Babubai Mafatbhai Patel vs State Of Gujarat & 3 on 10 March, 2017

[Cites 17, Cited by 1]

Gujarat High Court

Babubai Mafatbhai Patel vs State Of Gujarat & 3 on 10 March, 2017

Bench: Abhilasha Kumari

                C/SCA/18463/2015                                             CAV JUDGMENT




                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       SPECIAL CIVIL APPLICATION NO. 18463 of 2015


         FOR APPROVAL AND SIGNATURE:


         HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
         ================================================================
         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 or any order made thereunder ?

         ================================================================
                            BABUBAI MAFATBHAI PATEL....Petitioner(s)
                                          Versus
                            STATE OF GUJARAT & 3....Respondent(s)
         ================================================================
         Appearance:
         MR SN SHELAT, SENIOR ADVOCATE WITH MR MRUGEN K PUROHIT,
         ADVOCATE for the Petitioner(s) No. 1
         MS AMITA SHAH, ASST.GOVERNMENT PLEADER for Respondent No. 1
         MR SHALIN N MEHTA FOR MR TATTVAM K PATEL, ADVOCATE for the
         Respondent(s) No. 3 - 4
         NOTICE SERVED BY DS for the Respondent(s) No. 2
         ================================================================
             CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI

                                       Date : 10/03/2017
                                       CAV JUDGMENT

1. Rule. Ms.Amita Shah, learned Assistant Government Pleader waives service of notices of Rule for Page 1 of 49 HC-NIC Page 1 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT respondents Nos.1 and 2. Mr.Tattvam K. Patel, learned advocate waives service of notices of Rule for respondents Nos.3 and 4. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, who have finally argued and also submitted their written submissions, the petition is being heard and decided.

2. This petition under Article226 of the Constitution of India has been preferred, challenging the orders dated 04.06.2013 and 19.08.2013, passed by the Revenue Department of the State Government and the Competent Authority Urban Land Ceiling (ULC), whereby land admeasuring 1037.72 sq. mtrs and 593.68 sq.mtrs. from Survey No.702/2, village Makarba ("the land in question") has been allotted to respondents Nos.3 and

4. It is further prayed that this Court may hold that the petitioner is entitled for the benefit of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 ("the Repeal Act", for short) and that the petitioner is in legal possession of the land admeasuring 1330 sq.mtrs. situated in Revenue Survey No.702/2 and restrain the respondent authorities from taking Page 2 of 49 HC-NIC Page 2 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT possession of the said land or creating any obstruction thereupon.

3. The petitioner has further challenged the notice dated 11.11.1990 issued under Section10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 ("the ULC Act", for short) and has prayed for a declaration that no legal possession has been taken of the land in question and that such possession cannot be taken from a dead person.

4. The facts of the case of the petitioner, as can be gathered from the record are that one Parvatiben Bhaichandbhai purchased land bearing Revenue Survey No.702 admeasuring 5041 sq.yards, equivalent to 4251 sq.mtrs. from one Laljibhai Shamaldas by a registered Sale Deed dated 22.10.1971. Entry No.4990 dated 12.12.1971 was mutated in the revenue record to this effect, though this entry was cancelled.

5. One Kamalnayan Pandit filed Civil Suit No.406 407/1983 against Tarulataben Desai and Parvatiben. By an order dated 19.05.1983 passed below Exhibit5, the Civil Court restrained the defendants from selling the Page 3 of 49 HC-NIC Page 3 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT said property while observing that the possession is with the plaintiff Kamalnayan Pandit. Entry No.5919 was mutated in the revenue record on 07.06.1987 recording the order dated 19.05.1983.

6. Thereafter, by an order dated 06.09.1984, passed under the ULC Act, land admeasuring 3214 sq.mtrs. of village Makarba was declared as surplus land and the land in issue in the petition is a part of this land. Aggrieved by the order dated 06.09.1984, Parvatiben filed ULC Appeal No.1585/1984. By an interim order dated 05.11.1984, the Urban Land Tribunal stayed further proceedings and restrained Parvatiben from entering into any kind of transaction with any person.

7. Thereafter, Parvatiben executed an Agreement to Sell dated 27.10.1986 in favour of the petitioner. On 27.10.1986, Parvatiben executed an irrevocable Power of Attorney in favour of the petitioner. On 13.08.1987, Parvatiben executed a Will in favour of the petitioner. On 02.03.1989, the appeal filed by Parvatiben came to be rejected by the Urban Land Tribunal.

8. Parvatiben died on 25.10.1989. On 23.03.1990, the Page 4 of 49 HC-NIC Page 4 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT Notification under Section10(3) of the ULC Act was published and on 11.11.1990, notice under Section 10(5) of the said Act was issued. On 03.12.1991, a Panchnama came to be drawn under the ULC Act. On 01.02.1992, the present petitioner wrote a letter to the ULC authority, informing it not to proceed with the matter, as he has filed the petition in this Court. Along with the said letter, the draft of the petition was also annexed.

9. On 06.02.1992, a letter was written by the Competent Authority to the petitioner informing him that the copy of the petition supplied by him does not carry any number. Hence, said authority asked the petitioner for the number of the petition and the copy of the order passed by this Court. On 08.04.1992, the heirs of Parvatiben executed a Power of Attorney in favour of the petitioner. On 20.07.1992, a compromise was entered into in Civil Suit No.83/1985 between the original plaintiff Kamalnayan Pandit and the heirs of Parvatiben to the effect that 2768 sq.yards of the land, out of the clear land admeasuring 4368 sq. yards would go to the plaintiff Kamalnayan Pandit and 1600 Page 5 of 49 HC-NIC Page 5 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT sq.yards would go to defendant No.2 (deceased Parvatiben). On 04.01.1999, Civil Suit No.6/1999 was instituted by Rajendra Ratilal Patel and others against Kamalnayan Pandit, heirs of Parvatiben and the present petitioner with a prayer for the declaration of the ownership and also for the declaration that the Consent Purshish filed in Special Civil Suit No.83/1985 is not binding upon the plaintiff. This suit was dismissed for default on 19.12.2008. On 13.05.1999, entry No.8551 came to be mutated in the revenue record recording the order passed under the ULC Act.

10. There is another aspect of the matter which is that originally lands bearing Survey No.806 of village Vejalpur and land bearing Survey Nos.388 and 389 of village Dantshwar, belonging to respondents Nos.3 and 4 were wrongly handed over by the State Government to the Gujarat Housing Board for construction of houses for the urban poor. This land was retainable land under the ULC Act, however, the Gujarat Housing Board raised construction upon the said land. When the mistake was pointed out to the State Government, the State Government had two options, either to vacate the Page 6 of 49 HC-NIC Page 6 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT land by pulling down the construction or to allot alternative land to respondents Nos.3 and 4. The said respondents requested the State Government to allot alternative land if the Gujarat Housing Board was not in a position to vacate the original land. Ultimately, various orders came to be passed by the State of Gujarat, whereby it was decided to allot alternative land to respondents Nos.3 and 4. After the passing of the order of allotment, as the State Government was not implementing it, various petitions were filed by respondents Nos.3 and 4 seeking directions from this Court to the State Government to allot alternative land to them. After a series of petitions and directions issued by this Court, ultimately, the State Government passed orders allotting the land in question to respondents Nos.3 and 4. After the allotment of the land in question in favour of respondents Nos.3 and 4, the said respondents made an application to the Collector, Ahmedabad, for conversion of the land into nonagricultural use. The Collector determined the amount of premium to the tune of Rs.29,68,400/, which was paid by respondents Nos.3 and 4 and the order converting the land for non Page 7 of 49 HC-NIC Page 7 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT agricultural use was passed.

11. It is in the background of this factual matrix that the petition has been filed for setting aside the order of allotment of the land in question in favour of respondents Nos.3 and 4 by allotment letter dated 04.06.2013 and the consequential orders dated 19.08.2013 and 23.01.2014 in respect of Revenue Survey No.702/2.

12. Mr.S.N.Shelat, learned Senior Advocate with Mr.Mrugen K. Purohit, learned advocate, appearing on behalf of the petitioner has made the following submissions :

(i) That the land in question was allotted to one Khodabhai Rabari pursuant to the orders passed by this Court in the petition filed by him, interalia, on the ground that his lands were taken over by the Gujarat Housing Board and he may be provided with alternative land of the same value. There was no specific indication that the lands of deceased Parvatiben, now bequeathed to the petitioner, were to be allotted to Page 8 of 49 HC-NIC Page 8 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT Khodabhai, who had approached this Court.

(ii) That Khodabhai never disclosed to this Court that he has sold the land in question in favour of respondents Nos.3 and 4 on 30.04.2003. Respondents Nos.3 and 4 have never lost the land and they are not land loosers.

(iii) That the allotment by the State Government in favour of respondents Nos.3 and 4 is dehors the provisions of Section23 of the ULC Act as the lands are to be used for the benefits of the public and to subserve the common good.

(iv) That the land belonging to the petitioner could not have been allotted by the State Government in favour of respondents Nos.3 and 4 as the State Government was never in possession of the said land. The notice under Sections10(5) and 10(6) of the ULC Act issued upon Parvatiben is not legal or valid and no legal possession was taken over from the petitioner in view of the mandatory provisions and requirements of Section10(5) Page 9 of 49 HC-NIC Page 9 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT of the ULC Act. The said notice is a composite notice under Sections10(5) and 10(6) of the ULC Act, which is not warranted by law.

(v) That Parvatiben had died on 25.10.1989 and the notice has been issued against a dead person and possession has purportedly been taken from a dead person.

(vi) In support of the above submissions, reliance has been placed upon the following judgments :

(i) State of UP Vs. Hari Ram, reported in AIR 2013 SC 1793.

(ii) Gajanan Kamlya Patil Vs. Additional Collector and Competent Authority and others, reported in AIR 2014 SC 1843.

(iii) Vipinchandra Vadilal Bavishi vS. State of Gujarat, reported in AIR 2016 SC 626.

(iv) Tukaram Kana Joshi and others through Power of Attorney Holder Vs. MIDC and others, reported in AIR 2013 SC 565.

(v) M/s.S.J.S.Business Enterprises (P) Ltd.

Vs. State of Bihar and others, reported in AIR 2004 SC 2421.

(vii) That the petitioner is in possession of the Page 10 of 49 HC-NIC Page 10 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT land is borne out from the Panchnama recorded by the Commissioner in the proceedings initiated before the City Civil Court.

(viii) That under Town Planning Scheme No.51, under Rules21 and 35, the ownership of deceased Parvatiben has been recognized. The Revenue record also bears out the possession of the petitioner which is further corroborated by Village Form No.7, 8A and 12. The title of the petitioner and his predecessor has, therefore, been recognized by the State Government even under the Town Planning Scheme.

(ix) That it is only when respondents Nos.3 and 4 were making attempts to interfere with the possession of the petitioner and it was brought to his knowledge that the lands have been allotted to the said respondents, that the petitioner had cause to institute the present petition.

(x) There has been no delay in filing the Page 11 of 49 HC-NIC Page 11 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT petition because there is a continuity of cause of action. It is only when the third party asserted interest in the property that the petitioners were required to move this Court. The claim made by the petitioner is legally sustainable as illegality is manifest. In order to do substantial justice, the petition may not be defeated on the ground of delay.

(xi) In support of the above submissions, reliance has been placed upon a judgment of the Supreme Court in the case of Tukaram Kana Joshi and others, through Power of Attorney Holder Vs. MIDC and others, reported in AIR 2013 SC 565.

(xii) That there is no suppression of material facts in the petition. No relevant fact has remained undisclosed, therefore, the contentions raised by respondents Nos.3 and 4 in their affidavitinreply, regarding suppression of material facts, are not correct. In support of the above submissions, reliance has been placed upon a Page 12 of 49 HC-NIC Page 12 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT judgment of the Supreme Court in the case of M/s.S.J.S.Business Enterprises (P) Ltd. Vs. State of Bihar and others, reported in AIR 2004 SC 2421.

(xiii) On the strength of the above submissions, it is urged by learned Senior Advocate on behalf of the petitioner, that the petition requires consideration and may be admitted.

13. The petition has been strongly opposed by Mr.Shalin N. Mehta, learned Senior Advocate with Mr.Tattvam K. Patel, learned advocate appearing for respondents Nos.3 and 4, by making the following submissions :

(i) There is a gross delay on the part of the petitioner in challenging the notice under Section10(5) of the ULC Act. The land of Parvatiben was declared as excess vacant land in the year 1990. Notice under Section 10(5) of the ULC Act was issued on 11.11.1990 and the Panchnama was drawn on 03.12.1991. Thereafter, the possession of Page 13 of 49 HC-NIC Page 13 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT the land was taken over by the State Government and the land came to be allotted to respondents Nos.3 and 4. The land remained Government vacant land even in the revenue records. The petitioner is well aware of the said position as is evident from his letter dated 01.02.1992, written to the ULC authority and the draft of the petition proposed to be filed, but never filed, in this Court as well as the letter of the ULC Authority to the petitioner dated 06.02.1992. Hence, in view of the fact that the proceedings terminated in the year 1991, there is an inordinate delay on the part of the petitioner who has chosen to file the present petition only in the year 2015, even though he had express knowledge of the same since, at least, the year 1992.

(ii) That even in the Agreement to Sell executed by Parvatiben in favour of the petitioner in the year 1986, there is a mention of the litigation in respect of the land in question, therefore, the petitioner had full Page 14 of 49 HC-NIC Page 14 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT knowledge that he had purchased the litigation along with the Agreement to Sell.

(iii) That the petition suffers from a material suppression of facts. The petitioner has deliberately, and with a view to misguiding this Court, suppressed the letter written by him on 01.02.1992 to the ULC authority as well as the draft of the petition prepared by him, both of which have been placed on record by respondents Nos.3 and 4 along with the affidavitinreply. There is also a letter written by the Competent Authority under the ULC Act to the petitioner on 06.02.1992, which has been suppressed by the petitioner. Further, the findings of the Civil Court in Civil Suit No.2101/2013 filed by the natural heirs of Parvatiben against the State of Gujarat, seeking the relief of declaration that the proceedings under the ULC Act are bad in law, have also been suppressed by the petitioner.

(iv) It is a settled position of law that the petition which suffers from suppression of Page 15 of 49 HC-NIC Page 15 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT material facts can be rejected by this Court on this ground alone.

(v) In support of the above submissions, reliance has been placed upon the following judgments :

(i) Prestige Lights Ltd. Vs. State Bank of India, reported in (2007) 8 SCC 449.

(ii) K.D.Sharma Vs. Steel Authority of India Limited and others, reported in (2008) 12 SCC 481.

(iii) Judgment dated 26.12.2016, passed by this Court in Special Civil Application No.10911.

(vi) That the ratio laid down in the judgment of the Supreme Court in M/s.S.J.S.Business Enterprises (P) Ltd. Vs. State of Bihar and others (supra), relied upon by the learned Senior Advocate for the petitioner is that if the suppression is material in nature, it goes to the very root of the matter. The same is the case in the present petition.

(vii) That the petitioner has no locus standi to file the present petition claiming to be the heir of Parvatiben on the basis of the so called Will relied upon by him, which has Page 16 of 49 HC-NIC Page 16 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT not been proved to be genuine. No Probate or Succession Certificate has been obtained by the petitioner. The natural heirs of Parvatiben are claiming rights over the property in question and have chosen to file a Civil Suit. Hence, the petition at the behest of a person who has yet to establish his rights over the property in question, is not maintainable.

(viii) That there are discrepancies in the case of the petitioner. On one hand, in the so called Will dated 13.08.1987, it is stated that as the petitioner was rendering services to the husband of Parvatiben, she executed a Will in his favour; whereas on the other hand in the Agreement to Sell dated 27.10.1986 executed by Parvatiben in favour of the petitioner, it is agreed to sell the land in question for consideration.

Hence, when in the year 1986, a commercial transaction was entered into between Parvatiben and the petitioner, there was no question of executing a Will in favour of Page 17 of 49 HC-NIC Page 17 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT the petitioner for consideration, thereafter, to the exclusion of the natural heirs of Parvatiben.

(ix) That the land in question has been allotted to respondents Nos.3 and 4 pursuant to various orders of this Court passed in different petitions. Hence, the petitioner cannot challenge the said orders. It does not lie in the mouth of the petitioner to contend that the land was required to be allotted to Khodabhai and not to present respondents Nos.3 and 4 as the petitioner is a complete stranger to the transaction entered into between respondents Nos.3 and 4 and Khodabhai.

(x) Ever since 1991, neither Parvatiben nor any other person claiming under her, was in possession of the land in question. The revenue record, especially Village Form No.7/12, records the name of the State of Gujarat in the column of 'person in occupation'. Section135(J) of the Gujarat Land Revenue Code, 1879, speaks about the Page 18 of 49 HC-NIC Page 18 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT presumption of correctness of entries in the record of rights and register of mutations.

(xi) The Panchnama relied upon by the petitioner does not help his case as a Panchnama cannot be said to be a proof of possession. Even otherwise, a perusal of the said Panchnama indicates that the possession of the petitioner is nowhere recorded or established.

(xii) That FForm does not help the petitioner as in that very form, in the column of 'Name of owner', along with name of Parvatiben, 'Shree Sarkar' is clearly mentioned. Not only that but at the end of the FForm there is a clear stipulation that 'shares of owners in F.P. As per their shares in O.P.".

(xiii) Distinguishing the judgments relied upon by learned Senior Advocate for the petitioner, it is submitted by Mr.Shalin N. Mehta, learned Senior Advocate for respondents Nos.3 and 4 that the said judgments do not take the case of the petitioner any further Page 19 of 49 HC-NIC Page 19 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT as, firstly, the petitioner has no locus standi to file the present petition as an heir of Parvatiben and, secondly, the proceedings undertaken under the ULC Act have been challenged after a gross delay of twentyfive years despite the fact that the petitioner had full knowledge of the proceedings. Hence, on both counts, the law laid down in these judgments would not help the petitioner.

(xiv) On the strength of the above submissions, it is prayed by learned Senior Advocate for respondents Nos.3 and 4 that the petition, being devoid of merit, may be rejected.

14. Ms.Amita Shah, learned Assistant Government Pleader for respondents Nos.1 and 2 has supported the orders of the State Government and submitted that the land has been declared as surplus land under the ULC Act in the year 1985 and the possession thereof has been taken over by the State Government in a legal and valid manner, in the presence of Panchas. This Court, in a series of petitions, has issued directions and the impugned order allotting the land in favour of Page 20 of 49 HC-NIC Page 20 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT respondents Nos.3 and 4 has been passed in pursuance of the said directions of the Court. That there is no illegality in any action taken by the State Government, as impugned in the present petition, therefore, the petition may be rejected.

15. This Court has heard learned counsel for the respective parties at length, perused the averments made in the petition and the documents on record. This Court has also considered the judgments relied upon by learned counsel for the respective parties in support of the rival submissions.

16. The petitioner has challenged the notice dated 11.11.1990 issued under Sections10(5) and 10(6) of the ULC Act by filing this petition in the year 2015, praying for a declaration that no legal possession of the land in question was ever taken from the petitioner by the State Government. One of the main grounds of opposition to the petition by respondents Nos.3 and 4 is the ground of gross and inordinate delay in challenging the notice. To this learned Senior Counsel for the petitioner has attempted to Page 21 of 49 HC-NIC Page 21 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT submit that it is only when respondents Nos.3 and 4 started interfering with the possession of the petitioner and it was brought to his notice that the land had been allotted to the said respondents, that the petitioner had caused to institute the present petition. It is also submitted that there is a continuity of cause of action, therefore, it cannot be said that there is any delay in challenging the notice and in order to do substantial justice, the petition may not be defeated on the ground of delay.

17. In support of the contention that legal and valid possession of the land has not been taken by the State Government under the ULC Act, reliance has been placed upon a judgment of the Supreme Court in the case of State of UP Vs. Hari Ram (supra), wherein the Supreme Court has held as below :

"33. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under subsection (5) of Section

10. Subsection (6) to Section 10 again speaks of "possession" which says, if any person refuses or fails to comply with the order made under sub section (5), the competent authority may take Page 22 of 49 HC-NIC Page 22 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT possession of the vacant land to be given to the State Government and for that purpose, force as may be necessary can be used. Subsection (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub section (5), in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted only in a situation which falls under subsection (6) and not under subsection (5) to Section 10. Subsections (5) and (6), therefore, take care of both the situations, i.e. taking possession by giving notice that is "peaceful dispossession" and on failure to surrender or give delivery of possession under Section 10(5), than "forceful dispossession" under subsection (6) of Section

10.

34. Requirement of giving notice under sub sections (5) and (6) of Section 10 is mandatory. Though the word 'may' has been used therein, the word 'may' in both the subsections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of nonissue of notice under subsection (5) or subsection (6) of Section 11 is that it might result the land holder being dispossessed without notice, therefore, the word Page 23 of 49 HC-NIC Page 23 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT 'may' has to be read as 'shall'.

35. *****

36. *****

37. *****

38. Let us now examine the effect of Section 3 of the Repeal Act 15 of 1999 on subsection (3) to Section 10 of the Act. The Repeal Act 1999 has expressly repealed the Act 33 of 1976. The Object and Reasons of the Repeal Act has already been referred to in the earlier part of this Judgment. Repeal Act has, however, retained a saving clause. The question whether a right has been acquired or liability incurred under a statute before it is repealed will in each case depend on the construction of the statute and the facts of the particular case.

39. The mere vesting of the land under sub section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before

18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under subsection (5) of Section 10 or forceful dispossession under subsection (6) of Section

10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The Page 24 of 49 HC-NIC Page 24 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act."

18. Reliance has also been placed upon another judgment of the Supreme Court in the case of Gajanan Kamlya Patil Vs. Additional Collector and Competent Authority and others (supra), wherein it has been held as below :

"13. We have, therefore, clearly indicated that it was always open to the authorities to take forcible possession and, in fact, in the notice issued under Section 10(5) of the ULC Act, it was stated that if the possession had not been surrendered, possession would be taken by application of necessary force. For taking forcible possession, certain procedures had to be followed. Respondents have no case that such procedures were followed and forcible possession was taken. Further, there is nothing to show that the Respondents had taken peaceful possession, nor there is anything to show that the Appellants had given voluntary possession. Facts would clearly indicate that only de jure possession had been taken by the Respondents and not de facto possession before coming into force of the repeal of the Act. Since there is nothing to show that Page 25 of 49 HC-NIC Page 25 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT de facto possession had been taken from the Appellants prior to the execution of the possession receipt in favour of MRDA, it cannot hold on to the lands in question, which are legally owned and possessed by the Appellants. Consequently, we are inclined to allow this appeal and quash the notice dated 17.2.2005 and subsequent action taken therein in view of the repeal of the ULC Act. The above reasoning would apply in respect of other appeals as well and all proceedings initiated against the Appellants, therefore, would stand quashed."

19. On the effect of the Repeal Act upon ULC proceedings, learned Senior Counsel for the petitioner has cited another judgment of the Supreme Court in the case of Vipinchandra Vadilal Bavishi vS. State of Gujarat (supra), wherein reliance has been placed upon the judgment in the case of State of UP Vs. Hari Ram (supra), the relevant extract of which has been reproduced hereinabove.

20. The principles of law enunciated by the Supreme Court in the abovementioned judgments cannot be disputed. However, whether the petitioner can take the shelter of the above legal propositions of law laid down by the Supreme Court after having knowledge of Page 26 of 49 HC-NIC Page 26 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT the fact that the land in question was declared as surplus land by an order dated 06.09.1984 passed under the ULC Act and in the ensuing proceedings the land was declared as excess vacant land, is a relevant aspect of the matter which requires consideration.

21. The factual aspect of the matter is not disputed. Against the order dated 06.09.1984, passed by the ULC Authority declaring land admeasuring 3214 sq.mtrs. of village Makarba as surplus land and as the land in question in the present petition was part of this land, Parvatiben who had purchased the land in question from Lalji Shamaldas filed ULC Appeal No.1585/1984 against the above order. In the proceedings of the appeal, the Urban Land Tribunal stayed further proceedings and restrained Parvatiben from entering into any kind of transaction with any person. In spite of the operation of the interim order, Parvatiben executed an Agreement to Sell for consideration in respect of the land in question in favour of the petitioner on 27.10.1986. It is mentioned in the Agreement to Sell that Civil Suit No.83/1985 is pending which the petitioner would have Page 27 of 49 HC-NIC Page 27 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT to prosecute from then onwards.

22. Parvatiben executed a Power of Attorney in favour of the petitioner on 27.10.1986. Not satisfied with that Parvatiben then executed a Will dated 13.08.1987 in favour of the petitioner. However, on 02.03.1989, the appeal filed by Parvatiben against the declaration of the land in question as surplus land came to be rejected by the Urban Land Tribunal. Parvatiben died on 25.10.1989. The Notification under Section10(3) of the ULC Act was published on 23.03.1990. The impugned notice under Section10(5) of the ULC Act was issued on 11.11.1990. Pursuant thereto, a Panchnama was drawn under the ULC Act on 03.12.1991. The petitioner is well aware of all these facts and stages of litigation and such knowledge has not been denied before this Court. on 01.02.1992, the petitioner wrote a letter to the ULC Authority informing it not to proceed ahead with the matter as a petition has been filed in this Court. Along with the letter, a draft of the petition was appended. A perusal of the draft of the petition which has been placed on record along with the affidavitinreply filed by respondents Nos.3 and 4 Page 28 of 49 HC-NIC Page 28 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT reveals that the petitioner was fully aware of the orders passed by the Competent Authority under the ULC Act as well as the Urban Land Tribunal.

23. Much has been submitted by learned Senior Counsel for the petitioner regarding the alleged illegality in the notice dated 11.11.1990 under Section10(5) of the Act on various grounds. However, these grounds, if any, were available to the petitioner at the very initial stage and the petitioner, in spite of being aware of each and every aspects of the litigation under the ULC Act chose not to take any action or challenge the Notification at the relevant point of time. Parvatiben has not succeeded in the appeal filed by her which fact is known to the petitioner, as is clear from the letter dated 01.02.1992 written by the petitioner to the ULC Authority informing it not to proceed ahead with the matter under the provisions of the ULC Act. The judgments relied upon by the learned Senior Counsel for the petitioner would have come in handy to examine the aspect of the alleged illegality in the impugned notice had the proceedings been initiated at the relevant point of time. The Page 29 of 49 HC-NIC Page 29 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT petitioner cannot be permitted to bide his time with full knowledge of the proceedings and approach the Court when it is convenient for him to do so and then state that an illegality has occurred, after accepting the situation ever since the year 1992 when the notice was issued upto the year 2015.

24. The submissions advanced on behalf of the petitioner that the petitioner had a cause of action to move this Court only when respondents Nos.3 and 4 started interfering in his possession is not at all convincing as the petitioner is well aware of the consequences of the orders passed under the ULC Act and the fact that the land has been taken over by the State Government in the year 1990 and the State Government is competent to deal with the land as it thinks fit.

25. Having taken over the possession of the land in question, the State Government has allotted it to respondents Nos.3 and 4. As has been mentioned hereinabove, the land of one Khodabhai which was retainable land was wrongly handed over by the State Page 30 of 49 HC-NIC Page 30 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT Government to the Gujarat Housing Board for construction of houses for the urban poor. Construction was raised upon the said land by the Gujarat Housing Board. When the mistake came to the knowledge of the State Government, it decided to allot alternative land to respondents Nos.3 and 4, to whom Khodabhai had sold the land that was wrongly allotted. It is a matter of record that respondents Nos.3 and 4 had to knock the doors of the Court several times before the State Government passed the order of allotment of alternative land to them. The land in question has been allotted to the said respondents by the State Government under the directions of this Court and premium to the tune of Rs.29,68,400/ has been paid by the said respondents to the State Government for converting the land for non agricultural use. Thus, rights have occurred in favour of respondents Nos.3 and 4.

26. The land in question belonged to the State Government after it was declared as excess vacant land and an order was passed taking over the possession of the land. A perusal of the Panchnama dated 03.12.1991 Page 31 of 49 HC-NIC Page 31 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT drawn under the ULC Act nowhere states that the petitioner is in possession of the land in question as has been asserted on behalf of the petitioner. In fact, it contains a description of the land and what was found thereupon by the Panchas. Even in FForm under Rules21 and 35 of the Draft Town Planning Scheme No.51 (BodakdevMakarbaVejalpur), along with the name of Parvatiben, "Shree Sarkar" is clearly mentioned in the column of "Name of owner". Even if the contention raised by the petitioner that he is in possession of the land in question is examined on merits, no cogent or persuasive material has been placed on record to show that the petitioner is in possession of the land in question or that legal or valid possession of the land was never taken by the State Government from Parvatiben and thereafter the petitioner, who is her successorininterest. Parvatiben has remained unsuccessful in the litigation under the ULC Act and the petitioner has now chosen to challenge the notice after a delay of twentyfive years, having full knowledge of the factual and legal situation.

27. The submissions advanced by the learned Senior Page 32 of 49 HC-NIC Page 32 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT Counsel for the petitioner to the effect that the delay ought not to be considered and there is a continuity of cause of action and the notice under the ULC Act is bad in law, cannot be accepted in light of the factual and legal scenario existing in the present case.

28. There is another aspect of the matter that is more serious and that is regarding the suppression of material facts by the petitioner. Respondents Nos.3 and 4 have placed on record the letter dated 01.02.1992 written by the present petitioner to the ULC Authority informing it not to proceed with the proceedings under the ULC Act as the petitioner had filed a petition in this Court. It is also stated in the said communication that along with the letter the petitioner has appended the draft of the petition purported to have been filed in this Court. This draft has also been placed on record by respondents Nos.3 and 4. Both these documents have been suppressed by the petitioner, maybe with an intention to give an impression to this Court that the petitioner was not in the knowledge of the proceedings under the ULC Act Page 33 of 49 HC-NIC Page 33 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT which were originally being prosecuted by Parvatiben but were inherited by the petitioner along with her interest, if such interest remained, in the land in question. A perusal of this letter makes it clear that the petitioner was well aware regarding the consequences of the order of the rejection of the appeal filed by Parvatiben against the declaration of the land in question as surplus land and the steps that would be taken by the State Government thereafter.

29. On the aspect of delay, learned Senior Counsel for the petitioner has relied upon the judgment of the Supreme Court in the case of Tukaram Kana Joshi and others through Power of Attorney Holder Vs. MIDC and others (supra), wherein it has been held as below:

"11. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226, nor is it that there can never be a Page 34 of 49 HC-NIC Page 34 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT case where the Courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party's defence must be tried upon principles substantially equitable. (Vide:

P.S. Sadasivaswamy v. State of T.N. AIR 1974 SC 2271; State of M.P. & Ors. v. Nandlal Jaiswal & Ors., AIR 1987 SC 251; and Tridip Kumar Dingal & Ors. v. State of West Bengal & Ors., (2009) 1 SCC 768:(AIR 2008 SC (Supp)824).

12. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for Page 35 of 49 HC-NIC Page 35 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT the other side cannot claim to have a vested right in the injustice being done, because of a non deliberate delay. The court should not harm innocent parties if their rights have infact emerged, by delay on the part of the Petitioners.

(Vide: Durga Prasad v. Chief Controller of Imports and Exports & Ors., AIR 1970 SC 769; Collector, Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors., AIR 1987 SC 1353; Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhojpur & Ors., AIR 1993 SC 802; (1992 AIR SCW 3181); Dayal Singh & Ors. v. Union of India & Ors., AIR 2003 SC 1140: (2003 AIR SCW 685); and Shankara Coop Housing Society Ltd. v. M. Prabhakar & Ors., AIR 2011 SC 2161:(2011 AIR SCW 3033)"

30. This judgment speaks of discretion to be exercised by the Court while condoning a long delay when the cause of substantial justice so demands. As stated by the Supreme Court, there may be a case where the demand for justice is so compelling that the Court would be inclined to interfere in spite of delay and in order to promote justice. However, at the same time the Supreme Court, cautions that discretion must be exercised judiciously and reasonably and in the event that the claim made by the applicant is legally Page 36 of 49 HC-NIC Page 36 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT sustainable, delay should be condoned. In the present case, the principles of law enunciated by the above quoted judgment would not be applicable as the petitioner had full knowledge of the impugned notice at the relevant point of time but chose not to challenge the same on any of the grounds now been raised in the petition. There is no explanation for the delay, leave alone sufficient cause, therefore, the principles of law enunciated by the Supreme Court in this judgment would not come to the aid of the petitioner in the present case.

31. On the point of suppression of material facts, learned Senior Counsel for the petitioner has placed reliance upon a judgment of the Supreme Court in the case of M/s.S.J.S.Business Enterprises (P) Ltd. Vs. State of Bihar and others (supra), wherein it has been held as below :

"12. The principal basis on which the Single Judge and the only ground on which the Division Bench of the High Court refused relief to the appellant was because they found that the appellant was guilty of suppression of a material fact viz., the filing of the suit prior to approaching the Court under Article 226.

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13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the Court, whatever view the Court may have taken. Thus when the liability to Income Tax was questioned by an applicant on the ground of her nonresidence, the fact that she had purchased and was maintaining a house in the country was held to be a material fact the suppression of which disentitled her from the relief claimed. Again when in earlier proceedings before this Court, the appellant had undertaken that it would not carry on the manufacture of liquor at its distillery and the proceedings before this Court were concluded on that basis, a subsequent writ petition for renewal of the licence to manufacture liquor at the same distillery before the High Court was held to have been initiated for oblique and ulterior purposes and the interim order passed by the High Court in such subsequent application was set aside by this Court. Similarly, a challenge to an order fixing the price was rejected because the petitioners had suppressed the fact that an Page 38 of 49 HC-NIC Page 38 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT agreement had been entered into between the petitioners and the Government relating to the fixation of price and that the impugned order had been replaced by another order."

32. Examining the case of the petitioner in light of the above principles of law laid down by the Supreme Court in the factual scenario of the present case, this Court is of the firm view that the petitioner has suppressed the letter dated 01.02.1992 written by him to the ULC Authority as well as the draft of the petition proposed to be filed by him in this Court, which was produced along with the said letter. These facts that have been suppressed are material facts, in the sense that had they not been suppressed the petitioner would find it difficult to wriggle out of the aspect of delay and his knowledge regarding the ULC proceedings. By suppressing these material facts, the petitioner has tried to deliberately mislead and misguide the Court in order to escape the consequences of the gross delay in challenging the notice under Section10(5) of the ULC Act, dated 11.11.1990 in the year 2015. Not only that but the petitioner has also suppressed the fact of filing of the Civil Suit Page 39 of 49 HC-NIC Page 39 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT No.2101/2013 by the natural heirs of Parvatiben against the State of Gujarat, seeking relief to declare the proceedings under the ULC Act to be bad in law. The Court is informed by learned Senior Counsel for the respective parties that this suit is still pending. If that is so, the relief sought in the petition would directly affect the determination of the said suit.

33. On the aspect of suppression of material facts, Mr.Shalin N. Mehta, learned Senior Counsel for respondents Nos.3 and 4 has relied upon the judgment of the Supreme Court in the case of Prestige Lights Ltd. Vs. State Bank of India (supra), wherein the Apex Court has held as below :

"35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the Page 40 of 49 HC-NIC Page 40 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible."

34. Another judgment on the same point relied upon by the learned Senior Counsel for respondents Nos.3 and 4 is in the case of K.D.Sharma Vs. Steel Authority of India Limited and others (supra). The following is what the Supreme Court has said on the aspect of suppression of material facts :

"34. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the Writ Court must come with clean hands, put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim.

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35. The underlying object has been succinctly stated by Scrutton, L.J., in the leading case of R.v. Kensington Income Tax Commrs. in the following words:

"...it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts it says facts, not law. He must not misstate the law if he can help it; the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it the Court will set aside any action which it has taken on the faith of the imperfect statement".

(emphasis supplied)

36. A prerogative remedy is not a matter of course. While exercising extraordinary power a Writ Court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the Court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the Court, the Court may dismiss the Page 42 of 49 HC-NIC Page 42 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT action on that ground alone and may refuse to enter into the merits of the case by stating "We will not listen to your application because of what you have done". The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it.

37. *****

38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play `hide and seek' or to `pick and choose' the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of Writ Courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because, "the Court knows law but not facts".

39. If the primary object as highlighted in Kensington Income Tax Commissioners is kept in Page 43 of 49 HC-NIC Page 43 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT mind, an applicant who does not come with candid facts and `clean breast' cannot hold a writ of the Court with `soiled hands'. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of Court for abusing the process of the Court."

35. As stated by the Supreme Court in the above quoted judgment, a party invoking the extraordinary jurisdiction of this Court under Article226 of the Constitution of India is required to disclose all relevant and material facts frankly and truthfully. He cannot be permitted to pick and choose the facts which he would like to disclose and suppress those that are not convenient for him to disclose, as the basis of Page 44 of 49 HC-NIC Page 44 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT writ jurisdiction rests on the complete disclosure of true and correct facts. In the present case the petitioner has chosen not to disclose the facts that are inconvenient to him as to do so would destroy the basis of his case on the aspect of delay. Such conduct cannot be appreciated by this Court. A litigant such as the petitioner who does not come to the Court with absolutely clean hands cannot demand that extraordinary, equitable jurisdiction under Article 226 of the Constitution of India be exercised in his favour.

36. Learned Senior Counsel for respondents Nos.3 and 4 has relied upon a judgment of this Court dated 26.12.2016, passed in Special Civil Application No.10911/2016, in the case of Vaghela Popatbhai Chhaganbhai Vs. State of Gujarat, wherein, after relying upon the judgments of the Supreme Court in the case of K.D.Sharma Vs. Steel Authority of India Limited and others (supra) and Prestige Lights Ltd. Vs. State Bank of India (supra), this Court arrived at the following conclusion :

"30. It is clear from the above wellsettled principles of law that are now firmly entrenched Page 45 of 49 HC-NIC Page 45 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT in our jurisprudence that a litigant, such as the present petitioner, who has not come to the Court with clean hands and has suppressed material facts and attempted to place distorted facts on record, deserves no equitable relief under Article226 of the Constitution of India."

37. The principles of law enunciated in the above quoted judgments relied upon by the learned Senior Counsel for respondents Nos.3 and 4 squarely apply to the facts of the present case and disentitle the petitioner for the grant of discretionary and equitable relief.

38. The submission advanced on behalf of the petitioner that the impugned notice has been issued against a dead person, namely, Parvatiben is also not convincing, as the impugned notice could have been challenged at the relevant point of time. Instead of doing so, the petitioner has taken over the litigation after the death of Parvatiben and even wrote to the ULC Authority vide the letter dated 01.02.1992, which has been suppressed, urging them not to take further action in the matter. It appears that the petition purported to have been filed in the High Court has not been filed. All aspects of the matter were known to Page 46 of 49 HC-NIC Page 46 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT the petitioner and all legal grounds were available to him at the relevant point of time, which were deliberately not taken by him, as the petitioner had accepted the orders of the ULC Authority and the Urban Land Tribunal.

39. Whether Parvatiben could have entered into an Agreement to Sell and execute the Power of Attorney and Will in respect of the land in question in favour of the petitioner when she was ceased to be the owner thereof, is another moot question.

40. Learned Senior Counsel for respondents Nos.3 and 4 has submitted that the petitioner has no locus standi to file the petition, as he has not obtained a probate of the Will nor a Succession Certificate issued on the said Will. Moreover, the natural heirs of Parvatiben are claiming rights over the property by way of Civil Suit. It has been submitted that the petition at the behest of a person who is yet to establish his right over the land in question is not maintainable. As the Civil Suit is pending, the Civil Court would decide the right and title of the parties in the land in question. Suffice it to say that the Page 47 of 49 HC-NIC Page 47 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT petitioner has failed in the challenge to the notice impugned in the present petition on the grounds of delay, suppression of material facts as also on merits, as no shred of evidence has been placed on record by the petitioner in order to establish his possession over the land in question. Moreover, the petitioner has not been successful in pointing out any legal flaw in the orders of allotment of the land in question in favour of respondents Nos.3 and 4 that have been challenged in the petition. As no illegality and infirmity has been pointed out in the said orders and the petitioner has failed to establish his case with regard to the challenge to the impugned notice, this Court considers the petition to be devoid of merit and deserving of outright rejection.

41. In view of the above discussion and for the aforestated reasons, the following order is passed :

The petition is rejected. Rule is discharged.

There shall be no orders as to costs. The interim relief stands vacated.

(SMT. ABHILASHA KUMARI, J.) Page 48 of 49 HC-NIC Page 48 of 49 Created On Sat Mar 11 00:17:38 IST 2017 C/SCA/18463/2015 CAV JUDGMENT Mr.Rutul P. Desai, learned advocate for Mr.Mrugen K. Purohit, learned advocate for the petitioner, prays that the implementation of the judgment be stayed and the interim relief may be continued for some time. For reasons stated in the judgment, the request is declined.

(SMT. ABHILASHA KUMARI, J.) Gaurav+ Page 49 of 49 HC-NIC Page 49 of 49 Created On Sat Mar 11 00:17:38 IST 2017

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