Gujarat High Court
Ambalal Bhavanbhai Patel vs Competent Authority & Addl Collector & on 14 October, 2014
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/4308/1990 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4308 of 1990
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA : Sd/
=======================================================
1 Whether Reporters of Local Papers NO
may be allowed to see the judgment?
2 To be referred to the Reporter or NO
not?
3 Whether their Lordships wish to see NO
the fair copy of the judgment?
4 Whether this case involves a
substantial question of law as to
the interpretation of the NO
Constitution of India, 1950 or any
order made thereunder?
5 Whether it is to be circulated to NO
the civil judge?
=======================================================
AMBALAL BHAVANBHAI PATEL....Petitioner
Versus
COMPETENT AUTHORITY & ADDL COLLECTOR & 1....Respondents
=======================================================
Appearance:
MR AS VAKIL for the Petitioner(s) No. 1
MR BHARAT J SHELAT for the Petitioner(s) No. 1
MR BHARAT VYAS AGP for the Respondent(s) No. 1 2
=======================================================
CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 14/10/2014
ORAL JUDGMENT
1. The present petition is filed by the petitioner under Articles 14, 19, 226 and 227 of the Constitution of India as well as under the Page 1 of 13 C/SCA/4308/1990 JUDGMENT provisions of the Urban Land (Ceiling and Regulation) Act, 1976 for the prayers inter alia that appropriate writ, order or direction may be issued quashing and setting aside the order passed by the Government dated 07.08.1984 cancelling the exemption of the land bearing Survey Nos.662 & 663 and also prayedthe order passed by the competent authority at AnnexureA dated 22.01.1985. It is also prayed for the declaration that the land bearing Survey Nos.662 & 663 are entitled to be exempted under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 as it could be computed for the purpose of excess holding of the deceased, the petitioners, members of the family and other relatives as stated in detail.
2. The brief facts of the case summarized are that the petition is filed by the petitioner as the heirs and legal representative of the deceased, Bhavanbhai Talsibhai Patel, who died after filling Form No.1 under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as "the ULC Act"). In the form filled by the deceased, he had shown different properties as stated in detail in the petition. The property at Sr.Nos.4 to 6 i.e. land bearing Survey Nos.662 & 663 were exempted under Section 20 of the ULC Act being an agricultural field. However after the death of the father, when the petitioner went to the office of the Talati for the purpose of mutation of the entry, he came to konw about the fact that the land admeasuring 21,718 sq.mtrs. was declared as an excess vacant land and the Page 2 of 13 C/SCA/4308/1990 JUDGMENT possession is also said to have been taken over. In fact, the actual physical possession of the land bearing Survey Nos.662 & 663 is with the petitioner and at no point of time, the possession has been handed over by the petitioner and family members of the deceased to the Government. This led to the filing of the present petition, which was disposed of earlier by this High Court (Coram : K.R. Vyas, J.) as per the order dated 05.05.1999 on the ground that the petition is directly covered under the provisions of the Urban Land (Ceiling & Regulations) Repeal Act, 1999 (Act No.15 of 1999) repealing the Urban Land (Ceiling & Regulations) Act, 1976 and, therefore, it has abated. Thereafter it was carried by way of LPA No.994/2001 with allied group of matters and the Hon'ble Division Bench vide order dated 29.07.2004 remanded the matter to the Single Judge for deciding the same on merits. It appears that an application for review was also filed as it was dismissed with cost. SLP was allowed subject to the cost and that is how the present petition has been taken up for final hearing.
3. Two affidavitsinreply have been filed by the State dated 30.08.2013 and 18.11.2013 respectively. It is contended inter alia that the original owner of the land, Shri Bhavanbhai Talsibhai Patel had submitted form under Section 6(1) under the ULC Act, which is produced at AnnexureRI. It is contended that the State Government vide order dated 07.08.1984 cancelled the exemption granted under Section 20 of the ULC Page 3 of 13 C/SCA/4308/1990 JUDGMENT Act in respect of the same land. It is contended that after giving reasonable opportunity to the owner of the land for hearing as well as to submit relevant documents, the competent authority declared 21718 sq.mtrs. of land as excess land vide order dated 22.01.1985 and, thereafter, the Notification under Section 10(1) of the ULC Act was issued on 14.02.1985 an,d thereafter, Notification under Section 10(3) of the ULC Act was issued and published in the Gazette on 09.01.1986. Similarly, Notification under Section 10(5) of the ULC Act was issued on 25.05.1987, which was duly served upon the legal heirs of Shri Bhavanbhai Talsibhai Patel viz., Ambalal Patel, for which, notice is produced at AnnexureRIV. Therefore, it is contended that the land has been also allotted to the Cooperative Society in the year 1993. It is therefore denied that the petitioner will have any benefit under the Repeal Act as the possession of the land is taken over by the State Government much earlier before the Repeal Act came into force.
4. In further affidavit, same contentions have been raised with further details and statements are sought to be produced to support the contentions about taking over the possession.
5. Affidavitinrejoinder is filed by the petitioner to both these affidavits strongly objecting the service of the notice and/or taking over the possession.
6. Heard learned advocate, Shri A.S. Vakil for the petitioner and learned AGP Shri Bharat Vyas for Page 4 of 13 C/SCA/4308/1990 JUDGMENT the respondents.
7. Learned advocate, Shri Vakil pointedly referred to the notice produced at AnnexureRIV dated 25.05.1987 under section 10(5) of the ULC Act and submitted that this notice is stated to have been issued to Shri Bhavanbhai Talsibhai Patel, who has admittedly expired much earlier. He submitted that same notices are also produced with the affidavit in sur rejoinder filed by the respondents. He submitted that therefore requirement of Section 10(5) of the ULC Act by issuing notice could not have been fulfilled inasmuch as there is nothing on record to show that the notice has been served to the deceased, Shri Bhavanbhai Talsibhai Patel, who had expired in 1990 and, therefore, if the notice was issued in the year 1987, which is stated to have been issued by Registered A.D., acknowledgment could have been produced. Learned advocate, Shri Vakil submitted that if the notice under Section 10(5) of the ULC Act is not issued, there is no question of notice under Section 10(6) of the ULC Act. Learned advocate, Shri Vakil submitted that stage of issuance of notice under Section 10(6) of the ULC Act would come only after the issuance of notice under Section 10(5) of the ULC Act. He pointedly referred to the panchnama produced on record by the respondents and submitted that the procedure is not followed as there is no signature of anybody including Bhavanbhai and, therefore, it is a paper panchnama. In support of his submissions, he has relied upon the judgment of the High Court in case Page 5 of 13 C/SCA/4308/1990 JUDGMENT of Indrajitsing P. Geel Vs. Competent Authority & Deputy Collector & Anr., reported in 2006 (3) GLH
487. Learned advocate, Shri Vakil submitted that though it is claimed that notice has been served by Registered Post as it is evident from page no.168, no acknowledgment is produced and, therefore, it would be presumed that it has been served upon the petitioner. He submitted that notice under Section 10(5) of the ULC Act is said to have been issued on 25.05.1987 calling upon Shri Bhavanbhai Talsibhai Patel, original holder of the land, to handover the vacant and peaceful possession within 30 days and the possession is said to have been taken over much thereafter in 1987. He pointedly referred to the notice stated to have been issued on 08.10.1987 to Shri Bhavanbhai Talsibhai Patel and panchnama produced on record without any signature and submitted that though it is claimed that notice under Section 10(5) of the ULC Act is duly served on 25.05.1987 on the heirs of Bhavanbhai Talsibhai Patel, in fact, Bhavanbhai Talsibhai Patel was alive as he expired in 1990 and, therefore, notice was not served to Bhavanbhai Talsibhai Patel, who is actual holder of the land. Further, it is stated in the affidavit in sur rejoinder, "It is stated that thereafter, notice under Section 10 (5) of the Act was duly served upon of deceased Bhavanbhai Talsibhai Patel, which was accepted by his legal heirs Ambalal Bhavanbhai Patel and Vithalbhai Bhavanbhai Patel." He submitted that in fact, the deceased was alive till 1990, for which, Page 6 of 13 C/SCA/4308/1990 JUDGMENT death certificate is also placed on record. Therefore, learned advocate, Shri Vakil submitted that it shows the manner in which the whole exercise has been made as notice ought to have been served to Shri Bhavanbhai Talsibhai Patel, who was alive at that time and it is claimed that the notice is served to the heirs of the deceased, Bhavanbhai Talsibhai Patel. Assuming that the notice could be served to the heirs or sons in place of Bhavanbhai Talsibhai Patel, who was alive at that time, signature is said to have been taken and the acknowledgment pursuant to the notice dated 25.05.1987 is there and on a piece of paper, signature of one of the sons would not imply that it is pursuant to any such notice or possession. Learned advocate, Shri Vakil submitted that if the holder of the land has failed to handover the possession after the notice under Section 10(5) of the ULC Act then, power could be exercised under Section 10(6) of the ULC Act for taking over the possession forcibly. Learned advocate, Shri Vakil submitted that admittedly, notice under Section 10(6) of the ULC Act is issued much later, for which, he referred to the papers at page no.65. He referred to page nos.6567, where which is claimed that voluntary possession is handed over. Therefore, learned advocate, Shri Vakil submitted that then, there would not have been issued notice under Section 10(6) of the ULC Act. He pointedly referred to the different dates, which is shown as 06.10.1988.
8. Learned advocate, Shri Vakil therefore submitted Page 7 of 13 C/SCA/4308/1990 JUDGMENT that petition has been pending since 1990 and the orders have been passed by the court including the order directing the parties to maintain status quo since 1990 and, thereafter as stated above, it was entangled in litigation and, therefore also, no possession could have been taken. He therefore submitted that can it be said that the possession has been validly taken over on both counts that
(i) it is taken over inspite of pendency of the petition; and (ii) whether the possession is taken over after following the procedure of issuance of the notice as required under the Law including the notice under Sections 10(5) and 10(6) of the ULC Act. He submitted that the possession is not taken over and, therefore, the petitioner would be entitled to the benefit of the Repeal Act of 1999. Learned advocate, Shri Vakil submitted that this provisions of the Repeal Act as well as ULC Act have been interpreted by the Hon'ble Apex Court in case of State of Uttar Pradesh Vs. Hari Ram, reported in (2013) 4 SCC 280 and also subsequent judgment in case of Gajanan Kamlya Patil Vs. Addl. Collector & Competent Authority & Ors., reported in 2014 (2) Scale 286.
9. Learned advocate, Shri Vakil submitted that in light of this judgment, the possession could not have been taken over without following procedure and, therefore, the present petition may be allowed. He has also referred to the judgment in case of Bharatkumar Lalbhai Vasa & Ors. Vs. State of Gujarat & Ors., reported in 2007 (4) GLR 3740.
10. Learned AGP Shri Vyas referred to the papers with Page 8 of 13 C/SCA/4308/1990 JUDGMENT great detail and tried to submit that the possession has been taken over much before the Repeal Act came into force in 1999. For that purpose, he referred to the papers and subsequent affidavit with Annexures, which have been filed and, therefore, he pointedly referred to Form No.1 filled in under Section 6 of the ULC Act by the original holder, Shri Bhavanbhai Talsibhai Patel. He also referred to the order passed by the competent authority dated 07.08.1984 regarding the cancellation of exemption under Section 20 of the ULC Act. He also referred to the Notification issued thereafter including the Notification issued under Section 10(5) of the ULC Act dated 25.05.1987 at AnnexureRIV and submitted that at that stage, notice is issued to Shri Bhavanbhai Talsibhai Patel himself. He therefore tried to submit that notice was issued to Shri Bhavanbhai Talsibhai Patel and it was accepted on his behalf by the son, which would not make much difference. Similarly, he tried to submit that notice has been sent by Registered Post, which is produced at page no.168 and submitted that acknowledgment is also produced and, therefore, notice under Section 10(5) of the ULC Act is validly served upon the holder of the land. He submitted that submission regarding the benefit under the Repeal Act cannot be believed. Similarly, he tried to submit that the possession is also taken over and, therefore, the judgment of the Hon'ble Apex Court and the observations made in case of Hari Ram (supra) would not have any application. Similarly, Page 9 of 13 C/SCA/4308/1990 JUDGMENT subsequent judgment in case of Gajanan (supra) would also have no application since the possession has been taken over much earlier. He strenuously referred to the panchnama to support his submission about taking over the possession.
11. In rejoinder, learned advocate, Shri Vakil has referred to the papers with details to support his submissions about the actual physical possession with the petitioner.
12. In view of the rival submissions, it is required to be considered whether the present petition deserves to be allowed or not.
13. As stated hereinabove, there is a background and the history of litigations. However fact remains that this petition is pending since 1990 with the order of status quo granted. In other words, the possession could not have been taken over.
14. Apart from that, as it appears from the record, though claim is made that the possession has been taken over much before the Repeal Act came into force, it requires a closer scrutiny. Admittedly, the deceased, Shri Bhavanbhai Talsibhai Patel expired in the year 1990 and, therefore, before that when the possession is said to have been taken over, the notices are required to be served to Shri Bhavanbhai Talsibhai Patel. There is no acknowledgment or any other documentary proof or evidence with regard to the service of the notice under Sections 10(5) and 10(6) of the ULC Act. Further, it is required to be noted that on one hand, notice under Section 10(5) of the ULC Act dated 25.05.1987 is issued to Shri Bhavanbhai Page 10 of 13 C/SCA/4308/1990 JUDGMENT Talsibhai Patel and acknowledgment is of the heirs and on the other hand, in the affidavit as recorded hereinabove, it is stated that heirs of Shri Bhavanbhai Talsibhai Patel have been served. Assuming that notice could be served to the sons and it could have been served on behalf of Shri Bhavanbhai Talsibhai Patel by the sons. It is required to be noted that on one hand, it is claimed that the notice dated 08.10.1987 has been issued under Section 10(6) of the ULC Act to the original holder, Shri Bhavanbhai Talsibhai Patel C/o. Ambalal Bhavanbhai stating that as the holder of the land had failed to comply with the notice under Section 10(5) of the ULC Act to handover the possession of the land voluntarily, the possession could be taken over by the Government forcefully at any time. However as could be seen from the record including the panchnama and the statement of Ambalal Bhavanbhai Patel, the possession is said to have been taken over from Ambalal Bhavanbhai Patel and Ambalal Bhavanbhai Patel has voluntarily handed over the possession on 06.10.1988. Therefore, if the possession is taken over in compliance with Section 10(5) of the ULC Act, there was no need for issuance of the notice under Section 10(6) of the ULC Act. If the notice under Section 10(6) of the ULC Act was also issued on 08.10.1987 then, the possession could have been taken over immediately or within a reasonable time and not as back as on 06.10.1988. Further, there is no reason or justification shown for taking over the possession inspite of the pendency of the Page 11 of 13 C/SCA/4308/1990 JUDGMENT litigation before the court including the High Court or the Supreme Court. If during the interregnum period, the possession is taken, it could not have been remanded or it could have been clarified. Therefore, the possession could not have been taken over validly after following procedure as required under the Law including the notice under Sections 10(5) and 10(6) of the ULC Act. The submission that before the Repeal Act came into force, the possession has been taken in or around 1987 is misconceived. Further, the Hon'ble Apex Court in a judgment in case of Hari Ram (supra) has made the observations with regard to the procedure, which is required to be followed including the notice under Sections 10(5) and 10(6) of the ULC Act and it has been 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 possession to the State Government or to any other person, duly authorized by the State Government."
15. Moreover as observed in this judgment, notice under Section 10(5) of the ULC Act is required to be served to the person interested and if the holder of the land, Shri Bhavanbhai Talsibhai Patel was alive, he ought to have been served. If Page 12 of 13 C/SCA/4308/1990 JUDGMENT the notice is accepted on his behalf by the sons then it could have been made clear. Therefore in view of the observations made by the Hon'ble Apex Court in case of Hari Ram (supra), as stated above, the possession cannot be said to have been taken over and scrutiny of the record does not justify particularly when the order of status quo has been operating since 1990, it could have been otherwise contested. Therefore, the present petition deserves to be allowed.
16. On more aspect, which is required to be considered is that declaration of the excess land could have been made pursuant to the entries, which have been brought on record regarding the constructed property as well as the fact that it is a joint HUF property with the sons having right to claim share.
17. It is in these circumstances, the present petition stands allowed. The declaration as prayed for regarding the cancellation of exemption under Section 20 of the ULC Act is hereby granted. Rule is made absolute.
Sd/ (RAJESH H.SHUKLA, J.) Gautam Page 13 of 13