Gujarat High Court
Gordhanbhai Motibhai Patel & 3 vs Competent Authority & Dy Collector & 2 on 26 December, 2013
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
C/SCA/9040/1994 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9040 of 1994
With
SPECIAL CIVIL APPLICATION NO. 9041 of 1994
With
CIVIL APPLICATION NO. 4633 of 2011
In
SPECIAL CIVIL APPLICATION NO. 9040 of 1994
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
======================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
====================================== GORDHANBHAI MOTIBHAI PATEL & 3....Petitioners Versus COMPETENT AUTHORITY & DY COLLECTOR & 2....Respondents ====================================== Appearance:
MR MC BHATT, ADVOCATE for the Petitioners No. 1 3.7 , 4 MR MP PRAJAPATI, ADVOCATE for the Petitioners No. 2.1 2.3 MR PK JANI, GP WITH MR RAKESH PATEL, AGP for the Respondents No. 1 2 MR MD PANDYA, ADVOCATE for the Respondents No. 3 ====================================== CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Page 1 of 26 HC-NIC Page 1 of 26 Created On Sat Jan 16 02:11:08 IST 2016 C/SCA/9040/1994 CAV JUDGEMNT Date : 26/12/2013 COMMON CAV JUDGEMNT
1. Learned counsel for the petitioners in both the petitions has submitted that the facts in both the petitions are in narrow compass and identical and therefore, it is requested that both the petitions be heard together therefore, both these petitions were heard together and the common order is passed therein.
2. The petitioners in Special Civil Application No. 9040 of 1994 have approached this Court under Articles 226 and 227 of the Constitution of India for the following reliefs:
Prayers in SCA No. 9040 of 1994:
(A) Your Lordship will be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to implement and enforce the judgment Annex.B delivered by the Urban Land Tribunal and final statement Annex.BB issued by the Competent Authority on or about 19/203.1993 and be pleased to issue appropriate writ, order or direction, directing the respondents to quash and set aside and/or modify the order Ann.CC dated 14.8.88 passed by the Govt. of Gujarat so as to make in consistent with the final statement Ann.BB and be pleased to issue a writ of mandamus against the respondents to restore the original position of possession of the lands in question by restoring the possession to the petitioners as per the final statement Ann.BB issued by the Competent Authority;
(AA) That Your Lordships be pleased to hold that the ULC Repeal Act, 1999 allies to the excess vacant land admeasuring 43, 570, sq.mt. Declared by the judgment Annexure - B delivered by Urban Land Tribunal and be pleased to restore this land to the petitioners and further be pleased to hold that the petitioners are the owners and Page 2 of 26 HC-NIC Page 2 of 26 Created On Sat Jan 16 02:11:08 IST 2016 C/SCA/9040/1994 CAV JUDGEMNT occupiers of the entire land bearing Survey Nos. 90, 91 and 92 of Sayajigunj, Dist.: Vadodara and the respondents have no right, title or interest over the disputed land including the land admeasuring 43, 570 sq.mt. being excess vacant land declared by the Urban Land Tribunal.
(B) Pending hearing and final disposal of this petition the respondents, their servants and agents may please be restrained by an order of interim injunction from transferring, alienating by sale, mortgage, lease or otherwise and/or from parting with the possession and/or from putting up any construction on the disputed land or changing the character of the disputed lands i.e. lands bearing S.No. 90, 91 and 92 situated in the sim of Sayajipura of district Sub District Vadodara.
(C) any other relief as may be deemed just and proper in the circumstances of the case may please be granted.
Prayers in SCA No. 9041 of 1994:
(A) Your Lordships will be pleased to issue a writ of certiorari or any other appropriate writ or direction quashing and setting aside the impugned entry Ann.C bearing No. 1847 and order Ann.E passed by the District Collector, Vadodara and the order Ann.F passed by the Secretary, Land Revenue Deptt. Govt. of Gujarat and Communication and/or order Ann.G and Your Lordships will be pleased to issue appropriate direction to modify the record of right so as to make it in conformity with the second final statement Ann.BB dt. 19.3.1993 issued by the authorities.
(B) Pending admission and final disposal of this petition, the respondents or their agents may be restrained by an interim injunction of this Hon'ble Court from dealing with the disputed land by sale, mortgage, lease or otherwise and the respondents be restrained from part with the possession of the disputed land and be further restrained from creating right of any third party and be further restrained from putting up any construction of any nature on the disputed land i.e. the land bearing Survey No. 90, 91 and 92 situated in village Sayajipura of Dist.:
SubDistrict: Vadodara.
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(C) Any other order or direction as may be deemed just and proper in the facts and circumstances of the case may kindly be passed.
(D) The cost of this petition be awarded from the respondents."
Thus, essentially in the first petition being S.C.A. No.9040 of 1994, what is under challenge is the inaction or lack of action on the part of the authorities in not complying with the order of the Tribunal under which the Competent Tribunal reduced the quantum of excess land only to 43570 sq. mtrs. and in the second matter as could be seen from the prayer, the rectification of the entry based thereupon is prayed.
3. Facts in brief, leading to filing these petitions, as could be culled out from the memo of petitions, deserve to be set out as under in order to appreciate the controversy in question.
4. The persons, whom the petitioners represent and who have been named in the petitions, jointly filled the Form under the provision of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the "ULC Act" for the sake of brevity). The said declaration form was filled under Section - 6 of ULC Act and was filed before the Competent Authority & Deputy Collector, ULC, Vadodara, who processed the same and vide his order dated 12.01.1984 declared that there was an excess land to the tune of 79741 sq mtrs. and the same therefore, become liable to be acquired.
5. The excess land, declared by the Competent Authority vide order dated 12.01.1984 came to be surrendered, though the same surrendering is heavily disputed by the petitioners as according to them, it had not been surrendered and only paper possession was taken. The Page 4 of 26 HC-NIC Page 4 of 26 Created On Sat Jan 16 02:11:08 IST 2016 C/SCA/9040/1994 CAV JUDGEMNT State authorities passed an order under Section - 23 for allotting the said excess land to the Vadodara Urban Development Authority for its utilization for weaker sections. The said authority is also said to have taken possession, which is also disputed by the petitioners to be a paper possession and petitioners have claimed that they are holding the land. The petitioners filed an appeal under Section - 33 of the ULC Act before the Competent Tribunal. Before filing the appeal, there were interregnum proceedings in respect of the revenue entries based upon the orders and ultimately, the controversy reached to this Court by way of this petition being S.C.A. No.9041 of 1994.
6. The petitioners filed appeal before the tribunal challenging the order of the competent authority dated 12.01.1984. The appeal was filed in the year 1989, which came to be partly allowed vide order dated May, 1992. The tribunal held that the excess land was only to the tune of 43570 sq. mtrs. and not 79741 sq. mtrs. as held by the competent authority and thus, quashed and set aside the order of the competent authority and directed the authorities to draw afresh final statement based upon the order.
7. As per the say of the petitioners, pursuant to the said order of the tribunal, the notification under Section 10 (1) came to be issued, but there were no other steps in form of notification under Section 10 (3) and therefore, the petitioners had to move this Court and in the meantime, there was an enactment called the Urban Land (Ceiling and Regulation) Repeal Act, 1999 and therefore, the petitioners had to amend the petitions and seek appropriate relief based thereupon.
The facts in more articulated form could be narrated by referring to the synopsis and averments made in the petitions as under:
8. The following persons namely Shri Gordhanbhai Motibhai Page 5 of 26 HC-NIC Page 5 of 26 Created On Sat Jan 16 02:11:08 IST 2016 C/SCA/9040/1994 CAV JUDGEMNT Patel, Shri Ambalal Motibhai Patel, Shri Bagnwanbhai Chhotabhai Patel and Shri Chhaganbhai Chhotabhai Patel had submitted declaration form under Section 6(1) of the ULC Act, 1976 before the Competent Authority and Additional Collector, Vadodara. The competent Authority and Deputy Collector, ULC processed the declaration form and declared 79741 Sq. Mtrs. land as excess vacant land. The Deputy Collector, ULC issued a notice and fixed the date for taking possession on 20.03.1986 and in between, as per the say of the petitioner, he had prepared alleged panchnama dated 5.3.1986 with respect to taking over the possession from land owners. The VUDA , authority in whose favour the allotment was made under section 23 of the Act, had not deposited the amount and throughout the possession of the land remained with the petitioners, as contended by the petitioners.
9. The Government, Revenue Department, passed an order u/s. 23 of ULC Act and allotted the land admeasuring 79741 sq.mt. to Vadodara Urban Development Authority ('VUDA' for short). Against the order of the Competent Authority, the petitioners preferred Appeal before the ULT being Appeal No. Vadodara 19 of 1989, wherein, the Tribunal was pleased to grant order of statusquo on 23.7.1990. Entry No. 1847 came to be posted in view of order dated 14.08.1988 by overlooking the stay order granted by the Tribunal dated 23.7.1990 and certified the Entry No. 1847 on 27.02.1991. Against the above referred order of certification of Entry by the Mamlatdar, the petitioners preferred Appeal No. 40 of 1991 before the Deputy Collector under Rule 108 of the BLR Rules, which came to be allowed on 30.10.1991 with a direction to quash the order certifying the Entry No. 1847 dated 27.2.1991.
10. The Collector had allowed the RTS Appeal No. 64 of 1992 filed by respondent No. 3, i.e. VUDA against the order dated 30.10.1991 and further directed that till the matter is pending with the Tribunal, Page 6 of 26 HC-NIC Page 6 of 26 Created On Sat Jan 16 02:11:08 IST 2016 C/SCA/9040/1994 CAV JUDGEMNT further proceedings be stayed by directing to keep the disputed land vacant. This order was confirmed by learned S.S.R.D. by his order dated 30.04.1994 in Revision Application No.11 of 1994. Thereafter the Tribunal had decided the Appeal No. 19 of 1989 by passing order declaring 43570 sq.mt. of lands as excess vacant land instead of 79741 sq.mt. of lands determined by Competent Authority. Thereafter, Entry No. 1967 came to be posted and certified on 26.11.1992 in pursuance of judgment of the Tribunal in Appeal No. 19 of 1989.
11. The Deputy Collector, ULC had issued final statement and specified the excess land survey numbers wise in final statement. The Competent Authority had issued a Notification u/s. 10(1) read with Rule 6 of the ULC Act, 1976. Thereafter, the petitioners had moved an application to the Collector and requested to modify the earlier order in view of the order passed by the ULT, but the petitioners were informed that the petitioners can take recourse of legal remedy available under the law.
12. The Competent Authority had exparte rejected Form No. 5 under Rule 11 of ULC Rules seeking exemption under Section 21 for Housing Scheme for weaker section of the society in respect of excess vacant land of 43570 sq.mt. declared as per the order of Tribunal of Survey Nos. 90, 91 and 92 of the petitioners. Against the above referred order, the petitioners preferred Appeal Nos. 2 of 1994 and 4 of 1994 before the ULT and the ULT was pleased to allow both the appeals on 30.6.1994 and remanded the matter back to the Competent Authority by directing to reconsider the case of the petitioners after giving an opportunity of being heard. Thereafter, the Competent Authority had not proceeded further. Hence, petitioners had preferred Special Civil Application No. 9040 of 1994.
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13. The petitioners of Special Civil Application No. 9041 of 1994 had requested the District Collector to modify the order dated 4.2.1992 and the Collector had rejected the request of the petitioners by passing order in Case No. RTSR64/1991. They had also filed Revision Application No. 11 of 1994 before the SSRD. The SSRD was pleased to dismiss the Revision Application No. 11 of 1994 and confirmed the order of Collector, against which, petitioners had preferred Special Civil Application No. 9041 of 1994.
14. During the pendency of this Special Civil Application No. 9040 of 1994, the petitioners preferred Civil Application No. 1351 of 2009 and sought permission to develop retainable land i.e. final plot No. 30 admeasuring 23169 sq.mt. The applicants had also prayed that the petitioners be permitted to erect wire fencing on FP No. 56 to protect the property subject for further orders in Special Civil Application and the relief prayed to develop FP No. 30 was granted after hearing the AGP and advocate of VUDA and the authorities had raised objection for payer qua FP No. 56 for fencing and according to authorities possession of FP No. 56 was in dispute. Accordingly, FP No. 30 admeasuring 23169 sq.mt. of land was not subject matter of this petition, but now the subject matter of petition being SCA No. 9040 of 1994 is only for remaining land of FP No. 56.
15. Learned counsel appearing for the petitioners has submitted that in pursuance of final statement dated 19.3.1993, the Competent Authority has issued notification under Section 10(1) of the ULC Act on 20.3.1993 and submitted that after issuance of said notification, the Competent Authority or State Government has not proceeded further and further steps under Sections 10(2) to 10(6) are not undertaken during this time, the actual physical possession of the disputed land has remained with the petitioners. Learned counsel appearing for the Page 8 of 26 HC-NIC Page 8 of 26 Created On Sat Jan 16 02:11:08 IST 2016 C/SCA/9040/1994 CAV JUDGEMNT petitioners further submitted that the proceedings undertaken by the Competent Authority and the State Government for acquiring excess vacant land admeasuring 79,741 sq.mt. In pursuance of order at Annexure - A do not survive as the basic order at Annexure - A itself was set aside and accordingly fresh final statement was issued by the Competent Authority and in view of this, the order dated 14.8.1988 allegedly allotting 79,741 sq.mt. of excess vacant land to Vadodara Urban Development Authority also would not survives. Learned counsel for the petitioners further submitted that when the proceedings were initiated, the ULC Act was in operation and in view of the fact that proceedings have not gone beyond Section 10(1) of the ULC Act, the petitioners are entitled to claim the entire land including the excess vacant land declared by the Tribunal by its order. Learned counsel appearing for the petitioners further submitted that ULC Act of 1976 has been repealed by ULC (Repeal) Act of 1999 and in view of provisions contained in Section 3 of ULC Repeal Act of 1999, the provisions of ULC (Repeal) Act do apply to the facts of this case. In the present case, after issuance of final statement, the proceedings have not proceeded beyond Section 10(1) of ULC Act and therefore, now further proceedings under section 10(2) to 10(6) cannot be undertaken and therefore, the petitioners are entitled to claim the entire land including excess vacant land. Learned counsel appearing for the petitioners also submitted that the actual and physical possession of the excess vacant land is not taken over from the original occupier by the authority and only paper possession is alleged to have been taken.
16. Learned counsel appearing for the petitioners also submitted that on 7.4.1999, the Government of Gujarat has directed the Competent Authority to furnish compete details of the land declared surplus of which possession was taken over before 30.3.1999 and the Competent Authority has prepared detail statement, in which, the lands Page 9 of 26 HC-NIC Page 9 of 26 Created On Sat Jan 16 02:11:08 IST 2016 C/SCA/9040/1994 CAV JUDGEMNT involved in the petition are not included. Learned counsel for the petitioners further submitted that the respondent authorities have not followed the procedure for taking possession of the land.
17. Learned counsel for the petitioners has further submitted that in pursuance of final statement dated 19.03.1993, the Competent Authority has issued notification under Section 10(1) of the ULC Act on 20.03.1993 and after issuance of said notification, the Competent Authority or State Government has not proceeded further and steps under Section 10(2) to 10(6) were not undertaken and during this time, the actual physical possession of the disputed land has always remained with the petitioners.
18. Learned counsel for the petitioners has contended that after passing of judgment of by the Urban Land Tribunal in May, 1992, all the proceedings undertaken in pursuance of the order of the competent authority dated 12.01.1984 do not survive. The proceedings undertaken by the Competent Authority and the State Government for acquiring excess vacant land admeasuring 79.741 sq.mt. in pursuance of order of the Competent Authority do not survive since the said order itself is set aside and accordingly fresh final statement is issued by the Competent Authority. Hence, the order dated 14.08.1988 by which the Government has allegedly allotted 79.741 sq.mt. of excess vacant land to Vadodara Urban Development Authority i.e. respondent No.3, also does not survive. He further submitted that when the proceedings were initiated by the present petition, the ULC Act was in operation and therefore, the reliefs were prayed for accordingly, but now in view of the fact the proceedings have not gone beyond Section 10(1) of the ULC Act, in pursuance of order passed by Urban Land Tribunal, the petitioners are entitled to claim the entire land including the excess vacant land declared by the order of the Tribunal.
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19. Learned counsel for the petitioners has further contended that ULC Act, 1976 has been repealed by ULC (Repeal) Act of 1999 (Act No.15 of 1999) with effect from 30.03.1999. In view of the provisions contained in Section 3 of the ULC (Repeal) Act of 1999, the provisions of ULC (Repeal) Act do apply to the facts of this case and ULC Act of 1976 stands repealed as far as the present case is concerned. He further submits that the saving clause contained in Section 3(a) of the ULC (Repeal) Act would apply in the cases in which the land is vested in the Government under Section 10(3) of the ULC Act of 1976 and possession of which has been taken over by the Government. In the present case, after issuance of final statement, the proceedings have not proceeded beyond Section 10(1) of the ULC Act and therefore, now further proceedings under Section 10(2) to 10(6) can not be undertaken. Therefore, the petitioners are entitled to claim the entire land including the excess vacant land declared by judgment and order of the Tribunal.
20. Learned counsel for the petitioners has thereafter submitted that actual physical possession of the excess vacant land is not taken over from the original occupiers by the authority and only paper possession is alleged to have been taken. The petitioners do rely upon Form No.7/12 of the disputed land, wherein the revenue authority has indicated that the petitioners have cultivated the entire land including the excess vacant land up to 199192. It is alleged by the authority that possession of excess vacant land was takeover from the petitioners on 05.03.1986, while in the record of rights, the actual physical possession of the petitioners is shown up to 199192. Thereafter, mechanically, petitioners' possession is shown to be extent of 1500 sq.mt. Of land in survey no.90 because of disputed entry dated 22.01.1991. Thus, in fact the possession of the excess vacant land has always remained with the petitioners and therefore, the provision of ULC Repeal Act of 1999 do apply as far as the petitioners' land is concerned.
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21. Learned counsel for the petitioners has further submitted that Petitioners had made motion by submitting Form No.V under Rule 11 of the ULC Rules before Competent Authority seeking exemption under Section 21 of the ULC Act. In this behalf, one proceeding was initiated for survey no.90 & 91 and another proceeding was initiated for survey no.92. The Competent Authority had rejected both the applications by order dated 12.11.90. The petitioners preferred Appeal being No.Vadodara2/94 and Vadodara4/94 and had challenged both the orders before Urban Land Tribunal. The Urban Land Tribunal by order dated 30.06.1994 allowed both the appeals and remanded the matters back to the Competent Authority for reconsideration. It is further submitted that since litigation was pending before this Hon'ble Court, further action was not taken in pursuance of orders of Tribunal in appeal No.Vadodara2/94 and in appeal No.Vadodara4/94. He further submitted that the proceedings also stood abated with effect from 30.03.1999 and have become infructuous and the petitioners have referred this aspect only with a view to bring to the notice of this Hon'ble Court that they were through out claiming their right for implementation of a housing scheme for weaker sections of the society in respect of excess vacant land admeasuring 43,570 sq. mtrs. declared by order of the Urban Land Tribunal.
22. Learned counsel for the petitioners has therefore, contended that all the orders and proceedings undertaken by the authority in pursuance of order of the Competent Authority do not survive. They have been impliedly set aside by order of the Tribunal. The Competent Authority has accepted the judgment by issuing fresh final statement, but proceedings beyond Section 10 (1) have not taken place in pursuance of final statement. Even the land admeasuring 43,570 sq. mtrs. forming part of Survey nos.90, 91 and 92 is not even demarcated and no maps are drawn for demarcation of retainable land and excess Page 12 of 26 HC-NIC Page 12 of 26 Created On Sat Jan 16 02:11:08 IST 2016 C/SCA/9040/1994 CAV JUDGEMNT vacant land. Therefore, undoubtedly, possession in pursuance of order dated 19.03.1993 is not taken over from the petitioners. He submits that allotment of excess vacant land made by the Government to VUDA also does not remain and is deemed to have been set aside by order dated 19.03.1993. Therefore, the respondents cannot claim any right, title or interest on the entire land bearing Survey nos.90, 91 and 92.
23. Shri Jani, learned Government Pleader with Shri Patel, learned AGP submitted that vide office order No. Declaration Sayajipura No. 5704, 5741, 5742, 5738 SR/No. 26, 47, 51, 82 dated 12.1.1984, the lands bearing Survey Nos. 90, 91 and 92 totally admeasuring 79741 sq.mt. Belonging to the petitioner in Sayajipura was declared surplus. The proceedings below Sections 9, 10(1) and 10(3) are completed. Learned GP further submitted that the respondent Revenue Department vide order dated 14.8.1984 ordered to allot the above mentioned land for housing purpose of the weaker section of the society to the VUDA by taking Rs.46,36,930/ by first handing over the possession of the surplus land and after 24 months thereafter to recover in four equal installments below Section 23 and possession of the lands were handed over to VUDA on 20.6.1990 and VUDA has not deposited the amount towards the value of the said land. Learned GP further submitted that land owners filed Appeal No. 19 of 1989 and vide order dated 12.5.1992, the order of State Government was set aside and from total land admeasuring 81241 sq.mt, the land admeasuring 43570 sq.mt. was declared surplus and it was directed to issue final statement below Section 9 and accordingly final statement was issued on 19.3.1993 and notification below Section 10(1) was also published on 20.3.1997. Thus, vide order dated 12.5.1992 of Urban Land Ceiling Tribunal, the order of allotment of land to VUDA stood cancelled. The Collector, Vadodara by order dated 4.2.1992 directed that till the final disposal of the Tribunal, no action be taken with regard to the disputed land and land be kept vacant and Page 13 of 26 HC-NIC Page 13 of 26 Created On Sat Jan 16 02:11:08 IST 2016 C/SCA/9040/1994 CAV JUDGEMNT therefore, the petitioners are not entitled to claim relief and petition deserves to be dismissed.
24. Learned GP submitted that in view of the interim relief granted by this Court on 20.9.1994, the lands were not included in the computer generated list. Learned GP further submitted that on 30.5.1985, the notice under Section 10(5) was issued directing the petitioner to hand over the possession on 14.6.1985, however the petitioner failed to do so. Thereafter, again on 28.2.1986, the identical notice was issued to petitioner to hand over possession on 20.3.1986, however, before that date, owners had voluntarily surrendered the possession on 5.3.1986. Thus, there is no illegality or irregularity in procedure.
25. In response to complain of the fact that signature of Kiritbhai is obtained on behalf of Chhaganbhai, learned GP submitted that Kiritbhai was son of Chhaganbhai. When said Kiritbhai had voluntarily handed over possession on behalf of his father, there was no reason for the authority to doubt his power to do so and when said Chhaganbhai has never contended after 5.3.1985 that his son had no authority or power to hand over possession on his behalf, now in the year 2007, i.e. after 21 years, the petitioners cannot be allowed to take such a dishonest plea and petition be dismissed with costs.
26. Learned GP thereafter submitted that looking to prayer clause, the petitioners have prayed to issue a writ of mandamus against the respondents to restore the original position of possession of the land in question by restoring the possession to the petitioner as per final statement Annexure - BB issued by the Competent Authority and therefore, it is clear admitted position on record that possession is taken over by the State Government.
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27. This Court is of the view that the indisputable aspects emerging from the submissions and the memo of the petitions, deserve to be set out as under, which would throw light upon the real controversies in the matters.
(i) The persons named in the petitions were jointly holding parcels of lands when they were required to be filled in the form under the ULC Act. They jointly filled a form on 13.09.1976 under the provisions of Section 6 of ULC Act. The said form was processed and order was made by the competent authority on 12.01.1984, whereby the competent authority declared that there was excess holding of land to the tune of 79741 sq. mtrs.
(ii) The affidavit is filed by the State, where from it is emerging that on 27.01.1984, based upon the order on 12.01.1984, the authorities issued Section 10 (1) notification. The same is produced at page no.104 of the petition. Section 10 (3) notification in respect of the excess land came to be issued on 15.11.1984. The said notification was gazetted on 26.11.1984. On 29.03.1985 Section 10(5) notification came to be issued in respect of the excess land admeasuring 79741 sq. mtrs. On 30.05.1985, notice was issued for taking the possession and it was to be taken by 14.06.1985. The Kabja Pavti indicating possession taken, is issued on 05.03.1986. Though these facts have been disputed by the petitioners and it was said that it was merely a paper possession.
(iii) On 30.09.1987, the competent authority
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made order of compensation under Section 11 of ULC Act, which has been produced in the compilation at page no.119.
(iv) On page no.120, it is mentioned in the order of compensation that the possession of the land has been taken over.
(v) On 14.08.1988, the land i.e. excess land, which was so declared under the order dated 12.01.1984 came to be allotted to VUDA on the terms and conditions mentioned thereunder. It was to be allotted for Rs.46,39,930/ to be paid by VUDA within 24 months.
(vi) The VUDA appears to have taken possession of the land on 02.06.1990 and the Kabja Pavti is also issued on the said date. Thus, it is required to be noted here that on 02.06.1990, the authority in whose favour the land came to be allotted under Section 23 also took possession of the land. It is required to be noted that in the year 1989 the petitioners moved the Appellate Authority under Section 33 for challenging the order dated 12.01.1984. The Tribunal had issued order of status quo but, it is contended that the order was issued after the VUDA took the possession as the date of possession of the VUDA is said to be 02.06.1990.
(vii) The Tribunal vide its order dated May, 1992 allowed the appeal partially and declared that the excess land was only to the tune of 43570 sq. mtrs. and not 79741 sq. mtrs.
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(viii) Pursuant to the said order, it seems that the
competent authority issued order on 19.03.1993, gave the final statement, which is produced on record at page no.25 being communication dated 19.03.1993. Thereafter, no further steps were taken and hence, the petition was filed for implementation thereof.
(ix) The promulgation of the Urban Land Ceiling (Repeal) Act, 1999 appears to have been goaded the petitioners to file an application for bringing in an amendment, as stated hereinabove, which came to be allowed and in result whereof, the petition is amended.
28. The counsel for the petitioners relied upon the following authorities.
(1) In case of Maganlal Mepabhai Patel V/s. Competent Authority & ExOfficio Additional Collector reported in 1999 (3) G.L.R. 2105.
(2) In case of DIP CoOperative Housing Society Ltd., V/s. State of Gujarat, reported in 2008 (2) G.L.R. 1382.
(3) In case of M/s. Larsen and Toubro Ltd. V/s. State of Gujarat, reported in A.I.R. 1998 SC 1608.
(4) In case of State of Gujarat V/s. Ravjibhai Chhotabhai Patel, reported in 2002 (3) G.L.R. 2386.
(5) In case of Dahyabhai Manorbhai Patel V/s. The Competent Authority & Additional Collector, Unit No.2, reported in 1987 (2) G.L.R. 1396.
(6) In case of Rajeshkumar Bhikhabhai Patel V/s. State of Gujarat, reported in 1995 (2) G.L.H. 97.
(7) In case of Chandaben Chunilal Patel V/s. State of Gujarat, reported in 2002 (4) G.L.R. 3502.
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(8) In case of State of Gujarat V/s. Gordhanbhai Becharbhai Patel,
reported in 2001 (3) G.L.R. 2503.
29. Learned Government Pleader Mr.P.K.Jani for the respondent nos.1 and 2 relied upon the following authorities.
(1) In case of Maganlal Mepabhai Patel V/s. Competent Authority & ExOfficio Additional Collector reported in 1999 (3) G.L.R. 2105.
(2) In case of DIP CoOperative Housing Society Ltd., V/s. State of Gujarat, reported in 2008 (2) G.L.R. 1382.
(3) In case of M/s. Larsen and Toubro Ltd. V/s. State of Gujarat, reported in A.I.R. 1998 SC 1608.
(4) In case of State of Gujarat V/s. Ravjibhai Chhotabhai Patel, reported in 2002 (3) G.L.R. 2386.
(5) In case of Rameshchandra Shamjibhai Raniga V/s. State of Gujarat, reported in 2000 (4) G.L.R. 2777.
(6) In case of Keshavlal Dungarshi Mavani V/s. State of Gujarat, reported in 2010 Jx (Guj.) 992.
30. This Court is of the view that the peculiar facts and rival contentions of the parties indicate that there are few gnawing questions required to be answered after taking into consideration the relevant provision of law, which may have far reaching repercussion on the aspects so far stated. Those questions could be summarized as under: (I) The efficacy and the order of the Tribunal passed in the month of May, 1992 and implementation whereof was originally prayed in these petitions, before it was amended, is required to be viewed from the various facts taking place prior to the petitioners filing appeal. Ordinarily, the same would not be of much material, but in the instant case on account of the advent of the Repeal Page 18 of 26 HC-NIC Page 18 of 26 Created On Sat Jan 16 02:11:08 IST 2016 C/SCA/9040/1994 CAV JUDGEMNT Act, the entire scenario has changed. A question arises as to when proceedings in nature of Notifications under Section 10(3) and order under Section 10(5) were issued and these facts have remained undisputed and when the orders for compensation made under section 11 on 30.09.1987 and when possession by Kabja pavati is said to have been taken over on 5.03.1986 from the petitioners how far the appeal that was preferred by the petitioners under section 33 of the old Act would remain efficacious. Whether Tribunal's order dated May 1992 passed in appeal filed in the year 1989 admittedly after the proceedings of Section 10(3) 10(5) and Kabja Pavati would not be an order without jurisdiction? Though State or the Competent Authority for the reasons best known to them did not file any proceedings challenging the same. The Section 33 of the Ceiling Act read as under : "33. Appeal (1) Any person aggrieved by an order made by the competent authority under this Act, not being an order under Section 11 or an order under subsection (1) of section 30, may, within thirty days of the date on which the order is communicated to him, prefer an appeal to such authority as may be prescribed (hereafter in this section referred to as the appellate authority):
Provided that the appellate authority may entertain the appeal after the expiry of the said period of thirty days if it is satisfied that the appellate was prevented by sufficient cause from filing the appeal in time.
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(2) On receipt of an appeal under subsection
(1), the appellate authority shall, after giving the appellant an opportunity of being heard, pass such orders thereon as it deems fit as expeditiously as possible.
(3) Every order passed by the appellate Authority under this section shall be final."
It is pertinent to note that recent decisions of the Supreme Court in case of Balwant Singh (Dead) V/s. Jagdish Singh And others, reported in (2010) 8 SCC 685, Oriental Aroma Chemical Industries Limited V/s. Gujarat Industrial Development Corporation And Another, reported in (2010) 5 SCC 459 and in case of Bhakra Beas Management Board V/s. Krishan Kumar Vij And Another, reported in (2010) 8 SCC 701, the delay in filing the proceedings where the limitation is provided is not to be condoned lightly. In the instant case, the proceedings do not indicate that there was any delay condonation application. The Tribunal's order on its close perusal indicate that the Tribunal had viewed the order dated 12.01.1984 being nullity on accounts of it being not served on all the parties petitioners. However, the event immediately preceding the filing of appeal and subsequent events from the passing of the order on 12.01.1984 to the petitioners moving an appeal under Section - 33 viz. the possession demanding notice, the compensation proceedings under Section - 11 and the order made on compensation on 30.09.1987 indicate otherwise. However, this Court hastened to add here that in absence of any challenge to the order passed by the Tribunal on May, 1992 either by the Competent Authority or the State, question arises as to whether how far this Court can examine the same so as to deny any relief to the petitioners. It is also equally important to note that in this present proceedings, the State has in fact taken ground qua retaining the land, despite the order of the Tribunal on May, 1992.
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(II) The fact remains to be noted that the original
order dated 12.01.1984 passed by the Competent Authority had been followed by the issuance of notification under Section 10 (1), 10 (3) and 10 (5) and the Kabja Pavti of excess land being taken in possession is signed by the petitioners though, petitioners have contended that out of four, only two persons have signed and that has been attempted to controvert by the State in the reply by stating that the son of absenting person had signed Kabja Pavti for and on behalf of his father. The Kabja Pavti is indicative of the fact that the excess land was surrendered on 05.03.1986. In other words, till that time, the petitioners had not chosen to challenge the order dated 12.01.1984 in any forum. Not only that petitioners did not challenge the order dated 12.01.1984, under Section 33 before the appellate forum till order for compensation came to be passed. But, the subsequent developments of the events and the orders upto Kabja pavti dated 05.03.1986 needs to be examined and purport thereof needs to be articulately stated based upon the prevalent provision of law, which will have a far reaching repercussion.
(III) The order of the Competent Authority of compensation in respect of the excess land declared as such by the Competent Authority vide order dated 12.01.1984 is issued on 30.09.1987 and even in that order, it is specifically averred by the authority that as the possession of the land is "taken over", what is efficacy and purport of this order. Can it be said that this order and the earlier orders and notifications would be obliterated as the Tribunal's order passed in the month of May, 1992 had an Page 21 of 26 HC-NIC Page 21 of 26 Created On Sat Jan 16 02:11:08 IST 2016 C/SCA/9040/1994 CAV JUDGEMNT effect of changing the size of the excess land, which in turn indicated that on account of the advent of Repeal Act, the entire land could be said to be now not available to the State and on the other hand State is arguing that the possession is taken and therefore, there was no justification for returning the land in any manner.
(IV) The fact remains to be noted that the State allotted the excess land to VUDA vide order dated 12.08.1988 and VUDA had also issued Kabja Pavti on 02.06.1990. It is required to be noted that till passing of the order dated 14.08.1988, the petitioners did not move the appellate forum invoking Section 33 of the then Act. The petitioners' filing of appeal is subsequent to the order of allotment of land to the VUDA. There is also a dispute qua the issuance of said order, which according to the petitioners should have restrained the authorities and as per the VUDA and State the same was issued after the Kabja pavti of VUDA was issued on 02.06.1990.
(V) The petitioners have, as could be seen from the aforesaid factual background, originally contended for compliance of the order whereunder they had prayed that the order of the Tribunal be implemented in its totality, which would leave petitioners with land minus the land declared excess by the Tribunal i.e. 43570 sq. mtrs. However, the petitioners have pleaded that after the order of the Tribunal dated May, 1992 the State could not have withheld the possession, which was in fact only a paper possession and therefore, on account of the Repeal Act and on account of the provision of Sections 3 and 4 of the Repeal Act, as the possession cannot be said to have been Page 22 of 26 HC-NIC Page 22 of 26 Created On Sat Jan 16 02:11:08 IST 2016 C/SCA/9040/1994 CAV JUDGEMNT taken by the State by issuance of notification under Section 10 (3) of the then Repeal Act, the entire land would be treated as free land and not available for acquisition.
(VI) As against this, it is the contention of the State that Tribunal's order is required to be viewed from the preceding set of facts and if the Repeal Act provisions are taken to its logical meaning, then even these petitions have to be dropped or disposed of as abated and the land, which was originally declared excess and possession whereof was taken has to remain with the State.
(VII) The petitioners have contended that the possession even be of State or of VUDA, shall merely be treated to be paper possession and in absence of any actual physical possession, the provision of Repeal Act would entitle the petitioners to claim the land as it is, without any land to be surrendered to the State. As by operation of the Act, the entire acquisition proceedings shall not be now inure in any manner against the petitioners.
(VIII) The decisions cited at the bar by both the parties do not contain any fact, which could be said to be akin or similar to those of the present petitions. The question of possession is highly disputed by both the parties. The issuance of Kabja Pavtis by the petitioners or some of the petitioners and the sons of the original petitioners, and the Kabja Pavti issued by the VUDA reading along with the provision of the Repeal Act, would indicate that the proceedings could be dropped even Page 23 of 26 HC-NIC Page 23 of 26 Created On Sat Jan 16 02:11:08 IST 2016 C/SCA/9040/1994 CAV JUDGEMNT against the petitioners, which may leave parties to accept and suffer from the present position in question. At the same time, a question arises as to whether this Court in exercise of powers under Article 226 and 227 of the Constitution of India, would undertake an exercise of ascertaining the facts as the fact finding would warrant opportunity to the parties to lead evidence qua the factum of possession, which ordinarily this Court would not undertake in the proceeding of this nature. In my view, therefore, the decisions cited at the bar would be of no avail to the parties at this stage. The Division Bench decision on Repeal Act provisions also do not contain as to how and in what manner the peculiar situation like the present is to be addressed. As in the instant case, the factum of Kabja Pavti and the order of the Tribunal pose altogether different question to be answered in light of the provision of the then Act, Repeal Act and the Division Bench judgment cited at the bar in respect of the effect of Repeal Act.
31. In view of the aforesaid discussion and in view of the the fact that the peculiar situation is required to be dealt with, keeping in mind the judgment of the Division Bench and also in consonance with the provision of the then Act, the Repeal Act and the Supreme Court's decisions cited hereinabove, it would be most appropriate that the present petitions be referred to Division Bench consisting of two Honourable Judges OR even the Larger Bench that may be found fit to be constituted by Hon'ble the Chief Justice in light of the Rule6 of the Gujarat High Court Rules, 1993. Rule5 of The Gujarat High Court Rules, 1993 reads as under : "5. (1) A single Judge may refer any matter Page 24 of 26 HC-NIC Page 24 of 26 Created On Sat Jan 16 02:11:08 IST 2016 C/SCA/9040/1994 CAV JUDGEMNT before him or question arising in such matter to a division bench of two Judges, or a larger bench.
(2) A Division Bench of two Judges may refer any matter before it or any question arising or any question referred to it under subrule (1) above to a Larger Bench."
32. The Division Bench of this Court in case of Ram Fertilizers Pvt. Ltd., V/s. State of Gujarat and another reported in 2001 (1) G.L.H. Page 698 held as under : "4.1 It will be seen from the provisions of Rule 5 of the Gujarat High Court Rules 1993 that a Single Judge may refer any manner before him or question arising in such matter to a Division Bench of two or more Judges or a Larger Bench. The rule does not require any reason for being recorded for the purpose and it is sufficient if in the opinion of learned Single Judge the matter requires to be considered by a Division Bench of two Judges or a Larger Bench. Therefore, even if no reason is recorded for referring the matter, there can arise no question of a Larger Bench not being able to consider the matter, because, the process of assignment of work to Benches is purely an internal matter of the High Court governed by these Rules and a matter, which could have been considered by a learned Single Judge, can always be referred for a decision to a Larger Bench."
33. In view of this, it is unequivocally clear that the Single Page 25 of 26 HC-NIC Page 25 of 26 Created On Sat Jan 16 02:11:08 IST 2016 C/SCA/9040/1994 CAV JUDGEMNT Judge of this Court may refer the matter to either Division Bench or the Larger Bench. The Court, therefore, is of the view that while exercising the discretion vested in this Court under Rule5, these two petitions are referred to the Division Bench or the Larger Bench, which may be constituted by Hon'ble The Chief Justice in exercise of power under Rule6 of the Gujarat High Court Rules, 1993.
The office is directed to do the needful.
(S.R.BRAHMBHATT, J.) pallav Page 26 of 26 HC-NIC Page 26 of 26 Created On Sat Jan 16 02:11:08 IST 2016