Gujarat High Court
Heirs Of Dec Jethabhai Ishwarbhai vs State Of Gujarat on 22 January, 2021
Author: Vineet Kothari
Bench: Vineet Kothari, Gita Gopi
C/LPA/405/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 405 of 2017
In
R/SPECIAL CIVIL APPLICATION NO. 11044 of 2000
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2017
In
R/LETTERS PATENT APPEAL NO. 405 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI Sd/-
and
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy Yes
of the judgment ?
4 Whether this case involves a substantial question Yes
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HEIRS OF DEC JETHABHAI ISHWARBHAI
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR. BK. RAJ(3794) for the Appellant(s) No. 1
MR MEET M THAKKAR, ASSISTANT GOVERNMENT
PLEADER(1) for the Respondent(s) No. 1,2,3
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C/LPA/405/2017 CAV JUDGMENT
CORAM:HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 22/01/2021
CAV JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. This Letters Patent Appeal arises out of the judgment and order of the learned Single Judge dated 4.10.2016, by which the learned Single Judge was pleased to dismiss Special Civil Application No.11044 of 2000 in a matter arising under provisions of the Urban Land (Ceiling and Regulation) (Repeal) Act, 1999 (hereinafter referred to as 'the Repeal Act').
2. The learned Single Judge dismissed the writ petition in a second round of litigation by the same Appellant, where a coordinate bench of this Court vide order dated 29.9.2014 set aside the earlier order of the learned Single Judge dated 25.6.2013 dismissed this earlier Special Civil Application No.11044 of 2000 and the Division Bench set aside that order and restored the matter on the file of learned Single Judge to decide the writ petition again and in the second round of position, the learned Single Judge, by detailed order dated 4.10.2016, again dismissed Page 2 of 17 Downloaded on : Sat Jan 23 05:10:10 IST 2021 C/LPA/405/2017 CAV JUDGMENT the writ petition, out of which the present Letters Patent Appeal arises.
3. The facts, in nutshell, giving rise to the present litigation noted by the learned Single Judge, are reiterated hereunder for ready reference.
4. One Jethabhai Ishwarbhai was owner of certain land bearing Survey No.369/1, Vadsar, District Vadodara, admeasuring about 1863 sq. mtrs., which was declared surplus under provisions of the ULC Act, 1976 by the Competent Authority vide order dated 29.9.1986. The said land was earlier exempted under Section 20 of the said Act, however, the said exemption was withdrawn on 5.6.1986 and under provisions of Section 10(3) of the Act, the said 1863 sq. mtrs. of land was declared excess under the said provision of the Act and was vested in the State Government. A notice under Section 10(5) of the Act was issued to the said owner on 28.11.1987 directing the owner of land to hand over the vacant possession of such surplus land admeasuring 1863 sq. mtrs. However, the same was not handed over to the State within the stipulated period of 30 days, but after a gap of about 6 years, the possession of the said excess land was taken over by the concerned authorities on 24.11.1993 by Page 3 of 17 Downloaded on : Sat Jan 23 05:10:10 IST 2021 C/LPA/405/2017 CAV JUDGMENT drawing a Panchnama, during which proceedings, apparently the owner of the land was not present. The 1976 Act came to be repealed in the year 1999 with effect from 30.3.1999 and Section 4 of the said Repeal Act, 1999 provided for abatement of the pending legal proceedings and it is this provision which seems to have given rise to a spate of litigation not only in this case but lot of such other cases.
5. What was intended to be wiped out by the Repeal Act of 1999, in fact, cropped up more litigation after the Repeal Act rather than under the 1976 Act itself when it lived its life for a period of about 23 years and it is now about 23 years after the Repeal, the Courts are still struggling to settle the variety of issues arising under the said Repeal Act and the case in hand is one such example.
6. Reliance was placed upon the decision of the Hon'ble Supreme Court in the case of State of U.P. vs. Hari Ram [(2013) 4 SCC 280] and it was sought to be contended that the proceedings abated under the Repeal Act, 1999 and therefore, the land should be handed over back to the owner of the land who now came to be represented by the Legal Representative upon the death of the original owner.
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7. Another plea raised in the present writ petition by the land owner was that he moved an application for exemption from Ceiling law in terms of Section 21 of the Act of 1976, which permitted such exemption in case the surplus land was to be used for construction of dwelling units for the weaker sections of the society and upon such application, an order could be passed by the Competent Authority for not taking over the possession of the excess land and allowing it to be utilised for the construction of the dwelling units for weaker sections of the society. Such application also was filed by the Petitioner on 28.1.1988, on which a notice was issued on 4.6.1988 and against the rejection of such application, an appeal was also preferred by the land owner which never seems to have been decided till the Repeal Act came into force in 1999.
8. The Petitioner, therefore, filed in the writ petition in this Court.
9. The learned Single Judge, however, dismissed the writ petition filed by the Petitioner relying over the later decision of the Hon'ble Supreme Court in the case of State of Assam vs. Bhaskar Jyoti Sarma [(2015) 5 SCC 321] and explaining why the Page 5 of 17 Downloaded on : Sat Jan 23 05:10:10 IST 2021 C/LPA/405/2017 CAV JUDGMENT earlier decision of the Hon'ble Supreme Court in the case of State of U.P. vs. Hari Ram (supra), would not apply in this case. The learned Single Judge held that the challenge to possession taken through Panchnama process on 24.11.1993 could be challenged by the Petitioner if at all within a reasonable time only and not after a huge delay and in case, there was a long delay, the sheer lapse of long time in laying such challenge will justify the possession taken by the State authorities and the land owner should be deemed to have waived his right under Section 10(5) of the Act.
10. Aggrieved by the said order of the learned Single Judge, the Legal Representatives of deceased land owner are before us in the present intracourt appeal.
11. Mr. B.K. Raj, learned counsel for the Appellant has submitted before us that if the Petitioner or land owner did not hand over the possession voluntarily under Section 10(5) of the Act within 30 days of the Notice under Section 10(5) of the Act, which was served upon him on 4.6.1988, the only option available to the State was to take forcible possession under Section 10(6) of the Act and since that procedure was not followed, the Petitioner should be deemed to be in continued Page 6 of 17 Downloaded on : Sat Jan 23 05:10:10 IST 2021 C/LPA/405/2017 CAV JUDGMENT possession of the land in question and the proceedings under the 1976 Act should be deemed to have abated in view of Section 4 of the Repeal Act of 1999. Learned counsel for the Appellant heavily relied upon the decision of the Hon'ble Supreme Court in the case of State of U.P. vs. Hari Ram (supra).
12. On the other hand, Mr. Meet M. Thakkar, learned Assistant Government Pleader supported the impugned order of the learned Single Judge and submitted that the judgment of the Hon'ble Supreme Court in the case of State of U.P. vs. Hari Ram (supra) has no application to the facts of the present case and the learned Single Judge was justified in relying upon the later decision of the Hon'ble Supreme Court in the case of State of Assam vs. Bhaskar Jyoti Sarma (supra). He also submitted that the possession of the land in question taken through Panchnama process in the presence of two witnesses on 24.11.1993 which should be deemed to have been taken under Section 10(6) of the Act only and even though the owner of the land was not present at the site on that day, it will not render such de facto possession taken under Section 10(6) of the Act non est or void. He, therefore, submitted that since the possession of the land in question was taken over by the State well before the Repeal Act Page 7 of 17 Downloaded on : Sat Jan 23 05:10:10 IST 2021 C/LPA/405/2017 CAV JUDGMENT came in 1999, there is no question of abatement of any pending proceeding under the 1976 Act and the present Writ Appeal has no merit and the same deserves to be dismissed.
13. We have heard learned counsel at length and perused the relevant material on record and decisions cited at the bar.
14. The avowed object of ULC Act, 1976 was to impose a ceiling on the vacant land in the urban areas and acquisition of such excess land over ceiling limit to provide the same to the State for equitable distribution of land to subserve common good for larger public interest and to prevent the concentration of urban land in the hands of few persons.
15. There is no dispute before us that the proceedings under Section 10(3) of the Act declaring the 1863 sq.mtrs. of land in the present case as surplus land was duly undertaken and notified by the Competent Authority vesting such land in the State Government, but, however, the dispute is regarding the possession of the same taken over by the State authorities.
16. In order to understand the said controversy in a proper perspective, let us quote Section 10 of the Act in extenso hereunder:
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"10. Acquisition of vacant land in excess of ceiling limit. -
(1) As soon as may be after the service of the statement under section 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that -
(i) such vacant land is to be acquired by the concerned State Government; and
(ii) the claims of all person interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land, to be published for the information of the general public in the Official Gazette of the State concerned and in such other manner as may be prescribed.
(2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under subsection (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit.
(3) At any time after the publication of the notification under subsection (1) the competent authority may, by notification published in the Page 9 of 17 Downloaded on : Sat Jan 23 05:10:10 IST 2021 C/LPA/405/2017 CAV JUDGMENT Official Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under subsection (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified.
(4) During the period commencing on the date of publication of the notification under subsection (1) and ending with the date specified in the declaration made under subsection (3) -
(i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void;
and
(ii) no person shall alter or cause to be altered the use of such excess vacant land.
(5) 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 Page 10 of 17 Downloaded on : Sat Jan 23 05:10:10 IST 2021 C/LPA/405/2017 CAV JUDGMENT possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice. (6) If any person refuses or fails to comply with an order made under subsection (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary.
Explanation.--In this section, in subsection (1) of section 11 and in sections 14 and 23, "State Government", in relation to -
(a) any vacant land owned by the Central
Government, means the Central Government;
(b) any vacant land owned by any State
Government and situated in the Union territory or within the local limits of a cantonment declared as such under section 3 of the Cantonments Act, 1924 (2 of 1924), means that State Government."
17. While the declaration under Section 10(3) of the Act is not in dispute before us, subsection (4) providing for transfers of land in question during the pendency of the proceeding is also not very relevant here in the present case.
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18. Subsection (5) of Section 10 after vesting of the surplus land with the State Government provides that the Competent Authority may, by notice in writing, order any person who may be in possession of it, to surrender or give the possession thereof to the State Government or any person duly authorised by the State Government within 30 days of service of notice. The plain language of subsection (5) of Section 10 means and envisages a notice in writing in the form of an order to surrender or make over the possession to the State. Subsection (5) notice is not in the form of a show cause notice but in the form of an order apparently because the process of hearing the objections to such declaration of surplus land is already taken care in subsections (1) and (2) of Section 10. Once the land is vested, after dealing with such objections, in the State Government, the only activity remaining to be done is to complete the process and achieve the object of this Act, was to take over the physical possession of such declared excess land. Therefore, a notice in the form of an order was prescribed in subsection (5) to deliver the possession within 30 days of service of the notice.
19. There is no question of any voluntary handing over of possession on the part of the land owner. Whatever is done Page 12 of 17 Downloaded on : Sat Jan 23 05:10:10 IST 2021 C/LPA/405/2017 CAV JUDGMENT under subsection (5) is done in pursuance of the noticecum order of the Competent Authority under Section 10(5) of the Act.
20. The argument based on the premise of voluntary handing over of the possession within 30 days of the said noticecum order under Section 10(5) of the Act is, therefore, a misnomer. If the possession is handed over in compliance with the notice cumorder under Section 10(5) of the Act to the State authorities or person nominated by the State, the proceedings under the ULC Act get concluded under Section 10(5) of the Act. If that is not done by the land owner in pursuance of noticecumorder under Section 10(5) of the Act, whatever thereafter is done to take over the physical possession of the excess land in question, that can only fall under Section 10(6) of the Act, which says that if any person refuses or fails to comply the order made under sub section (5), then the Competent Authority may take possession of vacant land and may use such force as may be necessary for that purpose. Subsection (6) does not require any other notice or order once again to be passed by the Competent Authority. It only envisages act of taking over the physical possession in the manner known to law including Panchnama process and presence of the owner of the land is not a condition precedent for Page 13 of 17 Downloaded on : Sat Jan 23 05:10:10 IST 2021 C/LPA/405/2017 CAV JUDGMENT such taking over of the possession. The last part of subsection (6) is only enabling and empowering provision for the Competent Authority who may use the force for taking over the physical possession, if there is any obstruction or hindrance created by anybody including the land owner in that process. Otherwise use of force is not necessary. Subsection (6), therefore, is not of an adjudicatory nature, but it only provides for a physical process to take de facto possession with or without the use of force. Then the proceedings under ULC Act get concluded under Section 10(6) of the Act. Both these subsections are not necessary to be operated and invoked in each and every case. The proceedings under ULC Act can get concluded either under Section 10(5) or 10(6) of the Act as indicated above.
21. Therefore, in our opinion, the arguments raised before us that subsection (5) envisages voluntary handing over of possession and subsection (6) talks of forcible taking over possession, both are incomplete and misleading arguments. The scheme of this two subsections as explained above does not put these two provisions in silos or watertight compartments. They, on the other hand, provide for a smooth and barrierless process of taking over of the possession under the 1976 Act. Page 14 of 17 Downloaded on : Sat Jan 23 05:10:10 IST 2021 C/LPA/405/2017 CAV JUDGMENT
22. In these circumstances, if the possession is not handed over within 30 days of service of notice under Section 10(5), it will amount to failure to comply with the order under subsection (5) and thereafter whenever the possession is taken by the State authorities, even though after 6 years, as it has happened in the present case through Panchnama process in the absence of physical presence of the land owner, it does not vitiate those proceedings which will fall under Section 10(6) of the Act. The taking over of the possession through Panchnama process in the presence of two witnesses is a well recognised process for taking over the possession in law and cannot be said to be void, non est or illegal in any manner. The land owner cannot claim that since such possession was taken over after a belated period after expiry of 30 days as prescribed in Section 10(5) of the Act, he was entitled to again a notice in this regard requiring his presence on the spot giving him option either to voluntarily surrender such possession or obstruct the same. No such notice or opportunity is intended to be given under Section 10(6) of the Act. Therefore, in the present facts before us, the possession taken over by the State authority on 24.11.1993 was justified and legally undertaken through Panchnama process and in our opinion, no Page 15 of 17 Downloaded on : Sat Jan 23 05:10:10 IST 2021 C/LPA/405/2017 CAV JUDGMENT valid exception to the same can be taken by the Appellant.
23. As far as reliance placed on the case of Hari Ram (supra) is concerned, we are of the clear opinion that the learned Single Judge was right in distinguishing the said judgment as it is not a case before us where no notice under Section 10(5) of the Act was issued to the land owner. On the contrary, it is admitted position that such notice was given to the land owner on 4.6.1988. The later judgment of the Hon'ble Supreme Court fully explained the purport of the decision in the case of Hari Ram (supra) in the case of Bhaskar Jyoti Sarma (supra) where even Section 10(5) notice was not given and still taking over the possession was held as valid, as quoted in extenso by the learned Single Judge and that in our respectful understanding, clinches the issue in favour of the State.
24. As far as the question of exemption under Section 21 as sought by the Appellant land owner is concerned, we are of the opinion that it was the just an excuse or ruse to save the land in the hands of the land owners themselves as neither any concrete scheme for development of dwelling units for weaker sections was ever placed by the land owner before the Competent Authority or before this Court, nor the said application appears to Page 16 of 17 Downloaded on : Sat Jan 23 05:10:10 IST 2021 C/LPA/405/2017 CAV JUDGMENT have been pursued by the Appellant in an appropriate manner. Mere filing of the application could not have led the authorities to grant exemption to such excess or surplus land under Section 21 of the Act and save the said land from the rigour and scheme of the 1976 Act of taking over of excess land in the larger public interest and therefore, the learned Single Judge was right in rejecting the said contention as well.
25. Thus, on the overall analysis of the facts and legal position as discussed above, we do not find any merit in the present appeal filed by the Appellant and the same is liable to be dismissed. The appeal is accordingly dismissed. No order as to costs.
26. Consequently, the Civil Application stands also dismissed.
Sd/-
(DR. VINEET KOTHARI,J) Sd/-
(GITA GOPI,J) Bharat Page 17 of 17 Downloaded on : Sat Jan 23 05:10:10 IST 2021