Purshottamdas Somabhai Patel Since ... vs State Of Gujarat & 5 on 1 December, 2014

[Cites 13, Cited by 0]

Gujarat High Court

Purshottamdas Somabhai Patel Since ... vs State Of Gujarat & 5 on 1 December, 2014

C/SCA/190/1992 JUDGMENT The present petition is filed by the petitioners under Art. 19(1)(g) and 226 of the Constitution of India for the prayers, inter alia, that appropriate writ, order or directon may be issued to quash and set aside the order dated 19.5.1987 at Annexure-C by which the exemption under sec. 20 of the Urban Land (Ceiling and Regulation) Act, 1976 has been cancelled and the order dated 28.1.1987 passed by the Competent Authority, respondent No. 3, at Annexure-D and also the order passed by the Urban Land Tribunal in Appeal No. 42/87 dated 11.5.1989 at Annexure-E, on the grounds stated in the petition.

2. Heard learned counsel Shri JM Patel for the petitioners. Learned counsel Shri Patel submitted that the original owner had filled in Form 6 under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Act') and had applied for exemption under sec. 20 of the Act. He submitted that the exemption was granted vide order dated 31.8.1979 in respect of the entire land. He submitted that the petitioners have purchased the land in question bearing Survey Nos. 26, 27 & 28 situated at Village Narol, Taluka-District Ahmedabad by registered sale deed dated 22.7.1981 from the original owner after obtaining permission of the authority which had granted permission in Case No. 18 dated 31.7.1981. The exemption was cancelled as per the order dated 19.5.1987 at Annexure-C after the notice was issued dated 24.11.1986. The original owner had filed a reply. However, the exemption was cancelled. Therefore, an appeal was preferred before the Urban Land Tribunal, which came to be dismissed vide order dated 19.5.1989 at Annexure-E.

3. Learned counsel Shri Patel referred to the papers of Special Civil Application No. 10756 of 2001 filed by some of the heirs of the deceased original owner. He submitted that the proceedings which were initiated Page 2 of 13 C/SCA/190/1992 JUDGMENT were pending when the aforesaid SCA No. 190/92 was filed and the status-quo was granted in SCA No. 190/92, meaning thereby, the proceedings were pending when the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as 'the Repeal Act') was brought into force on 30.3.1999. Learned counsel Shri Patel submitted that when the Repeal Act came into force, the proceedings were pending and the status-quo was granted by the court and therefore no possession can be said to have been taken over legally and validly.

4. Learned counsel Shri Patel referred to the papers and submitted that though it is contended that the notice under sec. 10(5) dated 21.6.1990 has been issued, produced at page 240, no such notice has been served upon the petitioners. He submitted that the notice seems to have been served to the original owner. He pointedly referred to the panchnama and submitted that even in the panchnama it has been recorded that actual physical possession is of Ratanlal, owner of Abhay Textiles who has not been served with any notice. Learned counsel Shri Patel therefore referred to the provisions of sec. 10(4), 10(5) and 10(6) of the Act and submitted that it refers to the notice to the person in possession and admittedly, though the authorities were aware that the possession of the land in question is of Ratanlal, no such notices have been served. He submitted that as, admittedly, the possession is with Ratanlal, the owner of Abhay Textiles, the possession of the land in question could not have been taken over from the original owner who does not have the possession. Learned counsel Shri Patel submitted that this itself suggests that the panchnama cannot be relied upon. He also referred to Urban Land (Ceiling and Regulation) Rules, 1976 (hereinafter referred to as 'the Rules'), particularly Rule 5(2)(b) and submitted that it specifically provides that notice has to be served to every interested person. He therefore submitted that when the authorities were aware about the possession by the third person, notice ought to have been Page 3 of 13 C/SCA/190/1992 JUDGMENT served, and since no such notice has been served to the person in possession, the entire panchnama or bogey of possession having been taken over, is false. Learned counsel Shri Patel submitted that in fact vide order dated 27.1.1992 (Coram: J.N. Bhatt, J.) this matter was admitted and status-quo was directed to be maintained. He, therefore, submitted that the possession could not have been taken over as claimed and thereafter as the Repeal Act has been brought into force, the proceedings will stand abated and the present petition may be allowed.

5. Learned AGP Shri Bharat Vyas has strongly resisted the petition referring to the background and the history and submitted that the original owner had violated the condition which has led to passing of the order for cancellation of the exemption. He further referred to the impugned orders in the petition and submitted that any transfer of the land without permission as required under sec. 5 of the Act would be hit by such provision. He submitted that in fact this is the third round of litigation and the land has been vested in the government by operation of law and the provisions of the Repeal Act would not be attracted. He referred to the affidavit-in-reply. He has also referred to Form No. 1 filled under sec. 6 by the original owner and submitted that the land has been declared as surplus by the competent authority in 1987. Learned AGP Shri Vyas submitted that the petitioner who claims to be the purchaser from the original owner without any previous permission from the ULC authority cannot get any better title. He submitted that similarly the contention that the notices have not been served under sec. 10(3), 10(4), 10(5) and 10(5) of the Act are also misconceived. He submitted that all the notices have been served to the original owner who was shown in the declaration and persons like the petitioners may not be served as the transaction would be void.

6. Learned AGP Shri Vyas strenuously submitted that prior approval Page 4 of 13 C/SCA/190/1992 JUDGMENT for transfer of the land as required under the Act has not been taken and therefore the sale of the land in question would be hit by such provision and it will be in contravention of the provisions of the Act, particularly sec. 25(a) and 25(b) of the Act. He has also referred to sec. 26 and 27 of the Act. He submitted that therefore any such transfer of land by sale is not valid in eye of law and therefore the submission about non-service of notices is misconceived. He emphasized and submitted that the notice has been served to the owner who filled in Form No. 1 under sec. 6 of the Act at the relevant time. He submitted that the subsequent purchaser without any approval cannot have any rightful claim over the land in question. He submitted that rule 5(2)(b) which refers to the "person interested" in the land would not include any such purchaser in contravention of the provisions of the statute. He submitted that it cannot be said to be a rightful claim which would require notice. The learned AGP submitted that 'person interested' would mean any person who had a rightful claim over the and in question and not by any such void transaction.

7. Learned AGP Shri Vyas submitted that once the land has vested in the government, it would vest absolutely. He submitted that the consequences will follow and it has been observed by the Hon'ble Apex Court that once the land has vested in the government by operation of law, the persons like the petitioners cannot claim any benefit under the Repeal Act. In support of his submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2010) 8 SCC 467 in the case of Sulochana Chandrakant Galande v. Pune Municipal Transport and ors., (para 16, 18, 19, 20) to emphasize about the effect of vesting. He has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2010) 13 SCC 158 in the case of Omprakash Verma and ors., v. State of Andhra Pradesh and ors. He has also referred to and relied upon the judgment of this High Court reported Page 5 of 13 C/SCA/190/1992 JUDGMENT in 2013 (2) GLR 1016 in the case of Ganshyambhai Bhikhabhai Mistry v. State of Gujarat & ors. He has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (1976) 1 SCC 700 in the case of Balwant Narayan Bhagde v. M.D. Bhagwat and ors. and submitted that it has referred to the aspect about the possession as to how the possession could be taken over and the possession by making such panchnama is accepted as valid. He has also referred to and relied upon the judgment reported in (2009) 10 SCC 501 in the case of Sita Ram Bhandar Society, New Delhi v. Lieutenant Governor, Government of NCT, Delhi and ors.

8. Lastly, learned AGP Shri Vyas again submitted that the 'interested person' as referred to in Rule 5 of the ULC Rules has to be considered on the basis of the original claim. He has referred to and relied upon the judgment of this High Court reported in 1995 (1) GLH 1011 in the case of Navsarjan Industrial Co-operative Society Ltd. v. State of Gujarat and ors. and also the judgment reported in 1988 (2) GLH 341 in the case of Patel Gordhan Kadvabhai & ors. v. Competent Authority and Addl. Collector, Rajkot and ors.

9. In rejoinder, learned counsel Shri Patel submitted that whether the possession is taken over or not is very much relevant and necessary and it would depend upon the facts of the case. He submitted that the issue with regard to possession has been decided by the Hon'ble Apex Court depending upon the facts of the case before the Repeal Act came into force. He submitted that again some of the judgments are under the Land Acquisition Act and the statutory provision under the Land Acquisition Act and the ULC Act are different. He emphasized that procedure for notice under the ULC Act has been specifically laid down as provided in sec. 10(5) and 10(6) of the Act. He emphasized that as observed by the Hon'ble Apex Court in the judgment reported in (2013) 4 SCC 280 in the Page 6 of 13 C/SCA/190/1992 JUDGMENT case of State of Uttar Pradesh v. Hari Ram, it has been clearly laid down that where actual physical possession has not been taken over even after the land has been declared as surplus, the Repeal Act would be attracted and the land would continue to remain in possession of the land owner. He submitted that in the Land Acquisition Act the issue would be whether the acquisition of the land is valid or not. He also submitted that therefore the issue with regard to possession as discussed in the judgment reported in the case of Balwant Narayan Bhagde (supra) is under the Land Acquisition Act and it will not have much relevance in the facts of the case. He therefore submitted that the present petition may be allowed only on the ground that the notice as required under sec. 10(5) and 10(6) of the Act has not been issued to the person interested or the person in possession.

10. In view of these rival submissions, it is required to be considered whether the present petition can be entertained and whether the petitioners can claim any relief in the present petition on the grounds stated in the petition.

11. For appreciating the rival submissions and the main emphasis on the aspect of actual physical possession for the purpose of getting the benefit under the Repeal Act, a closer scrutiny of the background of the case is required to be made. The original holder of the land had filled in Form No.6 and thereafter as stated in the affidavit-in-reply, initially, the exemption was granted which was subsequently cancelled. It is also evident that the land had been declared excess under the Act way back in the year 1985 and the land was vested in the government. In other words, by operation of law as prevailed then, the land was declared excess and has vested in the government much before the Repeal Act came into force on 30.3.1999.

Page 7 of 13

C/SCA/190/1992 JUDGMENT

12. The main emphasis made by learned counsel Shri Patel that the petitioners are in possession and bona fide purchaser and as the de facto possession is with the petitioners having obtained from the original land holder is required to be considered in background of the provisions of law particularly the Act. This contention which has been raised with regard to transfer of land if perused on the basis of the order passed by the Tribunal clearly establishes that after the land is declared surplus, no transfer could be made. In fact, the Act prohibits the transfer of urban property without previous sanction. For that purpose, a useful reference can be made to the provisions of Chapter IV of the Act which provide for regulation of transfer and use of urban property and the procedure which is required to be followed.

13. The provisions of sec. 26 provides for the notice to be given before transfer of the vacant land and sec. 27 prohibits transfer of any such urban property. Thus, sec. 26 provides for the permission of the authority before the transfer of the vacant land and sec. 27 prohibits transfer of any such urban property. Further, sec. 27 starts with a non-obstante clause and it clearly provides that no permission for transfer of the land can be granted except with the previous permission in writing of the competent authority. In other words, it provides that a person desiring to make transfer of the land shall have to make an application in writing to the competent authority in the prescribed form and in the prescribed manner. There is no explanation on this issue. The affidavit-in-reply clearly refers to the fact that notice under sec. 10 (5) of the Act was served upon the original holder of the land and the possession has been taken over way back in the year 1987. Thus, the so-called transfer of the land or purchase of the same land in question which is said to have taken place subsequently thereafter without any permission as required under the Act as stated above or without following any procedure would not confer any right, title, interest on the persons like the petitioners who claim to be a Page 8 of 13 C/SCA/190/1992 JUDGMENT person "person interested". Therefore, any such transaction which may have taken place inter--se without the approval and without following the procedure as required under the law cannot bee recognized and accepted as valid. Therefore, the submission about non-compliance with the procedure of service of notice to the "person interested" like the petitioners is misconceived.

14. It is required to be mentioned that notice is required to be served to the holder of the land before his land could be declared surplus in order to provide an opportunity. However, rule 5(2) of the Rules read with sec. 10(5) of the Act has a reference to the 'person interested' or person in possession, meaning thereby, those who are having legal and valid interest in the land and not a person claiming so-called interest by such sham transaction which has not been approved. As rightly submitted by learned AGP Shri Vyas, it would be impossible for the authorities to trace the 'person interested' if such contention is to be believed and accepted inasmuch as one after another the transaction or sham transactions may have taken place and it may be difficult to know about the person who is having any interest. Therefore, what is provided in law by 'person interested' means the person who is having interest in the land in question legally and validly and not by any such sham transaction which may have taken place without following any procedure or in disregard to the statutory provisions of law like the Act or Transfer of Property Act.

15. At the cost of repetition, it is required to be stated that the holder of the land as declared by him in Form No. 1 under sec. 6 would be the 'person interested'. Therefore, considering the scheme of the Act, particularly sec. 26 & 27, as discussed above, which places restriction on transfer of the land or rather sec. 27 which prohibits transfer of the land, no right, title, interest in the land could have been transferred which may give rise to any such claim by the persons like the petitioners who claim Page 9 of 13 C/SCA/190/1992 JUDGMENT to be having interest in the land. Therefore, as the notice as required under sec. 10(5) of the Act is served upon the land-holder much before the Repeal Act came into force and the possession is also taken over, the submission made by learned counsel Shri Patel that the procedure as required under sec. 10(5) and 10(6) of the Act as per the judgment of the Hon'ble Apex Court in the case of Hari Ram (supra) has not been followed is thoroughly misconceived and the said observations of the Hon'ble Apex Court will not have any application to the facts of the present case when the possession has already been taken over and the land has already been vested in the government much before the Repeal Act came into force.

16. A useful reference can also be made to the judgment of this High Court in the case of Ghanshyambhai Bhikhabhai Mistry v. State of Gujarat & ors. [2013 (@) GLR 1016] on this very aspect that where the possession of the land is vested in the government and has been taken over prior to coming into force of the Repeal Act, the petition cannot be entertained. In this judgment also, the aspect of sec. 6 regarding declaration in the form and the vacant land has been considered. A useful reference can also be made to the judgment of the Hon'ble Apex Court in the case of Sulochana Chandrakant Galande v. Pune Municipal Transport and ors. [(2010) 8 SCC 467, wherein it has been observed referring to the provisions of the Act, "The land shall be deemed to have vested in the State Government free from all encumbrances with effect from the date so specified."

17. The Hon'ble Apex Court in a judgment reported in (2010) 13 SCC 158 in the case of Omprakash Verma and ors. v. State of Andhra Pradesh and ors. has considered this aspect referring to the earlier judgment in the case of Sulochana Chandrakant Galande (supra) observing that Page 10 of 13 C/SCA/190/1992 JUDGMENT "once the vesting takes place under Section 10(3) of the Ceiling Act, the State has absolute title and ownership over it. The owner has no further say in respect of the land that has vested in the State."

The Hon'ble Apex Court referring to the aspect of word 'vesting' has considered referring to the earlier judgment and has also quoted, "....the property acquired becomes the property of the Government without any conditions or limitations either as to title or possession. The legislature has made it clear that vesting of the property is not for any limited purpose or limited duration."

Though it is qua the Land Acquisition Act, it will also have a bearing for the purpose of considering the aspect of vesting of the land under the ULC Act, particularly when the benefit is sought to be claimed under the Repeal Act.

18. Thus, it means that the property belong to the government without any condition or limitation either as to the title or possession. The word 'vesting' itself makes it clear that it is not for any limited purpose or limited duration and when the word 'free from encumbrances' is also used it means that the land has vested in the government or the State absolutely without any limitation. Therefore, where the actual physical possession has been taken over much before the Repeal Act came into force, it would not confer any benefit to the owners of the land.

19. It is required to be mentioned that the Hon'ble Apex Court in a judgment reported in (2009) 10 SCC 501 in the case of Sita Ram Bahandar Society, New Delhi v. Lieutenant Governor, Government of NCT, Delhi and ors., while considering the aspect of taking over possession with reference to the provisions of the Land Acquisition Act, Page 11 of 13 C/SCA/190/1992 JUDGMENT has made observations that when possession of the large area of the land is taken over, the court has to adopt a pragmatic approach and when the panchnama is recorded vesting the land absolutely in the government, then the claim by the person based on the possession may not be readily believed or accepted.

20. A useful reference can also be made to the observations made by the Hon'ble Apex Court in the case of Omprakash Verma (supra) which is also referring to the ULC Act and the vacant land and it has been observed that the original holder of the land having filed for possession and participated in the proceedings cannot be permitted to reopen the issues. Therefore, merely because the persons like the petitioners make an application or claim that they have an interest in the land it would not justify that they are an "interested person" and no such claim legally and validly qua the land can be accepted.

21. Therefore, when the persons like the petitioners cannot be said to have any legal interest or lawfully acquired interest in the land, there is no question of any service of notice and therefore no grievance could be made by the petitioners that the procedure for taking over possession has not been followed. By making such an application or claim, which is rather a dishonest claim,an impression is sought to be created knowing about the factual background and it appears that a camouflage is sought to be created as the original holder could not be in a position to make any claim the persons like the petitioners have come forward as 'person interested' and the contentions are sought to be raised about non- compliance with procedure or notice as required under sec. 10(5) and 10(6) of the Act so that the benefit of the Repeal Act could be claimed. In fact, the Repeal Act would not have application in the facts of the case as the possession has already been taken over in 1987 much before the Repeal Act came into force and the original holder of the land has been Page 12 of 13 C/SCA/190/1992 JUDGMENT served with the notice. In any case, after service of the notice and taking over the possession any such claim in the guise of subsequent transaction by a person like the petitioner claiming that he is the 'person interested' having acquired the land subsequently cannot be believed or accepted. The observations made by the Hon'ble Apex Court in the case of Hari Ram (supra) will not have any application to the facts of the case as the facts were totally different with regard to the procedure to be followed when the possession has not been taken over from the original owners of the land when the Repeal Act came into force. Therefore, the purpose of the Repeal Act or observations made by the Hon'ble Apex Court in the case of Hari Ram (supra) has to be considered in background of the facts. The claim cannot be permitted to be made or reopened in the guise that one is an 'interested person' on such ground of non-compliance with the procedure.

22. It is required to be mentioned that when this petition was admitted, the status-quo was granted. However, it would not help the case of the petitioners inasmuch as the land had already been vested much earlier as stated above and therefore the order of status-quo cannot be interpreted to mean that the petitioners had been in possession or had any right, title, interest as 'person interested'.

23. Therefore, in light of the discussion made hereinabove, the present petition cannot be entertained and deserves to be dismissed and accordingly stands dismissed. Rule discharged. Interim relief stands vacated.

(RAJESH H.SHUKLA, J.) (hn) Page 13 of 13

Unlock Advanced Research with PRISMAI

Gujarat High Court