Gujarat High Court
State Of Gujarat vs Heirs Of Kuntaben Wd/O. Nandkrishna on 20 February, 2017
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/7084/1999 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7084 of 1999
[On note for speaking to minutes of order dated 16/12/2016 in
C/SCA/7084/1999 ]
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STATE OF GUJARAT....Petitioner(s)
Versus
HEIRS OF KUNTABEN WD/O. NANDKRISHNA
RADHAKRISHNA....Respondent(s)
========================================================
Appearance:
MR VENUGOPAL PATEL, AGP for the Petitioner(s) No. 1
MR. HARIVADAN MISHRA, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 20/02/2017
ORAL ORDER BELOW NOTE FOR SPEAKING TO MINUTES
Note for speaking to minutes has been preferred by learned AGP Mr. Patel for correction in Para No.14, wherein by inadvertence numbers of Special Civil Applications have been wrongly entered into.
Having regard to the contents of the note for speaking to minutes, the same is granted. The numbers of Special Civil Applications are directed to be corrected accordingly. Present note for speaking to minutes is disposed of accordingly.
(BELA M. TRIVEDI, J.)
Tuvar
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 7084 of 1999 FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== STATE OF GUJARAT....Petitioner(s) Versus HEIRS OF KUNTABEN WD/O. NANDKRISHNA RADHAKRISHNA....Respondent(s) ========================================================== Appearance:
MS. JYOTI BHATT, ASST. GOVERNMENT PLEADER for the Petitioner(s) No. 1 MR. P.C. KAVINA, SENIOR ADVOCATE WITH MR. HARIVADAN MISHRA, ADVOCATE for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI Date : 16/12/2016 & 20/12/2016 Page 1 of 19 HC-NIC Page 2 of 20 Created On Sun Aug 13 19:32:41 IST 2017
2 of 20 C/SCA/7084/1999 JUDGMENT ORAL JUDGMENT
1. The petitioner - State has filed the present petition challenging the order dated 22.03.1999 passed by the Urban Land Tribunal (hereinafter referred as 'the Tribunal') in Appeal No. Surat/25 of 1998 (Annexure 'B'), whereby the Tribunal has set aside the order dated 06.04.1977 passed by the competent authority and also the subsequent proceedings, entertaining the Appeal of the respondent filed through the Power of Attorney Holder, about 21 years after the competent authority passed the said order, and that too without giving any opportunity of hearing to the petitioner - State.
2. It is pertinent to note that such a grossly time barred Appeal was entertained and allowed by the Tribunal on 22.03.1999, during the period when the Parliament had already passed the ULC Repeal Act, 1999 on 18.03.1999, and the Gujarat Legislative Assembly adopted the same on 30.03.1999.
3. The chronology of dates and events as transpiring from the record may be narrated as under : -
13.08.1976 Late Smt. Kuntaben widow of Nandkrishna Radhakrishna had filled in the form No. 1 under Section 6 of the ULC Act 06.04.1977 The competent authority after giving opportunity of hearing to the said Kuntaben, declared 78029 sq. mtrs.
Page 2 of 19 HC-NIC Page 3 of 20 Created On Sun Aug 13 19:32:41 IST 2017 3 of 20 C/SCA/7084/1999 JUDGMENT of the land as excess vacant land 28.04.1977 Notification under Section 10(1) of the ULC Act was issued 24.11.1983 Notification under Section 10(3) of the ULC Act was issued 06.01.1984 Notice under Section 10(5) of the ULC Act was issued 03.02.1984 The said Kuntaben filed an appeal being No. 308 of 1984 before the ULC Tribunal under Section 33 of the Act challenging the order dated 06.04.1977 passed by the competent authority. July, 1984 The said Kuntaben also filed Special Civil Application No. 3755 of 1984 challenging the said order dated 06.04.1977 of competent authority and the notice under Section 10(5), pending the appeal before the Tribunal. 11.12.1984 The Special Civil Application No. 3755 of 1984 was disposed of by the
High Court directing the Tribunal to decide the appeal within four weeks. 19.08.1985 The Tribunal dismissed the said appeal.
October, The Special Civil Application No. 1985 5741 of 1985 was filed by the respondent Manjulaben challenging the order dated 19.08.1985 passed by the Tribunal.
09.01.1986 Possession taken over by drawing
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panchnama.
24.03.1987 The respondent Manjulaben withdrew
the said petition, and hence the
said petition was dismissed as
withdrawn.
23.12.1998 One Manish H. Shah as the Power of
Attorney holder of Smt. Manjulaben
Shaileshbhai again filed an appeal
being No. 25 of 1998 before the ULC
Tribunal again challenging the said order dated 06.04.1977 passed by the competent authority, without filing any separate application for condonation of delay 18.03.1999 The ULC Came came to be repealed by the Parliament.
22.03.1999 The ULC Tribunal allowed the said
Revision Application setting aside
the said order of competent
authority
30.03.1999 Gujarat State Assembly adopted the
said Repeal Act, 1999.
17.09.1999 The present petition being No. 7084
of 1999 was filed
15.10.1999 The Court while admitting the
petition, stayed the operation of
the impugned order dated 22.03.1999. 11.12.2002 The Single Bench disposed of the petition in view of the Repeal Act 1999.
........ The petitioner - State filed Letters
Patent Appeal being No. 1262 of 2003
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against the said order passed by the
Single Bench.
09.02.2012 The Division Bench dismissed the
said Letters Patent Appeal.
........... The petitioner - State filed Misc.
Civil Application No. 1287 of 2012 seeking review of the order passed in Letters Patent Appeal.
20.07.2012 The Division Bench recalled the order dated 09.02.2012 and set aside the same by allowing the Misc. Civil Application.
03.02.2015 The Division Bench allowed the
Letters Patent Appeal No. 1262 of
2003 quashing and setting aside the
order dated 11.12.2002 passed by the Single Bench and directed to decide the petition on merits.
4. Pending the petition, one Sanjay Vitthaldas Patel had filed an affidavit-in-reply on behalf of respondent Smt. Manjulaben Shaileshbhai on 22.12.1999 stating interalia that the land bearing Survey No. 125, 126/1, 126/2, 126/3, 126/4 i.e. Block No. 198 was sold out to some 24 persons by executing registered sale deed on 28.07.1999, and therefore, the third party rights having been created, the petition of the State Government deserved to be dismissed.
5. After the remand of the petition by the Division Bench, the respondent Manjulaben Shaileshkumar herself filed an additional affidavit on 13.09.2016 contending Page 5 of 19 HC-NIC Page 6 of 20 Created On Sun Aug 13 19:32:41 IST 2017 6 of 20 C/SCA/7084/1999 JUDGMENT inter alia that the possession of the land in question was with her and that the petitioner had taken only paper possession of the land in question. It has also been contended that an application was filed by the original holder Kuntaben under Section 20 of the said Act seeking exemption the land, being agricultural land and the said application has remained undecided. The notifications issued under Section 10 were contrary to law. It is further contended that though the notice under Section 10(5) calling upon her to hand over the possession was issued by the competent authority on 20.03.1983, the same was illegal and that before taking over possession by drawing panchnama on 07.06.1984, no notice under Section 10(6) was issued. It has also been contended that her predecessor Kuntaben being uneducated lady was unable to understand the outcome of the order dated 06.04.1977 passed by the competent authority, and therefore, she had challenged the same before the High Court by filing Special Civil Application No. 3755 of 1984 without challenging the order of competent authority before the ULC Tribunal. The High Court thereafter having disposed of the said matter, permitting her to file the appeal before the Tribunal, the appeal being No. 308 of 1984 was preferred before the Tribunal, which was dismissed on 19.08.1985. The respondent therefore filed Special Civil Application No. 5741 of 1985 challenging the said order of Tribunal, the said Special Civil Application was withdrawn by her predecessor in title on 24.03.1987 for the reasons best known to the Advocate of her predecessor. The Page 6 of 19 HC-NIC Page 7 of 20 Created On Sun Aug 13 19:32:41 IST 2017 7 of 20 C/SCA/7084/1999 JUDGMENT respondent thereafter had filed the appeal before the Tribunal under Section 33. It is further contended that the competent authority was incompetent to issue the notice under Section 10 (5) forcing her to hand over the possession of the land in question because despite the replies filed by her, the amount of compensation was not determined by the competent authority. According to her, there are many hutments and shops constructed on the land in question, and the litigations are pending before the Civil Court. When the panchnama was made at the instance of the competent authority on 09.01.1986, the Surveyor had recorded the statements of the persons, who were in possession of the land. She has therefore prayed that the Court should not interfere with the order dated 22.03.1999 passed by the ULC Tribunal.
6. It is vehemently submitted by the learned AGP Ms. Bhatt for the State - petitioner that the Tribunal, while entertaining the appeal filed by the respondent through her Power of Attorney holder 21 years after the competent authority passed the order on 06.04.1977, had allowed the same without the respondent having filed any application for condonation of delay and without giving opportunity of hearing to the petitioner. She pointed out that the order was passed by the Tribunal only few days before the repeal of the ULC Act and in a great haste and without considering the record of the case. According to her, earlier the respondent had already filed an appeal challenging the same order dated 06.04.1977 Page 7 of 19 HC-NIC Page 8 of 20 Created On Sun Aug 13 19:32:41 IST 2017 8 of 20 C/SCA/7084/1999 JUDGMENT passed by the competent authority and the said appeal was dismissed by the Tribunal, and the Special Civil Application being No. 5741 of 1985 filed by the respondent against the said order of Tribunal, was withdrawn by her on the ground that some settlement had taken place. She therefore submitted that the appeal filed by the respondent was not maintainable after the withdrawal of the Special Civil Application challenging the said order of dismissal of the appeal earlier. According to her, the possession of the land in question was already taken over as per the panchnama drawn, and hence the land had legally vested in the Government before the ULC Act was repealed in 1999. Lastly she submitted that merely because there were some encroachments on the said land, it could not be said that the possession was not taken over by the Government or that the respondent was in possession of the same.
7. However, the learned Senior Counsel Mr. P.C. Kavina for the respondent, in the first limb of his submissions submitted that in view of Section 4 of the ULC Repeal Act, all the proceedings under the Principal Act had stood abated and the present petition also did not survive. As regards filing of the Appeal second time before the Tribunal after the dismissal of earlier appeal against the order of the competent authority, he submitted that there was no restriction on the number of times, the appeal could be filed before the Gujarat Revenue Tribunal challenging the order of competent authority.
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According to him, the Special Civil Application being No.5714 of 1985 challenging the earlier order of dismissal of Appeal was withdrawn by the concerned Advocate for the respondent for the reasons best known to him. As regards the condonation of delay, he submitted that filing of application seeking condonation of delay was not Sine qua non for filing the appeal after the prescribed time limit, and even otherwise the prayer for condonation of delay could be made orally also, and such delay could be presumed to have been condoned by the Tribunal. He further submitted that the application of the respondent under Section 20 of the ULC Act being pending and no compensation having been paid to the respondent, the Tribunal was within its jurisdiction to entertain the appeal and pass the order.
8. Placing heavy reliance upon the reply filed by the respondent in the petition, Mr. Kavina further submitted that the State had taken over possession only on paper and the respondent was in actual physical possession of the land in question. He also submitted that the mandatory provisions with regard to the issuance of notices under Section 10(5) and 10(6) of the ULC Act having not been followed, the paper possession taken over by the State Government was illegal. He has also relied upon the decision of Supreme Court in the case of State of Uttar Pradesh versus Hari Ram reported in (2013) 4 SCC 280, and the recent decision of Division Bench of this Court in the case of Mamtaben D/o Narottam Chandulal Zaveri versus Page 9 of 19 HC-NIC Page 10 of 20 Created On Sun Aug 13 19:32:41 IST 2017 10 of 20 C/SCA/7084/1999 JUDGMENT Urban Land Tribunal and Ex-Officio Secretary & Others decided on 01.12.2016 in Letters Patent Appeal No. 1458 of 2015 with Civil Application No. 13196 of 2015 to buttress his submission that the notices under Section 10(5) and 10(6) of the ULC Act were mandatory before taking over the possession. According to him, the possession even if taken over by the State Government was required to be restored to the respondent in view of the judgment of Division Bench of this Court in the case of Bhikhiben Wd/o. Devjibhai Patel (since deceased) versus State of Gujarat through the Principal Secretary and Others, delivered in Letters Patent Appeal No. 2206 of 2007 in Special Civil Application No. 7342 of 2007 on 15.12.2010.
9. Before adverting to the rival contentions raised by the learned advocates for the parties, it may be mentioned that the Division Bench of this Court while upholding the constitutional validity of the ULC Act, in case of Ramesh Chandra Shamjibhai Raniga versus State of Gujarat and others reported in 2000 (4) GLR 2777, had observed interalia that the legislature can never be presumed to have intended that even an order passed dehors the Act or beyond the jurisdiction of the authorities under the Repealed Act would be outside the judicial scrutiny. The power of judicial review being part of the basic structure of the constitution, power of Court to examine whether the order passed under the Principal Act was valid or not would survive. Therefore, the submission of Mr. Kavina Page 10 of 19 HC-NIC Page 11 of 20 Created On Sun Aug 13 19:32:41 IST 2017 11 of 20 C/SCA/7084/1999 JUDGMENT that all the proceedings having stood abated in view of the Section 4 of the Repeal Act, the present petition did not survive, cannot be accepted. The Tribunal having passed the impugned order dehors the ULC Act, without jurisdiction and on extraneous consideration, as would be set out hereinafter, such order could not be held to be outside the purview of judicial scrutiny.
10. Having regard to the submissions made by learned advocates for the parties and to the documents on record, it emerges that in the instant case, there are certain undisputed facts. It is not disputed that late Smt. Kuntaben, mother of respondent Manjulaben, had filled in form No. 1 under Section 6 of the ULC Act, in which the competent authority, after giving the opportunity of hearing had passed the order on 06.04.1977 declaring the land as admeasuring 78029 sq. mtrs. of the land as excess vacant land. It is also not disputed that being aggrieved by the said order dated 06.04.1977 passed by the competent authority, the said Kuntaben had filed the appeal being No. 308 of 1984 before the ULC Tribunal under Section 33 of the said Act. It is also not disputed that pending the said appeal, the said Kuntaben had filed the Special Civil Application No. 3755 of 1984 challenging the very order dated 06.04.1977 passed by the competent authority as well as the notice issued by the State under Section 10(5) of the ULC Act. The said appeal filed by the said Kuntaben being pending before the ULC Tribunal, the said Special Civil Application No. Page 11 of 19 HC-NIC Page 12 of 20 Created On Sun Aug 13 19:32:41 IST 2017 12 of 20 C/SCA/7084/1999 JUDGMENT 3755 of 1984 was disposed of by this Court vide the order dated 11.12.1984 directing the Tribunal to decide the said appeal within four weeks. It is also not disputed that thereafter the Tribunal had dismissed the said appeal filed by Kuntaben vide the order dated 19.08.1985. The said Kuntaben thereafter having expired, the respondent Manjulaben, being aggrieved by the said order dated 19.08.1985 passed by the Tribunal, had filed the Special Civil Application No. 5741 of 1985 before this Court. It is also not disputed that the said Special Civil Application was withdrawn by the respondent herself as per the order dated 24.03.1987 passed by the Court. It is also not disputed that 11 years after the said withdrawal of Special Civil Application, and 21 years after the order dated 06.04.1977 passed by the competent authority, the respondent through her Power of Attorney holder, Shri Manish H. Shah again filed the appeal being No. 25 of 1998 before the ULC Tribunal on 23.12.1998, challenging the said order dated 06.04.1977 passed by the competent authority, without filing any application seeking condonation of delay, and though the appeal filed by her mother Kuntaben challenging the said order of competent authority, was already dismissed by the Tribunal on merits. It is also not disputed that the Tribunal allowed the said appeal of the respondent vide the impugned order dated 22.03.1999, without addressing the issue of gross delay of 21 years if counted from the date of the order passed by the competent authority, and of 11 years if counted from the date of the withdrawal of Page 12 of 19 HC-NIC Page 13 of 20 Created On Sun Aug 13 19:32:41 IST 2017 13 of 20 C/SCA/7084/1999 JUDGMENT the Special Civil Application No. 5741 of 1984.
11. It is pertinent to note that the said order was passed on 22.03.1999 during the period when the Parliament passed ULC Repeal Act on 18.03.1999 and the State Legislative Assembly adopted the same on 30.03.1999. It is also pertinent to note that as transpiring from the impugned order itself, the Tribunal was fully aware about all the earlier proceedings, including about the order dismissing earlier appeal of Kuntaben on merits. When the earlier order was already challenged by the respondent by way of Special Civil Application, and when the said Special Civil Application was already withdrawn by the respondent, there was no question of the Power of Attorney holder of the respondent again filing the Appeal, or the Tribunal entertaining such Appeal. The unexpected submission made by learned Senior Advocate Mr. Kavina that there was no bar against the number of times, the appeal could be filed, is not only legally unsustainable but outrightly deserves to be rejected. The earlier appeal filed by the mother of the respondent against the order dated 06.04.1977 passed by the competent authority having been dismissed by the ULC Tribunal on merits and the Special Civil Application challenging the said order of the Tribunal having been withdrawn by the respondent unconditionally, the said earlier order passed by the ULC Tribunal had become final, and therefore the appeal filed by the respondent through her Power of Attorney holder second time, was clearly barred by the Page 13 of 19 HC-NIC Page 14 of 20 Created On Sun Aug 13 19:32:41 IST 2017 14 of 20 C/SCA/7084/1999 JUDGMENT principles of res judicata.
12. Though it was sought to be submitted by Mr. Kavina, relying upon the affidavit filed by the respondent that the said Special Civil Application was withdrawn by the Advocate of her predecessor for the reasons best known to him, the said submission is also far from the truth. As transpiring from the appeal memo itself, filed by the respondent before the Tribunal, the respondent herself had withdrawn the said petition on the ground that the settlement had taken place in the case. When she herself had withdrawn the Special Civil Application No. 5741 of 1985 unconditionally, it does not lie in the mouth of the respondent to say that it was withdrawn by the Advocate of her predecessor for the reasons best known to him. It clearly appears that such contradictory stands were taken by the respondent to suit her own purposes and to mislead the Court. Such false statements made by the respondent on oath, would tentamount to perjury, however without stretching the matter any further, such a conduct on the part of the respondent is strongly deprecated.
13. Apart from the fact that such vexatious appeal was not maintainable before the Tribunal, admittedly, there was no application filed by the respondent seeking condonation of gross delay of 21 years, inasmuch as in the said appeal, the order dated 06.04.1977 passed by the competent authority was sought to be challenged by the respondent. It is Page 14 of 19 HC-NIC Page 15 of 20 Created On Sun Aug 13 19:32:41 IST 2017 15 of 20 C/SCA/7084/1999 JUDGMENT needless to say that under Section 33 of the ULC Act, any person aggrieved by the order made by the competent authority, could prefer the appeal within 30 days of the date on which the order was communicated, provided that the appellate authority may entertain the appeal after expiry of the said period of 30 days, if it was satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. In the instant case, the very fact that the original holder Kuntaben had filed the earlier appeal in 1984 challenging the order dated 06.04.1977 passed by the competent authority and had also filed the Special Civil Application No. 3755 of 1984 challenging the said order of competent authority and the notice under Section 10(5) of the said Act, proved that she was aware about the said order passed by the competent authority and the proceedings under Section 10 carried out by the competent authority as back in the year 1984. The earlier appeal was dismissed by the Tribunal on 19.08.1985 against which the Special Civil Application No. 5741 of 1985 filed by the respondent. The said Special Civil Application was also withdrawn on 24.03.1987, and thereafter again the appeal under Section 33 was filed by the respondent in the year 1998 without offering any explanation regarding such gross delay or the maintainability of the appeal itself. It is settled legal position that whenever the time limit is prescribed under the statute for filing the appeal, the same has to be filed within the prescribed time limit and in the event the remedy is invoked beyond the statutory period of limitation, the Page 15 of 19 HC-NIC Page 16 of 20 Created On Sun Aug 13 19:32:41 IST 2017 16 of 20 C/SCA/7084/1999 JUDGMENT Authority can not entertain the proceedings on merits before first recording the decision on the condonation of delay. Beneficial reference of the decision of Supreme Court in the case of Ragho Singh versus Mohan Singh and Others reported in (2001) 9 SCC 717 and of the High Court in the case of Kalpeshbhai Natwarlal Patel versus State of Gujarat and Another reported in 2009 (3) GLH 372 be made in this regard.
14. In the instant case, the ULC Tribunal, without addressing the issue of delay and maintainability of the appeal, and without granting any opportunity of hearing to the State or verifying the record, allowed the same on extraneous grounds by passing the impugned order, which order deserves to be quashed and set aside. The passing of impugned order in such a haste during the period when the Parliament had repealed the ULC Act and the State Assembly was to adopt the same, smacks of the mala fide intention on the part of Tribunal. At this juncture, the Court cannot resist from taking judicial note of the fact that the same member of the ULC Tribunal who had passed the impugned order in this case had, entertained many other grossly time barred appeals under Section 33 of the ULC Act, and allowed such appeals only few days before the ULC Act was repealed in Gujarat. To cite a few such orders were the orders under challenge in Special Civil Application No. 3755 of 1984 and Special Civil Application No. 5741 of 1985, which had recently come under scrutiny of this Court. On the inquiry made by the Court, the learned AGP had informed that the said Page 16 of 19 HC-NIC Page 17 of 20 Created On Sun Aug 13 19:32:41 IST 2017 17 of 20 C/SCA/7084/1999 JUDGMENT member has now retired, however, number of departmental inquiries were pending against him at the time of his retirement. Be that as it may, the Court having recently come across such illegal orders passed by the said member, is constrained to take judicial notice of the same.
15. The learned Senior Counsel Mr. Kavina had further sought to submit, relying upon the various decision of the Supreme Court and of this Court that the respondent was not duly served with the notices under Section 10(5) and 10(6) of the ULC Act, and therefore, the possession even taken over by the State Government was illegal and that the ULC Tribunal having set aside the the order passed by the competent authority, all the subsequent actions are required to be quashed and set aside and the possession is required to be restored to the respondent. The said submission made by Mr. Kavina cannot be accepted for the simple reason that when the appeal before the ULC Tribunal itself was not maintainable for the reasons stated herein above, the issue as to whether the respondent was served with the notice under Section 10(5) and 10(6) of the ULC, pales into significance. As stated earlier, the predecessor of the respondent had already challenged the notice issued by the petitioner authority under Section 10(5) by filing appeal before the Tribunal as also by filing Special Civil Application No. 3755 of 1984 before this Court. The said Special Civil Application having been disposed of by giving direction to the Tribunal to decide the said Page 17 of 19 HC-NIC Page 18 of 20 Created On Sun Aug 13 19:32:41 IST 2017 18 of 20 C/SCA/7084/1999 JUDGMENT appeal, and the said appeal having been dismissed by the Tribunal, and the Special Civil Application No. 5741 of 1985 challenging the said order of Tribunal, having been withdrawn by the respondent as back as in the year 1987, it is not open for the respondent to contend in the affidavit-in-reply filed in September, 2016 that the requisite procedure under Section 10 of the ULC Act was not followed before taking over the possession. The submission that the actual physical possession was not taken over by the petitioner, also does not deserve any consideration in view of the very pertinent observations made by the Supreme Court in the case of State of Assam versus Bhaskar Jyoti Sarma and Others reported in (2015) 5 SCC 321, which are reproduced as under : -
"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 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 Page 18 of 19 HC-NIC Page 19 of 20 Created On Sun Aug 13 19:32:41 IST 2017
19 of 20 C/SCA/7084/1999 JUDGMENT regarding his dispossession being in violation of the prescribed procedure."
16. In view of the afore stated legal position settled by the Supreme Court in the latest decision, it is required to be held that it was not open for the respondent to reagitate the issue of taking over possession of land in question under Section 10 of the ULC Act by filing the affidavit-in-reply in September, 2016 in this petition, more particularly when the said issue was already set at rest in the earlier proceedings filed by her and her predecessor.
17. In that view of the matter, the impugned order passed by the Tribunal is not only illegal and perverse, but without any authority of law, without jurisdiction, null and void. The said order therefore is quashed and set aside. Since the respondent had filed such a vexatious appeal before the Tribunal misusing the process of law, the present petition is allowed with cost of Rs. 11,000/- to be deposited by the respondent within 4 weeks from today. Rule is made absolute accordingly.
(BELA M. TRIVEDI, J.) Amar Page 19 of 19 HC-NIC Page 20 of 20 Created On Sun Aug 13 19:32:41 IST 2017 20 of 20