Gujarat High Court
The State Of Gujarat & vs Legal Heirs Of Shivabhai Virabhai ... on 19 August, 2014
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/28698/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 28698 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA :
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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?
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THE STATE OF GUJARAT & 1....Petitioner(s)
Versus
LEGAL HEIRS OF SHIVABHAI VIRABHAI PRAJAPATI & 1....Respondent(s)
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Appearance:
MR BHARAT VYAS AGP for the Petitioner(s) No. 1 2
MR SN SHELAT, Sr. Adv. with MR PRANAV S DAVE for the
Respondent(s) No. 2.1 2.7
MR SHIVANG M SHAH for the Respondent(s) No. 2.1 2.7
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 19/08/2014
ORAL JUDGMENT
1. The present petition is filed by the petitioners State under Articles 226 and 227 of the Constitution of India as well as under the Urban Page 1 of 10 C/SCA/28698/2007 JUDGMENT Land (Ceiling & Regulation) Act, 1976 as well as Urban Land (Ceiling & Regulation) Repeal Act, 1999 for the prayers inter alia that the order passed in Appeal No. Ahmedabad/5/1999 by the ULC Tribunal dated 20.02.1999 may be quashed and set aside on the grounds stated in the memo of petition.
2. Heard learned AGP Shri Bharat Vyas for the petitionersState and learned senior counsel, Shri S.N. Shelat appearing with learned advocate, Shri Pranav Dave for the respondents.
3. The background of the facts as stated in the petition is that the respondent no.1 was the original holder of the land bearing survey no.143/2 situated at Village : Gota, Ahmedabad (Daskroi). The respondent no.1 by executing a sale deed transferred the said land in favour of the respondent no.2 on 10.02.1976. The ULC Act was brought into force on 17.02.1976 and appointed date was 28.01.1976.
4. Learned AGP Shri Vyas therefore referred to the papers and submitted that the transaction of sale is hit by the provisions of Section 5 of the ULC Act as such transaction of sale was without any permission as required under the Law. For this Page 2 of 10 C/SCA/28698/2007 JUDGMENT purpose, he referred to Section 5 of the ULC Act. He also referred to the papers and submitted that the notices under Section 10(3) as well as Section 10(5) of the ULC Act have been served. He submitted that the possession of the land was taken over on 12.12.1997 and, therefore, the land has been vested into the Government before the Repeal Act came into force. Learned AGP Shri Vyas referred to the affidavitinreply in detail to support his contention as well as written submissions, which have been placed on record. He therefore submitted that in view of the fact that the transaction is hit by the provisions of Section 5 of the ULC Act couple with the fact that defacto possession has been taken over in 1997 i.e. before the Repeal Act was brought into force, the present petition may be allowed. Learned AGP Shri Vyas also submitted that the respondents cannot be said to have any locus standi or right, title, interest and, therefore, the petition may be allowed. He also referred to the impugned order of the Tribunal and submitted that as observed, the Tribunal passed an order in a great hurry without affording opportunity to the authorities. Page 3 of 10
C/SCA/28698/2007 JUDGMENT He therefore submitted that the present petition may be allowed.
5. Learned senior advocate, Shri S.N. Shelat appearing with learned counsel, Shri Pranav Dave appearing for the respondents referred to the papers and submitted that though the contention has been raised that the transaction of sale is without any permission or authority as required under Section 5 of the ULC Act, fact remains that same has been accepted and approved by the authorities. For that purpose, learned senior advocate, Shri Shelat referred to the papers and pointed out from the Village Form No.6, where reference is made to the sale. He also referred to exemption granted under Section 20 of the ULC Act and submitted that in this, it has been specifically mentioned that Form No.6 was filled in by the purchaser, Devrajbhai seeking exemption under the Act and there is specific mentioned about the mode of acquisition of the land stating that it has been acquired by the sale. Learned senior advocate, Shri Shelat therefore submitted that when it has been specifically brought to the notice of the authority and the purchaser has Page 4 of 10 C/SCA/28698/2007 JUDGMENT filled in the Form No.6 making a declaration itself for exemption, there is no question of attracting Section 5 of the ULC Act regarding any permission for transfer of sale. He submitted that there is no question of transaction being void or contrary to the statutory provisions or ULC Act. Learned senior advocate, Shri Shelat submitted that question of any breach of any provisions of ULC Act does not arise. Therefore, learned advocate, Shri Shelat submitted that the impugned order/notice cannot be sustained and in fact, the transaction has been accepted as valid, based on which, exemption has also been granted in favour of the respondent no.2 and, therefore, the order passed by the Tribunal referring to this aspect is just and proper and the present petition under Article 226/227 of the Constitution of India may not be entertained. Learned senior advocate, Shri Shelat also submitted that in any case, before the physical possession is taken over, the notice is required to be issued to all concerned having interest in the land. He submitted that notices under Sections 10(5) and 10(6) of the ULC Act are not served. He submitted that notice under Section Page 5 of 10 C/SCA/28698/2007 JUDGMENT 10(6) of ULC Act refers to the notice to the persons, who are in possession and, therefore, apart from any other contentions, the petitioner having possession ought to have been served with the notice. He therefore submitted that in light of the settled legal position after the Repeal Act and the pronouncement of the Hon'ble Apex Court in case of State of Uttar Pradesh Vs. Hari Ram, reported in (2013) 4 SCC 280, the petition filed by the State is not justified. Learned senior advocate, Shri Shelat has also stated that the order passed by the Tribunal dated 20.02.1999 is sought to be challenged by the State in the year 2007 when the petition is filed on 08.10.2007, for which, there is no explanation. He therefore submitted that the present petition may not be entertained.
6. In view of these rival submissions, it is required to be considered whether the present petition can be entertained or not in exercise of discretion under Articles 226 and 227 of the Constitution of India.
7. From perusal of the background of the facts, it is evident that the land in question has been sold by Page 6 of 10 C/SCA/28698/2007 JUDGMENT registered sale deed, for which, declaration is also made by the purchaser, Devrajbhai (the respondent no.2). It is stated in an application for exemption under Section 20 of the Act that it has been purchased and the exemption has also been granted as per the order dated 02.11.1982 by the competent authority. Further, it is evident from the record that the possession has been handed over to the respondentpurchaser and there is no dispute on this aspect. Therefore, the moot question is whether the transaction can be said to have hit by the provisions of Section 5 of the ULC Act. Assuming that this transaction could not have been entered into without permission, the fact remains that actual possession is with the respondentpurchaser. The provisions of Section 10(5) of the Act clearly provides, "Where any vacant land is vested in the State Government under subsection (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorized by the State Government in this behalf within thirty days of the service Page 7 of 10 C/SCA/28698/2007 JUDGMENT of the notice".
8. Thus as provided in the scheme of the Act, notice is required to be served to the holder of the land. However, at the stage of notice under Section 10(5) of the Act, it refers to a notice to be served to a person from whom the possession is to be taken though he may not be a holder of the land. In other words, it speaks of issuance of the notice to any person, who may be in possession of the land in question and it implies that he may not be a holder of the land and still notice is required to be served. Admittedly, no such notice has been served to the respondentpurchaser. Therefore in light of the observations made by the Hon'ble Apex Court in a judgment in case of Hariram (supra), the possession cannot be said to have been taken over legally or validly. The Hon'ble Apex Court in case of Hariram (supra) has observed, Subsection (5) of Section 10, for the first time, speaks of "possession" which says where any land is vested in the State Government under subsection (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer Page 8 of 10 C/SCA/28698/2007 JUDGMENT possession to the State Government or to any other person, duly authorized by the State Government.
9. The judgment refers to the peaceful handing over the possession and, thereafter, taking over the forceful possession, for which, notice under Sections 10(5) and 10(6) of the Act are necessary. Further, Rule 5(2) (ii) of the Urban Land (Ceiling and Regulation) Act, 1976 provides as under: "all other persons, so far as may be known, who have, or are likely to have, any claim to, or interest in the ownership, or possession, or both, of the vacant lands, by sending the same by registered post addressed to the person concerned."
10. Therefore considering the statutory provisions as well as the pronouncement of the Hon'ble Apex Court in case of Hariram (supra), the present petition filed by the petitionerState claiming that the respondent no.2purchaser is not entitled to the land in question and transaction is hit by the statutory provisions of Section 5 of the ULC Act, cannot be accepted. As stated above, even if it is assumed that the transaction is not valid, the fact remains that the possession from the original holder of the land cannot be said to have Page 9 of 10 C/SCA/28698/2007 JUDGMENT been taken over validly or legally when same has been with the purchaser (the respondent no.2) and there is no compliance with the statutory requirement of notice under Sections 10(5) and 10(6) of the ULC Act to the respondent, who is said to be in possession.
11. Therefore in light of the discussions made hereinabove, the present petition filed by the State challenging the impugned order of the Tribunal cannot be entertained and deserves to be dismissed and accordingly stands dismissed. Rule is discharged. Interim relief, if any, stands vacated. No order as to costs.
(RAJESH H.SHUKLA, J.) Gautam Page 10 of 10