previous `Power of Attorney Sale' purchasers from asserting their rights. Either way, such power of attorney sales indirectly lead to growth of real estate mafia and criminalization of real estate transactions."
It also makes title, verification and certification of title, which is an integral part of orderly conduct of transactions relating to immovable property, difficult, if not impossible, giving nightmares to bonafide purchasers wanting to own a property with an assurance of good and marketable title.
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4. This Court had, therefore, requested the learned Solicitor General to give suggestions on behalf of Union of India. This Court also directed notice to States of Delhi, Haryana, Punjab, Uttar Pradesh to give their views on the matter. The four states have responded and confirmed that SA/GPA/WILL transfers required to be discouraged as they lead to loss of revenue (stamp duty) and increase in litigations due to defective title. They also referred to some measures taken in that behalf. The measures differ from State to State.
In general, the measures are:
(i) to amend Registration Act, 1908 by Amendment Act 48 of 2001 with effect from 24.9.2001 requiring documents containing contract to transfer for consideration (agreements of sale etc.) relating to any immoveable property for the purpose of section 53A of the Act, shall be registered; and
(ii) to amend the stamp laws subjecting agreements of sale with delivery of possession and/or irrevocable powers of attorney in favour of nonfamily members authorizing sale, to the same stamp duty as deed of conveyance. These measures, no doubt, to some extent plugged the loss of revenue by way of stamp duty on account of parties having recourse to SA/GPA/WILL transactions, instead of executing deeds Page 34 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
of conveyance. But the other illeffects continued. Further such transaction which was only prevalent in Delhi and the surrounding areas have started spreading to other States also. Those with ulterior motives either to indulge in black money transactions or land mafia continue to favour such transactions. There are also efforts to thwart the amended provisions by not referring to delivery of possession in the agreement of sale and giving a separate possession receipt or an affidavit confirming delivery of possession and thereby avoiding the registration and stamp duty. The amendments to stamp and registration laws do not address the larger issue of generation of black money and operation of land mafia. The four States and the Union of India are however unanimous that SA/GPA/WILL transactions should be curbed and expressed their willingness to take remedial steps."
17. The Hon'ble Supreme Court then proceeded to give detailed reasoning for laying down the law in this regard in the following epochmaking words:
"16. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A.Kamtam and Anr., (1977) 3 SCC 247, observed:Page 35 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021
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A contract of sale does not of itself create any interest in,or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR 293). The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein." In India, the word `transfer' is defined with reference to the word `convey'. The word `conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership... ...that only on execution of conveyance ownership passes from one party to another....".
17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [2004 (8) SCC 614] this Court held:
"Protection provided under Section 53A of the Act to the proposed transferee is a Page 36 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party." [This clinches the issue involved before us].
18. It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred. It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred.
19. Any contract of sale (agreement to sell) which is Page 37 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.
Scope of Power of Attorney
20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.
21. In State of Rajasthan vs. Basant Nahata 2005 (12) SCC 77, this Court held :
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"A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the PowersofAttorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He Page 39 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.
Scope of Will
22. A Will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a Will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. It is said that so long as the testator is alive, a Will is not be worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the Will, by operation of law, the Will stands revoked. (see sections 69 and 70 of Indian Succession Act, 1925). Registration of a Will does not make it any more effective.
Conclusion
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23. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank - 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction"
when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for Page 41 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."
18. In the case of Darothi Clare Parreira (Smt.) & Ors. vs. State of Maharashtra & Ors. [(1996) 9 SCC 633], a TwoJudge Bench of the Hon'ble Supreme Court also dealing with the provisions of the ULC Act, 1976, held that 'power of exemption and exemption would arise only when the Government becomes the owner and the erstwhile owner seeks to obviate the hardships under Section 20 or to subserve the housing scheme for weaker sections under Section 21 as envisaged thereunder'. In this case, the application under Section 21 came to be filed much after the date of vesting and publication of the Notification under Section 10(3) of the ULC Act, 1976. The Court held that the effect of vesting is not contingent upon filing of application either under Section 20 or 21 of the ULC Act, 1976. Thus, obviously the exemption can be granted on valid ground and subject to fulfillment of the conditions enumerated in this provision by the Applicant only before Section 10(3) Notification is issued.
Page 42 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
19. In the present case, we do not find such application filed after Section 10(3) Notification, but upon the remand by the Tribunal, the earlier application filed on 1.5.1987, a copy of which is produced with the Additional Affidavit of the Appellants / Petitioners - Mr. Suresh Karsanbhai Patel, the allegedly Power of Attorney Holder of Jadaben Solanki and others. The said application dated 1.5.1987 under Section 21 of the ULC Act, 1976 (pages 216217 with the said Affidavit) is nothing but a prescribed form signed by the land holder with no Annexures plan of housing, maps, etc. and even though the application mentions that a map is produced herewith, but the same is not produced here.
20. A word about the said Additional Affidavit of a person filing it and the copy of Section 21 of the Act will also be in order.
Though the said pleading is filed as Additional Affidavit in view of the directions given by the Court dated 8.2.2021, the same is not at all a sworn Affidavit. It is only a compilation of some documents produced with the said four pages front cover Index though the last part of it purportedly says 'What is stated above is true to the best of my knowledge and I believe the same to be Page 43 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
true. Solemnly affirmed on this 18th Day of March 2021 at Vadodara, dated 18/03/2021, signed by Notary Public Mr.Jitendra C. Shah and identified by one Mr. N.J. Patel. The person signing with his photograph claims to be Suresh Karsanbhai Patel, PoA holder of Jadaben Solanki and others, 7, Hastinapur Society, Karelibaug, Vadodara. Copy of the Power of Attorney has also been produced which was purportedly executed on 25.10.1993 by Jadaben Solanki and four others in favour of Jamnadas and Sureshbhai.
21. Firstly, we cannot permit any document to be filed by a Power of Attorney Holder at the fag end of the proceedings in this manner. Secondly, the said purported Affidavit is not even a properly sworn Affidavit. Therefore, the same even cannot be taken on record. Since the writ proceedings including Letters Patent Appeal which are nothing but an extension of the writ proceedings, depend upon only the duly sworn Affidavits of the parties to the proceedings, in the considered opinion of this Court, no document whatsoever can be taken on record without they being supported by the properly sworn Affidavit of the party concerned. Thirdly, even if these documents were to be looked into without any value attached to them, the purported copy of Page 44 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
the application under Section 21 of the ULC Act, 1976 is nothing but a twopage prescribed form signed by the party. Unless the application under Section 21 which as to meet the condition laid down in Section 21 is accompanied by the proper Plan of development of housing, construction Plans of plots, applicable rates for allotment for poor sections of people to pay, how the plots are sought to be developed, construction work with Map is considered even before the Competent Authority, it cannot have any value at all.
22. It is quite curious that even the complete copy of such application is not produced before this Court and the entire arguments of the learned counsel for the Petitioners / Appellants are based on the pendency of the Application under Section 21 of the ULC Act, 1976, upon remand by the Tribunal, which we have already indicated above cannot succeed, in view of such application becoming fait accompli and deemed to have been dismissed with issuance of Notification under Section 10(3) of the ULC Act, 1976.
23. Thus, we are satisfied that the learned Single Judge was perfectly justified in dismissing the writ petition by the aforesaid order and we do not find any merit in the present Appeal filed by Page 45 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021 C/LPA/1281/2016 JUDGMENT DT. 23.3.21 PRABHATBHAI SHIVABHAI SOLANKI THROUGH LRs v. STATE OF GUJARAT & 4 others In Re: ULC Act : Vesting u/s. 10(3) Final : Exemption Applications don't survive.
the land holders and therefore, the present Letters Patent Appeal deserves to be dismissed. The same is accordingly dismissed. No costs.
24. Consequently, the Civil Application also stands dismissed.
25. In view of the Affidavit given by Vadodara Municipal Corporation dated 12.3.2021, we direct the said Corporation to remove all 8 encroachments on the land in question belonging to the State Government forthwith and report the compliance of the directions to this Court within four weeks from today with site photographs before removal of the encroachments and after removal of the encroachments with Affidavit. If such Report is not furnished within four weeks from today, the Commissioner of Vadodara Municipal Corporation shall remain present before this Court and first deposit Rs.50,000/ from his personal resources by way of Security Deposit with the Registrar General of this Court to ensure proper and meticulous compliance of the directions in future by him. The Compliance Report may be placed in Chambers for perusal on 28.4.2021.
(DR. VINEET KOTHARI,J) (BIREN VAISHNAV, J) Bharat Page 46 of 46 Downloaded on : Thu Mar 25 22:17:12 IST 2021