Gujarat High Court
Shri Bharat Hand Weaving Mills ... vs State Of Gujarat on 10 January, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7131 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SHRI BHARAT HAND WEAVING MILLS PARTNERSHIP FIRM THROUGH
PARTNERS
Versus
STATE OF GUJARAT
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Appearance:
MR MEHUL SHARAD SHSH for MR VINOD M GAMARA(5910) for the
Petitioner(s) No. 1,1.1,1.2,1.3,1.4,1.4.1,1.4.2
MR BHARAT VYAS, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 10/01/2022
ORAL JUDGMENT
1 By way of the petition, the petitioners have prayed for the following reliefs: Page 1 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022
C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 "[A] Hon'ble Court be pleased to admit and allow this petition;
[B] Hon'ble Court be pleased to issue a writ of certiorari, or a writ in the nature of Mandamus, or any other appropriate writ, order or direction for quashing and setting aside the impugned order passed by Respondent No.1 i.e. Ld. Secretary, Revenue Department, Gandhinagar in No.ULC/10215/45/V-1 dated 01/03/2019 and also be pleased to direct the revenue authority to restore the land of the applicant admeasuring 14688 square meters from the surplus land list in the interest of justice;
[C] Hon'ble Court be pleased to pending the hearing and final disposal of this petition, to stay the implementation, operation and execution of impugned order passed by Respondent No.1 i.e. Ld. Secretary, Revenue Department, Gandhinagar in No.ULC/10215/45/V-1 dated 01/03/2019 and further be pleased to direct th4e respondent authorities to not take de-facto possession of the disputed land from the applicants and maintain status-quo with regard to the possession of the disputed land in the interest of justice;
[D] Hon'ble Court be pleased to direct the concerned authority to give opportunity to the present applicant of being heard and represent his case under the provisions of the Urban Land Ceiling Act, 1976 before the Review Committee constituted by the Revenue Department, Government of Gujarat by passing resolution being no.S-30/General-493/06/V-4 dated 20/10/2015;
[E] Hon'ble Court be pleased to direct the respondent to release the disputed land in Page 2 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 favour of present applicants partnership firm which is declared as excess land in the interest of justice;"
2 Heard learned advocate Mr. Mehul Shard Shah with Mr. Vinod Gamara, learned advocate for the petitioners and Mr. Bharat Vyas, learned Assistant Government Pleader for the State respondents. With the consent of learned advocates for the parties, the matter is taken up for final hearing.
3 Rule. Mr. Bharat Vyas, learned Assistant Government Pleader waives service of notice of Rule on behalf of State respondents.
4 Brief facts giving rise to the present petition are as under:
4.1 In the year 1963, a partnership firm in the name and style of Shree Bharat Hand Weaving Mills was established by late Gunvantrai Mohanlal Joshi, Harish Himmatlal Seth, Rajendra Himmatlal Seth and Prashant Himmatlal Seth and as late Gunvantrai Mohanlal Joshi.
Since Harish Himmatlal Seth died, the present Page 3 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 petition is filed through their legal heirs, who were joined as partners in the partnership firm vide partnership deed dated 20.9.2015 and at present the petitioners are existing partners of the aforesaid firm i.e. Shree Bharat Hand Weaving Mills. 4.2 The aforesaid partnership firm applied for grant of land for the purpose of establishment of an industry, and therefore, the Collector, Rajkot allotted government vest land bearing survey No.111 paiki situated at Village Madhapar, Taluka & District Rajkot admeasuring Acres 4-00 Gunthas (for short, `the land in question') to the partnership firm for industrial purpose vide order dated 4.5.1970. As per the order of allotment dated 4.5.1970 the petitioners were required to pay a sum of Rs.10,800/- towards price of the aforesaid land, which was paid by the petitioners on 30.7.1970 and possession of the land in question was handed over to the petitioner firm on 11.8.1970.
4.3 Thereafter, as the Urban Land (Ceiling and Regulation) Act, 1976 (for short, 'ULC Act') came Page 4 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 into force. The petitioners filed form under the provisions of Section 6 of the ULC Act on 14.9.1976 and the Collector, Rajkot vide order dated 14.8.1980 cancelled the order of allotment of the land in question in favour of the petitioners. Being aggrieved by the aforesaid order, the petitioners preferred Revision Application No.SRD.LND.R.347/81 under Section 211 of the Bombay Land Revenue Code before the Special Secretary, Revenue Department. However, the aforesaid revision application was returned by the Special Secretary, Revenue Department vide order dated 24.10.1981 on the ground that he has no power to decide the revision application. 4.4 The petitioners challenged the aforesaid order dated 24.10.1981 by preferring Special Civil Application No.6580 of 1985. During the pendency of the aforesaid petition, it came to the knowledge of the petitioners that on 12.6.1994, the Revenue Department of the State had cancelled the order dated 14.8.1980 whereby the order dated 4.5.1970 was cancelled and ultimately the original order of granting disputed land dated 4.5.1970 was restored Page 5 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 vide order dated 12.6.1984. Accordingly, the Collector, Rajkot passed consequential order dated 25.7.1984. This Court vide order dated 5.12.1985 summarily rejected Special Civil Application No.6580 of 1980 by observing that as the order dated 4.5.1970 granting the land in question in favour of the petitioner is continued and as the order dated 14.8.1980 has been withdrawn nothing remains in the petition.
4.5 In the meantime, pursuant to the form filled up by the petitioner in respect of the proceedings under Section 6(1) of the ULC Act, the Collector, Rajkot passed an order dated 11.4.1988 forfeiting the land in question allotted to the petitioner. The petitioner challenged the order dated 11.4.1988 passed by the Collector, Rajkot by filing Special Civil Application No.733 of 1989. This Court while issuing rule vide order dated 23.6.1994, granted interim relief in favour of the petitioner, which reads as under:
"Rule. Heard learned counsel for the parties on Page 6 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 interim relief. Interim relief is granted to the extent that the possession and enjoyment of the land in question is in the hands of the petitioner shall not be disturbed".
Ultimately, vide CAV Judgment dated 5.12.2000 this Court allowed Special Civil Application No.733 of 1989 and order dated 11.4.1988 forfeiting the land was quashed by this Court. After Special Civil Application No.733 of 1989 came to be decided in favour of the petitioners vide CAV judgment dated 5.12.2000, the petitioners came to know that during the pendency of Special Civil Application N.733 of 1989, the respondent authority had initiated proceedings under the provisions of ULC Act and even had issued notice under Section 10(3) of the Act on 27.12.1993 to the petitioners and had declared the land admeasuring 14688 square meters as excess land and the aforesaid fact was also recorded in revenue record vide entry No.1094 dated 4.5.2000. 4.6 In the meantime, ULC Act was repeated in the year 1999 and as per Section 4 of the Repeal Act, the proceedings under the ULC Act would stand abated, Page 7 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 if the possession of the land in question remains with the owner of the land.
4.7 The petitioner by relying upon the interim order dated 23.6.1994, whereby this Court protected the possession of the petitioner while passing interim order in Special Civil Application No.733 of 1989, made representations to the respondent authorities on 27.10.2015, 20.5.2017, 14.5.2018, 3.7.2018 and 30.7.2018 claiming that in view of the Repeal Act, proceedings against the petitioners under ULC Act also abated, and according to the petitioner de facto possession of the land was never taken, the land in question is required to be handed over to the petitioners. One of the grounds taken by the petitioners in the above referred representations was that the Mamlatdar, Rajkot had given an opinion dated 13.11.2013 to the Collector, Rajkot stating that as the petition was pending before the High Court, the proceedings under ULC Act were null and void and as this Court had allowed the petitioner in favour of the petitioner, the entire proceedings are abated. Page 8 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022
C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 4.8 Pursuant to the representations made by the petitioners, the Deputy Secretary, Revenue Department, State of Gujarat i.e. respondent No.1 vide communication / order dated 1.3.2019 intimated the petitioners that possession of the land in question was taken over by the Government on 27.12.1993 after the proceedings under the ULC Act were over, and therefore, as the land was vested into the Government, the request of the petitioners to delete the land in question from the list of excess land was rejected. It is the aforesaid order / communication dated 1.3.2019, which is under challenge by way of this petition.
5 Mr. K.B.Thakkar, Resident Additional Collector, Rajkot filed affidavit in reply dated 3.9.2021 on behalf of respondent No.3 denied the claim of the petitioners. In para 7 of the affidavit in reply, the deponent of the affidavit in reply stated about the proceedings under the ULC Act against the petitioners and the petitioner firm has filled up form under Section 6 of the Act by showing names of all the partners and pursuant to filling up Page 9 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 the form, draft statement and notice under Section 8(1) and 8(3) of the Act were issued upon the petitioner firm on 5.11.1982 and as no objections were received from the petitioner in respect of the draft statement, a final statement under Section 9 of the ULC Act was issued vide order dated 29.10.1984. 5.1 Thereafter, the authority had issued notification under Section 10(1) dated 18.9.1991 and the same was published in the Government Gazette dated 21.11.1991 whereby the land which was to be acquired was declared. Thereafter the competent authority issued notification under Section 10(3) of the ULC Act on 30.10.1993 and declared the excess vacant land referred to in the notification published under Section 10(1) of the ULC Act and the land was vested into the Government. The notification dated 30.10.1993 was published in the Government Gazette on 9.12.1993. Thereafter, as per the affidavit, the competent authority issued notification under Section 10(5) of the Act on 27.12.1993 for taking over possession of the vacant land and actual possession of the land in question was taken over on 23.2.1994 Page 10 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 in presence of panchas by drawing Panch Rojkam, and therefore, de facto possession of the land in question was taken vide communication dated 21.3.1994. In the affidavit in reply, it is further stated that the petitioner was informed by ULC authority vide communication dated 21.3.1994 that the possession of the land in question is taken over by the State Government. As per the affidavit, even vide notice dated 23.3.1994 issued under Section 11 of the ULC Act the petitioner was informed about the determination of the amount of compensation in respect of the land acquired and the objections from the petitioner were also invited. On perusal of annexure attached to the reply, it is transpired that vide order dated 8.8.1995 passed by the competent authority and Deputy Collector, ULC, Rajkot, the amount of compensation was determined at Rs.73,440/-. 5.2 As per the affidavit in reply, after following the procedure under the ULC Act, the actual possession of the land in question was taken on 23.2.1994, whereas the stay in favour of the petitioner was granted vide order dated 23.6.1994, Page 11 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 and therefore, as the possession was taken over by the Government much prior to the day on which the stay was granted to the petitioner i.e. on 23.6.1994, by that time, the land had already been vested into the Government and possession was already taken over.
6. Mr. Mehul Sharad Shah, learned advocate for the petitioners, submitted that the possession of the land in question was never taken over by the respondent State inasmuch as when the relief was granted in favour of the petitioner vide order dated 24.6.1994 passed in Special Civil Application No.733 of 1989, though State was party to the petition, it was never pointed out by the State that the possession of the land in question was not with the petitioners and actually the State has taken over the possession much before the relief was granted in favour of the petitioner. Learned advocate Mr. Shah submitted that even thereafter though the relief was in operation in favour of the petitioners from 23.6.1994 till 5.12.2000 when the petition was ultimately allowed by this Court, at no point of time the respondent authorities either brought it to the Page 12 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 notice of the Court that the possession of the land in question was taken over by them or they came out with any proper application for modification of the order bringing the aforesaid facts on record that the possession has already been taken over by the State. Learned advocate Mr. Shah submitted that this itself sufficient to establish that the possession of the land in question was actually not taken over by the State respondents on 23.2.1994.
6.1 Learned advocate Mr. Shah submitted that there is a difference between de jure possession and de facto possession. The provisions of the Act and catena of decisions enlighten about what can be said to be taking over actual possession. The State can claim to have taken over possession only if de facto possession is taken over by the State. He further submitted that in the instant case, no notice was given to each and every partner of the petitioner company, who had filled the form under the provisions of ULC Act and even proceedings under ULC Act were not carried out in accordance with law. Page 13 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 6.2 Learned advocate Mr. Shah drew attention of this Court to the notice issued to the petitioner company under Section 10(5) of the ULC Act. The said notice bears the date of 27.12.1993 and stated to have served through the respondents by Registered Post A.D. After pointing out the aforesaid fact, Mr. Shah drew attention of this Court to various communications by the respondents wherein they have stated that the respondents have taken over possession of the land in question ex parte on 27.12.1993. Learned advocate Mr. Shah submitted that on one hand the State is claiming to have taken over possession of the land in question by drawing panchnama on 23.1.1994 as stated in the affidavit in reply filed by the respondent No.3 and on the other hand in some of the communications, the State has stated that the possession of the land in question was taken over on 27.12.1993, which suggests that there is a contradiction in the stand of the State. Learned Mr. Shah further submitted that the notice under Section 10(5) of the Act dated 27.12.1993 indicates that the same was served upon the petitioner through Registered Post A.D. It is further Page 14 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 submitted that had the notice was sent through Registered Post A.D. on 27.12.1993, then it would have taken some time to reach the petitioner and thereafter also as per the provisions of Section 10(5) of the Act, within a period of 30 days the petitioner was to hand over possession of the land in question. Whereas, in the instant case, the date on which notice under section 10(5) was given to the petitioner i.e. on 27.12.1993 it was the case of the respondents that on the same day, the possession of the land in question was taken over, which can be seen from various communications, which are part of the record of the petition. He, therefore, submitted that the entire record is manipulated and no de facto possession of the land in question was taken by the State and the panchnama, etc. and other formalities completed by the State authorities was simply by sitting at their office and no de facto possession is taken over by the State authorities. 6.3 Learned advocate Mr. Shah further submitted that once Special Civil Application No.733 of 1989 was allowed vide order dated 5.12.2000, whereby the Page 15 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 order dated 11.4.1988 forfeiting the land in favour of the petitioner was quashed and set aside, the Government was duty bound to hand over possession of the land to the petitioner. He submitted that in fact at no point of time, after filling of the form under Section 6(1) of the ULC Act, the petitioners were informed about the ongoing proceedings or about the orders passed in those proceedings. It is further submitted that as the petitioners were never heard at any point of time even on the ground of principles of natural justice also, the entire proceedings vitiated and the subject land is required to be given back to the petitioners by deleting the aforesaid land from the list of excess land. Learned advocate Mr. Shah relied upon the following judgments in support of his submissions:
[1] Municipal Corporation, Rajkot vs. Lavjibhai M. Patel, Through His P.O.A. Holder Rajesh J.
Doshi [2000(3) GLR 2293].
[2] Indrajitsing P. Geel vs. Competent Authority & Deputy Collector & Anr. [2006(3) GLH Page 16 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 487].
[3] Laxmanbhai K. Chokshi vs. Competent Authority and Additional Collector (ULC) [2007(3) GLR 2231].
[4] State of Uttar Pradesh vs. Hari Ram [(2013)4 SCC 280].
[5] Gajanan Kamlya Patil vs. Addl. Collector & Competent Authority [2014(2) Scale 286].
[6] Heirs of K.G.Tripathi - Since Decd. Through Legal vs. State of Gujarat [2014(0) GLHEL-HC 231434].
[7] Gordhanbhai Motibhai Patel & Ors. vs. Competent Authority & Dy. Collector & Ors. [2016 LawSuit (Guj) 1077].
[8] State of Gujarat through Competent Authority vs. Ramilaben A. Lakdawala Since Decd.
[2018(0) AIJEL-HC 239015].Page 17 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022
C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 [9] Manilal Damodar Joshi Since Decd. Thro Legal Heirs vs. State of Gujarat [2018(0) AIJEL-
HC 239042].
[10] K. Lal @Kantilal Girdharlal Vora Decd. Thro Heirs vs. State of Gujarat [2019(0) AIJEL-HC 241662].
[11] Shyam Rang Co-operative Housing Society Limited vs. State of Gujarat [2020(1) GCD 432].
[12] State of Assam vs. Bhaskar Jyoti Sarma & Ors. [(2015)5 SCC 321].
6.4 In view of the above learned advocate Mr. Shah submitted that the impugned action of the respondent authorities is illegal and deserves to be quashed and set aside as the respondents have failed to comply with the mandatory provisions of Section 10(5) and 10(6) of the ULC Act as the respondent authorities did not wait for a prescribed period of 30 days for the petitioner to surrender the Page 18 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 possession voluntarily and thereafter if the petitioner had failed to surrender the possession voluntarily, the petitioner was required to be given notice under Section 10(6) of the ULC Act. However, in the instant case, the aforesaid mandatory provisions are not complied with by the respondents as the respondents have never issued notice under Section 10(6) of the Act, and therefore, the entire proceedings would vitiate as per learned advocate Mr. Mehul Sharad Shah.
6.5 Relying upon the aforesaid judgments, learned advocate Mr. Shah also submitted that the notice was required to be given to all the four partners of the petitioner - partnership firm, whereas, the documents produced by the respondent No.3 would clearly indicate that the communication was done with the respondent only with one partner -
Harish Himmatlal Seth, which is not permissible under law, and therefore also, the impugned order is required to be quashed and set aside.
6.6 Mr. Mehul Sharad Shah, learned advocate for Page 19 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 the petitioners submitted that the respondents were required to take de facto possession of the land in question and not de jure possession. However, the discrepancy in the record of the respondents would suggest that at no point of time de facto possession of the land in question was ever taken over by the respondents and hence the petition is required to be allowed by granting prayers made in the petition. 6.7 Learned advocate Mr. Mehul Sharad Shah challenged the very proceedings under the ULC Act by resorting to the definition of `vacant land' and submitted that as per the definition of `vacant land' as defined under Section 2(q) of the Act, the land in question cannot be termed as vacant land, and therefore, the proceedings under ULC Act are without any jurisdiction.
6.8 On the strength of the above submissions, learned advocate Mr. Mehul Sharad Shah appearing for the petitioners, prayed to quash and set aside the impugned order.
Page 20 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022
C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 7 As against the above, Mr. Bharat Vyas, learned Assistant Government Pleader, submitted that order dated 11.4.1988 forfeiting the land was challenged by the petitioner by filing Special Civil Application No.733 of 1989 and the proceedings under ULC Act are absolutely different and separate proceedings. The ULC proceedings commenced from 1976 as the petitioner filled up the form as per the Section 6(1) of the ULC Act on 14.9.1976, the date on which the petitioner filled up the form the proceedings under ULC Act can be said to have been started, whereas, what was under challenged by way of Special Civil Application No.733 of 1989 was an order dated 11.4.1988 forfeiting the land in question, which is allowed by this Court. The scope and ambit of Special Civil Application No.733 of 1989 can be said to have been limited only upon the validity and correctness of the order forfeiting the land in question. The ULC Act being altogether different Act and not even remotely connected with the aforesaid proceedings, the petitioners cannot claim that once the petition in respect of the order forfeiting the land in question was allowed, the petitioners can Page 21 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 take the benefit of the aforesaid proceedings as well as the proceedings under ULC Act.
7.1 Mr. Bharat Vyas, learned Assistant Government Pleader, submitted that the order granting relief in favour of the petitioner was passed on 23.6.1994, whereas, the possession of the land in question was taken over by the respondent authorities by drawing panchnama on 23.2.1994. From the record, Mr. Vyas pointed that the notice dated 27.12.1993 under Section 10(5) was duly served upon the petitioner on 8.1.1994 and in fact photocopy of the Registered Post A.D. receipt also was produced at page 149 (Annexure-7 to the affidavit in reply filed on behalf of respondent No.3). Not only that as it can be seen from the affidavit in reply filed by the respondent No.3, the petitioner was intimated about the draft statement and notice under Section 8(1) and 8(3) of the ULC Act. The aforesaid notice was given to the petitioner on 5.11.1982 and as no objections were received from the petitioner. A final statement was issued vide order dated 29.10.1984. During this period, Special Civil Application No.733 of 1989 was Page 22 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 not even filed and the proceedings under the ULC Act were going on. However, the petitioner did not participate in those proceedings. Mr. Vyas, learned Assistant Government Pleader, submitted that in fact notification under Section 10(1) dated 18.9.1991 was published in official Gazette on 21.11.1991 and notification under Section 10(3) dated 30.10.1993 vesting the land into Government was also published in Official Gazette on 9.12.1993. However, the petitioners never objected to any of these proceedings. Learned Assistant Government Pleader submitted that thereafter notice under Section 10(5) of the ULC Act was issued and the same was served upon the petitioner on 8.1.1994. In spite of the fact that the aforesaid notice was served upon the petitioner, the petitioner never challenged the said proceedings nor challenged the notice under Section 10(5) of the ULC Act and ultimately possession of the land in question was taken over by respondents by drawing panchnama on 23.2.1994. Mr. Vyas, learned AGP submitted that though the possession was taken over on 23.2.1994, it was the duty of the petitioners to point out before this Court during the hearing of Page 23 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 Special Civil Application No.733 of 1989 that notice under Section 10(5) of the ULC Act was served upon the petitioner on 8.1.1994 and pursuant thereto the possession was taken over. At least, at the point of time, when notice under Section 10(5) was served upon the petitioners, the petitioners could have inquired about what happened in furtherance of the aforesaid notice as the notice was served upon the petitioner on 8.1.1994 and possession was taken over by drawing panchnama thereafter on 23.2.1994, whereas the relief was granted in favour of the petitioner on 23.6.1994, and therefore, it was the duty of the petitioners to point out that pursuant to ULC proceedings, the possession was taken over from the petitioners. The petitioners did not disclose this fact at the relevant point of time, and therefore, stay was granted and continued till disposal of the petition. It was submitted that the petition was allowed in favour of the petitioners and order dated 11.4.1988 was quashed, which was about forfeiture of land which was allotted to the petitioner. The aforesaid order was not with regard to ULC proceedings, and therefore, as the petitioners have never challenged Page 24 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 the ULC proceedings, the said proceedings attained finality and the possession of the subject land was taken over by the respondent authorities on 23.2.1994.
7.2 Mr. Bharat Vyas, learned AGP, from the record pointed out that after the judgment dated 5.12.2020 was delivered, the petitioners made the first representation pursuant to the land in question on 27.10.2015 i.e. almost after a period of 15 years. There is no explanation for the inordinate delay and in fact it shows that the petitioners have neither challenged the aforesaid ULC proceedings till date nor the petitioners had done anything to establish that they were in possession of the land in question and after a delay of almost 24 years after taking over the possession of the land in question on 23.2.1994, at this belated stage in the year 2019 the petitioners have preferred this petition and claimed that the possession is with the petitioners and that the de facto possession was never taken from the petitioners.
Page 25 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 7.3 Mr. Bharat Vyas relies upon the following judgment in support of his submissions:
[1] Sulochana Chandrakant Galande vs. Pune Municipal Transport & Ors. [(2010)8 SCC 467].
[2] Ganshyambhai Bhikhabhai Mistry vs. State of Gujarat [2013(2) GLR 1016].
[3] Balwant Narayan Bhagde vs. M.D.Bhagwat & Ors. [(1976)1 SCC 700].
[4] Sita Ram Bhandar Society, New Delhi vs. Lieutenant Governor, Government of NCT, Delhi & Ors. [(2009)10 SCC 501].
[5] State of Assam vs. Bhaskar Jyoti Sarma & Ors. [(2015)5 SCC 321].
[6] Dineshkumar Jagubhai Patel vs. The State of Gujarat & Ors. [Special Leave to Appeal (C) No.7636 of 2021 - date of order 28.6.2021].Page 26 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022
C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 [7] Dineshkumar Jagubhai Patel vs. The State of Gujarat & Ors. [Letters Patent Appeal No.332 of 2017 - CAV Judgment dated 5.3.2021].
[8] Heirs of Dec. Jethabhai Ishwarbhai vs. State of Gujarat & Ors. [Letters Patent Appeal No.405 of 2017 - CAV Judgment dated 22.1.2021].
[9] Heirs of Dec. Jethabhai Ishwarbhai vs. State of Gujarat & Ors. [Special Civil Application No.11044 of 2000 - Oral Judgment dated 4.10.2016].
7.4 By relying on the aforesaid judgments, learned AGP submitted that in fact once the land is vested into the Government on publication of Section 10(3) notification, notice under Section 10(5) and 10(6) is merely a formality. He, therefore, submitted that the petitioners have never challenged the proceedings under the ULC Act and that by relying judgment in the case of Bhaskar Jyoti Sarma (supra), learned AGP submitted that it is not mandatory that possession of the land in question can be taken over Page 27 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 only after serving notice under Section 10(5) and 10(6). The due process has been followed by the respondent authorities and after following the entire procedure, de facto possession of the land in question was taken over. He, therefore, submitted that the possession was taken over by the State on 23.2.1994, and after almost more than 25 years, it is not open for the petitioners to question those proceeding as the petitioners have never challenged or participated the proceedings initiated under the ULC Act and on the basis of the aforesaid arguments, learned AGP prayed for dismissal of the petition.
8 Having heard learned advocates for both the sides, and on perusal of the record as also the original record which was called for vide order dated 14.12.2021, the following facts emerge on record.
[1] The land allotted to the petitioners vide order dated 4.5.1970 was forfeited vide order dated 11.4.1988 and the said action was challenged by filing Special Civil Application No.733 of 1989.
Page 28 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 [2] Before Special Civil Application No.733 of 1989 was filed, the proceedings under ULC Act were already started as the petitioner filled up the form under Section 6(1) of the Act on 14.9.1976 as averred by the petitioner himself in para 3.3 of the petition.
[3] When Special Civil Application No.733 of 1989 was preferred by the petitioners challenging the order dated 11.4.1988 at that time, the proceedings under ULC Act were not concluded. As stated in affidavit in reply filed by respondent No.3, draft statement and notice under Section 8(1) and 8(3) of the ULC Act were also issued to the petitioner on 5.11.1982 and as no objections were received by the petitioners in respect of the draft statement, a final statement as per Section 9 of the ULC Act was issued on 19.10.1984. This would indicate that the proceedings under ULC Act were commenced earlier and those proceedings were going on at the time when order dated 11.4.1988 Page 29 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 was passed and when the same was challenged by way of Special Civil Application No.733 of 1989. [4] As stated in the affidavit in reply by the respondent No.3, the petitioner was duly intimated by notice under Section 8(1) and 8(3) of the ULC Act that out of total Acres 4-00 Gunthas of land situated at Village Madhapar, which was allotted to the petitioner, 1500 square meters of land was considered as retainable, whereas, remaining 14688 square meters of land was considered as surplus. So, at the time when the aforesaid draft statement under Section 8(1) and 8(3) notices was issued on 5.11.1982 and final statement was issued on 29.10.1984. Vide order dated 11.4.1988 the land was forfeited and the said action was challenged by the petitioners by filing Special Civil Application No.733 of 1989, even at that time the proceedings under the ULC Act were not over. In fact, the notification under Section 10(1) dated 18.9.1991 was published in the Gazette dated 21.11.1991 and notification under Section Page 30 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 10(3) dated 30.10.1993 was also published in the official gazette dated 9.12.1993. By way of notification under Section 10(3) the land in question was directed to be vested into the Government. That Section 10(3) notification was duly published in the Government Gazette also on 9.12.1993 and during this period there was no stay or relief in favour of the petitioners in Special Civil Application No.733 of 1989. Even thereafter when notice dated 27.12.1993 under Section 10(5) was issued for taking over possession of the land in question, the aforesaid notice was sent to the petitioner by Registered Post A.D. As per the record, the receipt of the Registered Post A.D. was produced at Page 149 Annexure-VII to the reply affidavit filed by respondent No.3. The aforesaid notice was received by the petitioners on 8.1.1994. The notice under Section 10(5) contemplates that from the date of receipt of the notice, possession of the land is required to be handed over to the respondents voluntarily within a period of 30 days. If it is considered that the Page 31 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 notice was received on 8.1.1994 by the petitioner, then also possession of the land in question was taken over by the respondent authorities on 23.2.1994 by drawing a panchnama, as per the reply affidavit of the respondent No.3.
[5] This would indicate that the possession of the land was taken over by the respondent authorities after completing formalities prescribed under the Act, and therefore, what is remained to be seen is that once the period prescribed under Section 10(5) of the Act was over, whether the respondent No.3 had taken de facto possession or not.
[6] It is the case of the petitioners that on 26.6.1993 when this Court granted relief to the petitioner by passing an order of status quo, the respondents did not point out that the possession was already taken over on 23.2.1993 which would indicate as per the case of the petitioners that as such no de facto possession Page 32 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 was ever taken on 23.2.1993.
However, what is important is the subsequent communication made by the competent authority and Deputy Collector, ULC, Rajkot dated 23.3.1994 whereby the petitioner was informed that once the land was acquired, for
determination of the amount of compensation the petitioner was called upon to raise any grievance or objection in respect of determination of amount of compensation at 11.30 am on 28.3.1994, which is indicated in the letter at the top. Even the aforesaid communication also was sent through Registered Post A.D. [7] A reference about the aforesaid communication dated 23.3.1994 is made in sub- para (ix) in para 7 of the affidavit in reply. However, though the affidavit was filed and the petitioners had received the affidavit, the petitioners have not filed any rejoinder to the foresaid reply affidavit and denied the fact Page 33 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 that they have never received either the notice under Section 10(5) of the Act or the communication dated 23.3.1994, both of which were sent through Registered Post A.D. and even receipt of Registered Post A.D. slip of 10(5) notice, which indicates that the petitioners received the same on 8.1.1994, is produced on record.
The aforesaid would clearly indicate that the date on which the relief in the nature of status quo was granted on 23.6.1994 in Special Civil Application No.733 of 1989, the petitioners were well aware about the fact that the proceedings under the ULC Act have attained finality, possession of the land in dispute was taken over by the respondent authorities and even the petitioners were called upon to raise objections in respect of determination of amount of compensation. Therefore, it was for the petitioners to inform this Court in Special Civil Application No.733 of 1989 that the day on which the Court passed order directing the Page 34 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 parties that the possession and enjoyment of the land in question at the hands of the petitioner shall not be disturbed pending the hearing and disposal of the petition, in fact the possession of the land in question was already taken over by the State.
[8] It is true that even the respondents also did not point out about the foresaid aspect either at the time of passing the order dated 23.6.1994 or during the pendency of the petition, but merely because the aforesaid facts were not brought to the notice of the Court cannot not vitiate the entire proceedings under the ULC Act and merely because the aforesaid facts were not brought to the notice of the Court at the relevant point of time during the pendency of the petition, the petitioner cannot take any advantage of the aforesaid lapse on the part of the State because the possession was already taken over.
8.1 In view of the above, the argument made by Page 35 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 learned advocate Mr. Mehul Sharad Shah that actual possession of the land in question was not taken over on 23.6.1994 when the Court granted relief in favour of the petitioners cannot be accepted. In fact, the petitioners were having knowledge about the on-going parallel proceedings under the ULC Act and yet instead of participating in those proceedings, the petitioners ignored the same and allowed those proceedings to continue. The petitioners were in receipt of notice under Section 10(5) of the Act even before the relief was granted in favour of the petitioners, and thereafter though the petitioners received the communication dated 23.3.1994 about the determination of the price of the land acquired instead of taking any action in respect of that the petitioners sat idle and did not take any action. Therefore, it cannot be said that merely because during the pendency of Special Civil Application No.733 of 1989 the respondent authority did not point out about the fact that the possession of the land in question was already taken over by the State and hence this Court cannot believe that it was de jure possession, which was taken over and not de facto, Page 36 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 and therefore, such argument of learned advocate Mr. Shah cannot be accepted.
8.2 As far as the contention of learned advocate Mr. Shah that provisions of Section 10(5) and 10(6) of the ULC Act are mandatory provisions as after issuance of notice under Section 10(5) and 10(6), 30 days period was required to be given to the petitioners and thereafter only the possession could have taken is concerned, it would be profitable to reproduce the judgment of learned Single Judge of this Court in similar set of facts. Learned advocate Mr. Shah has heavily relied upon the judgment in the case of Hari Ram (supra) whereas heavy reliance was placed by learned AGP on Bhaskar Jyoti Sharma (supra) and on the judgment of Division Bench of this Court in the case of Heirs of deceased Jetha Isharabhai (supra) whereby the Division Bench of this Court confirmed the judgment dated 4.10.2016 of the learned Single Judge in Special Civil Application No.11044 of 2000. In the aforesaid judgment, the learned Single Judge of this Court has considered both the judgments relied upon by the parties i.e. Hariram (supra) and Page 37 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 Bhaskar Jyoti Sharma (supra), the learned single Judge of this Court has observed in paras 6 to 11 thus:
"6. The learned Counsel Mr.B.K. Raj for the petitioner vehemently submitted that though the possession was with the petitioner even after the notice under Section 10(5) of the said Act and till the Repeal Act came into force, the respondents have come out with the case for the first time in the affidavit stating that the possession was taken over on 24.11.1993. According to him, there was no voluntary surrender of the possession of the land in question as alleged by the respondents and that the petitioner being in possession of the land in question on the date when the Repeal Act came into force, the proceedings under the said Act had stood abated. Mr.Raj further submitted that the application of the petitioner under Section 21 of the said Act was pending for consideration before the competent authority and, therefore, the competent authority could not have proceeded beyond the stage of Section 10(3) of the said Act. Mr.Raj has also heavily relied upon the decision of the Apex Court in case of State of Uttar Pradesh Vs. Hari Ram, reported in (2013) 4 SCC 280 and in case of Vinayak Kashinath Shilkar v. Collector & Competent Authority, reported in (2012) 4 SCC 718 to submit that ceiling proceedings would abate in all cases where factual possession had not been handed over or delivered to the State Government before the Repeal Act came into force. He has also relied upon the decision of the Apex Court in case of Kanwar Singh Saini Vs. High Court of Delhi, reported in (2012) 4 SCC, 307 to submit that when an Act creates a right or obligation and Page 38 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 enforces the performance thereof in a specific manner, that performance cannot be enforced in any other manner. Distinguishing the decision of the Supreme Court in case of State of Assam vs. Bhaskar Jyoti Sarma and Ors., reported in (2015) 5 SCC 321, he submitted that the facts of the said case being different from the facts of the present case, the ratio laid down in the said judgement would not apply to the present case.
7. However, the learned AGP Ms.Bhatt submitted that the petitioner had never challenged any of the proceedings under Section 10(3) or Section 10(5) of the said Act, till the Repeal Act came into force and it is for the first time the said proceedings have been sought to be challenged in the present petition filed after the Repeal Act came into force. Placing heavy reliance on the panchnama dated 24.11.1993 she submitted that the possession of the land in question was already taken over prior to the Repeal Act came into force, and therefore, the land had legally vested in the Government with the possession thereof. She has relied upon the decision of the Supreme Court in case of State of Assam vs. Bhaskar Jyoti Sarma and Ors. (supra) to submit that the petitioner having failed to raise any grievance against the proceedings under Section 10(3) and Section 10(5) of the said Act, the taking over of the possession of the land in question by the State Government had acquired legitimacy by lapse of time.
8. Having regard to the submissions made by the learned Counsels for the parties and to the documents on record, it appears that undisputedly the order dated 29.9.1986 (Annexure-A) passed by the competent authority declaring the land admeasuring 1863 sq. mtrs., out of the Survey No.369/1 had remained Page 39 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 unchallenged at the instance of the petitioner. It is also not disputed that the respondent authorities had thereafter issued notification under Section 10(3) of the said Act on 20.8.1987, which was published on 24.9.1987. It is also not disputed that the exemption granted by the State Government under Section 20 of the said Act was withdrawn by the competent authority on 5.6.1986 and thereafter, the petitioner had submitted the application under Section 21 of the said Act. However, the competent authority thereafter had issued the notice dated 4.6.1988 (Annexure-G/1), calling upon the petitioner to show cause as to why his application under Section 21 of the said Act for constructing dwelling units for weaker section of the Society should not be rejected, the same having been filed after the period of limitation. It appears that no decision was taken by the concerned authority in that regard. The petitioner also did not pursue the said application under Section 21 of the said Act. The present petition came to be filed by the petitioner seeking various reliefs only after the Repeal Act came into force in 1999.
9. Though it has been submitted by the learned Counsel Mr.Raj for the petitioner that the respondent authorities should not have proceeded beyond the stage of Section 10(3) when the petitioner's application under Section 21 was pending, the said submission cannot be accepted. In case of Smt. Darothi Clare Parreira v. State of Maharashtra, reported in AIR 1996 SC 2553 the Supreme Court has categorically held that the competent authority had the powers to have notifications under Section 10(3) vesting the excess land in Government published, though application under Section 21 or Section 20 was pending for consideration. The relevant part Page 40 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 thereof is reproduced as under:-
"6. The previous owner stands divested of right, title and interest in the land subject to the right to make application provided under Section 20 and 21. It is difficult to accept the contention of the learned counsel for the appellants that the competent authority has no power to have the notification under Section 10(3) published in the Gazette until the application either under Section 20 or 21 is disposed of. The very language of Sections 20 and 21 and the exercise of the power thereunder would arise only when the land stands vested in the Government. The power of examination and exemption would arise only when the Government becomes the owner and the erstwhile owner seeks to obviate the hardships under Section 20 or to subserve the housing scheme for weaker sections under Section 21 as envisaged thereunder. Thereat, the Government is required to consider whether the proposals made by the erstwhile owner for undertaking the scheme as envisaged under Section 21 or hardships as envisaged under Section 20 for exemption would merit consideration. In this case, admittedly, the application under Section 20 came to be filed though that was suppressed before the High Court and this Court and came to be dismissed before notification under Section 10(3) of the Act was published. It also appears, as stated earlier, that application under Section 21 was filed on March 29, 1979, the date on which the appellants had filed the writ petition in the High Court. It would, therefore, be seen that Page 41 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 the application came to be filed much after the date of the vesting and publication of the notification under Section 10(3) of the Act. The effect of the vesting is not contingent upon filing an application for disposal under either Section 20 or 21."
10. There cannot be any disagreement to the proposition laid down in State of Uttar Pradesh Vs. Hari Ram (supra) relied upon by Mr.Raj that the requirement of giving notice under Section 10(5) of the Act is mandatory and that the ceiling procedure would abate where factual possession had not been handed over by the land holder or taken over by the State Government before coming into force of Repeal Act. In this regard, however, the latest decision of the Supreme Court in case of State of Assam (supra), which has also considered the said decision in case of State of State of Uttar Pradesh Vs. Hari Ram (supra), clinches the issue. It has been held in the said decision as under:-
"11. Section 3 of the Repeal Act postulates that vesting of any vacant land under sub- section (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.
12. The question, however, is whether actual physical possession of the land in Page 42 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 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.
13. The case of the appellant is that actual physical possession of the land was taken over on 7th December, 1991 no matter unilaterally and without notice to the erstwhile land owner. That assertion is stoutly denied by the respondents giving rise to seriously disputed question of fact which may not be amenable to a satisfactory determination by the High Court in exercise of its writ jurisdiction. But assuming that any such determination is possible even in proceedings under Article 226 of the constitution, what needs examination is whether the failure of the Government or the authorised officer or the competent authority to issue a notice to the land owners in terms of Section 10(5) would by itself mean that such dispossession is no dispossession in the 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 Page 43 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 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 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 Page 44 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 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 Page 45 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 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." While dealing with the decision in case of State of Uttar Pradesh Vs. Hari Ram (supra), the Court further held as under:-
"17. Reliance was placed by the respondents upon the decision of this Court in Hari Ram's case (supra). That decision does not, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Ram's case(supra) considering whether the word 'may' appearing in Section 10(5) gave to the competent authority the discretion to issue or not to issue a notice before taking physical possession of the land in question under Section 10(6). The question whether breach of Section 10(5) and possible dispossession without notice would vitiate the act of dispossession itself or render it non est in the eye of law did not fall for consideration in that case.
In our opinion, what Section 10(5) prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). In the case at hand if the appellant's version regarding dispossession of the erstwhile owner in December 1991 is correct, the fact that such dispossession was without a notice under Page 46 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 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 of 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."
11. Applying the afore-stated ratio to the facts of the present case, it is required to be held that the petitioner having failed to challenge the notice under Section 10(5) of the said Act within a reasonable time, the taking over of the possession of the land in question by the State Government had acquired legitimacy by sheer lapse of time. Admittedly, the notice under Section 10(5) (Annexure-D) was received by the petitioner. As averred in the petition, after the receipt of the notice under Section 10(5) he had made representation to the competent authority to withdraw the same. However, the petitioner never challenged the proceedings which were undertaken by the respondent authorities under Section 10 in the year 1987, till the Repeal Act came into force in 1999. In the meantime, the possession of the land in question was taken over by the competent authority by drawing panchnama on 24.11.1993. As held by the Supreme Court in the afore-said case of State of Assam (supra), any grievance based on Section 10(5) ought to have been raised within 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 person in possession must be deemed to have waived his right under Section 10(5) of the Act."
Page 47 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 8.3 The aforesaid judgment of the learned Single Judge was confirmed by the Division Bench of this Court vide CAV judgment dated 22.1.2021 in Letters Patent Appeal No.405 of 2017 while dismissing the Letters Patent Appeal preferred by the original petitioner in paras 22 and 23 observed as under:
"22. In these circumstances, if the possession is not handed over within 30 days of service of notice under Section 10(5), it will amount to failure to comply with the order under sub-section (5) and thereafter whenever the possession is taken by the State authorities, even though after 6 years, as it has happened in the present case through Panchnama process in the absence of physical presence of the land owner, it does not vitiate those proceedings which will fall under Section 10(6) of the Act. The taking over of the possession through Panchnama process in the presence of two witnesses is a well recognised process for taking over the possession in law and cannot be said to be void, non est or illegal in any manner. The land owner cannot claim that since such possession was taken over after a belated period after expiry of 30 days as prescribed in Section 10(5) of the Act, he was entitled to again a notice in this regard requiring his presence on the spot giving him option either to voluntarily surrender such possession or obstruct the same. No Page 48 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 such notice or opportunity is intended to be given under Section 10(6) of the Act. Therefore, in the present facts before us, the possession taken over by the State authority on 24.11.1993 was justified and legally undertaken through Panchnama process and in our opinion, no valid exception to the same can be taken by the Appellant.
23. As far as reliance placed on the case of Hari Ram (supra) is concerned, we are of the clear opinion that the learned Single Judge was right in distinguishing the said judgment as it is not a case before us where no notice under Section 10(5) of the Act was issued to the land owner. On the contrary, it is admitted position that such notice was given to the land owner on 4.6.1988. The later judgment of the Hon'ble Supreme Court fully explained the purport of the decision in the case of Hari Ram (supra) in the case of Bhaskar Jyoti Sarma (supra) where even Section 10(5) notice was not given and still taking over the possession was held as valid, as quoted in extenso by the learned Single Judge and that in our respectful understanding, clinches the issue in favour of the State."
8.4 The aforesaid judgment of the Division Bench rendered in Letters Patent Appeal No.405 of 2017 CAV judgment dated 22.1.2021 was once again relied on by Division Bench of this Court in Letters Patent Appeal No.332 of 2017 and allied matters and Page 49 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 while delivering CAV judgment dated 5.3.2021 dismissed Letters Patent Appeal No.332 of 2017 with costs of Rs.50,000/- relying upon the judgment of Division Bench in Letters Patent Appeal No.405 of 2017. That CAV judgment dated 5.3.2021 in Letters Patent Appeal No.332 of 2017 was carried in appeal before the Supreme Court in Special Leave Petition (Civil) No.7636 of 2021, however, the Hon'ble Supreme Court vide order dated 28.6.2021 dismissed the said SLP preferred by the original petitioner and thereby the view taken by the Division Bench of this Court in Letters Patent Appeal No.332 of 2017 based upon the view taken by the Division Bench of this Court in Letters Patent Appeal No.405 of 2017 confirming the judgment dated 4.10.2016 in Special Civil Application No.11044 of 2000 was confirmed. Relevant paras of which are already produced in foregoing paras of this judgment.
8.5 As the petitioner has heavily relied upon the judgment in the case of Hari Ram (supra) as well as respondents have heavily relied on the decision in the case of Bhaskar Jyoti Sarma (supra) instead of Page 50 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 discussing all those judgments at length, this Court thought it fit to reproduce the relevant paras of the judgment whereby in similar situation, co-ordinate Bench of this Court had considered both the judgments and based upon that held that the petitioner having failed to challenge notice under Section 10(5) of the ULC Act within reasonable time, taking over the possession of the land by the State had acquired legitimacy after sheer lapse of time. In the instant case also, though the notice under Section 10(5) was issued on 27.12.1993 and has not been challenged till date. Even there is no challenge to the aforesaid notice in this petition also, and therefore, the aforesaid judgment of the learned Single Judge, which is confirmed by the Division Bench is squarely applicable to the facts of the present case also. Further by relying upon the aforesaid judgment of the Division Bench in Letters Patent Appeal No.405 of 2017 the very Division Bench dismissed Letters Patent Appeal No.332 of 2017 vide CAV judgment dated 5.3.2021 and the Hon'ble Supreme Court has dismissed Special Leave Petition (Civil) No.7636 of 2021 challenging the aforesaid CAV judgment dated 5.3.2021 Page 51 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 in Letters Patent Appeal No.332 of 2017, the ratio of the aforesaid judgment would squarely applicable to the case in hand also. Therefore as the petitioners have not challenged the notice under Section 10(5) given to the petitioners, which the petitioners duly received on 8.1.1994, the contention of the petitioners that though it is mandatory to issue notice under Section 10(6) after the period of notice under Section 10(5) is over, cannot be accepted by sheer lapse of time. The petitioners have not challenged the notice under Section 10(5) and at this juncture the possession of the State cannot be questioned and the State has acquired legitimacy because of such inordinate delay on the part of the petitioners.
8.6 In view of the above, even the contention of learned advocate Mr. Mehul Sharad Shah in respect of the fact that all the partners of the petitioner partnership firm were not issued notice is also not tenable in the eye of law as the proceedings under the ULC Act have not been challenged by the petitioner till the date.
Page 52 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 8.7 As far as the contention of learned advocate Mr. Shah with regard to proceedings under the ULC Act being without jurisdiction in view of the definition of vacant land is concerned, even that contention has no legs to stand for the simple reason that the possession was taken over by the State on 23.2.1994, whereas, the petition is preferred in the year 2019 and all throughout during this period, the petitioner has done nothing. Even the petitioner has made the first representation in the year 2015 and therefore on the ground of delay even that contention in respect of jurisdiction of the ULC proceedings also cannot stand. The petitioner ought to have challenged the proceedings within the reasonable time and as the petitioner failed to challenge the same within the reasonable period, at this juncture the petitioner cannot raise the contention with regard to jurisdiction. The petitioner who filled the form under Section 6 of the Act and once having filled up the form at any point of time the petitioner did not question the proceedings under the ULC Act till the land was vested into the Government by virtue of Page 53 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022 C/SCA/7131/2019 JUDGMENT DATED: 10/01/2022 notification under Section 10(3) of the Act and possession was taken over under Section 10(5) by way of dragging panchnama on 23.2.1994, after delay of 24 years, the petitioner cannot challenge and those proceedings or may make an endeavour to come out of the shackles of those proceedings by contending that those proceedings were without jurisdiction. 9 In view of the above discussion, the petition fails and is hereby dismissed. Rule discharged. However, there shall be no order as to costs.
Sd/-
(NIRZAR S. DESAI,J) P. SUBRAHMANYAM Page 54 of 54 Downloaded on : Sun Apr 24 09:07:03 IST 2022