Gujarat High Court
State vs Kapilaben on 26 April, 2011
Bench: S.J.Mukhopadhaya, Anant S. Dave
LPA/233/2006 26/ 26 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 233 of 2006 In SPECIAL CIVIL APPLICATION No. 12602 of 2001 For Approval and Signature: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA HONOURABLE MR.JUSTICE ANANT S. DAVE ================================================= 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 ? ================================================= STATE OF GUJARAT & 1 - Appellant(s) Versus KAPILABEN AMBALAL PATEL HEIRS OF DECD. AMBALAL P. PATEL & 18 - Respondent(s) ================================================= Appearance : MRS. MANISHA LAVKUMAR SHAH AGP for Appellant(s) : 1 - 2. MR KG VAKHARIA SR COUNSEL WITH MR MK VAKHARIA for Respondent(s) : 1 - 19. ================================================= CORAM: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA HONOURABLE MR.JUSTICE ANANT S. DAVE Date :26/04/2011 CAV JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) This appeal has been preferred by the State of Gujarat against the judgment and order dated 21st December 2005 passed by the learned Single Judge in a writ petition, Special Civil Application No.12602 of 2001. Learned Single Judge held that the action on the part of appellant-respondent of taking possession of the land in question was illegal, as the authorities during the pendency of a scheme/application u/Sec.20 or Sec.21 of the Urban Land (Ceiling and Regulation) Act, 1976, (hereinafter referred to as `the Act') could have gone only upto the stage of Sec.10(3)) of the Act.
2. The brief case of the respondent-writ petitioner is that the property in question was originally owned by Parsottambhai Patel, who died on 28th January 1976 before the Act came into force. He had five sons, i.e. (1) Ambalal Parsottambhai Patel, (2) Maganbhai Parsottambhai Patel, (3) Babarbhai Parsottambhai Patel, (4) Bhailalbhai Parsottambhai Patel and (5) Ramanbhai Parsottambhai Patel, of whom three had pre-deceased, i.e. Maganbhai, Babarbhai and Bhailalbhai. Ambalal died without heir(s); Maganbhai pre-deceased his father leaving behind (a) his widow Pashiben and (b) son Bhikhabhai; Babarbhai pre-deceased his father leaving behind his heirs (a) widow Kashiben, (b) son Jayantibhai and (c) Jethabhai; and Bhailalbhai predeceased his father, leaving behind his heirs (a) widow Jadaben,
(b) son Natwarbhai and (c) son Chandubhai.
3. Further case of the petitioners is that the family filed five statements in Form V u/Sec.6 of the Act on 13th August 1976 in the name of (i) Ambalal Parsottambhai Patel, (ii) Bhikhabhai Maganbhai Patel, (iii) Natvarbhai Bhailalbhai Patel, (iv) Ramanbhai Parsottambhai Patel and Jayantibhai Babarbhai Patel. On 8th March 1980, State Government granted exemption u/Sec.20 of the Act. On 8th June 1981, Ambalal and Ramanbhai had filed objections against the draft statement filed u/Sec.8(3) of the Act. Pursuant to the application of the landowner, on 7th November 1983, competent authority withdrew the agriculture exemption granted earlier.
4. After considering the objections filed by the landowners, on 1st February 1985, competent authority passed a common order u/Sec.8(4) of the Act, declaring twelve persons in the family as holders of the land, and made the computation as under:-
Name Holding ( Sq.mt.) Retainable Land (Sq.mt.) Excess Vacant Land (Sq.mt.) Ambalal Pursottamdas 7329.50 1500 5829.50 Kanu Ambalal (son) 2637.50 1500 1137.50 Bhikhabhai Maganbhai 2613.50 1500 1113.50 Pashiben Maganbhai 2613.50 1500 1113.50 Natvarbhai Bhailalbhai 1546.40 1500 46.40 Chandubhai Bhailalbhai 1546.40 1500 46.40 Jadaben Bhailalbhai 1546.40 1500 46.40 Ramanbhai Parsottambhai 3518.00 1500 2018.00 Dilipbhai Ramanbhai (son) 1759.00 1500 259.00 Jayantibhai Babarbhai 1758.30 1500 258.30 Jethabhai Babarbhai 1758.30 1500 258.30 Kashiben Babarbhai 1758.30 1500 258.30 Total 30385.10 18000 12385.00
5. Final statement u/Sec.9 of the Act was made by the competent authority on 1st February 1985, and declared the above 12 persons as holders of excess vacant land admeasuring 12385 sq.mts.
6. State Government published notification u/Sec.10(1) of the Act in the official gazette on 21st March 1985, including only four names, as shown hereunder:
Names Excess Land (sq.mt.) Ambalal Parsottambhai 5829.50 Bhikhabhai Maganbhai 1113.50 Natvarbhai Bhailalbhai 0046.40 Jayantibhai Babarbhai 0258.00 According to the petitioners, names of other eight land owners were excluded from the notification. Said notification u/Sec.10(1) was followed by notification u/Sec.10(3) of the Act published in the official gazette on 25th July 1985 in the name the above four persons. Ambalal Parsottambhai and one Tribhovandas Chotabhai Patel submitted a joint representation u/Sec.21 of the Act on 22nd August 1985. In the said application, while stating that Secretary, Revenue Department, cancelled the agriculture exemption on 7th November 1983 in the lands of their exclusive ownership of mouje Manjalpur, they claimed that they have right to seek permission u/Sec.21 of the Act in the said lands from the date of cancellation of agriculture permission for construction of dwelling units for the accommodation of weaker sections of the society. Form V was filed under Rule 11 of the Urban Land (Ceiling and Regulation) Rules, 1976 (hereinafter referred to as `the Rules') along with zoning declaration u/Sec.20(1).
7. The competent authority by communication dated 5th September 1985 called upon the landowners to supply certain details, which were supplied by Ambalal Parsottambhai Patel on 1st October 1985. During the pendency of the said application u/Sec.21, Government issued notification u/Sec.10(5) of the Act on 17th December 1985.
8. According to the writ petitioners, Ambalal Parsottambhai subsequently died on 30th December 1985. State Government, therefore, issued notice on 23rd January 1986 u/Sec.10(5) of the Act to only four persons, viz. Ambalal Purshottambhai, Jayantibhai Babarbhai, Bhikhabhai Maganbhai and Natvarbhai Bhailalbhai. Further case of the petitioners is that though in the notice they were asked to remain present for taking possession at 11.00 a.m. on 1st February 1986, and they remained present, but nobody turned up, and in fact, notice was not served either on the legal heirs of Ambalal or the remaining eight persons, who were holding excess vacant land. On 20th March 1986, State Government is alleged to have taken possession, and executed the Panchnama without proper notice. However, the allegation that notice was not served on the landowners, or possession was not taken on the date, as notified, has been disputed by the appellant-State.
9. On 15th December 1986, the competent authority rejected the application filed by Ambalal Parsottambhai along with Tribhovandas Chotabhai Patel.
10. It appears that Ramanbhai Parsottambhai Patel and Tribhovandas Chotabhai, the power of attorney holder of Ambalal Parsottambhai Patel, preferred appeal u/Sec.33 of the Act against the order of rejection of application u/Sec.21. The said appeal was preferred on 6th January 1987, registered as Appeal No.Vadodara 2/87, and upon hearing, the same came to be rejected by the Urban Land Tribunal and Secretary, Revenue Department, Ahmedabad, by a detailed and reasoned order dated 28th August 1995. Thereafter, a review application was filed by one Devikaben, widow of Chandubhai Bhailalbhai and others u/Sec.33 of the Act on 29th April 1998. The said application was allowed on 19th September 1998, and the matter was remitted to the authority competent to take action in accordance with law.
11. Before any decision is taken after remand of the matter, Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as `the Repeal Act') came into force from 31st March 1999. The competent authority by order dated 19th May 1999 observed that the scheme u/Sec.29 cannot be considered due to repeal of the Act.
12. Thereafter, one Kamleshbhai Parekh, who claim to be power of attorney holder of Ambalal Parsottambhai Patel, filed a writ petition in the name of Ambalal Parsottambhai Patel in Special Civil Application No.8402 of 1999, challenging the action of the authorities in taking possession of the lands. A learned Single Judge of this Court by judgment dated 5th December 2000, while declaring that the action of the authorities under the Act upto the stage of Sec.10(3) of the principal Act is in accordance with law, declared the action at the stage of Sec.10(5) of the Act as illegal, and consequently, the taking over possession either physical or actual or symbolic or on paper of the excess land was also declared illegal. The possession of the land measuring 12385 sq.mt. of Final Plots Nos.115, 116, 108, 287 and 280 of Manjalpur, District Vadodara, was ordered to be restored in favour of the land owners.
13. Against the said judgment, respondent-State preferred Letters Patent Appeal No.460 of 2001. In the said appeal, State Government took the plea that Ambalal Parsottambhai Patel having died on 30th December 1985, his power of attorney holder had no authority to institute the writ petition.
14. During the pendency of the writ petition, i.e. Special Civil Application No.8402 of 1999, having noticed the aforesaid fact, 5 legal heirs of Ambalal Parsottambhai Patel along with others preferred a writ petition in Special Civil Application No.12602 of 2001. In the said writ petition, for the first time, a declaration was sought that the panchanama dated 20th March 1986 and the purported action of the respondents to take possession constructive or actual possession of the land in question as contrary to law and has no legal effect. Permanent injunction was also sought for restraining the State Government (appellant herein) from distributing or taking possession of the lands admeasuring 12385 sq.mts. or any part thereof mentioned in the Panchanama dated 20th March 1986, and to command the State and its authorities to deliver back to the petitioners possession of the said lands, if they are held to be in possession de facto or de jure thereof.
15. Initially, it was ordered that both the Letters Patent Appeal No. 460 of 2001 and the writ petition, Special Civil Application No.12602 of 2001 be heard together. However, Letters Patent Appeal No. 460 of 2001 was taken up on 16th May 2005, and it was allowed by a Division Bench on the ground that upon the death of Ambalal Purshottambhai Patel, the power of attorney holder had no authority to institute writ petition, and, therefore, the said writ petition was not maintainable. It was made clear that the said order will not influence the other writ petition, i.e. Special Civil Application No.12602 of 2001, preferred by the legal heirs of Ambalal Purshottambhai Patel and others.
16. Learned Single Judge by the impugned order and judgement dated 21st December 2005 allowed the writ petition, Special Civil Application No.12602 of 2001, against which the present appeal has been preferred by the State of Gujarat and its authorities.
17. By the impugned judgment dated 21st December 2005, learned Single Judge held that after the decision in review application, proceedings u/Sec.21 of the Act became alive, and therefore, it is within the right of the petitioners to challenge the action of the respondents of taking possession from them, which was illegal on the face of it.
Learned Single Judge agreed with the view expressed by the other Single Judge in S.C.A. No.8402/1999, which was filed by the power of attorney holder as regards the action of the State Government taking possession.
Learned Single Judge also agreed with the observation as was made earlier by another learned Single Judge in S.C.A. No. 8402 of 1999 that if an application u/Sec.20 or 21 of the Act was pending, proceedings upto the stage of Sec.10(1) only could be maintained, and further proceeding u/Sec.10(2) would not survive, which will depend upon the decision of the application u/Sec.20 or 21 of the Act.
18. In fact, learned Single Judge while passing the impugned judgement dated 21st December 2005 in S.C.A. No.12602 of 2001, practically referred to the decision rendered in the earlier case, i.e. S.C.A. No. 8402 of 1999, and agreed with all the findings, though the said judgement was set aside by the Division Bench in Letters Patent Appeal No. 460 of 2001.
19. Learned counsel for the State while referring the aforesaid fact would contend that the learned Single Judge erred in referring the earlier judgment, which has been set aside in Letters Patent Appeal No.460 of 2001.
20. Learned counsel appearing on behalf of the State assailed the judgment on the following grounds:
(i) There was delay, laches and acquiescence. Order u/Sec.8(4) was passed on 1st February 1985, possession was taken on 20th March 1986, but the petition was preferred on 27th December 2001, i.e. after a long delay of 15 years. Even a suit for recovery of possession could be barred by limitation beyond 12 years.
Reliance was placed on decisions in Shivgonda Anna Patil v. State of Maharashtra reported in AIR 1990 SC 2281 and The Municipal Council, Ahmednagar v Shah Hyder Beig reported in JT 1999 (10) SC 336.
(ii) Order passed by the authorities cannot be struck down simply on the ground that exemption application u/Sec.21 was not disposed of by the Government on the date on which possession of the land was taken.
(iii) Pendency of application u/Sec.21 cannot give a ground to claim back possession if challenged beyond limitation.
Reliance was placed on the decision of this Court in Om Prakash B. Khare v. State of Gujarat reported in 2004 (3) GLH 385.
(iv) Writ petition, having been filed after the Repeal Act came into force, was not maintainable.
(v) Possession was taken over on 20th March 1986 after following procedure as per law, notification u/Sec.10(1) was issued on 21st March 1985, notification u/Sec.10(3) issued on 25th July 1985 and order taking possession u/Sec.10(5) was passed on 17th December 1989. Ambalal died thereafter on 30th December 1985, and after following provisions u/Sec.10(6) on 22nd January 1986, Panchnama was drawn on 20th March 1986. Normal procedure of taking possession is by drawing panchanama, in support of which, learned A.G.P. relied on this Court's decision in Larsen & Toubro Ltd. v. State of Gujarat reported 1998(3) GLR 2012.
(vi) Sec.4 of the Repeal Act is not applicable to the present case, but Sec.3 which is applicable.
(vii) After possession, even if petitioners continued in possession, that is only in the capacity of an encroacher. Reliance was placed on a Division Bench decision of this Court in Muliben Bachubhai Bharwad v. State of Gujarat in Letters Patent Appeal No.2167 of 2009. In the said case, the Division Bench observed:
"If possession of the land has been taken over by the Government before the Repeal Act, but the declarant re-entering the land, such unauthorised possession on the date of introduction of the Repeal Act cannot be the basis to hold that the ULC proceeding have lapsed."
(viii) Once notice u/Sec.10(5) is given, landholder is duty bound to handover possession to Government, otherwise, any time possession can be taken by the Government.
(ix) Application u/Sec.21 of the Act is given by Ambalal and Tribhovandas after the land vested in Government, i.e. after 10(3) notification. Petitioners have never challenged the order u/Sec.8(4) dated 1st February 1985 and possession was taken on 20th March 1986 before the Tribunal, and for the first time challenged the same by way of this petition. It was contended that in the appeal filed by Ramanbhai on behalf of all the landowners against the order of rejection of application u/Sec.21 dated 15th December 1986, possession was not challenged, nor such question was raised in the Review Application No. 20 of 1998. In fact, respondents nos. 1 to 14 had never filed any application for review.
(x) After the death of the tenure holder, notice u/Sec.10(5) goes to the person on whom the holding devolved, and he would be liable to surrender the surplus land, and the liability attached to the holding of the deceased would not come to an end on his death. Therefore, the liability continued with the heirs, who cannot challenge the possession. Reliance was placed on Supreme Court decision in Bhikoba Shankar Dhuma v. Mohan Lal Punchand Tathed reported in (1982) 1 SCC 680 and State of U.P. v. Civil Judge, Nainital reported in (1986) 4 SCC
558.
21. Learned counsel appearing on behalf of the respondents has taken same plea as was taken before the learned Single Judge. He would contend that application u/Sec.21 of the Act being pending, proceedings from the stage of Sec.10(3) of the Act would depend upon the decision on application u/Sec.21 of the Act, therefore, before taking any decision u/Sec.21, actions taken u/Sec.10(3) onwards, including taking possession u/Sec.10(5), are illegal. He placed reliance on a number of decisions of the Supreme Court and this Court, as discussed and referred to below:
22. In the case of Special Officer and Competent Authority, Urban Land Ceilings, Hyderabad v. P.S. Rao reported in AIR 2000 SC 843 Supreme Court held as follows: "6. In our view, it is only after the excess land is actually determined under Section 10 that a person can know the exact extent of excess land in his holding and think of asking for exemption. There may, of course, be some cases where the extent is so large that a claimant may be able to seek exemption even at the time of filing the declaration but even in those cases, he cannot be definite about the actual extent of excess land.
"9. But, the word "hold" in Section 20(1) (a) or Section 20(1)(b) cannot, in our opinion, have the same meaning that can be attributed to it as in Section 2(1). The very definition in Section 2(1) states that the sub-section applies unless there is anything in the context which suggests a different meaning to be given. In our view, in the context of Section 20(l)(a) and Section 20(l)(b), the definition given in Section 2(1) cannot be applied. The reason is that such a construction will make section 20 unworkable and otiose. We have pointed out above that it is not possible to make any meaningful application for exemption under Section 20(l)(a) or (b) unless the exact quantum of excess is determined under Section 10 after following the various provisions of the Act relating to statutory deductions and mode of computation. If the contention of the State referred to above is to be accepted, then the peculiar position will be as follows. As stated by us, before the excess is determined, a person will not able to seek exemption because he does not know what is the actual excess land held and once the excess is determined, he cannot apply because he is not holding the excess land. Thus, the entire object of Section 20 will be frustrated. That is why we say that the definition of the words 'to hold' in Section 2(1) cannot be applied in the context of Section 20(l)(a) or Section 20(l)(b)."
23. In the case of M/s.
Avanti Organisation v. Competent Authority & Additional Collector, Urban Land Ceiling Act, Rajkot reported in 1989(1) GLR 586, a Full Bench of this Court observed:
"16.
... Section 10(2) states that the competent authority shall consider claims received in pursuance of the notification and determine the nature and extent of such claims and pass such orders in that behalf as deemed fit. After such claims are disposed of, the competent authority is empowered by Sec.10(3) to issue a further notification in the Official Gazette declaring that the excess vacant lands set out in the notification under Sec.10(1) shall, with effect from such date as is specified in the declaration, be deemed to have been acquired by the State Government and thereupon such lands shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the specified date. Section 11 provides for the payment of compensation to persons interested in such lands. It was, therefore, argued, and we think rightly, that if the acquisition process is allowed to be completed before the exemption application under Sec.20(1) is disposed of and if the lands in respect of which exemption is claimed stand acquired and vest in the State Government, it would cause an anomalous position if the State Government ultimately decides to grant exemption in respect of the said lands. We agree with the learned Advocates for the petitioners that such a situation cannot be allowed and it would, therefore, be in the fitness of things that the proceedings should in no case be allowed to proceed beyond the Sec.10(2) stage if the exemption application has not been disposed of by then."
24. In the case of Savitaben Ramanbhai Patel v. State of Gujarat reported in 1999(1) GLH 100, the Division Bench noticed the aforesaid Full Bench decision and reiterated that prosecution of further processes under the Act, after the stage of Section 10(2), will depend upon the decision on the applications u/Sec.21 of the Act.
25. Reliance was also placed by counsel for the respondents on some other decisions, but all of them being on the same issue, we have not referred to such large number of decisions, except the relevant one.
26. We have heard learned counsel for the parties and noticed the relevant facts and rival contentions.
27. In the present case, first it is to be determined as to what will be the effect of application u/Sec.21 stated to have been submitted by respondents-writ petitioners in Form V before the competent authority for utilization of vacant land in excess of the ceiling limit for the construction of dwelling units for accommodation of the weaker sections of the society.
28. It is not in dispute that the urban land ceiling proceeding started prior to August 1976. The respondents-writ petitioners have claimed that the family filed five statements u/Sec.6 of the Act on 13th August 1976. Initially exemption u/Sec.20(1) of the Act was granted on 8th March 1980 and on 29th November 1980.
29. It is claimed by the respondents-writ petitioners that application u/Sec.21 in Form V was submitted on 23nd August 1985 as evident from the application at page 506 onwards of the compilation. They have taken plea that said application was within the time limit prescribed under Rule 11 of the Rules.
From the order dated 15th December 1986 passed by the competent authority rejecting the application u/Sec.21(1) of the Act, it appears that the application was filed within one year after the withdrawal of the agricultural exemption granted earlier. The question arises `whether the application u/Sec.21(1) in Form V was filed within the period of limitation'.
30. Sec.21(1) deals with excess vacant land, which may not be treated as excess in certain cases, which reads as follows:-
"21.Excess vacant land not to be treated as excess in certain cases.- (1) Notwithstanding anything contained in any of the foregoing provisions of this Chapter, where a person holds any vacant land in excess of the ceiling limit and such person declares within such time, in such form and in such manner as may be prescribed before the competent authority that such land is to be utilized for the construction of dwelling units (each such dwelling unit having a plinth area not exceeding eighty square meters) for the accommodation of the weaker sections of the society, in accordance with any scheme approved by such authority as the State Government may, by notification in the Official Gazette, specify in this behalf, then, the competent authority may, after making such inquiry as it deems fit, declare such land not to be excess land for the purposes of this Chapter and permit such person to continue to hold such land for the aforesaid purpose, subject to such terms and conditions as may be prescribed, including a condition as to the time limit within which such buildings are to be constructed.
(2) Where any person contravenes any of the conditions subject to which the permission has been granted under sub-section (1), the competent authority shall, by order, and after giving such person an opportunity of being heard, declare such land to be excess land and thereupon all the provisions of this Chapter shall apply accordingly."
From the aforesaid provision, it will be evident that where a person holds vacant land in excess of the ceiling limit, such person shall declare the same, within such time and in such form and in such manner as prescribed, before the competent authority. The time by which such person requires to declare the land in excess to be utilized for construction of dwelling units for the weaker sections of the society, and the form in which it is to be submitted, and the manner in which it is to be filed before the competent authority, has been laid down under Rule 11 of the Rules, which reads as follows:-
"11.
The time within which, and form in which, declaration under sub-section (1) of Sec.21 shall be made. - Every declaration under sub-section (1) of Sec.21 by a person holding vacant land shall be made within one thousand, one hundred and thirty nine days from the commencement of the Act and shall be in Form V:
Provided that-
(a) where, on or after the commencement of the Act, any person acquires any vacant land in the manner provided in sub-section (1) of Sec.15, and on such acquisition, the extent of the land so acquired together with the extent of the vacant land, if any, already held by him exceeds in the aggregate the ceiling limit, then, the time within which such person may file the declaration referred to under sub-section (1) of Sec.21 shall be one thousand, one hundred and thirty-nine days from the date on which he acquires such vacant land in the manner aforesaid:
(b) where any vacant land held by any person and exempted by Cl.(iv) of sub-section (1) of Sec.19 or sub-section (1) of Sec. 20 ceases to be so exempted and as a consequence thereof the extent of such land, together with the extent of the vacant land, if any, already held by him, exceeds in the aggregate the ceiling limit, then the time within which such person may file the declaration referred to under sub-section (1) of Sec.21 shall be one thousand, one hundred and thirty-nine days from the date on which such vacant land ceases to be so exempted."
31. From the aforesaid Rule, it will be evident that the declaration u/sub-Sec.(1) of Sec.21 of a person holding excess vacant land can be made only within 1139 days from the commencement of the Act in Form V.
32. From the Act, it will be evident that said Act came into force in the State of Gujarat and some other States on 17th February 1976. U/Sec.6 a person holding vacant land in excess of the ceiling limit has to file a statement and the definition of "commencement of this Act" has been shown in the Explanation below sub-section (1) of Sec.6, which reads as follows:-
"6.
Persons holding vacant land in excess of ceiling limit to file statement.- (1) Every person holding vacant land in excess of the ceiling limit at the commencement of this Act shall, within such period as may be prescribed, file a statement before the competent authority having jurisdiction specifying the location, extent, value and such other particulars as may be prescribed of all vacant lands and of any other land on which there is a building, whether or not with a dwelling unit therein, held by him (including the nature of his right, title or interest therein) and also specifying the vacant lands within the ceiling limit which he desires to retain:
Provided that in relation to any State to which this Act applies in the first instance, the provisions of this sub-section shall have effect as if for the words "Every person holding vacant land in excess of the ceiling limit at the commencement of this Act", the words, figures and letters "Every person who held vacant land in excess of the ceiling limit on or after the 17th day of February, 1975 and before the commencement of this Act and every person holding vacant land in excess of the ceiling limit at such commencement" had been substituted.
Explanation.-In this section, "commencement of this Act" means, -
(i) the date on which this Act comes into force in any State;
(ii) where any land, not being vacant land, situated in a State in which this Act is in force had become vacant land by any reason whatsoever, the date on which such land becomes vacant land;
(iii) where any notification has been issued under Cl.(n) of Sec.2 in respect of any area in a State in which this Act is in force, the date of publication of such notification."
33. For the purpose of definition of `commencement of this Act' as mentioned in Sec.21(1) and for counting the period of limitation in the present case, the date on which the Act came into force in the State of Gujarat is to be taken into consideration, i.e. 17th February 1976. This will be also evident from the stand taken by the respondents-writ petitioners that the family filed five statements u/Sec.6 of the Act on 13th August 1976. It is not the case of the respondents-writ petitioners that the land in question was not vacant, and had become a vacant land by any reason nor they have claimed that no notification has been issued subsequently under clause (n) of clause (2) in respect of the area situated within the State of Gujarat.
Therefore, for the purpose of counting the period of limitation u/Sec.21(1) r.w. Rule 11, it will start from 17th February 1976, and limitation will come to an end by about 3rd April 1979 (1139 days). In the present case, admittedly, the application u/Sec.21(1) in Form V was filed on 22nd August 1985, i.e. after more than six years from the date of expiry of the period of limitation. In absence of any provision for condonation of delay, the petition u/Sec.21 of the Act being barred by limitation was not maintainable, and therefore is of no avail.
34. Now it is settled law that when a petition u/Sec.20(1) or 21 of the Act is pending consideration before the authorities, the authorities are not competent to initiate proceedings beyond the stage of Sec.10(2), and thereafter cannot prepare statement u/Sec.10(3), nor can have possession u/Sec.10(5) of the Act. However, if petition u/Sec.21(1) is barred by limitation, then the aforesaid principle will not be applicable, as in the eye of law, it will be deemed to be no petition pending u/Sec.21 of the Act. Moreover, after the expiry of the period of limitation as no application can be entertained, a pending petition u/Sec.21(1) in Form V for the purpose of utilization of the land for construction of the dwelling units for accommodation of weaker sections of the society, will be deemed to be no petition u/Sec.21.
In view of such position, the respondents-writ petitioners cannot derive the advantage of different decisions of this Court or the Supreme Court, as cited, noticed and reproduced above on the issue of a pending petition u/Sec.21(1). In none of the cases referred to above, this Court or the Supreme Court has considered the question of effect of pendency of a time-barred petition u/Sec.21(1) of the Act.
Sec.10(2) stipulates that the competent authority shall consider the claim received in pursuance of the notification, and determine the nature and extent of such claim, and pass such order in that behalf as deemed fit. However, if a petition u/Sec.21(1) is time-barred, in absence of any provision for condonation of delay, competent authority cannot consider the claim, even if received, nor can pass any order in a time-barred petition. In that view of the matter, the person who has filed application u/Sec.21(1) after expiry of the period of limitation cannot derive the benefit of Sec.10(2) by claiming right of consideration of claim in a time-barred application. We, accordingly hold that if a petition u/Sec.21(1) is barred by limitation, the competent authority cannot decide the claim, if any, received u/Sec.21(1), and the competent authority will proceed from the stage of Sec.10(3) and can issue notification in the Official Gazette declaring the excess vacant land as set out in the notification u/Sec.10(1), and declare that the land deemed to have been acquired and vested absolutely in the State Government free from all encumbrances with effect from the specified date. Consequentially, it is also open to the competent authority to take possession of the excess land by following the provisions u/Secs.10(5) and 10(6) of the Act, and provide compensation to persons interested in such lands u/Sec.11 of the Act.
35. Learned Single Judge, in the present case, failed to notice that petition u/Sec.21(1) filed in Form V for utilization of land for construction of dwelling units for the accommodation of weaker sections was barred by limitation. On a mere presumption that such petition u/Sec.21(1) was maintainable, giving reference to earlier decision dated 5th October 2000 of another learned Single Judge in Special Civil Application No. 8402 of 1999, which was annulled by the Division Bench in Letters Patent Appeal No. 460 of 2001, held that the competent authority was not competent to go beyond Sec.10(3) of the Act without deciding the claim u/Sec.21(1) of the Act.
36. The next question arises is as to whether there is any delay in challenging the action on the part of the appellant-State in taking the possession of the excess vacant land in question.
For deciding the aforesaid issue, it is to be noticed that petition for exemption u/Sec.21 was filed by Ambalal Purshottambhai Patel in respect to land of his exclusive ownership. He had not filed any application on 22nd August 1985 u/Sec.21 of the Act on behalf of the other co-sharer landholders. In the said application, one Tribhovandas Chotabhai Patel also put his signature. The application reads as follows:-
"From:
Patel Ambalal Parsottambhai C/o.
48, Dahibanagar society Manjalpurnaka, Vadodara 11.
Date:
22.8.85 To, Competent Authority and Additional Collector, Urban Land Ceiling, "C"
Block, Narmada Bhuvan, Jail road, Vadodara.
Subject:-
Regarding giving permission U/s.21.
It is humbly to state that Secretary, Revenue Department cancelled the agricultural exemption on dt.7.11.83 in the land of my exclusive ownership of Mouje Manjalpur the copy of which is produced herewith therefore as I have right to seek permission under section 21 in the said land from the date of cancellation of agricultural exemption, therefore be pleased to permission (sic) me permission in said land.
Yours faithfully,
1. Sd/-
Ambalal Pursottam
2. Sd/-
Patel Tribhovandas Chotabhai Enclosure:
1) three copies of form no. 5
2) Copy of power of attorney
3) Copy of order of agricultural exemption."
37. From Form V enclosed with the application, it appears that Tribhovandas Chotabhai Patel claim to be the power of attorney holder of all those whose names are shown therein, i.e. respondents nos. 1 to 23, including Ambalal Purshottambhai Patel, relevant portion of which reads as under:
5(1) We, Patel Ambalal Parsottambhai
2) Patel Bhikhabhai Maganbhai
3) Patel Ramanbhai Parsottambhai
4) Patel Jayantibhai Babarbhai
5) Patel Jadiben widow of Bhailalbhai
6) Patel Natwarbhai Bhailalbhai
7) Patel Chandubhai Bhailalbhai
8) Patel Sarojben Bhailalbhai
9) Patel Jyotsnaben Bhailalbhai
10) Patel Bhartiben Bhailalbhai
11) Patel Jethabhai Babarbhai
12) Patel Taraben Babarbhai
13) Patel Neeruben Ambabal
14) Patel Kapilaben Ambalal
15) Patel Jashodaben Ambalal
16) Patel Ranjanben Ambalal
17) Patel Kanubhai Ambalal
18) Patel Leelaben Ambalal
19) Patel Dilipbhai Ramanbhai
20) Patel Naynaben Ramanbhai
21) Patel Surekhaben Ramanbhai
22) Patel Bakulaben Ramanbhai
23) Patel Rajeshbhai Ramanbhai
1. Ambalal Parsottam Patel, Res. Manjalpur, Vadodara
2. Tribhovan Chotabhai Patel, Res. Odhav Bhula Falju, at post Padra, Dist.
Vadodara as power of attorney holders of serial nos. 1 to 23.
do hereby solemnly declare and affirm that the particulars furnished above are true to the best of our knowledge and belief.
2) We certify that the dwelling units are proposed to be constructed in accordance with a scheme approved by the authority specified by the Government.
3) We further agree to abide by the terms and conditions specified in Schedule IA appended.
4) We further agree to furnish such other evidence as we may be called upon to furnish in support of this application.
Place:
Vadodara.
Date:
22.08.1985 1. Sd/- Ambalal Pursottam
2. Sd/-
Patel Tribhovandas Chotabhai"
No separate application was filed by any of the writ-petitioners herein.
38. On rejection of the application u/Sec.21, appeal u/Sec.33 was filed by one Ramanbhai Purshottambhai Patel, being Appeal No.Vadodara 2/87. Tribhovandas Chotabhai Patel also filed appeal along with him as power of attorney holder of Ambalal Purshottambhai Patel. This will be evident from the cause title of the appellate order dated 28th August 1995, relevant portion of which is quoted hereunder:
"Before Urban Land Tribunal and Secretary, Revenue Department, Ahmedabad.
Appeal No. Vadodara 2/87 Ramanbhai Parsottambhai and Tribhovanbhai Chotabhai Patel, power of attorney holder of Shri Ambalal Parsottambhai Patel, Res.
Manjalpur, Vachlu Falju, Vadodara. .. Appellants Versus Competent Authority, Urban Land Ceiling, Vadodara, .. Respondents An appeal under section 33 of the Urban Land Ceiling Act, 1976.
============================================= Order:
==== The appellants have filed this appeal against the order No.Dwelling scheme/Dec. form no. V/Vashi/1007/86 Unit-2 dt. 15.12.86 passed by the Competent Authority and Additional Collector, Urban Land Ceiling Vadodara. The competent authority vide his suit order has rejected the scheme produced by land holder."
From the aforesaid, it will be evident that other than heirs of Ramanbhai Parshottambhai Patel and Ambalal Parshottambhai Patel, who were represented through Tribhovanbhai Chotabhai Patel as a power of attorney holder, no other respondents-writ petitioners preferred appeal u/Sec.33 against the order of rejection dated 15th December 1986 against the decision on application filed u/Sec.21 of the Act.
39. The respondent-writ petitioners claimed and admitted that Ambalal Parshottambhai Patel died on 30th December 1985. Therefore, appeal filed by Tribhovandas Chotabhai Patel, a power of attorney holder on behalf of a dead person (Ambalal Parshottambhai Patel) on 6th January 1987, being Appeal No. Vadodara 2/87, was not maintainable, so far as heirs of deceased Ramanbhai Parshottambhai Patel are concerned. Respondents nos. 1 to 5 who claim to be the heirs of deceased Ambalal Parshottambhai Patel inspite of rejection of application u/Sec.21, did not choose to prefer any appeal u/Sec.33. Therefore, order dated 15th December 1986 reached finality so far as respondents-writ petitioners nos. 1 to 5 are concerned. Except Ramanbhai Parshottambhai Patel, in absence of any appeal filed by the rest of the petitioners u/Sec.33, order dated 15th December 1986 issued by the competent authority rejecting the application u/Sec.21 of the Act also reached finality.
40. The aforesaid fact was neither considered by the reviewing authority while allowing the review application on 19th September 1988 nor noticed or discussed by the learned Single Judge.
41. The appellant-State has taken specific plea that the order taking possession was never challenged before the appellate authority or the reviewing authority. It was only challenged in the writ petition after a long delay. Though the aforesaid stand was taken before the learned Single Judge, it was not properly discussed.
42. The appellant-State has taken specific plea that the order taking possession was never challenged before the appellate authority or the reviewing authority. It was only challenged in the writ petition after long delay. Though the aforesaid stand was taken, but not properly discussed by the learned Single Judge.
43. In the case of Shivgonda Anna Patil v. State of Maharashtra reported in AIR 1990 SC 2281 the Supreme Court while dealing with Sec.10 of the Act held that the writ petition under Article 226 for reopening the proceeding on the ground that the competent authority had not taken into consideration certain fact, filed after ten years, after the excess land was vested in the State Government, was rightly summarily dismissed by the High Court.
44. While deciding the question of delay and laches in preferring the petition under Article 226, Supreme Court in the case of The Municipal Council, Ahmednagar v Shah Hyder Beig reported in JT 1999 (10) SC 336 held that the equitable doctrine, namely, `delay defects equity' has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-bye to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law.
45. In the present case, we have noticed that possession of the land was taken on 20th March 1996. The order rejecting the application u/Sec.21 reached finality on 15th December 1986 against all the petitioners, except one Ramanbhai Purshottambhai Patel. The writ petition was preferred against the petitioners only in 2001, i.e. after delay of about 14 years. The petitioners being not vigilant in exercise of their rights, learned Single Judge ought not to have entertained the petition against the order taking possession after such a long delay.
46. Some other facts have also come to our notice in the present case. The writ petition, S.C.A. No. 12602 of 2001 has been preferred on behalf of 19 persons through a constituted attorney, one of them being Rajeshbhai Ramanbhai Patel. As we have seen that except Ramanbhai Purshottambhai Patel, no other person filed the appeal u/Sec.33 against the order of rejection passed u/Sec.21. The co-appellant power of attorney had no right to file such appeal, Ambalal Purshottambhai Patel having died before filing of such appeal.
47. Though the writ petition was filed by Rajeshbhai Ramanbhai Patel under his signature, nowhere in the writ petition he has stated that he has been given power of attorney by other petitioners nos. 1 to 18 to file petition on their behalf nor such statement has been made in the affidavit sworn by him, which reads as follows:-
"I, Rajesh Ramanbhai Patel, son of Ramanbhai Purshottamdas Patel, the petitioner no.19 herein residing at Manjalpur, Vadodara solemnly affirm and state that what is stated in paragraphs 1 part, 2.1 part, 2.5, 2.7, 2.7, 2.8, 5 part, 7 is true to my knowledge and that what is stated in the remaining paragraphs 1 part, 2.1 part, 2.2, 2.3, 2.4, 2.6, 2.9, 2.10, 2.11, 2.12, 3.1 to 3.5, 4, 5 part, 6 is stated on information and belief and i believe the same to be true.
Solemnly affirmed at Ahmedabad on this 27 day of December, 2001."
48. The aforesaid facts were not noticed by the learned Single Judge. We have noticed that since very beginning it is one or the other power of attorney holder who filed the application u/Sec.21 along with one of the landowners, or the appeal by power of attorney holder on behalf of a deceased person, or Letters Patent Appeal by power of attorney holder on behalf of the deceased person or a person without power on behalf of the rest of the petitioners nos. 1 to 18 in the present case. The aforesaid fact ought to have been noticed and taken into consideration by the learned Single Judge while exercising powers under Article 226 of the Constitution of India whereas the learned Single entertained the petition after a long delay of fourteen years after taking over possession of the land in question. For the reasons aforesaid, order passed by the learned Single Judge cannot be upheld. We, therefore, set aside the order dated 21st December 2005 passed by the learned Single Judge in Special Civil Application No.12602 of 2001, and declare that the possession of the land has been rightly taken over by the competent authority of the State on 20th March 1986. The Letters Patent Appeal is allowed with aforesaid observations, but there shall be no order as to costs.
(S.J. MUKHOPADHAYA, C.J.) (ANANT S. DAVE, J.) For the reasons mentioned in the judgement, the oral prayer made by the learned counsel for the respondents for stay of this judgment is rejected.
(S.J. MUKHOPADHAYA, C.J.) (ANANT S. DAVE, J.) [sn devu] pps