Manilal Damodar Joshi Since Decd. Thro' ... vs State Of Gujarat on 2 May, 2018

[Cites 42, Cited by 2]

Gujarat High Court

Manilal Damodar Joshi Since Decd. Thro' ... vs State Of Gujarat on 2 May, 2018

Bench: J.B.Pardiwala

       C/SCA/3995/1990                                       CAV JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 3995 of 1990

                                    With
                    MISC. CIVIL APPLICATION NO. 1 of 1999

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE J.B.PARDIWALA

==========================================================

1     Whether Reporters of Local Papers may be allowed to see the
      judgment ?                                                            YES

2     To be referred to the Reporter or not ?
                                                                            YES
3     Whether their Lordships wish to see the fair copy of the
      judgment ?                                                            NO

4     Whether this case involves a substantial question of law as to
      the interpretation of the Constitution of India or any order made
                                                                            NO
      thereunder ?


==========================================================
      MANILAL DAMODAR JOSHI SINCE DECD. THRO' LEGAL HEIRS...
                            Petitioner
                             Versus
                STATE OF GUJARAT & 2... Respondents
==========================================================
Appearance:
MS TRUSHA K PATEL(2434) for the PETITIONER(s) No. 1,1.1
MR UTKARSH SHARMA, AGP(1) for the RESPONDENT(s) No. 1,2,3
==========================================================

    CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                               Date : 02/05/2018

                               CAV JUDGMENT

1 By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:

Page 1 of 53 C/SCA/3995/1990 CAV JUDGMENT

"16(a) that this Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the order passed by the respondent No.3 dated 2141982, AnnexureB and that dated 1371983 passed by respondent No.2, AnnexureC and notice dated 1461989, given by the respondent No.3, AnnexureD.

(b) that this Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to the respondent No.3 to allow the petitioner to hold the revenue survey No.106 paiki plots No.11, 12 and 25 admeasuring about 1353.41 sq. mt. for the purpose of using the same for constructing flats for the weaker sections of the society or grant permission for the said land under Section 21(1) of the said Act.

(c) that pending hearing and final disposal of this petition, this Hon'ble Court may be pleased to direct the respondent No.3, not to implement or to act in furtherance of the notice dated 1461989, AnnexureD, under Section 10(5) of the said Act and also be pleased to restrain the respondent No.3 from taking the possession of the petitioner's land admeasuring about 1353.41 sq. mt. of revenue survey No.106 paiki plot No.11, 12 and 25.

(d) That the Hon'ble Court may be pleased to award cost of this petition to the petitioner from the respondent.

(e) That the Hon'ble Court may be pleased to pass such other and further necessary orders in that behalf as may be deemed just and proper.

(f) that the Hon'ble Court may be pleased to hold that the respondent authorities have not taken legal / actual possession of the land and by drawing paper panchnama no right can be claimed by the respondent authorities and now, in view of Repeal Act, they cannot take the actual possession of the land."

Page 2 of 53 C/SCA/3995/1990 CAV JUDGMENT

2 The case of the writ applicant in his own words, as pleaded in his writ application, is as under:

"2 The petitioner states that he is holding the land admeasuring about 1353.41 sq. mt. at Jamnagar. The petitioner had made an application under Section 21 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act) before the competent authority and Deputy Collector (Urban Land Ceiling) Jamnagar on 3131979 and requested that the petitioner be permitted to hold the land of revenue No.106 paiki plots No.11, 12 and 25 for the purpose of using the same for constructing flats for the weaker sections of the society. The said application was made in the prescribed form giving all prescribed declaration and necessary particulars.

3 The petitioner states and submits that the competent authority sent the said application alongwith the proposed scheme to the Superintending Engineer (R&B), Rajkot. Since the said authority was appointed as the specified authority and the said authority duly scrutinised the scheme and approved the said scheme. The Superintending Engineer, Rajkot had sent the papers back to the competent authority for favour of further necessary action vide his letter dated 1321980.

4 The petitioner states that respondent No.3, to his utter surprise, had rejected the application under Section 21(1) of the said Act vide his order dated 2141982. The respondent No.3 had rejected the scheme of the petitioner without giving him any opportunity of being heard. The only ground for rejection of the scheme as mentioned in the said order was that the land in question was required for the Jamnagar Area Development Authority (JADA) for the purpose of using the same for constructing residence for the weaker sections of the society and therefore the land in question was required for the public purpose.

Page 3 of 53 C/SCA/3995/1990 CAV JUDGMENT

5 The petitioner having been aggrieved and dissatisfied with the impugned order at AnnexureB preferred an appeal before the Urban Land Ceiling Tribunal and Secretary (Appeals), Revenue Department, but the Tribunal had rejected the appeal of the petitioner on the ground that the lands were required for urban purposes by the JADA for constructing houses for weaker sections.

6 The petitioner states and submits that the respondent No.3 thereafter processed the form No.6 of the petitioner and declared 1353.41 sq. mt. land as excess vacant land. The petitioner states that the competent authority, i.e. the respondent No.3 has recently issued notice under Section 10(5) of the said Act on 1461989.

7 The petitioner after receiving the said notice made necessary inquiry in the office of the Jamnagar Area Development Authority (hereinafter referred to as JADA) as to whether the land of revenue survey No.106 paiki plot No.11, 12 and 25 is reserved for any public purpose or not. The petitioner also verified from the JADA's development plan that there was no reservation whatsoever in favour of the JADA or any other authority for any public purpose. The officer concerned of the JADA had also given an oral reply that the lands were covered by the Town Planning Scheme No.2 and that the Town Planning Officer had been appointed and all the work relating to the town planning scheme was entrusted to the Town Planning Officer, T.P. Scheme No.1 and 2. Immediately the petitioner approached the Town Planning Officer, TPS No.1 and 2 at Jamnagar. The petitioner has very precisely asked the Town Planning Officer to clarify whether the land of revenue survey No.108 paiki plots No.11, 12 and 25 are reserved for any public purpose. The Town Planning Officer has give a certificate dated 6111989 that the land of the petitioner is not reserved for any public purpose.

Page 4 of 53 C/SCA/3995/1990 CAV JUDGMENT

8 The petitioner on ascertainment of this fact was shocked to learn that he had been done injustice by the respondent Nos.3 and 2 in basing their decisions on mistaken facts and wrong assumptions. The whole approached adopted by the competent authority was completely erroneous in rejecting the application of the petitioner under Section 22(1) of the said Act. It is evident that from the certificate issued by the Town Planning Officer that the lands in question were never reserved either in JADA Plan or in the Town Planning Scheme No.2 for any public purpose in favour of the JADFA or any other authority. Despite this clear fact the valuable right of the petitioner to get exempted his land under Section 21(1) was denied without any rhyme or reason. The decision of the respondents Nos.2 and 3 were taken without any application of mind and were based on incorrect facts. It is a clear case of mistake and error apparent on the face of the record. Therefore the orders passed by the respondents Nos.2 and 3 dated 2141982 were void, nullity and nonest. The executive authority is not empowered to snatch away the valuable rights of the petitioner on incorrect facts as the land is not set apart or reserved for the JADA for the purpose of constructing residence for the weaker sections of the society. The petitioner after knowing this correct position about the land in question preferred an application to the competent authority and the Deputy Collector to review and reconsider his decision as it was based on incorrect facts and was a clear mistake.

9 The petitioner has requested the competent authority to reconsider his case under Section 21(1) of the said Act and allow him to hold the land for the purpose of using the same for constructing flats for the weaker sections of the society. The petitioner states that the respondent No.3 thereafter has not replied till today. The petitioner has an apprehension that without properly considering his application dated 18101989, the respondent no.3 will implement its notice dated 1461989 under Section Page 5 of 53 C/SCA/3995/1990 CAV JUDGMENT 10(5) of the said Act and dispossess him. The petitioner states that he is still in possession of the said lands and till today the respondent No.3 has not taken the possession of the petitioner's land admeasuring about 1353.41 sq. mt.

10 The petitioner states that the respondent No.3 had taken the decision wholly on incorrect facts is clearly established from the certificates / letter dated 6111989 of the Town Planning Officer that the land in question is not reserved or required for any public purpose whatsoever for any local authority. The petitioner therefore states that he be permitted to hold the land for the purpose of using the same for constructing flats for the weaker sections of the society. Being aggrieved by the judgements and orders of the respondents Nos.2 and 3, the petitioner is constrained to bring this petition under Article 226 of the Constitution of India to this Hon'ble Court.

11 The petitioner states that looking to the above mentioned facts and circumstances of the case, the orders passed by the respondent No.3 and the respondent No.2 are exfacie illegal, arbitrary and capricious. The petitioner states that the respondents Nos.2 and 3 have acted with material irregularity in exercise of their jurisdiction which has resulted into the miscarriage of justice.

12 The petitioner states that the only ground harped upon by the respondent No.3 in rejecting the scheme under Section 21(1) of the said Act is that the land is required for the JADA for constructing residences for the weaker sections of the society. This ground, however, was never in existence. Both the authorities based their orders on assumption without referring to the actual position in JADA's plan and without bringing on record and considering the available documentary evidence on public record. The respondents Nos.2 and 3 had also not referred in their orders Page 6 of 53 C/SCA/3995/1990 CAV JUDGMENT any specific letter or communication from the JADA before coming to the conclusion that the land was reserved for a public purpose. This amounted to sheer callousness and flouting of norms in arriving at a conclusion in affairs which affect valuable rights of the citizens. This callousness also amounts to arbitrariness and mala fides. It is pertinent to note that the Town Planning Officer of Jamnagar has clearly certified to his letter that the land in question i.e. the Revenue Survey No.106 paiki plots Nos. 11, 12 and 25 not reserved for any public purpose and therefore, the order passed by the respondent No.3 and the respondent No.2 are based on mistake, error, wrong assumption and thus are clearly void, illegal, arbitrary, capricious and mala fide and also violative of Article 14 of the Constitution of India.

13 The petitioner states that if during the pendency of this petition, the petitioner is deprived of the possession of the said land, he will suffer irreparable loss which cannot be compensated in terms of money. It is, therefore, just, proper and convenient that pending admission hearing and final disposal of the petition, interim relief be granted in the interest of justice.

13A The State of Gujarat has, during the pendency of the present petition, drawn a panchnama dtd. 8.6.90, whereby, on paper, it had taken possession. It is submitted that as such, the physical possession of the land was never taken by the respondent authorities and the petitioner remained in the possession. As such 5 houses were standing on the land even as stated in the panchnama; however, none of the occupiers was ever served with the notice. Without evicting the persons from the constructed property, only by drawing panchnama, the possession of the land cannot be taken over. When the justifiability of the orders passed u/s. 21 were under challenge in the petition pending before this Hon'ble Court, it was not open for the respondent authorities to take any action u/s. 10(6). As Page 7 of 53 C/SCA/3995/1990 CAV JUDGMENT such, the respondent authorities have never taken possession as alleged by them. No notice u/s. 10(6) is ever issued and hence, when the possession was not handed over by the petitioner voluntarily, the authorities could not have taken the same without issuance of notice u/s. 10(6). It is submitted that as the respondent authorities have not taken legal and actual possession of the land, in view of Repeal Act, the respondent authority cannot claim any right over the land and cannot take the possession of the land."

3 I take notice of the fact that the present writ application was taken up for hearing by a learned Single Judge of this Court way back on 12 th May 1999. This writ application was disposed of in the following terms:

"The petitioner in this petition has challenged the order passed by the authorities under the Urban Land (Ceiling & Regulation) Act, 1976. The authorities have not taken the possession of the land in question from the petitioner, which is not in dispute.

In view of the fact that the dispute involved in this petition is directly covered under the provisions of the Urban Land (Ceiling & Regulation) Repeal Act, 1999 (Act No.15 of 1999) repealing the Urban Land (Ceiling & Regulations) Act, 1976 which is also adopted by the State Govt. by passing a resolution dated 30.3.1999, this petition has abated and consequently the impugned order passed against the petitioner also stands abated. Rule made absolute accordingly with no order as to costs."

4 It appears that the State Government had preferred a review application against the order passed by this Court referred to above, but the review application was rejected. Later, the State thought fit to prefer the Letters Patent Appeal No.979 of 2001. This Letters Patent Appeal along with the other appeals were heard by a Division Bench of this Page 8 of 53 C/SCA/3995/1990 CAV JUDGMENT Court, and by a common judgment and order dated 29th July 2004, all the appeals came to be allowed and the order passed by the learned Single Judge in various others matters including the present petition came to be quashed. All the matters were ordered to be listed once again before the appropriate Court and that is how this matter has been placed before this Court.

● SUBMISSIONS ON BEHALF OF THE WRIT APPLICANT:

5 Ms. Trusha Patel, the learned counsel appearing for the writ applicant vehemently submitted that as the authorities concerned failed to take over the actual possession of the property in question, the proceedings under the Urban Land Ceiling Act stood abated on the date of the repeal of the Act. Ms. Patel would submit that no notice under Section 10 (5) of the Act was issued at any point of time to the owner of the property in question. It is submitted that under Section 6(4)(b) of the U.L.C. Act, a form is required to be filled in by only one member of the family disclosing the information or details regarding the properties owned by all the family members. In the case at hand, the form was filled in by Manilalbhai i.e. the writ applicant as the head of the family. It is pointed by Ms. Patel that the plots in dispute are owned by Smt. Mahashwetaben i.e. the wife of the writ applicant. It is submitted that no notice in any of the proceedings was issued to Smt. Mahashwetaben by the competent authority. No notice under Section 10(5) as regards the intention to take over the possession was issued to Smt. Mahashwetaben, although it is necessary to be issued to the holder of the plots.

6 Ms. Patel submitted that no notice was ever issued to any of the occupiers of the houses. According to Ms. Patel, none of the persons in possession of the five houses were served with any notice under Section 10(5) of the Act.

Page 9 of 53 C/SCA/3995/1990 CAV JUDGMENT

7 Ms. Patel submitted that notice under Section 10(6) of the Act is mandatory. No notice under Section 10(6) of the Act was issued to any of the owners or holders of the plots in question.

8 It is submitted that the notice purported to have been issued under Section 10(5) could be termed as defective and not in accordance with law. It is submitted that no specific date was mentioned in the said notice as regards taking over of the possession.

9 Ms. Patel submitted that, in the panchnama drawn under Section 10(6) of the Act, no details as regards the name and addresses of the witnesses are to be found.

10 It is submitted that a report is to be made to the authority as regards taking over of the possession. In the case at hand, no such report is on record.

11 According to Ms. Patel, the case at hand is one of paper possession. Paper possession is not sufficient for land to vest in the State. To put it in other words, according to Ms. Patel, there has been no actual dispossession from the property in question till this date. None of the occupiers of the houses were ever evicted and they are still in possession as on date.

12 It is submitted that the stance of the State that private individuals later trespassed into the property is lacking in bona fide and such averments or stance of the State is nothing, but a last ditched effort to salvage the situation.

13 According to Ms. Patel, even if there is an order on record to show that the actual possession was taken over, still if the same is illegal, then Page 10 of 53 C/SCA/3995/1990 CAV JUDGMENT the same can be quashed by this Court even after the repeal of the Act. In the revenue record, even as on date, the name of the occupier figures.

14 Ms. Patel submitted that the land in question, at one point of time, was sought to be reserved by the Jamnagar Urban Development Authority (for short, the 'JADA'). On the said pretext, the application seeking exemption under Section 21 of the Act was rejected. Ms. Patel submitted that as the proceedings in respect of exemption under Section 21 of the Act in the form of a review application was pending, the authority could not have gone beyond the proceedings under Section 10(3) of the Act. Even paper possession could not have been taken.

15 Ms. Patel submitted that as the repeal of the Act is exproprietory, its provisions should be strictly construed.

16 Ms. Patel, in support of her submissions, has placed reliance on the following case law:

No notice to the occupiers of the Houses:

(1) Laxmanbhai K. Chokshi vs. competent authority & additional collector (U.L.C.) [2007 (3) GLR 2231 (para 5)] (2) Indrajit P. Geel vs. competent authority & Deputy Collector, Ahmedabad [2007(1) GLR 677 (paras 21 and 25)] (3) Maninagar Vaishalipark Coop. Housing Limited vs. Competent Authority and Deputy Collector [S.C.A. No.7812 decided on 15th February 2006] (4) Mavjibhai Parbatbhai Trapasia vs. State of Gujarat [L.P.As.

Nos.498 and 699 of 1995 decided on 4th October 2001 (para 20 onwards)] Page 11 of 53 C/SCA/3995/1990 CAV JUDGMENT (5) Mangalsen vs. State of U.P. [Civil Appeal No.2763 of 2012 arising out of S.L.P. (C) No.14028 of 2011 decided on 12 th March 2012 by the Supreme Court].

(6) State of U.P. vs. Hari Ram [2013 AIR SCW 1683 ] (7) Sankalchand P. Vachheta vs. State of Gujarat [S.C.A. No.539 of 1993 decided on 13th August 2013.

Notice under Section 10(6) is mandatory:

(1) State of U.P. vs. Hari Ram [2013 AIR SCW 1683] (2) Heirs of K.G. Tripathi - since deceased, through Legal vs. State of Gujarat [Special Civil Application No.8474 of 1990 decided on 8th May 2014] 2014 GLHEL - HC 23134 (3) State of Gujarat and another vs. Jayantibhai Paragbhai Desai through POA Gitaben Jayantibhai & another [L.P.A. No.1355 of 2015 decided on 3rd December 2015].

Notice under Section 10(5) of the Act is defective:

(1) Mavjibhai Parbatbhai Trapasia vs. State of Gujarat L.P.As.

Nos.498 and 699 of 1995 decided on 4th October 2001.

Names and addressed of the witnesses need to be mentioned in the panchnama drawn under Section 10(6) of the Act:

(1) Indrajit P. Geel vs. competent authority & Deputy Collector, Ahmedabad [2007(1) GLR 677 (para 26)] The report as regards taking over of the possession must be made to the authority:

(1) Indrajit P. Geel vs. competent authority & Deputy Collector, Ahmedabad [2007(1) GLR 677 (para 20 onwards) ] Paper possession not sufficient:

Page 12 of 53 C/SCA/3995/1990 CAV JUDGMENT

(1) Raghbir Singh Sehrawat vs. State of Haryana [2012 (1) GLH 339] (2) Vinayak Kashinath Shilkar vs. Deputy Collector and competent authority and others [2012 (4) SCC 718].

State cannot contend that private individuals have trespassed after taking possession unless a criminal complaint was filed:

(1) Raghbir Singh Sehrawat vs. State of Haryana and Ors. [AIR 2012 SCW 240]

17 In such circumstances referred to above, Ms. Patel submitted that there being merit in this writ application, the same be allowed and the relief, as prayed for, be granted.

18 On the other hand, this writ application has been vehemently opposed by Mr. Utkarsh Sharma, the learned Assistant Government Pleader appearing for the State respondents. Mr. Sharma, the learned A.G.P. submitted that the entire dispute revolves around the controversy whether the possession was actually taken over by the authorities of the property in question or it was just a paper possession. According to the learned A.G.P., the question whether actual possession of the disputed land had been taken over is a seriously disputed question of fact, which this Court may not adjudicate or determine in exercise of its writ jurisdiction. Mr. Sharma would submit that it would be impossible for the authority concerned to enter into every part of the property or enter various houses standing on the property and take possession thereof. In such circumstances, a pragmatic approach should be adopted by the Court. According to Mr. Sharma, one of the methods of taking possession and handing it over to the beneficiary is the recording of a panchnama, which can itself evidence of the fact that the possession had been taken and the land had vested absolutely in the Government. Mr. Page 13 of 53 C/SCA/3995/1990 CAV JUDGMENT Sharma would submit that there is cogent and convincing materials on record to indicate that the possession was actually taken over by the competent authority long time back and the property stood vested in the State Government much before the Act came to be repealed.

19 The learned A.G.P. placed strong reliance on the following averments made in the affidavitinreply filed on behalf of the respondent No.3 duly affirmed by one Shri J.C. Dalal, competent authority, the Urban Land Ceiling, Jamnagar:

"5 It is further stated that by way of the filing the present petition the petitioner has challenged the orders dated 21.04.1982, 13.07.1983 and notice dated 14.06.1989 interalia along with the other prayers.

6 It is further submitted that original land owner has submitted statement u/s 6(1) dated 12.08.1976, whereby certain lands have been declared by the land owner. The copy of the statement u/s 6(1) is annexed herewith and marked as AnnexureR1 to this affidavitinreply.

7 It is further submitted that by virtue of the statement u/s 8(3) has been made and land admeasuring about 1353.41 sq. mtrs. has been declared as excess land on 30.04.1980. A copy of the statement u/s 8(3) dated 30.04.1980 is annexed herewith and marked as AnnexureR2 to this affidavitinreply.

8 It is further submitted that thereafter final statement u/s 9 dated 26.11.1982 of the Urban Land Ceiling Act 1976, has been prepared and by virtue of the same land admeasuring about 1353.41 sq. mtrs. has been declared as excess land. A copy of the final statement u/s 9 of the Urban Land Ceiling Act 1976, dated 26.11.1982 is annexed herewith and marked as AnnexureR3 to this affidavit.

Page 14 of 53 C/SCA/3995/1990 CAV JUDGMENT

9 It is further submitted that thereafter notification u/s 10(1) dated 04.03.1983 has been notified and the same has been published in the official gazette by way of the notification dated 24.03.1983. A copy of the notification u/s 10(1) dated 04.03.1983 is annexed herewith and marked as AnnexureR4 to this affidavitinreply.

10 It is further submitted that thereafter notification u/s 10(3) dated 08.04.1983 has been notified and the same has been published in the official gazette on 12.05.1983. A copy of the notification u/s 10(3) dated is annexed herewith and marked as AnnexureR5 to this affidavitinreply.

11 It is further submitted that thereafter notice u/s 10(5) has been issued to the concerned land owner vide notice dated 14.06.1989 and the same served to the concerned land owner and is duly acknowledged. A copy of the notice u/s 10(5) Urban Land Ceiling Act, 1976 and acknowledgment receipt are annexed herewith and marked as Annexure R6 colly to this affidavitinreply.

12 It is further submitted that by virtue of the notice issued u/s 10(5) dated 14.06.1989, the possession of the concerned land has been taken and panchnama dated 08.06.1990 has been drawn in the presence of panchas. A copy of the panchnama dated 08.06.1990 is annexed herewith and marked as AnnexureR7 to this affidavit.

13 It is further submitted that by way of the order dated 21.04.1982 passed by the competent authority, declaration form No.5 dated 31.03.1979 of Shri Manilal Damodar Joshi has been closed and filed for the reason stated therein. A copy of the order dated 21.04.1982 is already annexed with the petition at AnnexureB at page No.12.

Page 15 of 53 C/SCA/3995/1990 CAV JUDGMENT

14 It is further submitted that being aggrieved by the same said Shri Manilal Damodar Joshi has preferred the appeal before the appellant authority u/s 33 and by virtue of the order dated 13.07.1983. A copy of the order dated 13.07.1983 is already annexed with the petition at AnnexureC at page No.15.

15 It is further submitted that the orders dated 03.11.1982, 26.11.1982 u/s 8(4) and u/s. 9, respectively, has been challenged by way of the appeal u/s 33 Urban Land Ceiling Act, 1976, before the Urban Land Tribunal by Shri Manilal Damodar Joshi and by way of the order dated 16.05.1984 said appeal has been dismissed. A copy of the order dated 16.05.1984 passed by the Urban Land Tribunal is annexed herewith and marked as AnnexureR8 to this affidavit.

16 It is further submitted that thereafter present Special Civil Application No.3995/1990 has been filed before this Hon'ble Court on 25.04.1990.

17 It is further submitted that by way of the order dated 12.05.1990 passed by this Hon'bvle Court, the Hon'ble Court has observed that as the concerned Act got repealed on 30.03.1999 and view of the same the petition has abated. A copy of the order dated 12.05.1999 is annexed herewith and marked as AnnexureR9 to this affidavit.

18 It is further submitted that thereafter State of Gujarat has filed Misc. Civil Application No.(for review) 1430 of 1999 and the same has been dismissed vide order dated 10.09.1999.

19 It is further submitted that being aggrieved by the same, State of Gujarat has filed Letters Patent Appeal No.979 of 2001 and by virtue of the order dated 29.07.2004, the same has been disposed off along with the Page 16 of 53 C/SCA/3995/1990 CAV JUDGMENT other Letters Patent Appeals as well as Civil Applications and thereby concerned Writ Petitions are directed to be heard of merits and thereby the present Special Civil Application being Special Civil Application No.3995 of 1990 has been restored. A copy of the order dated 29.07.2004 is annexed herewith and marked as AnnexureR10 to this affidavit.

20 It is further submitted that the petitioner herein has not approached this Hon'ble Court with clean hands and suppressed material facts from this Hon'ble Court inasmuch as the petitioner herein stated that the said Shri Manilal Damodar Joshi has filed an appeal u/s 33 against the order u/s 8(4) and u/s 9 and by virtue of the order dated 16.05.1984 the same has been rejected by the Urban Land Ceiling Tribunal.

21 It is further submitted that notice u/s 10(5) has been issued to the concerned land owner and the same is duly served which is very much evident from the Acknowledgment Receipt which is annexed herein before and thereby it is very much clear that the possession of the concerned land has been taken over by the State Government and the Panchnama to the said effect has been drawn on 08.06.1990 and the said panchnama is annexed herein before.

22 It is further submitted that the contention has been raised by the petitioner herein that to get the land being exempted u/s 21(1) is valuable right of the petitioner.

23 It is further submitted that the wordings of the Section 21(1) of the concerned Act uses the word as 'may' and not 'shall' thereby the discretionary powers has been granted/vested to the competent authority and with no stretch of imagination the competent authority is bound to give exemption u/s 21(1) of the Urban Land Ceiling Act, 1976.

Page 17 of 53 C/SCA/3995/1990 CAV JUDGMENT

24 It is further submitted that the order passed by the Urban Tribunal dated 16.05.1989 has not been brought on record by the petitioner in the present petition as well as even while giving the true facts in the additional affidavit filed by petitioner on date 14/06/2016 the petitioner has intentionally suppressed this very fact and thereby attempted to mislead this Hon'ble Court and only this ground, the petition deserves to be dismissed."

20 Mr. Sharma, the learned A.G.P., in support of his submissions, has placed strong reliance on the following case law:

(1) Madhubindu Jayshanker Vyas vs. State of Gujarat and other [L.P.A. No.139 of 2007 decided on 11th August 2017] (2) State of Assam vs. Bhaskar Jyoti Sarma [ 2015 AIR SCW 548] (3) Sita Ram Bhandar Society, New Delhi vs. Lieutenant Governor, of NCT, New Delhi [(2009) 10 SCC 501] (4) Omprakash Verma and others vs. State of Andhra Pradesh and others [(2010) 13 SCC 158]

21 In view of the above, Mr. Sharma, the learned A.G.P. would pray that there being no merit in this writ application, the same be rejected.

22 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the petitioner is entitled to the relief prayed for in this writ application.

Page 18 of 53 C/SCA/3995/1990 CAV JUDGMENT

23 Before adverting to the rival submissions canvassed on either side, I must look into the provisions of Sections 3 and 4 of the Urban Land (Ceiling and Regulations) Repeal Act, 1999, which reads as under:

"Section 3. Savings (1) The repeal of the principal Act shall not affect

(a) the vesting of any vacant land under subsection (3) of Section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;

(b) the validity of any order granting exemption under subsection (1) of Section 20 or any action taken thereunder, notwithstanding any judgment or any Court to the contrary;

(c) any payment made to the State Government as a condition for granting exemption under subsection (1) of Section 20.

(2) Where

(a) any land is deemed to have vested in the State Government under subsection (3) of Section 10 of the Principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and

(b) any amount has been paid by the State Government with respect to such land, then such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.

"Section 4. Abatement of legal proceedings All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any Court, Tribunal or any authority shall abate:

Provided that this section shall not apply to the proceedings relating to Sections 11, 12, 13 and 14 of the principal Act insofar as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.

Page 19 of 53 C/SCA/3995/1990 CAV JUDGMENT

24 Ordinarily, this Court, in exercise of its writ jurisdiction under Article 226 of the Constitution of India or supervisory jurisdiction under Article 227 of the Constitution of India, would not enter into the arena of disputed questions of fact. However, in view of the provisions of Repeal Act, before proceeding to adjudicate the matter on merits, it is essential or rather important to ascertain as to whether after the coming into force of the Repeal Act, the proceeding before the Court survives or has abated. It is in this context that the issue as to whether the possession has been taken over or not is required to be gone into. Earlier, as noted above, the learned Single Judge had disposed of the present petition on the ground that the same had abated, but the said order was challenged by the State by filing a L.P.A. and the appeal Court quashed the order of the Single Judge taking the view that the Single Judge could not have declared the proceedings initiated under the Act as having been abated without properly deciding the issue as to whether the physical possession of the land had been taken over by the competent authority before coming into force of the Repeal Act.

25 Insofar as the issue as regards the abatement of the present proceedings is concerned, it is the case of the respondents that the procedure prescribed under the Act had been duly followed. The notice under Subsection (5) of Section 10 had been issued on 14th June 1989 and the same had been duly served upon the petitioner and after expiry of the notice period, the possession of the subject land had been duly taken over in the presence of the two panchas on 8 th June 1990. Hence, according to the State, the possession of the subject land having been taken over prior to the coming into force of the Repeal Act, the proceedings would not abate.

26 On the other hand, it is the case of the petitioner that, during the Page 20 of 53 C/SCA/3995/1990 CAV JUDGMENT pendency of the present petition, a panchnama was drawn on 8th June 1990 to show that the possession was taken over in presence of the two panch witnesses. It is emphatically asserted by the petitioner that the physical possession of the land was not taken over by the respondent authorities at any point of time and the petitioner has remained in possession. It is emphatically pointed out or rather asserted that there are five houses standing on the land even as on date and none of the occupiers of those five houses were ever served with the notice. Without vacating the persons from the constructed property, by drawing a panchnama, the possession of the land cannot be said to have been taken over.

27 It is also the case of the petitioner that the respondent authorities, at no point of time, issued notice under Section 10(6) of the Act and when the possession was not handed over by the petitioner voluntarily, the authorities could not have taken the same without issuance of notice under Section 10(6) of the Act.

28 Subsections (5) and (6) of Section 10 of the Act, which are relevant for the purpose of the present petition, read as under:

"10. Acquisition of vacant land in excess of ceiling limit. (5) Where any vacant land is vested in the State Government under sub section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorized by the State Government in this behalf within thirty days of the service of notice.

(6) If any person refuses or fails to comply with an order made under sub section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary."

Page 21 of 53 C/SCA/3995/1990 CAV JUDGMENT

29 On a plain reading of the aforesaid provisions, it is apparent that the statute contemplates giving an opportunity to the landholder or any person in possession of the excess vacant land to surrender or deliver possession thereof to the State Government and for this purpose provides for giving notice in writing, ordering such person to surrender or deliver possession of such lands. It is only when pursuant to such notice, such person refuses or fails to comply with an order under sub section (5) within a period of thirty days of the service of notice, that the competent authority is required to take over the possession of the vacant land and for that purpose may use force, if necessary. Therefore, the provisions of subsection (6) are to be resorted to only when there is refusal or noncompliance of an order under subsection (5) of section 10 of the Act within the prescribed period.

30 In the State of Maharashtra v. B.E. Billimoria, (2003) 7 SCC 336, the Apex Court has in the context of the Urban Lands (Ceiling and Regulation) Act, 1976 held that the said Act being an expropriatory legislation is required to be construed strictly.

31 The Apex Court has in the case of Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111, in the context of the Gujarat Town Planning and Urban Development Act, 1976 held thus:

"The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof."

32 Thus, applying the principle of strict construction with the dictum of the aforesaid decision, the authorities are required to act strictly in accordance with the statutory provisions. Thus, when subsection (5) of Page 22 of 53 C/SCA/3995/1990 CAV JUDGMENT section 10 mandates giving notice of an order under the said subsection to the person in possession, the same is required to be complied with in true letter and spirit. Considering the nature of rights involved, mere issuance of notice without service thereof, cannot be said to be due compliance with the provisions of the statute. Besides, the provisions of subsection (6) of section 10 can be resorted to only if the person fails to comply with an order under subsection (5) thereof, within a period of thirty days of service of notice. Hence, possession cannot be taken over under section 10(6) of the Act, unless a period of thirty days from the date of service of notice has elapsed. In absence of service of notice under subsection (5) of section 10, there will be no starting point for calculating the period of thirty days. In other words time will not start running, hence the question of taking over possession under subsection (6) of section 10 of the Act, would not arise at all.

33 It is very important for me to take note of one fact going to the root of the matter. This petition is of the year 1990. One Civil Application (for amendment) No.6423 of 2016 was filed by the petitioner. The said Civil Application for amendment came to be allowed, by a Coordinate Bench, vide order dated 31st January 2017. The order reads thus:

1. "Rule. Learned AGP Mr.Venugopal Patel wavies service of notice of Rule for the RespondentState.

2. Civil Application has been filed seeking amendment in the main petition for incorporating para No.13A and Para No.16(f). The same has been resisted by the RespondentState Authorities by filing the reply.

3. Having regard to the contents of the application, without going into the merits of the case, the amendment sought for is granted keeping open all the contentions raised by the Respondent No.3 in reply filed to this Civil Application.

4. The present Civil Application is allowed accordingly. Learned Page 23 of 53 C/SCA/3995/1990 CAV JUDGMENT Advocate for the petitioner is directed to carry out the amendment as prayed for and furnish the copy of amended petition to the Court as well as to the other side within two days. It will be open for the respondents to file reply to the amended petition, if they desire to file. Rule is made absolute.

5. Put up main Special Civil Application No.3995 of 1990 on 7th February, 2017 for final hearing."

34 Thus, on the strength of the order referred to above, the petition came to be amended and para 13A was added. Para 13A is reproduced hereinbelow:

"13A The State of Gujarat has, during the pendency of the present petition, drawn a panchnama dtd. 8.6.90, whereby, on paper, it had taken possession. It is submitted that as such, the physical possession of the land was never taken by the respondent authorities and the petitioner remained in the possession. As such 5 houses were standing on the land even as stated in the panchnama; however, none of the occupiers was ever served with the notice. Without evicting the persons from the constructed property, only by drawing panchnama, the possession of the land cannot be taken over. When the justifiability of the orders passed u/s. 21 were under challenge in the petition pending before this Hon'ble Court, it was not open for the respondent authorities to take any action u/s. 10(6). As such, the respondent authorities have never taken possession as alleged by them. No notice u/s. 10(6) is ever issued and hence, when the possession was not handed over by the petitioner voluntarily, the authorities could not have taken the same without issuance of notice u/s. 10(6). It is submitted that as the respondent authorities have not taken legal and actual possession of the land, in view of Repeal Act, the respondent authority cannot claim any right over the land and cannot take the possession of the land."

35 I take notice of the fact that the amendment application was opposed by the State by filing reply. Paras 5, 6 and 7 are important. The same reads thus:

"5 It is further submitted that by way of the filing present Civil Application for the seeking amendment in the main Special Civil Application, no new evidences/records have been incorporated in the present Civil Application and the grounds on which the petitioner herein is seeking amendment, the same grounds were already available to the Page 24 of 53 C/SCA/3995/1990 CAV JUDGMENT petitioner at time and filing the Special Civil Application No.3995 of 1990 and at the relevant point of time the petitioner has chosen not to include the same and thereby at this juncture the same may not be allowed to be added by way of the amendment.

6 It is further submitted that so called grounds which were averred in the present Civil Application, the same have also not been stated in the additional affidavit by the petitioner herein on date 14/06/2016 while filing addition affidavit. The petitioner could have added the said grounds at the time of filing additional affidavit.

7 It is further submitted that the present Civil Application may not be allowed only on the grounds that there are no new grounds as well as there are no new development which is being sought by the petitioner to be incorporated in the main petition and the grounds which were mentioned in the present Civil Application were already available to the petitioner at the time of filing the present petition and the same have not been incorporated at filing the present petitioner."

36 Even while opposing the amendment application, the averments made in para 13A referred to above never came to be rebutted or refuted. Besides the same, even after the amendment was carried out in the main matter, no further affidavitinreply has been filed rebutting or refuting in any manner the averments made in para 13A referred to above.

37 In such circumstances referred to above, and more particularly, when the averments made having gone unrebutted, there is no good reason for this Court to disbelieve the same. This is one aspect of the matter, which, in my opinion, is important.

38 The second aspect of the matter is that in the course of the hearing of this matter, I inquired with Mr. Sharma, the learned A.G.P. as regards the status of the subject land. Mr. Sharma, the learned A.G.P., with his usual fairness, pointed out that there are five houses in the subject land and they are being occupied by the different families. It was also pointed out by Mr. Sharma that even as on date, in the revenue Page 25 of 53 C/SCA/3995/1990 CAV JUDGMENT record, the names of the occupiers figure. Mr. Sharma also pointed out that as on date, the electricity bills are also received in the names of the occupiers on the address of the subject land. In such circumstances, I had to confront Mr. Sharma with a pertinent question that if the possession was taken over way back in the year 1990, then how is it possible that the different families are occupying the houses situated in the land in question. The only reply, which Mr. Sharma was able to give, is that probably, at a later stage, they might have trespassed into the land and might have started occupying the houses once again. This stance of the State Government should put an end to the entire controversy so far as the issue of possession is concerned.

39 I have no doubt in my mind that the possession, which is said to have been taken over, is just a paper possession. At no point of time, the authorities took the trouble or pains to see that that each and every occupier is vacated from the land. If the electricity bills are being received past almost three decades, then the same goes to show that none of the occupiers were vacated from the land.

40 In the aforesaid context, the decision of the Supreme Court, in the case of Hari Ram (supra) needs to be looked into. In the said case, the Supreme Court dealt with the same issue i.e. deemed vesting of the surplus land under Section 10(3) of the Urban (Ceiling and Regulations) Act, 1976. The matter was from Allahabad. The Supreme Court explained the concept of voluntary surrender, peaceful dispossession and forceful dispossession. I may quote the relevant observations:

"37. Requirement of giving notice under subsections (5) and (6) of Section 10 is mandatory. Though the word 'may' has been used therein, the word 'may' in both the subsections has to be understood as "shall"

because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of nonissue of notice under sub section (5) or subsection (6) of Section 11 is that it might result the land Page 26 of 53 C/SCA/3995/1990 CAV JUDGMENT holder being dispossessed without notice, therefore, the word 'may' has to be read as 'shall'."

"39 Abovementioned directives make it clear that subsection (3) takes in only de jure possession and not de facto possession, therefore, if the land owner is not surrendering possession voluntarily under subsection (3) of Section 10, or surrendering or delivering possession after notice, under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land."

"40 The scope of Act 33 of 1976 came up for consideration before this Court on few occasions, reference may be made to certain judgments, even though there has been no elaborate discussion of the provision of the Act and its impact on the Repeal Act. Reference may be made to Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. and others [(2000) 6 SCC 325], Ghasitey Lal Sahu and another v. Competent Authority, Under the Urban (Ceiling and Regulation Act, 1976), U.P. and another (2004) 13 SCC 452, Mukarram Ali Khan v. State of Uttar Pradesh and others [(2007) 11 SCC 90] and Vinayak Kashinath Shilkar v. Deputy Collector and Competent Authority and others (2012) 4 SCC 718."

"Effect of the Repeal Act

41 Let us now examine the effect of Section 3 of the Repeal Act 15 of 1999 on subsection (3) to Section 10 of the Act. The Repeal Act 1999 has expressly repealed the Act 33 of 1976. The Object and Reasons of the Repeal Act has already been referred to in the earlier part of this judgment. Repeal Act has, however, retained a saving clause. The question whether a right has been acquired or liability incurred under a statute before it is repealed will in each case depend on the construction of the statute and the facts of the particular case."

41 Thus, the dictum, as laid down by the Supreme Court in Hari Ram (supra), is that where the possession of the subject land has not been taken over by the State Government or by any person duly authorised by the State Government in this behalf or by the competent authority, the proceedings under the Act would not survive and mere vesting of the vacant land with the State Government by operation of law, without actual possession, is not sufficient. To put it in other words, mere paper possession would not save the situation for the State Government unless the State is able to establish by cogent evidence that Page 27 of 53 C/SCA/3995/1990 CAV JUDGMENT actual possession of the entire land was taken over by evicting each and every person from the land.

42 The proposition of law that mere paper possession is not sufficient to vest the land in the State has been explained by the Supreme Court in Raghbir Singh Sehrawat vs. State of Haryana and others [2012 AIR SCW 240]. This was a case under the Land Acquisition Act, 1894. The Supreme Court, while allowing the appeals and declaring the acquisition illegal, observed that the taking of possession means the actual possession. Paper possession is not sufficient to vest the land in the State. The Supreme Court noticed various revenue entries recorded in the revenue records which showed that the crops were grown on the different acquired land said to have been taken over. The Court noticed that the State had not questioned the genuineness and correctness of the entries contained in the revenue records. The Supreme Court also took notice of the fact that it was neither pleaded nor any evidence had been produced before the Court to show that the occupant of the land had unauthorisedly taken possession of the land after its acquisition.

43 In the case on hand also, as noted above, the State has conceded that many families are residing as on date in the property. But the stance of the State is that they might have unauthorisedly taken possession at a later stage i.e. after the possession is said to have been taken by the State in the year 1990. If it would be so, then the electricity bills and the tax bills would not come in the names of the occupiers past almost more than three decades. I am sorry to say, but if such is the stance of the State Government, then the same is not bona fide.

44 One stock argument available with the State in this type of cases is that the question whether actual physical possession of the disputed land had been taken over or not is a seriously disputed question of fact, which Page 28 of 53 C/SCA/3995/1990 CAV JUDGMENT the High Court should not adjudicate or determine in exercise of its writ jurisdiction. As a principle of law, there need not be any debate on such a proposition, but by merely submitting that it is a seriously disputed question of fact, the same by itself will not become a question of fact. To put it in other words, having regard to the materials on record, which falsifies the case of the State Government, then such materials should not be overlooked or ignored by the Court on the principle that the issue with regard to taking over of the actual physical possession would be a disputed question of fact.

45 In the aforesaid context, let me look into the decisions on which strong reliance has been placed by the State Government.

46 Let me start with a decision of this Court in the case of Madhubindu (supra). In the said case also, reliance was placed by the appellant on the decision of the Supreme Court in the case of Hari Ram (supra). However, the Division Bench of this Court distinguished Hari Ram (supra) having regard to the facts of that case. I may quote the relevant observations of the Division Bench:

"8.5 According to learned Government Pleader, Hari Ram [supra] was considered and decided in the backdrop of peculiar facts mentioned in paras 3 and 4 of the judgment whereby a notification under Section 10(1) of the Act, 1976 was issued on 12.06.1982 and was published in the Government Gazette on the same day. That a notification under Section 10(3) dated 01.22.1997 was published on the same date stating that land in question shall be deemed to have been vested in the Government with effect from 12.06.1982, free from all encumbrances and on 10.06.1999, the competent authority vide its letter dated 10.06.1990 informed the concerned Bandobust Chak Bandi Adhikari accordingly. On 19.06.1999 a notice under Section 10(5) of the Act, 1976 directing the respondent to hand over possession of the land declared as surplus to a duly authorized person was issued and against which appeal was preferred before the District Judge, Varanasi under Section 33 of the Act, 1976 raising various contentions of law and appeal came to be allowed by quashing and setting initial order dated 29.06.1981 passed under Section 8(4) of the Act, 1976 Page 29 of 53 C/SCA/3995/1990 CAV JUDGMENT declaring the land as surplus. The State of Uttar Pradesh being aggrieved with the above decision preferred writ petition before the High Court of Allahabad under Article 226 of the Constitution of India in which decision was rendered taking a view that subsection (3) of Section 10 of the Act does not envisage taking physical and de facto possession of the surplus land for which procedure under subsection (5) of Section 10 have to be followed. Even on facts also, Division Bench found, no reason to interfere with the order of the learned District Judge passed under Section 33 of the Act. Learned Government Pleader emphasized submissions made by learned Senior Advocate appearing for the State of Uttar Pradesh and so recorded in para 6 of the above decision that the High Court had committed an error in interpreting subsection (3) of Section 10 of the Act and further submitted that expression deemed acquisition and deemed vesting, which find place in Section 10(3) of the Act would take in not only de jure possession but also de facto possession. Therefore, the Apex Court answered the above contention in para 39 and thereafter even effect of the Repeal Act was answered in paras 41 and 42 and therefore, facts of Hari Ram [supra] are carefully considered and analyzed and it is clear that before Repeal Act came into force i.e. on 01.04.1999, notification under Section 10(3) of the Act, 1976 was already issued and published on 22.11.1997 and accordingly declaration was made about procedure to be followed by the authority under Section 10(5) taking over actual physical de facto possession. In case of failure on the part of land holder to hand over possession, he can be dispossessed of the land by taking recourse to Section 10(6) of the Act. In this case, before Repeal Act came into force and the Tribunal passed the order in appeal in absence of jurisdiction under Section 45 of the Act, 1976, notice under Section 10(5) was already issued and the whole issue about subject land which included exercise of power in accordance with law and taking over possession under the Act, 1976 attained finality when writ petition and Letters Patent Appeal both came to be rejected before 11 years and 8 years respectively well before such illegal exercise of powers of review without jurisdiction by the Tribunal and therefore, case of Hari Ram [supra] would not apply. Likewise, the learned Government Pleader distinguished judgments relied by the learned counsel for the appellants and submitted that the Apex Court in the case of Bhaskar Jyoti Sarma & Ors. [supra] distinguished the facts in that case and found that the High Court held that the alleged dispossession was not preceded by any notice under Section 10(5) of the Act, that means, the erstwhile owner was dispossessed from the land in question, he could have made a grievance based on section 10(5) and even could have 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. 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. The Apex Court also considered the very issue from another angle that question is Page 30 of 53 C/SCA/3995/1990 CAV JUDGMENT whether such grievance could be made long after the alleged violation of Section 10(5) of the Act when actual possession was taken over from the erstwhile land owner on 07.12.1991, the grievance ought to have made based on Section 10(5) within the reasonable time of such dispossession if did not do so, forcibly taking over possession would acquire legitimacy by sheer lapse of time. In such situation, the owner or a person in possession may be deemed to have waived his right under section 10(5) of the Act.

8.6 Therefore, according to learned Government Pleader even Hari Ram [supra] is not applicable to the facts of this case in view of belated grievance made by the appellant about dispossession of the land which took place as early as on 29.09.1988, which attained finality for all purposes in the proceedings undertaken by the land owner before this court, which need not require reiteration.

8.7 Ms. Manisha Shah, learned Government Pleader placed reliance on the judgment dated 26.04.2011 rendered by a Division Bench of this Court in the case of State of Gujarat & Anr. vs. Kapilaben Ambalal Patel, heirs of Decd. Ambalal P. Patel in Letters Patent Appeal No.233 of 2006 in which the order passed by the learned Single Judge was reversed and it was held that possession taken over by the competent authority in exercise of powers under ULC Act, 1976 was just, proper and in accordance with law.

9 Having regard to the facts and circumstances of the case, considering the rival submissions made by learned counsel for the appellants and learned Government Pleader on behalf of the State authorities, the question involved in both these appeals has genesis as to whether possession of the subject land of appeals is with appellants or with the authorities of the Government visavis applicability of the decision of the Apex Court in the case of Hari Ram [supra] in which Section Sections 10(3) & (5), (6) of Act, 1976 and Sections 3 and 4 of Repeal Act,l 1999 came to be interpreted.

9.1 To appreciate the decision of the Apex Court in the case of Hari Ram [supra], the following facts contained in paras 2, 3 and 4 are reproduced:

2. Hari Ram, respondent herein, had filed a statement on 28.9.1976 giving details of the vacant land he was holding in excess of ceiling limit prescribed under the Act, as provided under Section 6 of the Act. The competent authority under the Act surveyed the land and the respondent was served with a draft statement under Section 8(3) of the Act on 13.5.1981, calling for objection to the draft statement within thirty days.

No objection was preferred by the respondent and it was found that he was holding excess land measuring 52,513.30 sq. meters and an order to that effect was passed by the competent Page 31 of 53 C/SCA/3995/1990 CAV JUDGMENT authority under Section 8(4) of the Act, vide his proceeding dated 29.6.1981.

3. The competent authority later issued a notification dated 12.6.1982 under Section 10(1) of the Ceiling Act, which was published in the Government Gazette on 12.6.1982 giving the particulars of the vacant land held by the respondent. The competent authority then issued a notification dated 22.11.1997, which was published on the same date, stating the land shall be deemed to have been vested with the Government from 12.6.1982, free from all encumbrances. On 10.6.1999, the competent authority vide its letter dated 10.6.1999 informed the Bandobast Chakbandi Adhikar that the surplus land declared as per the Notification stood vested in the State Government. On 19.6.1999, the prescribed authority issued a notice under Section 10(5) of the Act directing the respondent to hand over possession of the land declared as surplus to a duly authorized person. Aggrieved by the same, the respondent preferred an appeal No.29 of 1999 before the District Judge, Varanasi under Section 33 of the Act, contending that before passing the order under Section 8(4) of the Act, no notice, as contemplated under Section 8(3) of the Act, was served on him. The appeal was allowed and the order dated 29.06.1981 was quashed, vide judgment dated 14.12.1999.

4. Aggrieved by the said order, State of U.P., through the competent authority, preferred Civil Misc. Petition No. 47369 of 2000 before the High Court of Allahabad under Article 226 of the Constitution of India, and the High Court, after elaborately considering the various contentions, took the view that subsection (3) of Section 10 does not envisage, taking physical and de facto possession of the surplus land, for which proceedings under subsection (5) of Section 10 have to be followed. On facts also, the Division Bench found no reason to interfere with the order of the District Judge, and the appeal was dismissed, against which this appeal has been preferred. Following the judgment in Writ Petition No.47369 of 2000, several writ petitions were disposed of by the High Court against which appeals are pending before this Court.

9.2 In the context of above facts, learned counsel for the State of Uttar Pradesh submitted that expression deemed acquisition and deemed vesting as incorporated in Section 10(3) of the Act would take not only de jure possession but also de facto possession. Inter alia it was submitted that in the cases where possession is seen having been taken over legally, Page 32 of 53 C/SCA/3995/1990 CAV JUDGMENT statutorily and by presumption in law on account of publication of the notification and the deeming clause and the legal fiction provided under Section 10(3) of the Act, a requirement of Section 3(1)(a) of the Repeal Act shall stand satisfied and the land so vested and possessed by the Government shall remain intact in the ownership and possession of the State Government. The above submissions were countered by the learned advocate for the respondents land owner. After adverting to Section 10 as a whole, statement of object and reasons of Act, 1976, Sections 3 & 4 of the Repeal Act, 1999, and considering various decisions of foreign courts and legal fiction under subsection (3) of section 10 and taking recourse to dictionary and legal meaning of vest or vesting, the Apex Court in para 30 held as under:

"30. Vacant land, it may be noted, is not actually acquired but deemed to have been acquired, in that deeming things to be what they are not. Acquisition, therefore, does not take possession unless there is an indication to the contrary. It is trite law that in construing a deeming provision, it is necessary to bear in mind the legislative purpose. The purpose of the Act is to impose ceiling on vacant land, for the acquisition of land in excess of the ceiling limit thereby to regulate construction on such lands, to prevent concentration of urban lands in hands of few persons, so as to bring about equitable distribution. For achieving that object, various procedures have to be followed for acquisition and vesting. When we look at those words in the above setting and the provisions to follow such as subsections (5) and (6) of Section 10, the words acquired and vested have different meaning and content. Under Section 10(3), what is vested is de jure possession not de facto, for more reasons than one because we are testing the expression on a statutory hypothesis and such an hypothesis can be carried only to the extent necessary to achieve the legislative intent."

9.3 Thus, in view of the decision of the Apex Court, vesting under Section 10(3) means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. In para 32 the Apex Court referred to `the present case' and in the facts of the case found that vesting takes in every interest in the property, including de jure and not de facto possession. But it always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act.

9.4 The Apex Court in paras 34, 35 and 36 of the above judgment further examined and interpreted subsections (5) & (6) of Section 10 under heading peaceful dispossession and forcible dispossession and the directions contained about procedure for taking possession of the vacant land in excess of the prescribed ceiling limit in Directions of 1983 issued Page 33 of 53 C/SCA/3995/1990 CAV JUDGMENT by the Uttar Pradesh Government under Section 35 of the Act, 1976. For the sake of convenience, paras 34, 35 and 36 read as under:

"Peaceful dispossession.

34.Subsection (5) of Section 10, for the first time, speaks of possession which says where any land is vested in the State Government under subsection (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorized by the State Government.

35.If de facto possession has already passed on to the State Government by the two deeming provisions under sub section (3) to Section 10, there is no necessity of using the expression where any land is vested under sub section (5) to Section 10. Surrendering or transfer of possession under subsection (3) to Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under subsection (5) to Section 10 to surrender or deliver possession. Subsection (5) of Section 10 visualizes a situation of surrendering and delivering possession, peacefully while subsection (6) of Section 10 contemplates a situation of forceful dispossession. Forceful dispossession

36. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under subsection (5) of Section 10. Subsection (6) to Section 10 again speaks of possession which says, if any person refuses or fails to comply with the order made under sub section (5), the competent authority may take possession of the vacant land to be given to the State Government and for that purpose, force as may be necessary can be used. Subsection (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub section (5), in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted only in a situation which falls under subsection (6) and not under sub section (5) to Section 10. Subsections (5) and (6), therefore, take care of both the situations, i.e. taking possession by giving notice that is peaceful dispossession Page 34 of 53 C/SCA/3995/1990 CAV JUDGMENT and on failure to surrender or give delivery of possession under Section 10(5), then forceful dispossession under subsection (6) of Section 10."

9.5 The Directions, 1983 of the Government of Uttar Pradesh provided an elaborate procedure for taking possession of the vacant land in excess of ceiling limit, register to be maintained and notices to be issued under subsections (3) and (5) of Section 10 of the Act, 1976. Having referred to the above Directions, 1983 in para 39 the Apex Court held as under:

"39. Abovementioned directives make it clear that subsection (3) takes in only de jure possession and not de facto possession, therefore, if the land owner is not surrendering possession voluntarily under subsection (3) of Section 10, or surrendering or delivering possession after notice, under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land."

9.6 Thereafter, the effect of Section 3 of the Repeal Act, 1999 was examined by the Apex Court in the context of factual scenario of the case and the objects and reasons of the Repeal Act, 1999, and in paras 41 and 42, it is held as under:

Effect of the Repeal Act

41."Let us now examine the effect of Section 3 of the Repeal Act 15 of 1999 on subsection (3) to Section 10 of the Act. The Repeal Act 1999 has expressly repealed the Act 33 of 1976. The Object and Reasons of the Repeal Act has already been referred to in the earlier part of this Judgment. Repeal Act has, however, retained a saving clause. The question whether a right has been acquired or liability incurred under a statute before it is repealed will in each case depend on the construction of the statute and the facts of the particular case.

[emphasis supplied]

42. The mere vesting of the land under subsection (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under subsection (5) of Section 10 or forceful dispossession under subsection (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in Page 35 of 53 C/SCA/3995/1990 CAV JUDGMENT this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act."

9.7 Thus, having found no infirmity in the judgment of the High Court, which was under challenge, the appeal filed by the State of Uttar Pradesh came to be dismissed by the Apex Court. The above direction is followed having similar facts in the case of Vipinchandra Vadilal Bavishi [supra], Gajanan Kamlya Patil [supra] by the Apex Court. Further, a Division Bench of this Court relied on the above decision in the case of Gordhanbhai Motibhai Patel v. Competent Authority & Dy. Collector reported in 2016(0) AIJELHC 23574].

9.8 We are in respectful agreement with the law laid down by the Apex Court in the case of Hari Ram [supra] wherein it was categorically held that the question whether a right has been acquired or liability incurred under statute before it is repealed in each case will depend on the construction of the statute and facts of the particular case.

9.9 In the case of Gajanan Kamlya Patil vs. Additional Collector and Comp. Authority [AIR 2014 SC 1843], the Apex Court was considering the fact about competent authority actually not taking possession of surplus land and the appellant had not voluntarily surrendered possession prior to coming into force of Repeal Act, 1999 and in the facts and circumstances of that case reliance was placed in the case of Hari Ram [supra] and was held that law laid down in the facts of Hari Ram [supra] would apply particularly in view of the fact that there was nothing to show that de facto possession has been taken from the appellants prior to the execution of the possession receipt in favour of Mumbai Metropolitan Region Development Authority [MMRDA].

9.10 In the case of Vipinchandra Vadilal Bavishi (D) by Lrs. & Anr. vs. State of Gujarat and others [(2016) 1 SCALE 620], the Apex Court was considering peculiar facts that according to respondent authorities, possession of the land in question barring plot Nos.16 to 23 and plot Nos.36 to 43 were taken over and Special Civil Application filed before the High Court was dismissed. However, neither the notification under Sections 10(1), 10(2), 10(3) and 10(5) were issued in respect of plot Nos.36 to 43 nor possession of those plots had been taken over by the respondents and possession of plot Nos.1 to 16 were only taken and the competent officer had sought sanction of the Government for publishing necessary corrigendum by mentioning in the letter that sanction is required for showing plot Nos.36 to 43, which were not mentioned in the notification earlier. The Apex Court found that no notice has been produced by the State to show that the appellants were asked to surrender or deliver the possession of the plot Nos.36 to 43 nor there was any Page 36 of 53 C/SCA/3995/1990 CAV JUDGMENT evidence to show that the appellants were ever refused or failed to comply with any notice issued under Section 10(5) of the Act. Thus, case of Hari Ram [supra] was relied on.

9.11 In the case of Gordhanbhai Motibhai Patel [supra], Division Bench of this Court after considering various facts of the case in the context of prayer made in para 13 of the writ petition, in para 24 found that disputed question as to whether or not possession has been actually taken over is disputed question of fact and the court exercising powers under Article 226 of the Constitution of India would not render any finding thereon one way or the other. However, considering the facts on record, law laid down in the case of Hari Ram [supra] was applied.

9.12 In the case of State of Gujarat v. Pravinkumar R. Patel [2016(0) AIJELHC 235846] the basic issue was Notification under Section 10(3) of the Act, 1976 and later on of said notification came to be cancelled. However, cancellation recommended by the competent authority was not received by the Government Press and, therefore, it was not published in Government Gazette. Under the facts and circumstances, it was held that nonpublication of cancellation notification in Government Gazette would not create any right in favour of the Government. Besides, a series of orders passed in the very subject matter earlier by this Court revealed that possession remained with the land owner. Therefore, the above judgment is not applicable in the facts of this case.

9.13 As against the above, reliance placed by learned counsel for the appellants and learned Government Pleader in the case of Bhaskar Jyoti Sarma [supra], much emphasis was made by the Government Pleader about difference of facts in this case in which Hari Ram [supra] was distinguished, can be made applicable to the subject land of both the appeals. In the case of Bhaskar Jyoti Sarma [supra] in paras 11 and 12, the Apex Court readdressed itself to subsection (3) and (5) of the Act, 1976 and for the sake of convenience such discussion in paras 11 and 12 are reproduced hereinbelow:

"11. Section 3 of the Repeal Act postulates that vesting of any vacant land under subsection (3) of Section 10, is subject to the condition that possession thereof has been taken over by the competent authority or by the State Government or any person duly authorised by the State Government. The expression "possession" used in Section 3 (supra) has been interpreted to mean "actual physical possession" of the surplus land and not just possession that goes with the vesting of excess land in terms of Section 10(3) of the Act. The question, however, is whether actual physical possession of the land in dispute has been taken over in the case at hand by the competent authority or by the State Government or an officer authorised in that behalf by the Page 37 of 53 C/SCA/3995/1990 CAV JUDGMENT State Government. 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 eye of law and hence insufficient to attract Section 3 of the Repeal Act. Our answer to that question is in the negative. 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 Section 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 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. 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 Page 38 of 53 C/SCA/3995/1990 CAV JUDGMENT 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 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.

12. 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 regarding his dispossession being in violation of the prescribed procedure."

[emphasis supplied] 9.14 In the above case, another decision of the Apex Court in the case of State of Gujarat & Anr. vs. Gyanaba Dilavarsinh Jadeja [(2013)11 SCC 486] was considered. Thus, according to the Apex Court, the question, however, is whether actual physical possession of the land in dispute has been taken over in the case at hand by the competent authority or by the State Government or an officer authorised in that behalf by the State Government. The case of the appellant is that actual physical possession of the land was taken over on 29.09.1988 no matter unilaterally and without notice to the erstwhile land owner. That Page 39 of 53 C/SCA/3995/1990 CAV JUDGMENT 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 eye of law and hence insufficient to attract Section 3 the Repeal Act. Our answer to that question is in the negative. 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. In the present case, since possession of the land was already taken over before Repeal Act came into force on 30.03.1999, contention raised about restoring possession of the land owner is misconceived and accordingly not accepted.

9.15 The Apex Court viewed the situation from another angle that when a person in possession makes a grievance long after the alleged violation of Section 10(5), such grievance ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over 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.

9.16 That the High Court of Bombay in the case of Chhaganlal Khimji and Co. Ltd. v. State of Maharashtra & Ors. [Writ Petition No.598 of 2012 decided on 27.10.2016] while dealing with the writ petition at the instance of builders and developers in the city of Mumbai of excess vacant lands already vested in the State by virtue of Act, 1976 by relying on the repeal thereof and though possession is taken over by the State legally and validly before the Repeal Act coming into force upheld that such land could not be reverted to the owner of those claiming to be in possession. In the above case also, a Division Bench of High Court of Bombay relied on decision in the case of Bhaskar Jyoti Sarma [supra] by quoting paragraphs 13 to 17 of the above judgment.

Page 40 of 53 C/SCA/3995/1990 CAV JUDGMENT

"13. The case of the appellant is that actual physical possession of the land was taken over on 7121991 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 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 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 Page 41 of 53 C/SCA/3995/1990 CAV JUDGMENT 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 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 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 him to raise the issue regarding his dispossession being in violation of the prescribed procedure.

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 Page 42 of 53 C/SCA/3995/1990 CAV JUDGMENT 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 Section 3 the Repeal Act. That is because Bhabadeb Sarmaerstwhile 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.

Both the above decisions viz. Bhaskar Jyoti Sarma [supra] and Chhaganlal Khimji [supra] are applicable in the facts of the present appeals.

9.17 We are in full agreement with legal principles laid down in the case of Hari Ram [supra] and other decisions which followed Hari Ram [supra], but considering the peculiar facts of this case and conduct of the appellants of abusing process of law by filing such proceedings, including that of review application and scope and contours of Section 45 of the Act, 1976, earlier order of the ULC Tribunal could not have been reviewed under any circumstance, particularly, the subject was finalized up to High Court and the appellants land owners lost their case. Finally, the issue about possession of the subject land, which was disputed by owner of the excess vacant land and disputed by the competent authority and in absence of any evidence on record, the question of fact about possession disputed by both the sides is not amenable to a satisfactory determination by the High Court in the proceedings under Article 226 of the Constitution of India, no matter the High Court may in its discretion in certain situations may do such determination."

47 The observations of the Division Bench in para 9.17 referred to above are very important. The Division Bench made itself very clear that it was in full agreement with the legal proposition laid down in the case of Hari Ram (supra) and other decisions which follow Hari Ram (supra), but considering the peculiar facts of that case and conduct of the appellants of abusing the process of law by filing such proceeding, including that of the review application and the scope and contours of Section 45 of the Act, 1976, earlier order of the U.L.C. Tribunal could not have been reviewed under any circumstances particularly when the Page 43 of 53 C/SCA/3995/1990 CAV JUDGMENT subject matter attained finality upto the High Court and the appellants - land owners lost their case. In my view, the Division Bench decision of this Court referred to above is in no manner helpful to the State in making good their case that the possession was taken over way back in the year 1990 and the issue being a disputed question of law should not be gone into by this Court in exercise of writ jurisdiction.

48 Normally, the disputed questions of fact are not investigated or adjudicated by this Court while exercising powers under Article 226 of the Constitution of India. But the mere existence of the disputed question of fact by itself does not take away the jurisdiction of this Court in granting appropriate relief to the petitioner. In a case where the Court is satisfied like the case at hand that the facts are disputed by the respondents merely to create a ground for the rejection of the writ petition on the ground of disputed question of fact, it is the duty of the Court to reject such contention and to investigate the disputed facts and record its finding if the particular facts of the case like the one at hand was required in the interest of justice.

49 There is nothing in Article 226 of the Constitution to indicate that the High Court in these proceedings is debarred from holding such an inquiry. The proposition that a petition under Article 226 must be rejected simply on the ground that it cannot be decided without determining the disputed question of fact is not warranted by any provisions of law nor by any decision of the Supreme Court. A rigid application of such proposition or to treat such proposition as an inflexible rule of law or of discretion will necessarily make the provisions of Article 226 wholly illusory and ineffective. Obviously, the High Court must avoid such consequences.

50 In the aforesaid context, a reference is made to the decision of the Page 44 of 53 C/SCA/3995/1990 CAV JUDGMENT supreme Court in the case of State of Orissa vs. Dr. (Miss) Binapani Dei [AIR 1967 SC 1269]. In paragraph 6 at p. 1270 of the said judgment, their Lordships of the Supreme Court has been pleased to hold as follows:

"Under Art. 226 of the Constitution the High Court is not precluded from entering upon a decision on questions of fact raised by the petition. Where an enquiry into complicated questions of fact arises in a petition under Art. 226 of the Constitution before the right of an aggrieved party to obtain relief claimed may be determined, the High Court may in appropriate cases decline to enter upon that enquiry and may refer the party claiming relief to a suit. But the question is one of discretion and not of jurisdiction of the Court."

51 The Supreme Court in the case of Gunwant Kaur vs. Bhatinda Municipality [AIR 1970 SC 602] observed as follows:

"The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavitinreply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Art.226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Art.226 the High Court has jurisdiction to try issues both of fact and law. Exercise of jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made, dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons."

52 The Supreme Court in Om Prakash vs. State of Haryana [Civil Appeal No.2542 of 1969 decided on 16th March 1970(SC) observed as follows:

Page 45 of 53 C/SCA/3995/1990 CAV JUDGMENT

"The two judgments referred to by the High Court proceeded on the ground that the High Court would not in deciding a petition for a writ under Art.226 of the Constitution enter upon disputed questions of fact. But whether in the present case there are disputed questions of fact of such complexity as would render it inappropriate to try in hearing a writ petition is a matter which has never been decided. There is no rule that the High Court will not try issues of fact in a writ petition. In each case the Court has to consider whether the party seeking relief has an alternative remedy which is equally efficacious by a suit, whether refusal to grant relief in a writ petition may amount to denying relief, whether the claim is based substantially upon consideration of evidence oral and documentary of a complicated nature and whether the case is otherwise fit for trial in exercise of the jurisdiction to issue high prerogative writs."

53 The Supreme Court in Kavalappara Kottarathil Kochunni vs. State of Madras [AIR 1959 SC 725] took the view that assuming that there are seriously disputed questions of fact that by itself is not sufficient to throw away an application under Clause (2) of Article 32 of the Constitution. At pages 734 and 735 S. R. Das, C. J. on behalf of himself, and N. H. Bhagwati, B. P. Sinha and K. Subba Rao, JJ. observes as follows :

"Clause (2) of Article 32 confers power on this Court to issue directions or orders or writs of various kinds referred to therein. This Court may say that a particular writ asked for is or is not appropriate or it may say that the petitioner has not established any fundamental right or any breach thereof and accordingly dismiss the petition. In both cases this Court decides the petition on merits. But we do not countenance the proposition that, on an application under Article 32, this Court may decline to entertain the same on the simple ground that it involves the determination of disputed questions of fact or on any other ground. If we were to accede to the aforesaid contention of learned counsel, we would be failing in our duty as the custodian and protector of the fundamental rights. We are not unmindful of the fact that the view that this Court is bound to entertain a petition under Article 32 and to decide the same on merits may encourage litigants to file many petitions under Article 32 instead of proceedings by way of a suit. But that consideration cannot, by itself, be a cogent reason for denying the fundamental right of a person to approach this Court for the enforcement of his fundamental rights which may, prima facie, appear to have been infringed. Further, questions of fact, can and very often are dealt with on affidavits. In Chiranjitlal Chowdhury v. Union of India, Page 46 of 53 C/SCA/3995/1990 CAV JUDGMENT 1950 SCR 869 : (AIR 1951 SC 41), this Court did not reject the petition in limine on the ground that it required the determination of disputed questions of fact as to there being other Companies equally guilty of mis management. It went into the fact on the affidavit and held, inter alia, that the petitioner had not discharged the onus that lay on him to establish his charge of denial of equal protection of the laws. That decision was clearly one on merits and is entirely different from a refusal to entertain the petition at all. In Kathi Raning Rawat v. State of Saurashtra, 1952 SCR 435 : (AIR 1952 SC 123), the application was adjourned in order to give the respondent in that case an opportunity to adduce evidence before this Court in the form of an affidavit. An affidavit was filed by the respondent setting out facts and figures relating to an increasing number of incidents of looting, robbery, dacoity, nosecutting and murder by marauding gangs of dacoits in certain areas of the State in support of the claim of the respondent State that 'the security of the State and public peace were jeopardised and that it became impossible to deal with the offences that were committed in different places in separate Courts of law expeditiously.' This Court found no difficulty in dealing with that application on evidence adduced by affidavit and in upholding the validity of the Act then under challenge. That was also a decision on merits, although there were disputed questions of fact regarding the circumstances in which the impugned Act came to be passed. There were disputed questions of fact also in the case of Ramkrishna Dalmia v. S. R. Tendolkar, J. AIR 1958 SC 538. The respondent State relied on the affidavit of the principal Secretary to the Finance Ministry setting out in detail the circumstances which led to the issue of the impugned notification and the matters recited therein and the several reports referred to in the said affidavit. A similar objection was taken by learned counsel for the petitioners in that case as has now been taken. It was urged that reference could not be made to any extraneous evidence and that the basis of classification must appear on the face of the notification itself and that this Court should not go into disputed questions of fact. This Court overruled that objection and held that there could be no objection to the matter brought to the notice of the Court by the affidavit of the principal Secretary being taken into consideration in order to ascertain whether there was any valid basis for treating the petitioners and their Companies as a class by themselves. As we have already said, it is possible very often to decide questions of fact on affidavits. If the petition and the affidavits in support thereof are not convincing and the Court is not satisfied that the petitioner has established his fundamental right or any breach thereof, the Court may dismiss the petition on the ground that the petitioner has not discharged the onus that lay on him. The Court may, in some appropriate cases, be inclined to give an opportunity to the parties to establish their respective cases by filing further affidavits of by issuing a commission or even by setting the application down for trial on evidence, as has often been done on the Original Sides of the High Courts of Bombay and Calcutta, or by adopting some other appropriate procedure. Such Page 47 of 53 C/SCA/3995/1990 CAV JUDGMENT occasions will be rare indeed and such rare cases should not, in our opinion, be regarded as a cogent reason for refusing to entertain the petition under Article 32 on the ground that it involves disputed questions of fact."

54 A Division Bench of the Allahabad High Court in the case of Shanti Devi w/o Late Rajendra Singh vs. Office of Insurance Ombudsman, Zonal Manager, LIC of India and Divisional Office [2008 AIR (All) 72] has explained the very same principles of law. Amitava Lala, J. (as His Lordship then was) observed as under:

"2. Before entering into the dispute, we have to consider the scope and ambit of the writ jurisdiction as it has been held in Life Insurance Corporation of India and other v. Asha Goel (Smt.) and another, 2001 (2) SCC 160. Supreme Court held that the determination of the question under the writ jurisdiction will depend on consideration of several factors, like, whether a writ petitioner is merely attempting to enforce his/her contractual rights or the case raises important questions of law and constitutional issues; the nature of the disputed raised; the nature of inquiry necessary for determination of the dispute etc. The matter is to be considered in the facts and circumstances of each case. While the jurisdiction of the High Court to entertain a writ petition under Article 226 of the Constitution can not be denied altogether, Court must bear in mind the selfimposed restriction consistently followed by High Courts all these years after the constitutional power came into existence in not entertaining writ petitions filed for enforcement of purely contractual rights and obligations which involve disputed question of facts.

3. According to us, the Insurance Act, 1938 with the latest amendment is a beneficial piece of legislation. Therefore, if a benefit which the petitioner is legally entitled has been refused, Court cannot enter upon the arena to render equitable justice. The Court of equity can not shut out the eyes taking plea that there is mere or bare disputed question of fact. The disputed question of fact ipso facto can not be ground for rejection unless or until it is proved beyond the doubt before Court of equity under Article 226 of the Constitution of India that the dispute is such that can not be resolved by the writ jurisdiction at all. If we place factum of case within the guidelines of the Supreme Court in Asha Goel (AIR 2001 SC 549) (supra), we shall have no doubt in our mind that the writ jurisdiction can be invoked in the circumstances."

55 The learned A.G.P. placed strong reliance on a decision of the Supreme Court in the case of Bhaskar Jyoti (supra). Much emphasis Page 48 of 53 C/SCA/3995/1990 CAV JUDGMENT was laid on the observations of the Supreme Court made in para 15. Para 15 reads as under:

"In support of the contention that the respondents are even today in actual physical possession of the land in question reliance is placed upon certain electricity bills and bills paid for the telephone connection that stood in the name of one Mr. Sanatan Baishya. It was contended that said Mr. Sanatan Baishya was none other than the caretaker of the property of the respondents. There is, however, nothing on record to substantiate that assertion. The telephone bills and electricity bills also relate to the period from 2001 onwards only. There is nothing on record before us nor was anything placed before the High Court to suggest that between 7th December, 1991 till the date the land in question was allotted to GMDA in December, 2003 the owner or his legal heirs after his demise had continued to be in possession. All that we have is rival claims of the parties based on affidavits in support thereof. We repeatedly asked learned counsel for the parties whether they can, upon remand on the analogy of the decision in the case of State of Gujarat vs. Gyanaba Dilavarsinh Jadega [(2013) 11 SCC 486], adduce any documentary evidence that would enable the High Court to record a finding in regard to actual possession. They were unable to point out or refer to any such evidence. That being so the question whether actual physical possession was taken over remains a seriously disputed question of fact which is not amenable to a satisfactory determination by the High Court in proceedings under Article 226 of the Constitution no matter the High Court may in its discretion in certain situations upon such determination. Remand to the High Court to have a finding on the question of dispossession, therefore, does not appear to us to be a viable solution."

56 The observations of the Supreme Court referred to above fell in the peculiar facts of the case. The Supreme Court took notice of the fact that the rival submissions of the parties were based on affidavits in support thereof. The Supreme Court inquired with the parties whether they would be in a possession on remand adduce any documentary evidence that would enable the High Court to record a finding in regard to the actual possession. Since the parties were unable to point out or refer to any suggestion, the Supreme Court, ultimately, took the view that the question being a seriously disputed question of fact would not be amenable to a satisfactory determination by the High Court in Page 49 of 53 C/SCA/3995/1990 CAV JUDGMENT proceedings under Article 226 of the Constitution of India.

57 So far as the case on hand is concerned, the officers, who were present in the Court and assisting the learned A.G.P., made themselves very clear that the families are residing in the property.

58 It appears from the materials on record that an ex parte paper panchnama was drawn dated 8th June 1990 by the authority to show that possession of the land has been taken over. However, it is pertinent to note that this fact was not disclosed till 12th May 1999 i.e. when the present petition came to be disposed of for the first time. In the panchnama itself, there is a reference of five houses standing on the plots Nos.11 and 12. I do not find the signature of the petitioner on the said panchnama. I do not find anything to show as to who were the witnesses. The identity of the witnesses also remain a mystery. Their addresses are also not stated in the panchnama. There is no description as to how the possession of the constructed property was taken over. The are no details of eviction of persons in actual possession of those five houses. No notices were issued to any of the holders residing in those five houses, more particularly, no notice under Section 10(6) of the Act ever came to be issued. In this factual background, the State has conceded that as on date, the families are residing in those five houses. If the possession was taken over way back in the year 1990, then how come that the families are residing as on date? How is it possible that the electricity bills are received by the families at the particular address? How can the Ahmedabad Municipal recover tax from the occupiers of the houses?

59 As stated above, the averments made in para 13A have neither been refuted nor they have been rebutted in any manner. To rebut is to try to prove something which is not true, but to refute is to actually Page 50 of 53 C/SCA/3995/1990 CAV JUDGMENT prove that the fact is not true.

60 A learned Single Judge of his Court in the case of Indrajitsing (supra), while dealing with an identical case like the one at hand, observed in paras 26, 27 and 28 as under:

"26. As regards the veracity of the panchnama dated 22nd January, 1992, from the facts noted above, it is apparent that the same does not inspire much confidence. The said panchnama is beset with innumerable infirmities as rightly pointed out by the learned Advocate for the petitioner. Not only does the panchnama not bear the signature of the officer who was authorised by the competent authority to take over possession of the subject lands, the same does not even reflect the actual position of the subject lands. From the overwhelming evidence on record, it is apparent that the subject lands have existing constructions thereon, despite which there is nary a whisper as regards the same in the said panchnama. Apart from the fact that there is no reference to any existing construction in the panchnama, even the marking against specific columns providing for different contingencies do not reflect the correct position. Besides, in absence of complete and correct addresses of the witnesses to the panchnama, it is difficult to comprehend as to how they would be located if the said panchnama is required to be proved before a Court of law. Though the statute does not provide any specific format of panchnama or the manner in which possession of excess vacant lands is to be taken over, but at the same time there has to be some semblance of proper procedure having been followed, which is miserably lacking in the present case.

27. Another aspect which is required to be noted is that as a matter of practice, the concerned officer who has been authorized by the competent authority to take over the possession of any land on behalf of the State Government, upon taking over possession of such land makes a report regarding taking over of possession of such land to the competent authority. However, upon perusal of the record of the case, no such report appears to have been made in the present case.

28. From the facts noted above it is apparent that insofar as the proceedings after the stage of section 10(3) of the Act are concerned, the same appear to have been carried out in the most casual and perfunctionary manner. Where valuable rights of citizens are concerned the authorities under the Act are required to strictly comply with the provisions of law and any deviation therefrom cannot be countenanced. In the circumstances, it cannot be said that the respondent authorities have taken over the possession of the subject lands, in accordance with law. As Page 51 of 53 C/SCA/3995/1990 CAV JUDGMENT possession of the subject lands cannot be said to have been taken over lawfully, the alleged possession vide panchnama dated 22nd January, 1992 can be said to be non est and as such the provisions of section 4 of the said Act would be attracted and the proceedings would abate."

61 I inquired with Mr. Sharma, the learned A.G.P. to point out from the record whether the concerned officer, who had been authorised by the competent authority to take over the possession of the land in question, upon taking over the possession of the land, had made any report regarding taking over of the possession of such land to the competent authority. Mr. Sharma, after taking appropriate instructions in this regard, pointed out that there is no such report on record.

62 In the overall view of the matter, I have reached to the conclusion that it cannot be said that the respondent authorities took over the possession of the subject land including the five houses standing on the land in accordance with law. As the possession of the subject land and the five houses standing on the said land could not be said to have been taken over lawfully, the alleged possession, vide panchnama 8th June 1990, can be said to be non est and as such, the provisions of Section 4 of the Act would be attracted and the proceedings stood abated.

63 It is declared that the possession of the subject land has not been taken over on behalf of the State Government in accordance with the provisions of the Act. The panchnama dated 8th June 1990 suffers from incurable infirmities and therefore, it cannot be considered to be proof of possession having been taken over and as such cannot be sustained. The same is, accordingly, quashed and set aside.

64 In view of the findings recorded above, the respondent authorities have not been able to establish that the possession of the subject land Page 52 of 53 C/SCA/3995/1990 CAV JUDGMENT had been taken over on behalf of the State Government prior to the coming into force of the Repeal Act. Under such circumstances, having regard to the provisions of Section 4 of the Repeal Act, the proceedings under the Act abate. In such circumstances, the impugned orders will not have any effect and shall not remain in operation.

65 The petition is allowed accordingly and disposed of. The parties shall bear their own costs.

66 In view of the order passed in the main matter, the connected Miscellaneous Civil Application for review would not survive and the same is disposed of.

(J.B. PARDIWALA, J.) CHANDRESH Page 53 of 53

Unlock Advanced Research with PRISMAI

Gujarat High Court