Gujarat High Court
Chandralal Bulchand Ambavani vs State Of Gujarat on 22 February, 2021
Author: Vineet Kothari
Bench: Vineet Kothari, Gita Gopi
C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021
CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
1. R/LETTERS PATENT APPEAL NO. 1411 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 9559 of 1995
With
2. CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2016
In
R/LETTERS PATENT APPEAL NO. 1411 of 2016
With
3. CIVIL APPLICATION (FOR STAY) NO. 3 of 2016
In
R/LETTERS PATENT APPEAL NO. 1411 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
================================================================
1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy YES
of the judgment ?
4 Whether this case involves a substantial question YES
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
CHANDRALAL BULCHAND AMBAVANI & 1 other(s)
Versus
STATE OF GUJARAT & 2 other(s)
================================================================
Appearance:
MR PM BHATT(183) for the Appellants
G B PATEL(7818) for the Appellants
MR MEET THAKKARM, ASSISTANT GOVERNMENT PLEADER for the
Page 1 of 24
Downloaded on : Thu Jan 13 01:43:50 IST 2022
C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021
CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
Respondent Nos. 1,2
MR PARTHIV A BHATT(5331) for the Respondent(s) No. 3.1,3.2,3.3,3.4,3.6.1
NOTICE SERVED BY DS(5) for the Respondent(s) No.
3.1,3.2,3.3,3.4,3.5,3.6.1,3.6.2,3.6.3,3.6.4
==========================================================
CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 22/02/2021
ORAL JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. This IntraCourt Appeal is directed against the order of the learned Single Judge dated 5.8.2016 dismissing the Special Civil Application No.9559 of 1995 filed by Baldevbhai Shivabhai Patel through his Legal Representatives and two subsequent Purchasers of the land in question (Chandralal Mulchand Ambavani and Jyotiprasad Devkinandan Chiripal).
2. The proceedings under challenge are under the Urban Land (Ceiling and Regulation) Act, 1976 ('the ULC Act' for short) and the sole argument on which the entire Letters Patent Appeal is based, is on the anvil of one alleged order under Section 20 of the ULC Act, by which the original owner - Khumanbhai Vanabhai Vagri is said to have been permitted under the said Act to retain the agricultural land in question and also sell it further, however, for the agricultural purpose only. The said Khumanbhai is said to have Page 2 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 sold the land in question to the Respondent No.3 - Original Petitioner No.1 (Baldevbhai Shivabhai Patel) under a Sale Deed dated 5.7.1979, who, instead of doing agricultural on the same, is said to have further sold the land in question by another Sale Deed dated 17.1.2007 in favour of Vishnubhai Patel and Balvantbhai Patel, who, in turn, have sold the land further to the Appellant Nos.2 and 3 - Chandralal Bulchand Ambavani and Jyotiprasad Devakinandan vide Sale Deed dated 4.1.2008. Thus, a series of Sale Deeds were executed in respect of the same land bearing Survey No.387/2 situated at Village Zundal.
3. On the other hand, the original owner - Khumanbhai through his Legal Representatives represented before the Competent Authority in the ULC proceedings and the Respondent No.2 - Deputy Collector, U.L.C., Ahmedabad passed an order under Section 8(4) of the ULC Act on 21.12.1987 declaring 3947 Sq. Mtrs. of said Survey No.387/2 belonging to Khumanbhai Vaghri as excess vacant land under the provisions of the ULC Act. Thereafter, the Notification under Section 10(3) of the ULC Act was issued on 30.6.1989. Consequently, Section 10(5) Notice to handover possession was issued by the Competent Authority to the Legal Page 3 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 Representatives of Khumanbhai on 13.7.1990 and through Panchnama process, the possession is said to have taken in August, 1990. Thereafter, the State Government under Section 23 of the ULC Act is said to have allotted the plots of the land on such excess land vested in the State Government in favour of 83 allottees vide order dated 8.10.1991 / 17.12.1991 as per the List produced on record at AnnexureR10. Thus, while on the one hand, the Competent Authorities took the proceedings under ULC Act and the land upon vesting in the State stood allotted to 83 persons, who are not parties before us, the present writ proceedings were initiated by Baldevbhai Shivabhai Patel, the first Purchaser under Sale Deed dated 5.7.1979 represented by his Legal Representatives even though he executing Sale Deed in favour of Vishnubhai Patel and Balvantbhai Patel on 17.1.2007, who, in turn, further sold the land in question on 4.1.2008 as aforesaid. Thus, a person, who had actually no interest in the land at that point of time, initiated these legal proceedings before this Court under Article 226 of the Constitution of India.
4. As stated above, the claim was based on an alleged exemption given under Section 20 of the ULC Act vide order dated 19.4.1979 Page 4 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 which the learned Single Judge, upon perusal of the original record summoned, found that no such order under Section 20 of the ULC Act was on record of the Competent Authorities nor discussed anywhere and except a mention in Reference Item No.2 of the preamble of said order, which also was found to be scored out in the original order produced before the learned Single Judge, was made the basis of this entire litigation. The learned Single Judge, therefore, found that not only the claim based on Section 20 exemption / permission to sell for agricultural purpose was available to the present Writ Petitioner / Respondent No.3 Baldevbhai Shivabhai Patel but, he was litigating before this Court though actually he on his own showing had sold the land, albeit illegally, to Vishnubahi Patel and Balvantbhai Patel. The relevant extract of the findings given by learned Single Judge, after elaborately and painstakingly going through the entire original record, are quoted below for ready reference :
"[13] It is further pertinent to note that the order dated 29.07.2004 passed by the Division Bench in the Letters Patent Appeal being No. 978 of 2001 and connected petitions, was made applicable to the present petition vide the afore stated order dated 15.03.2005 passed in the Page 5 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 Letters Patent Appeal (Stamp Number) No. 2209 of 2004, and therefore, the parties were required to maintain statusquo with regard to the land in question till the final disposal of the present petition. However, as per the additional affidavitinreply, filed on 03.12.2009 by the petitioner No. 1/3 Arvindbhai Baldevbhai Patel, the original petitioner Baldevbhai had sold out the land in question pending the petition to one Vishnubhai Madhabhai Patel and Balvant Purshottamdas Patel on 17.01.2007 by executing a registered sale deed, and the said purchasers had further sold out the land to the petitioners Nos. 2 and 3 by executing a registered sale deed on 04.01.2008. Apart from the fact that the said Baldevbhai could not have sold out the land in view of the order passed by the Division Bench directing the parties to maintain statusquo as regards the land in question, he could also not have sold out the land in view of the condition imposed in the order dated 19.04.1979 passed by the respondent No. 1 granting exemption under Section 20 of the said Act to the original landholder Khumabhai. The said order has not only been relied upon by the petitioners, but has been made basis for challenging the impugned order passed by the competent authority. One of the conditions mentioned in the said order dated 19.04.1979 was that the land in question shall not be sold or transferred without prior permission of the Government, and hence the sale made by the original petitioner Page 6 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 Baldevbhai in favour of the subsequent purchasers, and the sale made by the subsequent purchasers in favour of the present petitioners Nos. 2 and 3, were in violation of the said order passed by the State Government, and in utter disregard of the order passed by the Division Bench. The original petitioner Baldevbhai having abandoned his right in the land by selling it out to the third party who are not the party to the petition, his legal heirs could not be said to have any right in the land in question. Similarly the Petitioners Nos. 2 and 3 having purchased the land from the third party, who had no valid title in respect of the land, also could not be permitted to prosecute the present petition challenging the proceedings conducted under the ULC Act in respect of the land belonging to the original owner Khumabhai, when Khumabhai or his heirs had not chosen to challenge the said proceedings. As held by the Supreme Court in the case of State of Punjab versus Suraj Prakash, 1963 AIR (SC) 507, the existence of a right and infringement thereof are the foundation of the exercise of the jurisdiction of High Court under Article 226 of the Constitution of India. The right that can be enforced under Article 226 of the Constitution must be the personal or individual right of the petitioners. It is also settled proposition of law that a person can claim to be aggrieved, if his legal rights are directly affected. In the instant case, the Petitioner Nos.2 and 3 having failed to establish any legal right in the land in question, much less Page 7 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 infringement of their personal right, no relief as prayed for in the petition could be granted at their instance.
[14] Though it is sought to be submitted by learned advocates for the petitioners that the competent authority could not have declared the land in question as the excess vacant land, as the same was granted exemption under Section 20 of the said Act, to the original owner Khumabhai, the Court does not find any substance in the said submission also. Apart from the fact that the original landholder Khumabhai or his heirs had never bothered to challenge the order passed by the competent authority declaring the said land as excess vacant land, the order granting exemption under Section 20 passed by the respondent No.1 was never produced by them before the respondent No.2. The Court had perused the original file of the proceedings conducted by the respondent No.2, produced by the AGP for perusal of the Court, and had found that the original owner Khumabhai had received the notices issued by the respondent No.2 by registered post while processing his form filed under Section 6 of the said Act. It is also pertinent to note that by way of said notices, the respondent No.2 had called upon the said Khumabhai to produce the necessary documents as mentioned therein, and more particularly, the order, if any passed under Section 20 or 21 of the said Act, however, neither the said Page 8 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 Khumabhai nor his legal heirs had filed any reply to the said notices, nor had produced any such documents. Merely because the copy of the order dated 19.04.1979 passed by the State Government was shown to have been forwarded to the respondent competent authority, it cannot be presumed that the respondent No.2 had received it, nor be expected that the respondent competent authority was aware about the said order. A faint attempt was sought to be made by the learned counsels for the petitioners to submit that there was a reference of the order passed under Section 20 in the preamble of the impugned order, passed by the competent authority, however, on perusal the original order from the file, the Court had found that the impugned order was passed on the cyclostyled form, and from the list of documents mentioned at the top of the impugned order, the serial No.2, with regard to the order under Section 20 was scored out, meaning thereby, no such order was there on record or perused by the respondent No.2. There cannot be any disagreement with the ratio laid down by the Supreme Court in the cases relied upon by the petitioners, however, they have no application to the facts of the present case. The Court has found that the impugned order having remained unchallenged by the legal heirs of the original landholder, and also by the original petitioner Baldevbhai for about eight years, the proceedings under the ULC Act had stood concluded in the meantime, and that the land in question Page 9 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 had vested in the Government, which was further disposed of by allotting the same to the poor and needy persons by the State Government under Section 23 of the said Act. If at this juncture, any order is passed by this Court disturbing the impugned order, that would certainly adversely affect the said persons, who are not party to this petition. Though it is sought to be submitted by the learned advocates for the petitioners that the possession of the land had remained with the petitioners even after the proceedings under Section 10(5), the said submission has no substance. The Supreme Court in the latest decision in the case of State of Assam versus Bhaskar Jyoti Sarma, (2015) 5 SCC 321 has inter alia held that if the owner did not challenge the action of the respondent authorities of taking over possession under Section 10(5) of the Act, forcible taking over possession would acquire legitimacy by sheer lapse of time. The question whether actual physical possession was taken over or not remains a seriously disputed question of fact, which is not amenable to a determination by the High Court in proceedings under Article 226 of the Constitution."
5. Mr.P.M. Bhatt, learned counsel appearing for the Appellants, urged before us that the Appellants are bona fide Purchasers for consideration and on the basis of the order under Section 20 of the ULC Act which empowered Khumanbhai and his Legal Page 10 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 Representatives to sell the land in question on the basis of such Section 20 order of 1979, were entitled to challenge the proceedings as once the exemption under Section 20 is there, excess land in question could not have been so declared under the provisions of Section 8(4) of the ULC Act nor the Notification could be issued under Section 10(3) of the ULC Act and, therefore, the Writ Petition filed in 1995 by the Appellants after 8 years of passing of that order in 1989 was justified and, therefore, the present IntraCourt Appeal of 2016 deserves to be allowed.
6. On the other hand, Mr.Meet Thakkar, learned Assistant Government Pleader for the State, vehemently opposed these submissions and taking us through the aforequoted Paragraph Nos.13 and 14 of the learned Single Judge and referring to the documents on record, he submitted that not only the first sale by Khumanbhai and his Legal Representatives on 5.7.1979 was illegal and against the provisions of the ULC Act, as the land in question could not have been sold by the said Khumanbhai without taking prior permission of the State even if it was to be believed that Section 20 exemption was granted in favour of Khumanbhai. He submitted that Section 20 order was never referred and placed Page 11 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 before the Competent Authority while he took the proceedings under Sections 8(4) and 10(3) of the ULC Act and it is only for the first time that the Purchaser under the said Sale Deed dated 5.7.1979 (Baldevbhai Shivabhai Patel) challenged these proceedings after 8 years of passing of the order under Section 10(3) of the ULC Act in writ jurisdiction and that too, without filing any Appeal against the order under Section 10(3) of the ULC Act. He further submitted that Sections 10(5) and 10(6) proceedings were also taken and after taking over the possession of the land vested in the State Government, the land already stands now allotted to 83 persons who were also never arrayed as party in the present litigation by the person, who had no locus standi to file such Writ Petition.
7. He further submitted that the said alleged sale of land in question was also in contravention of the statusquo order passed by the Division Bench of this Court on 15.3.2005 in Letters Patent Appeal (St.) No.2209 of 2004 and, therefore, sale made on 17.1.2007 and 4.1.2008 were apparently in contravention of the aforesaid statusquo order granted by the Division Bench of this Court in the Page 12 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 aforesaid Letters Patent Appeal.
8. Therefore, he submitted that the first sale by Khumanbhai in favour of Bharatbhai Patel and subsequent sales are void and non est, based on an alleged exemption under Section 20 of the ULC Act which never fructified in favour of original owner - Khumanbhai, who, in fact, faced the proceedings under Sections 8 and 10 of the ULC Act and the proceedings stood concluded with the vesting order under Section 10(3) and subsequent taking of possession under Sections 10(5) / 10(6) and allotment in favour of 83 persons under Section 23 of the Act. Therefore, he submitted that present Appeal deserves to be dismissed with costs.
9. Having heard the learned counsels appearing for the parties and upon perusal of the record and going through the order of the learned Single Judge, who jotted down of all the facts after detailed perusal of the original record of the Competent Authority, we find that the present Appeal is a misuse of process of law by the Appellants before this Court. We are a bit dismayed to find that instead of producing the original orders or even authenticated photocopies of the same supported by proper affidavits, the Writ Petitioners before this Court produced surprisingly only the typed Page 13 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 copies which are full of blanks and may be even typing errors. Without proper verification and comparison with the original orders, such typed documents are not even worth the paper they were typed.
10. A feeble effort was made before the learned Single Judge as well as before us to base the claim of the Appellants, who claimed to be bona fide Purchasers under the Sale Deed alleged to have been executed by Khumanbhai or his Legal Representatives are void and nonest sales for three reasons; (i) they are in contravention of the ULC proceedings which stood concluded under the law by appropriate proceedings (2) two of the subsequent sales were apparently in conflict with the statusquo order granted by the Division Bench of this Court. Such blatant and bold effort of the private parties to execute such Sale Deeds which fly in the face of legal provisions and the Court orders have to be just kept aside and ignored without allowing any semblance of rights to be claimed by such nonchalant litigants through such illegal documents, who knocked the doors of the Court without even preparing and presenting their documents properly. The burden is thus cast upon the respondents and the Courts to look into the original records and documents produced by the other side to authenticate and verify Page 14 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 such flimsy documents. We strongly deprecate this practice of the litigants.
11. The another reason which makes Appellants before us disentitled to any relief is their locus standi. The Writ Petitioner No.1 - Baldevbhai Shivabhai Patel based his claim on an order of exemption under Section 20 of the ULC Act in favour of their Vendor Khumanbhai, which order was not even still born on the record of the Competent Authority and except a reference of the same at Serial No.2 in the preamble part of the order of the Competent Authority under Section 10(3) of the ULC Act, which reference at Serial No.2 was also found upon verification by the learned Single Judge to have been struck off, there was absolutely no material on record to claim such exemption under Section 20 of the ULC Act.
12. Assuming that any such order like AnnexureA dated 19.4.1979 under Section 20 of the ULC Act ever existed, even that has lost its significance altogether, once the Competent Authority passed an order under Section 10(3) of the Act vesting the excess vacant land in the State under Section 10(3) of the ULC Act. The exemption, if validly granted and availed could survive in favour of Page 15 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 the party only if it was properly used it as a defence in the proceedings under Section 8(4) / 10(3) of the ULC Act before the Competent Authority. The original owner of the land in question - Khumanbhai and his Legal Representatives, though were facing these proceedings under ULC Act before the Competent Authority, they never brought it to the notice of the Competent Authority any such exemption and purportedly having sold the land in question to Baldevbhai Shivabhai Patel on 5.7.1979 and, therefore, they lost interest in the proceedings under Section 10(3) of the ULC Act, it was for so called Purchaser under the Sale Deed dated 5.7.1979, Baldevbhai Shivabhai Patel to defend in those proceedings under Section 10(3) of the ULC Act, which he never did during the contemporary period. The first challenge from his side comes after 8 years of the order under Section 10(3) of the ULC Act in 1995 before the learned Single Judge only by way of filing this writ petition, without availing the alternative remedy of a Regular Appeal under the provisions of the ULC Act.
13. That petition remained on the Board of the learned Single Judge for 21 years, who after taking lot of pains of going through the original record so meticulously and returning findings of fact on the Page 16 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 basis of the original record, the Single Judge found that Section 20 order actually never existed and even the reference thereto in the preamble part of the order was struck out. Therefore, initial challenge by the said alleged Purchaser - Baldevbhai Shivabhai Patel under an illegal Sale Deed dated 5.7.1979 after 8 years was without any substance. But, it took 21 years for the learned Single Judge of this Court to find this truth and then, only could dismiss the Petition. The said litigant without any locus standi and apparently having lost interest in the land also, if his subsequent Sale Deeds were to be believed, kept lis alive by filing this Intra Court Appeal, still basing some alleged rights on the basis of Section 20 order in favour of Khumanbhai, his Vendor under the Sale Deed dated 5.7.1979 in his own favour.
14. The present Letters Patent Appeal is filed on 29.10.2016 and again, it is the lapse of five years after which we have been able to take up this matter for final disposal now through Video Conference with the assistance of learned counsels, during Covid19 period.
15. We are neither finding anything different or new, valid or of a substance, to take even a slightest possible different view from the Page 17 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 one taken by the learned Single Judge. On the contrary, we find that the appellants, a series of so called bona fide Purchasers, have kept this lis alive against the State Government and those 83 allottees, who were allotted their lands out of such excess land vested in the State Government being kept in dark by the present Appellants. They have dealt with the land in sequence of Sale Deeds completely ignoring concluded proceedings under the provisions of the ULC Act as if those proceedings had no meaning for them. This is precisely what we wish to put down with the strong iron hands of justice and such litigants if they were to be allowed to abuse the process of law unpunished, we feel, more such litigants will join their queue.
16. The concept of the justice is based on the foundation of truth and those who do not approach the Court with truth and clean hands, do not deserve any sympathy. As far as interpretation of legal provisions of ULC Act are concerned, this Court recently gave a detailed judgment in the case of Heirs of Deceased Jethabhai Ishwarbhai v. State of Gujarat & Others rendered in Letters Patent Appeal No.405 of 2017, dated 22.1.2021, following the series of Supreme Court's judgments on the provisions of the ULC Act and we find it opportune to quote some part of it for ready reference. Page 18 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022
C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 "18. Subsection (5) of Section 10 after vesting of the surplus land with the State Government provides that the Competent Authority may, by notice in writing, order any person who may be in possession of it, to surrender or give the possession thereof to the State Government or any person duly authorised by the State Government within 30 days of service of notice. The plain language of subsection (5) of Section 10 means and envisages a notice in writing in the form of an order to surrender or make over the possession to the State. Subsection (5) notice is not in the form of a show cause notice but in the form of an order apparently because the process of hearing the objections to such declaration of surplus land is already taken care in subsections (1) and (2) of Section 10. Once the land is vested, after dealing with such objections, in the State Government, the only activity remaining to be done is to complete the process and achieve the object of this Act, was to take over the physical possession of such declared excess land. Therefore, a notice in the form of an order was prescribed in subsection (5) to deliver the possession within 30 days of service of the notice.
19. There is no question of any voluntary handing over of possession on the part of the land owner. Whatever is done under subsection (5) is done in pursuance of the noticecumorder of the Competent Authority under Section 10(5) of the Act.
20. The argument based on the premise of voluntary handing over of the possession within 30 days of the said Page 19 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 noticecumorder under Section 10(5) of the Act is, therefore, a misnomer. If the possession is handed over in compliance with the noticecumorder under Section 10(5) of the Act to the State authorities or person nominated by the State, the proceedings under the ULC Act get concluded under Section 10(5) of the Act. If that is not done by the land owner in pursuance of noticecumorder under Section 10(5) of the Act, whatever thereafter is done to take over the physical possession of the excess land in question, that can only fall under Section 10(6) of the Act, which says that if any person refuses or fails to comply the order made under subsection (5), then the Competent Authority may take possession of vacant land and may use such force as may be necessary for that purpose. Subsection (6) does not require any other notice or order once again to be passed by the Competent Authority. It only envisages act of taking over the physical possession in the manner known to law including Panchnama process and presence of the owner of the land is not a condition precedent for such taking over of the possession. The last part of subsection (6) is only enabling and empowering provision for the Competent Authority who may use the force for taking over the physical possession, if there is any obstruction or hindrance created by anybody including the land owner in that process. Otherwise use of force is not necessary. Subsection (6), therefore, is not of an adjudicatory nature, but it only provides for a physical process to take de facto possession with or without the use of force. Then the proceedings under ULC Act get concluded under Section 10(6) of the Act. Both these subsections are not necessary to be operated and invoked in each and every case. The Page 20 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 proceedings under ULC Act can get concluded either under Section 10(5) or 10(6) of the Act as indicated above.
21. Therefore, in our opinion, the arguments raised before us that subsection (5) envisages voluntary handing over of possession and subsection (6) talks of forcible taking over possession, both are incomplete and misleading arguments. The scheme of this two subsections as explained above does not put these two provisions in silos or watertight compartments. They, on the other hand, provide for a smooth and barrierless process of taking over of the possession under the 1976 Act.
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 subsection (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 Page 21 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 surrender such possession or obstruct the same. No 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.
24. As far as the question of exemption under Section 21 as sought by the Appellant land owner is concerned, we are of the opinion that it was the just an excuse or ruse to save the land in the hands of the land owners themselves as neither any concrete scheme for development of dwelling units for weaker sections was ever placed by the land owner before the Competent Authority or before this Court, nor the said application appears to have been pursued by the Page 22 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 Appellant in an appropriate manner. Mere filing of the application could not have led the authorities to grant exemption to such excess or surplus land under Section 21 of the Act and save the said land from the rigour and scheme of the 1976 Act of taking over of excess land in the larger public interest and therefore, the learned Single Judge was right in rejecting the said contention as well.
25. Thus, on the overall analysis of the facts and legal position as discussed above, we do not find any merit in the present appeal filed by the Appellant and the same is liable to be dismissed. The appeal is accordingly dismissed. No order as to costs.
26. Consequently, the Civil Application stands also dismissed."
17. Therefore, the proceedings of ULC Act having been concluded is not only too late in the day for these Appellants to keep the lis alive but, we find them to have approached the Court even initially with unclean hands and without any purpose whatsoever. Therefore, the Appeal is dismissed. We would have imposed costs on all the 3 Appellants in view of aforesaid misuse of legal process, but taking a sympathetic view and with a warning for other similar litigants, we make the costs easy in this case.
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C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2
18. Consequently, connected Civil Applications also stand dismissed.
(DR. VINEET KOTHARI,J) (GITA GOPI,J) V.J. SATWARA Page 24 of 24 Downloaded on : Thu Jan 13 01:43:50 IST 2022