Gujarat High Court
Himmatlal vs State on 19 October, 2010
Author: S.J.Mukhopadhaya
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
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LPA/421/2010 7/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 421 of 2010
In
SPECIAL
CIVIL APPLICATION No. 5166 of 2009
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE ANANT S. DAVE
=========================================================
HIMMATLAL
MANGALJI BORIYA, THROUGH POA - Appellant(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 1 - Respondent(s)
=========================================================
Appearance
:
MR
PJ VYAS for
Appellant(s) : 1,
GOVERNMENT PLEADER for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 19/10/2010
CAV
ORDER
(Per : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. This appeal under Clause-15 of Letters Patent arise out of the order dated 20.07.2009 passed in Special Civil Application No.5166/2009 by learned single judge.
2. In the above writ petition, the petitioner had prayed for orders passed by the Authorities under Urban Land Ceiling Act('ULC Act' for short) to be quashed and set aside and further to declare that on repeal of the Act, 1999, the land had vested into the petitioner.
3. Learned single judge noticed that the petitioner had purchased the land as an individual and proceedings were undertaken by the Authorities on the basis of a declaration form filled-in by the partnership firm for which no correct record was available. Learned judge found that though partnership firm of M/s Prabhudas Harilal & Co. comprised of 12 partners, only the petitioner had come forwarded to stake his claim without explaining as to how and in what manner, the other partners had given up their claim. That initial purchase of the land by a registered Sale Deed No.2828 dated 12.11.1962 for which Entry No.251 dated 30.11.1962 was recorded also reflected name of Shri Prabhudas Harilal individual and records pertaining to the above entry in the revenue record also mentioned Shri Prabhudas Harilal individual. Ultimately, the petitioner was non-suited on the ground that there was no tangible evidence to establish that the land was actually purchased and belonged to the partnership firm or that a partnership firm had any interest in the property.
4. Shri Vyas, learned counsel for the appellant submits that the learned single judge failed to appreciate that when the property was held by several persons, then under section 4(7) of the ULC Act, notional partition was to be made by the competent authority and notice was required to be issued under Rule 5 of the Rules to each of the partner and further that the appellant had 18% of share in the property purchased by Prabhudas Harilal, and therefore calculation and measurement of the land in question by the Authority and declaration of excess land was illegal. It is further submitted that even after repeal Act, notice under section 152 of the Bombay Land Revenue Code, 1879('Code' for short)was issued by Taluka Development Officer for recovery of land revenue and it was paid so by the petitioner and receipts were also issued by the Authority on 21.04.2004 would indicate that the petitioner is in possession of the land. Considering the above aspect and land in question owned, occupied and possessed by the petitioner, the order impugned requires to be quashed and set aside.
5. Learned AGP appearing for the respondents state however, supported reasoning of learned single judge and in addition to the above, relied on affidavit-in-reply filed on behalf of Additional Collector (Coordination)and competent authority ULC Rajkot, respondent No.2 and disputed that the land is in possession of the appellant. On the strength of the record of the ULC proceedings, it is submitted that notification under sections 10(1),10(3) and 10(5) were issued in the year 1984 and even compensation was also declared under section 11 on 21.05.1990 and possession was already taken over by the Government. Learned AGP submitted that this appeal deserves to be dismissed on the ground that the appellant/petitioner has suppressed vital facts about the filing of Special Civil Application No.1522/1986 on behalf of the purchaser namely Prabhudas Harilal of the land.
6. Heard learned counsel appearing for the parties, perused the record of the case, we are unable to agree with submissions made by the learned counsel for the appellant. Apart from the ground on which the appellant/petitioner was non-suited by the learned single judge, we have noticed that Form No.6(1)of ULC Act was filled by partnership firm M/s Prabhudas Harilal on 13.09.1976. The firm was holding 12 acres land of Survey No.211 of Mouje Kotharia, District Rajkot and notice under section 8(1) and draft statement under section 8(3)of the Act were prepared and also served. An application preferred by the firm for exemption under section 20 was rejected by the Revenue Department of Government of Gujarat on 30.01.1983 and an order was passed under section 8(4)of the Act on 24.11.1983 declaring that the firm was entitled to retain only one unit of 1500 sq. mts. of Survey No.211/1 and 47063.00 sq. mts. land was declared as surplus and final statement under section 9 of the Act was issued on 05.12.1983 which was duly served. Thereafter, notification under section 10(1) was issued on 22.12.1983 which was also published in official gazette on 26.01.1984, following which notification under section 10(3) was issued on 02.05.1984 was published in the official gazette on 28.06.1984 and final notice under section 10(5)was issued on 06.08.1984 and was served on the same day.
Even proceedings under section 33 of filing an appeal challenging the order of declaring land in excess was also dismissed and the order passed by the competent authority and Deputy Collector ULC Rajkot was confirmed. Even one of the purchasers of the land in question unsuccessfully challenged the decision in Special Civil Application No.1522/1986 which was dismissed by this Court and the Authority was informed by the Government Solicitor appearing on behalf of the Government as such. Finally, compensation was declared under section 11 on 21.05.1990 and a list of surplus land was also prepared and possession was taken over. The fact of taking over possession by the Government of the land in question was entered into list of excess land booklet at Serial No.566 and it was entered into revenue record by mutation Entry No.949 on 01.04.2000 and so mutated on 14.6.2000. An application preferred by the power of attorney of Prabhubhai Haribhai Tanna, purchaser of the land to remove the above Entry No.949 was also rejected by th Department of Revenue, Government of Gujarat on 03.02.2009. Therefore, the power of attorney who preferred an application to remove the above Entry No.949 is the same person who has filed writ petition and this appeal on behalf of one of the partners of the firm. Therefore, the appellant has suppressed a very material fact of filing such an application and rejection thereof by the Government from this Court.
7. That the Division Bench of this Court in Letters Patent Appeal No.1151 of 2009 had an occasion to consider the question of possession viz-a-vis the Repeal Act, 1999 and having noticed a reported decision of the Apex Court in the case of Larsen & Tourbo Ltd. v. State of Gujarat and others reported in (1998) 4 Supreme Court Cases, 387 and further the subsidiary question as to whether after the possession was once taken over, if the appellant petitioner re-entered the land, that by itself would be sufficient to ensure lapsing of the proceedings under the Repeal Act. In para 12 of the above decision, the Division Bench referred to a case decided earlier and section 3 of the Repeal Act, 1999, held as under:
From the language used in sub-Section (1) of Section 3 of the Repeal Act, it is clear that the Repeal Act would not apply in a case where the vacant land has vested in the Government under sub-section (3) of Section 10 of the ULC Act and possession of which has been taken over by the State Government or by an authorized person or by the Competent Authority. Sub-Section (2) of Section 3 of the Repeal Act further provides that if any land has vested in the State Government but possession of which has not been taken over by the Government or the authorized officers of the Competent Authority, then such land shall not be vested unless compensation if any paid is refunded.
Thus, for the purpose of applicability of the Repeal Act, crucial question is if the Government (sic : by taking) has taken over possession of the vacant land before the Repeal Act was introduced. If possession of the land has been taken over by the Government before the Repeal Act but the declarant re-enters the land, such unauthorized possession on the date of introduction of the Repeal Act cannot be the basis to hold that the ULC proceedings have lapsed.
8. In view of the above discussions and factual aspects, it cannot be said and much less believed that possession of the land in question remained with the petitioner even after the Repeal Act of 1999.
9. For the above and for the findings and also reasons given by the learned Single Judge about the land in question purchased by an individual, a partnership firm had no stake in the land, we do not find any infirmity in the order passed by th learned Single Judge. In absence of any merit, the appeal deserves to be rejected and accordingly it is rejected.
Notice discharged. No costs.
(S.J. MUKHOPADHAYA, C.J.) (ANANT S. DAVE, J.) Safir* Top