Gujarat High Court
Baldevbhai Shivabhai Patel Since ... vs State Of Gujarat & on 5 August, 2016
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/9559/1995 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9559 of 1995
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 ?
==========================================================
BALDEVBHAI SHIVABHAI PATEL SINCE DECD.THRO' HIS HEIRS &
10....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
==========================================================
Appearance:
MR. P.C. KAVINA, SENIOR ADVOCATE WITH MR SK PATEL, ADVOCATE
for the Petitioner(s) No. 1 - 1.6.4
MR PM BHATT, ADVOCATE for the Petitioner(s) No. 2 - 3
MR. VENUGOPAL PATEL, AGP for the Respondent(s) No. 1 - 2
==========================================================
CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 05/08/2016
Page 1 of 17
HC-NIC Page 1 of 17 Created On Sat Aug 06 05:14:25 IST 2016
C/SCA/9559/1995 CAV JUDGMENT
CAV JUDGMENT
1. The present petition was originally filed by Baldevbhai Shivabhai Patel, who had challenged the legality and validity of the impugned order dated 21.12.1987 passed by the respondent No.2, competent authority and Deputy Collector, Ahmedabad, whereby the respondent No.2 while processing the Form of the original owner Khumabhai Vanabhai, had declared the land admeasuring 3947 sq. mtrs. of Survey No. 387/2, belonging to the said Khumabhai Vanabhai Vaghari, as the excess vacant land under the provisions contained in the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the said Act'). The said original petitioner Baldevbhai having expired, during the pendency of the petition, his legal heirs were permitted to be brought on record as per the order dated 03.02.2009.
2. It appears that the petition was disposed of by the Single Bench vide the order dated 08.07.1999 in view of the Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as 'the Repeal Act'). Similar such matters as the present petition, were also disposed of by the learned Single Bench, against which the State Government had preferred Letters Patent Appeals being No. 978 of 2001 and others. In the said Letters Patent Appeals, the Division Bench vide the common judgment dated 29.07.2004, set aside the orders passed by the Single Bench, and remanded the matters to the Single Bench Page 2 of 17 HC-NIC Page 2 of 17 Created On Sat Aug 06 05:14:25 IST 2016 C/SCA/9559/1995 CAV JUDGMENT for deciding them afresh. The Division Bench also directed the parties to maintain status-quo regarding the lands in question till the final disposal of the writ petitions. The Letters Patent Appeal (Stamp Number) No. 2209 of 2004 preferred in the present Special Civil Application was also disposed of vide the order dated 15.03.2005 (Annexure R/11) in view of the said order dated 29.07.2004 passed in the Letters Patent Appeal No. 978 of 2001 and connected matters. The order dated 15.03.2005 passed by the Division Bench reads as under : -
"This appeal is directed against the
order dated 8.7.1999 passed by the
learned Single Judge in Special Civil
Application No. 9559/95.
We have heard learned counsel for the
parties. It is not in dispute that
order similar to the one impugned in the
appeal has been set aside by a co-
ordinate Bench vide its order dated
29.7.2004 passed in Letters Patent
Appeal No. 978/01 and connected matters.
In view of the above, we allow the appeal with the direction that Special Civil Application No. 9559/95 be listed for re-hearing before learned Single Judge alongwith other similar applications.
Page 3 of 17HC-NIC Page 3 of 17 Created On Sat Aug 06 05:14:25 IST 2016 C/SCA/9559/1995 CAV JUDGMENT The detailed reasons recorded in order dated 29.7.2004 passed in Letters Patent Appeal No. 978/01 and connected matters shall be read as part of this order."
3. It further appears that after the remand of the matter, the legal heirs of the original petitioner Baldevbhai filed one Civil Application No. 1291 of 2010 for joining one Jyotiprasad Devkinandan Chiripal and Chandralal Bulchand Ambavani, as the petitioners in the present petition stating inter alia that pending the petition, the original petitioner Baldevbhai had sold out the land in question by executing a registered sale deed in favour of one Vishnubhai Madhabhai Patel and Balvant Purshottamdas Patel, and they in turn had sold out the land to the said two persons Jyotiprasad and Chandralal. The said civil application for joining the proposed two petitioners came to be dismissed by the Court vide the detailed order dated 05.03.2010. However, it appears that thereafter another Civil Application being No. 2216 of 2013 came to be filed by the said two persons namely Jyotiprasad Devkinandan Chiripal and Chandralal Bulchand Ambavani through their Power of Attorney Holder Pravinbhai Ratilal Patel for impleading them as party petitioners No.2 and 3 to conduct the petition of their own. The said application came to be granted by the Court after hearing the learned advocate for applicants, learned advocate for the legal heirs of the petitioner, who were transposed as the respondents Page 4 of 17 HC-NIC Page 4 of 17 Created On Sat Aug 06 05:14:25 IST 2016 C/SCA/9559/1995 CAV JUDGMENT in the said civil application, and the learned AGP. Accordingly, the said two applicants were permitted to prosecute the petition as the petitioners Nos. 2 and
3.
4. As stated herein above, the original petitioner Baldevbhai had filed the petition challenging the validity of the impugned order dated 21.12.1987, passed by the respondent No.2 authority alleging inter alia that one Khumabhai Vanabhai Vaghari had filled in the form No.1 under Section 6 of the said Act declaring his holdings including the land bearing Survey No. 387/2. The said Khumabhai had also applied for granting exemption under Section 20(1) of the said Act in respect of the land in question, which was granted by the respondent No.1 vide the order dated 19.04.1979 (Annexure 'A') subject to the conditions mentioned therein. One of the conditions was that the said land shall be sold to the petitioner Baldevbhai Patel for agricultural use only. It was also stipulated that the said land shall not be sold or transferred without the prior permission of the Government. According to the petitioner, thereafter the said Khumabhai sold the land in question to him by executing the registered sale deed dated 05.07.1979, and since then the petitioner was in possession of the said land, and was carrying on agricultural operations. It has been further alleged in the petition that since the petitioner and Khumabhai were cultivating the said land, the provisions of the said Act did not apply to the said land. However, the Page 5 of 17 HC-NIC Page 5 of 17 Created On Sat Aug 06 05:14:25 IST 2016 C/SCA/9559/1995 CAV JUDGMENT respondent No.2 passed the impugned order dated 21.12.1987 declaring 3947 sq. mtrs. of land from the said land as the excess vacant land, without giving opportunity of hearing to the petitioner. The petitioner also alleged that he was not given any notices as required under the said Act, and that the possession also had remained with him till the date of filing of the petition.
5. It appears that after the death of the original petitioner, his heirs filed an additional affidavit stating inter alia that in view of Section 4 of the Repeal Act, the proceedings under the said Act had abated, and therefore, the petition was disposed of as per the earlier order dated 08.07.1999, however in view of the order passed in the Letters Patent Appeal on 15.03.2005, the matter was remanded. It has been further stated that the petitioner had already sold out the land in question by registered sale deed, executed on 17.01.2007, in favour of one Vishnubhai Madhabhai Patel and Balvant Purshottamdas Patel. Accordingly the entry no. 5493, in the name of the said purchasers was posted in the revenue record, and thereafter, the said purchasers had further sold out the land to Jyotiprasad Devkinandan Chiripal and Chandralal Bulchand Ambavani i.e. the Petitioner Nos. 2 and 3, by executing the sale deed on 04.01.2008, and thus the equity had changed in respect of the land in question.
6. After the remand of the matter, the respondent Page 6 of 17 HC-NIC Page 6 of 17 Created On Sat Aug 06 05:14:25 IST 2016 C/SCA/9559/1995 CAV JUDGMENT No. 2, filed the affidavit-in-reply denying the allegations made in the petition, and further contending inter alia that after following due procedure, and giving opportunity of hearing to the original holder of the land, the possession of the land in question was taken over by the Maintenance Surveyor in August, 1990, and the entry being No. 4018 was also effected in the Village Form No. 6 on 21.11.1991. The respondent No.2 giving chronology of the dates and events, had further stated that the proceedings under the ULC Act had already stood concluded in the year 1990, as the land had vested in Government, and the possession was taken over. It has also been stated that one Bijalbhai, legal heir of the said Khumabhai had remained personally present in the August - September, 1987 during the course of proceedings under Section 8 of the said Act, and therefore, it could not be said that the respondent No.2 had passed the impugned order without giving opportunity of hearing to the original landholder. Thereafter, the possession of the land was taken over as per the panchnama drawn in August, 1990, and the competent authority had passed the order with regard to determining the compensation on 27.09.1990. It is further stated that the State Government had divided the said land into sub-plots, each plot admeasuring 25 sq. mtrs., and alloted the same to 83 urban poor persons under Section 23 of the said Act vide the order dated 08.10.1991 / 17.12.1991, as per the list Annexure R-10. The respondent No.2 had also filed an additional affidavit stating inter alia that the names Page 7 of 17 HC-NIC Page 7 of 17 Created On Sat Aug 06 05:14:25 IST 2016 C/SCA/9559/1995 CAV JUDGMENT of the said allottees were also mutated in the revenue record in the year 1993. One of such entries made in favour of some of the allottees in the village Form No. 6, has been produced as Annexure R-1 to the said additional affidavit-in-reply. It has been further stated that though the original petitioner Baldevbhai had purchased the land in question from the original land holder Khumabhai in the year 1979, none of them had drawn attention of the respondent No.2 in the ULC proceedings with regard to the order of exemption passed by the respondent No.1 under Section 20 of the said Act.
7. The learned Senior Counsel Mr. P.C. Kavina for the legal heirs of the original petitioner Baldevbhai submitted that the impugned order passed by the respondent No.2, suffers from gross illegality, inasmuch as, the land in question having already been granted exemption from the applicability of the said Act, under Section 20 thereof, the respondent No.2 could not have included the said land in the holdings of the original landholder Khumabhai. He also submitted that there being condition imposed in the said order passed by the respondent No.1 to the effect that the land in question shall be sold to the petitioner Baldevbhai for agricultural purpose, the said Khumabhai had executed a registered sale deed in favour of the petitioner Baldevbhai on 05.07.1979, however, the respondent No.2 without giving any opportunity of hearing to the petitioner while processing the form of said Khumabhai, declared the Page 8 of 17 HC-NIC Page 8 of 17 Created On Sat Aug 06 05:14:25 IST 2016 C/SCA/9559/1995 CAV JUDGMENT land in question as the excess vacant land. He further submitted that copy of the said order passed by the respondent No.1 granting exemption under Section 20 was sent to the respondent No.2 also, and therefore, it was required to be presumed that the respondent No.2 was aware about the said order, and the respondent No.2 was required to give opportunity of hearing to the petitioner Baldevbhai before declaring the land in question as the excess vacant land. According to him the impugned order passed by the respondent No.2 being void ab initio, the consequential action namely allotment of land in favour of 83 persons was also bad. He also submitted that the petitioner was also not required to implead the said persons as the party respondents in the present petition, as they were neither necessary nor proper party.
8. The learned advocate Mr. P.M. Bhatt, appearing for the petitioners Nos. 2 and 3, submitted that the said petitioners being the last purchasers, are parties effected, and therefore, the State Government before allotting the land in question to the 83 persons should have given opportunity of hearing to the said petitioners. Relying upon the decision of Supreme Court in the case of Vinayak Kashinath Shilkar versus Deputy Collector and Competent Authority and Others reported in (2012) 4 SCC 718, and of this Court in the case of Indrajeetsinh P. Geel versus Competent Authority & Deputy Collector and Another reported in 2006 (3) GLH 487, he Page 9 of 17 HC-NIC Page 9 of 17 Created On Sat Aug 06 05:14:25 IST 2016 C/SCA/9559/1995 CAV JUDGMENT submitted that competent authority was required to strictly adhere to the provisions of the said Act, and possession having remained with the said petitioners, the proceedings under the ULC Act had stood abated under Section 4 of the Repeal Act. He has also relied upon the decision of this Court in the case of Savitaben Ramanbhai Patel versus State of Gujarat and Others reported in 1999 (1) GLR 860, to submit that if the application under Section 20 or 21 was pending for consideration, the competent authority could not have proceeded beyond the stage of Section 10 (2) of the said Act.
9. Learned AGP Mr. Venugopal Patel producing the original file of the case for the perusal of the Court, submitted that the original landholder was duly served with all the notices issued by the competent authority, however, he did not file any reply in the ULC proceedings, though his sons, kept on asking for the adjournment, nor had he produced the order passed by the respondent No.1 under Section 20 of the said Act, and hence, the respondent No.2 had rightly declared the land in question as the excess vacant land. According to him, the respondents had taken over the possession of the land in question in accordance with law. He further submitted that the petition without joining the original owner and the 83 allottees, whose right and interest have been created on the allotment of plots carved out from the land in question by the State Government, was not maintainable in the eyes of law.
Page 10 of 17HC-NIC Page 10 of 17 Created On Sat Aug 06 05:14:25 IST 2016 C/SCA/9559/1995 CAV JUDGMENT
10. At the outset, it is required to be noted that though the submissions made by the learned advocates for the petitioners appear very attractive and impressive, the same do not deserve consideration for various reasons. Firstly, the original petitioner Baldevbhai had filed the present petition in the year 1995 challenging the impugned order passed by the competent authority as back as in the year 1987, and that too without impleading the original holder of the land Khumabhai as the party respondent, apart from the fact that it was filed without exhausting the alternative statutory remedy of filing appeal under Section 33 of the said Act. It is needless to say that any person aggrieved by the order passed by the competent authority could have challenged the same before the Urban Land Tribunal by filing the appeal under Section 33 of the said Act.
11. Further, when the impugned order was passed by the respondent No.2 against the original holder Khumabhai, it was incumbent on the part of the petitioner to implead him as the party respondent in the petition, if the original owner did not want himself to be impleaded as the co-petitioner. Though the Court had specifically raised the query about the reason for not joining the original landholder, either as the co- petitioner or the respondent, no satisfactory explanation was offered by the learned counsel for the petitioners. It also appears from the Village Form No. 6 (Annexure R-1), annexed to the additional affidavit-
Page 11 of 17HC-NIC Page 11 of 17 Created On Sat Aug 06 05:14:25 IST 2016 C/SCA/9559/1995 CAV JUDGMENT in-reply filed by the respondent No.2 that entry No. 4018 with regard to the impugned order passed by the respondent No.2 was already made in the revenue record on 21.11.1991, and that the names of some of the allottees, who were allotted the plots out of the land in question by the State Government were also mutated vide the entry No. 4071 in the said record on 01.04.1993 i.e. prior to filing of the petition in the year 1995, however, the petitioner had not impleaded the said allottees, as the party respondents in the petition. It is not believable that the entry being No. 4018, with regard to the impugned order, made on 21.11.1991, and the entry being No. 4071 with regard to the allotments of plots in favour of the third party made on 01.04.1993 in the village form No.6 were not within the knowledge of the petitioner when the petition was filed in the year 1995. Under the circumstances, the petition having been filed by the petitioner about 8 years after the passing of the impugned order, and having been filed without impleading the original landholder, as well as the subsequent allottees of the land in question as the party respondents, the same deserves to be dismissed on the ground of delay, latches and acquiescence, and on the ground of non-joinder of necessary parties.
12. It is also pertinent to note that though the statutory remedy of filing an appeal before the Urban Land Tribunal was available to the original petitioner under Section 33 of the said Act, without exhausting the said remedy, the petitioner had rushed to this Page 12 of 17 HC-NIC Page 12 of 17 Created On Sat Aug 06 05:14:25 IST 2016 C/SCA/9559/1995 CAV JUDGMENT Court by way of present petition.
13. It is further pertinent to note that the order dated 29.07.2004 passed by the Division Bench in the Letters Patent Appeal being No. 978 of 2001 and connected petitions, was made applicable to the present petition vide the afore stated order dated 15.03.2005 passed in the Letters Patent Appeal (Stamp Number) No. 2209 of 2004, and therefore, the parties were required to maintain status-quo with regard to the land in question till the final disposal of the present petition. However, as per the additional affidavit-in-reply, filed on 03.12.2009 by the petitioner No. 1/3 Arvindbhai Baldevbhai Patel, the original petitioner Baldevbhai had sold out the land in question pending the petition to one Vishnubhai Madhabhai Patel and Balvant Purshottamdas Patel on 17.01.2007 by executing a registered sale deed, and the said purchasers had further sold out the land to the petitioners Nos. 2 and 3 by executing a registered sale deed on 04.01.2008. Apart from the fact that the said Baldevbhai could not have sold out the land in view of the order passed by the Division Bench directing the parties to maintain status-quo as regards the land in question, he could also not have sold out the land in view of the condition imposed in the order dated 19.04.1979 passed by the respondent No. 1 granting exemption under Section 20 of the said Act to the original landholder Khumabhai. The said order has not only been relied upon by the petitioners, but has been made basis for challenging Page 13 of 17 HC-NIC Page 13 of 17 Created On Sat Aug 06 05:14:25 IST 2016 C/SCA/9559/1995 CAV JUDGMENT the impugned order passed by the competent authority. One of the conditions mentioned in the said order dated 19.04.1979 was that the land in question shall not be sold or transferred without prior permission of the Government, and hence the sale made by the original petitioner Baldevbhai in favour of the subsequent purchasers, and the sale made by the subsequent purchasers in favour of the present petitioners Nos. 2 and 3, were in violation of the said order passed by the State Government, and in utter disregard of the order passed by the Division Bench. The original petitioner Baldevbhai having abandoned his right in the land by selling it out to the third party who are not the party to the petition, his legal heirs could not be said to have any right in the land in question. Similarly the Petitioners Nos. 2 and 3 having purchased the land from the third party, who had no valid title in respect of the land, also could not be permitted to prosecute the present petition challenging the proceedings conducted under the ULC Act in respect of the land belonging to the original owner Khumabhai, when Khumabhai or his heirs had not chosen to challenge the said proceedings. As held by the Supreme Court in the case of State of Punjab versus Suraj Prakash, AIR 1963 SC 507, the existence of a right and infringement thereof are the foundation of the exercise of the jurisdiction of High Court under Article 226 of the Constitution of India. The right that can be enforced under Article 226 of the Constitution must be the personal or individual right of the petitioners. It is also settled Page 14 of 17 HC-NIC Page 14 of 17 Created On Sat Aug 06 05:14:25 IST 2016 C/SCA/9559/1995 CAV JUDGMENT proposition of law that a person can claim to be aggrieved, if his legal rights are directly affected. In the instant case, the Petitioner Nos.2 and 3 having failed to establish any legal right in the land in question, much less infringement of their personal right, no relief as prayed for in the petition could be granted at their instance.
14. Though it is sought to be submitted by learned advocates for the petitioners that the competent authority could not have declared the land in question as the excess vacant land, as the same was granted exemption under Section 20 of the said Act, to the original owner Khumabhai, the Court does not find any substance in the said submission also. Apart from the fact that the original landholder Khumabhai or his heirs had never bothered to challenge the order passed by the competent authority declaring the said land as excess vacant land, the order granting exemption under Section 20 passed by the respondent No.1 was never produced by them before the respondent No.2. The Court had perused the original file of the proceedings conducted by the respondent No.2, produced by the AGP for perusal of the Court, and had found that the original owner Khumabhai had received the notices issued by the respondent No.2 by registered post while processing his form filed under Section 6 of the said Act. It is also pertinent to note that by way of said notices, the respondent No.2 had called upon the said Khumabhai to produce the necessary documents as mentioned therein, and more particularly, the order, Page 15 of 17 HC-NIC Page 15 of 17 Created On Sat Aug 06 05:14:25 IST 2016 C/SCA/9559/1995 CAV JUDGMENT if any passed under Section 20 or 21 of the said Act, however, neither the said Khumabhai nor his legal heirs had filed any reply to the said notices, nor had produced any such documents. Merely because the copy of the order dated 19.04.1979 passed by the State Government was shown to have been forwarded to the respondent - competent authority, it cannot be presumed that the respondent No.2 had received it, nor be expected that the respondent - competent authority was aware about the said order. A faint attempt was sought to be made by the learned counsels for the petitioners to submit that there was a reference of the order passed under Section 20 in the preamble of the impugned order, passed by the competent authority, however, on perusal the original order from the file, the Court had found that the impugned order was passed on the cyclostyled form, and from the list of documents mentioned at the top of the impugned order, the serial No.2, with regard to the order under Section 20 was scored out, meaning thereby, no such order was there on record or perused by the respondent No.2. There cannot be any disagreement with the ratio laid down by the Supreme Court in the cases relied upon by the petitioners, however, they have no application to the facts of the present case. The Court has found that the impugned order having remained unchallenged by the legal heirs of the original landholder, and also by the original petitioner Baldevbhai for about eight years, the proceedings under the ULC Act had stood concluded in the meantime, and that the land in question had vested Page 16 of 17 HC-NIC Page 16 of 17 Created On Sat Aug 06 05:14:25 IST 2016 C/SCA/9559/1995 CAV JUDGMENT in the Government, which was further disposed of by allotting the same to the poor and needy persons by the State Government under Section 23 of the said Act. If at this juncture, any order is passed by this Court disturbing the impugned order, that would certainly adversely affect the said persons, who are not party to this petition. Though it is sought to be submitted by the learned advocates for the petitioners that the possession of the land had remained with the petitioners even after the proceedings under Section 10(5), the said submission has no substance. The Supreme Court in the latest decision in the case of State of Assam versus Bhaskar Jyoti Sarma, reported in (2015) 5 SCC 321 has inter alia held that if the owner did not challenge the action of the respondent authorities of taking over possession under Section 10(5) of the Act, forcible taking over possession would acquire legitimacy by sheer lapse of time. The question whether actual physical possession was taken over or not remains a seriously disputed question of fact, which is not amenable to a determination by the High Court in proceedings under Article 226 of the Constitution.
15. In that view of the matter, the petition being devoid of merits, deserves to be dismissed, and is dismissed accordingly. Interim relief, if any, stands vacated. Rule is discharged.
(BELA M. TRIVEDI, J.) Amar Page 17 of 17 HC-NIC Page 17 of 17 Created On Sat Aug 06 05:14:25 IST 2016