Gujarat High Court
Deceased Chaturbhai Ghoribhai Patel ... vs State Of Gujarat & on 19 June, 2013
Author: Harsha Devani
Bench: Harsha Devani
DECEASED CHATURBHAI GHORIBHAI PATEL THRO HEIRS AND LEGAL....Petitioner(s)V/SSTATE OF GUJARAT C/SCA/8292/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 8292 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MS.JUSTICE HARSHA DEVANI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ DECEASED CHATURBHAI GHORIBHAI PATEL THRO HEIRS AND LEGAL....Petitioner(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance: MR JITENDRA M PATEL, ADVOCATE for the Petitioner(s) No. 1 - 1.2 MR. VIRAL DAVE, ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1 NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2 ================================================================ CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 19/06/2013 ORAL JUDGMENT
1) Rule.
Mr. Viral Dave, learned Assistant Government Pleader, waives service of notice of rule on behalf of the respondents.
2) By this petition under Articles 226 of the Constitution of India, the petitioners seek the following reliefs:
(A) To direct the State Government to delete the land of petitioners bearing Survey No.1040 paiki area 1405 square metres situated in the sim of Village: Saijpur Bogha in City Taluka from the list of surplus land prepared by Government and further be pleased to direct the respondent authorities not to treat the land of petitioners as surplus land.
(B) To direct the State Government to nullify all the consequential actions of issuing notification under Section 10(1), 10(2), 10(3), 10(5) and if any, order of allotting land to other person and same to be treated to be cancelled.
(C ) To delete the petitioners' land, which is shown at Sr. No.16 bearing Survey No.1040 paiki 1405 square metres in Mutation Entry No.13062 dated 11.8.2001 and consequently quashed and set aside the order of Deputy Collector dated 27.6.2003 passed in RTS Appeal No.60 of 2002 and order of Collector, Ahmedabad dated 6.4.2005 passed in Revision Application No.67 of 2003.
Alternatively, following reliefs have also been prayed for:-
(D) To direct the Government to handover possession of the suit land bearing Survey No.1040 paiki 1405 square metres situated in the sim of Village:Saijpur Bogha, Taluka and District : Ahmedabad to the petitioners.
(E) To quash and set aside the judgment and order of the Collector dated 6.4.2005 in Revision Application No.67 of 2003.
(F) To cancel the Mutation Entry No.13062 dated 11.8.2001 treating the land of the petitioners as surplus land and consequential order of the Deputy Collector dated 27.6.2003 passed in Appeal No.60 of 2002.
(G)Pass such other and further orders as may deem fit in the interest of justice.
3) The petitioners herein, are the heirs and legal representatives of deceased Chaturbhai Ghoribhai Patel. Deceased Chaturbhai Ghoribhai Patel filed a declaration under section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the ULC Act ), on 14.09.1976, pursuant to which, the competent authority, by an order dated 29.09.1983 made under section 8 of the ULC Act declared 1405.88 square metres of land to be excess vacant. Soon after filing the declaration under section 6 of the ULC Act, Chaturbhai Ghoribhai Patel expired in the year 1977. It appears that the competent authority was aware of the death of Chaturbhai which is apparent on a plain reading of the order dated 29.09.1983, wherein it is observed that Chaturbhai Ghoribhai Patel had expired on 14.9.1976 prior to filing the declaration under section 6 of the ULC Act. Despite the fact that the competent authority was aware of the death of Chaturbhai, it appears that all notices under the ULC Act were issued in his name. Since the aforesaid proceedings had been instituted against a dead person, the petitioners herein, upon coming to know of the order passed by the competent authority, filed an appeal under section 33 of the ULC Act before the Urban Land Tribunal (hereinafter referred to as the Tribunal ) in the year 1996. By an order dated 5th September, 1997, the Tribunal set aside the order dated 29.09.1983 passed by the competent authority and directed him to consider the matter afresh after giving an opportunity of hearing to the heirs of the deceased declarant. It appears that pursuant to the order of remand, no further proceedings had been taken under the provisions of the ULC Act. However, upon coming into force of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as the Repeal Act ), the State Government has shown the land declared excess vacant under the order dated 29.09.1983 of the competent authority to be land which is vested in the State Government under the provisions of the Act. Accordingly, Mutation Entry No.13062 has been made in the Village Form No.6 on 11.08.2001, wherein the name of petitioner No.1 is shown at Item No.16 and possession of 1405 square metres of land from land bearing Survey No.1040 paiki is shown to have been taken over on 29.10.1985. It appears that the above mutation entry came to be challenged by the petitioners before the revenue authorities. However, in view of the fact that authority under the ULC Act had shown the land to be vested in the State Government, the petitioners did not succeed in those proceedings. It is in these circumstances that the petitioners have come before this court seeking the reliefs noted hereinabove.
4) In response to the averments made in the petition, the respondent No.2-competent authority has filed an affidavit-in-reply stating that vide order dated 29.09.1983, the land held by Chaturbhai Ghoribhai Patel had been declared as excess vacant, after which, necessary procedure under the ULC Act had been taken and that by an order dated 13.10.1986, compensation was also fixed under section 11 thereof. It is further averred that the respondent authority, after giving notice under section 10(5) of the Act on 14.03.1985, has taken possession of the subject land on 29.10.1985. It is further submitted that in the proceedings under section 11 of the Act, Kantaben Chaturbhai Patel had requested for higher amount of the compensation and, accordingly, the compensation amount was fixed at Rs.7029.40. Such amount of compensation was received by Kantaben Chaturbhai Patel on 13.10.1986, in respect of which, a receipt had also been issued. It is stated that the legal heirs of Chaturbhai Ghoribhai Patel had received the compensation amount in the year 1987 and, therefore, cannot claim possession in the year 2012 as compensation has already been paid to the legal heirs. The respondent No.2 has further denied that no action was taken pursuant to the order passed by the Tribunal and that some communications for clarification were addressed to the State Government and that there was an exchange of correspondence. In the meanwhile, the Urban Land Ceiling Act came to be repealed on 30.3.1999. It is contended that it is the case of the respondent that since the possession of the subject land was taken over prior to the coming into force the Repeal Act and compensation had already been paid, the petitioners cannot claim back the land because for a period of twenty five years, the petitioners have enjoyed the amount of compensation.
5) Mr. J. M. Patel, learned advocate for the petitioners, has submitted that once the order of the competent authority was set aside by the Urban Land Tribunal, any procedure under taken pursuant to the said order would have no existence in the eyes of law.Under the circumstances, any possession taken over pursuant to the order passed by the competent authority would no longer be lawful and, as such, it is not proper for the Government to contend that the subject land has vested in the State Government. The respondents should, therefore, be directed to delete the land of the petitioners from the list of surplus land prepared by the Government and not to treat it as excess vacant land. In support of his submissions, the learned counsel placed reliance upon the decision of this court in the case of Rajeshkumar Bhikhabhai Patel v. State of Gujarat., 2001 (3) GLR 2520.
In the facts of the said case also, the Tribunal had remanded the matter to the competent authority for fresh consideration after giving opportunity of hearing and producing evidence to the petitioners therein. The competent authority, however, did not take any action pursuant thereto. In the meantime, the Urban Land Ceiling Act came to be repealed. The court held that in view of section 4 of the Repeal Act, all proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of this ordinance before any court, tribunal or authority shall abate. The effect of abatement would be that since the competent authority did not take any action consequent upon the remand of the Tribunal, all proceedings will abate. The court held that since the judgment of the competent authority was set aside and the matter was remanded, it will be deemed that fresh proceedings should have been taken by the competent authority, and even if, possession was taken prior to that by the State Government, it is of no consequence.
6) Reliance was also placed upon the decision of this court in the case of State of Gujarat v. Gordhanbhai Becharbhai Patel & Ors., 1995 (2) GLH 97, for the proposition that once an order is appealed, such order cannot be said to have acquired finality. The court held that in the facts of the said case, not only the order passed by the competent authority was a subject matter of challenge in the appeal, but in fact the order of the competent authority has been quashed and set aside and, therefore, all consequential actions, which have been taken in the meantime have to be reversed and the functionaries under the Act have to abide by the order passed by the appellate authority and if any authority has taken steps on the basis of an order, which is subsequently set aside, those steps deserve to be reversed and the process of reversal must be followed so as to take the order of the appellate authority to its logical end. It was submitted that under the circumstances, once the order of the competent authority stood set aside and no further proceedings were taken under the ULC Act, the concerned authorities were required to take all consequential actions and reverse all actions taken by them pursuant to the order of the competent authority. It was, accordingly, urged that the petition deserves to be allowed by granting reliefs prayed for in the petition.
7) Opposing the petition, Mr. Viral Dave, learned Assistant Government Pleader, reiterated the averments made in the affidavit-in-reply. It was submitted that section 3 of the Repeal Act, provides that the repeal of the principal Act shall not affect vesting of any vacant land under sub-section (3) of section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority. It was submitted that under the circumstances, once possession of the subject land had been taken over prior to the coming into force of the Repeal Act, the repeal of the ULC Act would not affect the vesting of the land in the State Government since possession had already been taken over prior to the coming into force of the Repeal Act. It was, accordingly, submitted that in the facts of the present case, possession was already taken over pursuant to the order of the competent authority and compensation had already been paid to the petitioners. Under the circumstances, the petitioners are not justified in retaining the amount of compensation paid to them and also claiming possession of the subject land. It was, accordingly, urged that in view of the operation of section 3 of the Repeal Act, the petitioners are not entitled to the grant of the reliefs as prayed for in the petition and the petition deserves to be dismissed.
8) From the facts noted hereinabove, undisputedly the order dated 29.09.1983 passed by the competent authority under section 8 of the ULC Act whereby the subject land was held to be excess vacant came to be quashed and set aside by the Tribunal by its order dated 5th September, 1997. It may be that pursuant to the said order of the competent authority steps may have been taken under the ULC Act culminating into taking over the possession of the subject land under section 10(6) thereof and compensation under section 11 may also have been paid. However, once the order of the competent authority was quashed and set aside by the Tribunal and the matter was remanded to the competent authority for fresh consideration, all steps taken pursuant to the order of the competent authority would have to be reversed and the functionaries under the ULC Act have to abide by the order of the Tribunal. As held by this court in the case of State of Gujarat v. Gordhan Becharbhai Patel (supra), once the order of the competent authority is quashed and set aside, all consequential actions, which had been taken in the meantime, have to be reversed and the functionaries under the Act have to abide by the order of the appellate authority. In the facts of the present case, the order made by the competent authority stood quashed and set aside by the Tribunal. Under the circumstances, all consequential actions taken pursuant thereto were required to be reversed and the functionaries under the ULC Act were required to abide by the directions issued by the Tribunal. However, no further proceedings were undertaken pursuant to the order of the Tribunal. In the meanwhile, the Repeal Act came into force and consequently, by virtue of the provisions of section 4 of the Repeal Act, the proceedings before the competent authority stood abated. In view of the abatement of the proceedings under the ULC Act, the order passed by the Tribunal became final and no further proceedings could be undertaken by the respondent authorities. Therefore, the position as on the date of the Repeal Act was that the order of the competent authority stood quashed and set aside and, as such, there was no order declaring any land held by the petitioners to be excess vacant. Under the circumstances, the possession taken over by the State Government prior to the coming into force of the Repeal Act was no possession in the eye of law, inasmuch as, the order pursuant to which the possession was taken was no longer in existence.
9) As noted earlier, this court, in the case of Rajeshkumar Bhikhabhai Patel v. State of Gujarat (supra) has, in a similar set of facts, held that once the Tribunal had remanded the matter to the competent authority and no proceedings had been initiated on remand, the proceedings would abate and it would be deemed that there was no declaration of surplus land. The court, accordingly, ordered restoration of possession of the land, of which possession was taken over pursuant to the order of the competent authority.
10) In the light of the aforesaid legal position, the respondent authorities are not justified in contending that the subject land vests in the State Government in view of the fact that possession had been taken over prior to the coming into force of the Repeal Act. As noted earlier, the order of the competent authority had been quashed and set aside by the Tribunal and the matter had been remanded to the competent authority to decide the same afresh. Once the order of the competent authority was set aside, all further proceedings taken pursuant thereto, including issuance of notifications under section 10(1) and 10(3) of the ULC Act as well as any possession taken under section 10(6) thereof, ceased to have any existence in the eye of law, inasmuch as the very basis for issuance of such notifications and taking over of possession ceased to exist. Moreover, though the order of the Tribunal was passed in September, 1997 no further proceedings were taken pursuant thereto, prior to the coming into force of the Repeal Act and consequently the proceedings abated. Thus, the situation as on today is that there is no order under the ULC Act declaring the subject land to be excess vacant and as such the petitioners are entitled to possession of the subject land and deletion of the said land from the list of excess vacant land maintained by the Government.
11) As regards the contention raised on behalf of the respondents that after taking over possession of the subject land pursuant to the order passed by the competent authority, the petitioners had been paid the compensation in respect thereof, and as such the petitioners are not entitled to get back the possession, such contention has to be stated only to be rejected. As observed hereinabove, once the order of the competent authority was set aside, all steps taken pursuant thereto were required to be reversed, including the payment of compensation. Accordingly, the petitioners are required to repay the amount which they have received by way of compensation with interest. In this regard, Mr. J. M. Patel, learned advocate for the petitioners has stated before this court that the petitioners will return the amount of compensation, with interest at the rate of 9% per annum to the respondent- State Authorities.
12) In the light of the above discussion, the petition succeeds and is, accordingly, allowed. The respondents are directed to delete the land of the petitioners bearing Survey No.1040 paiki admeasuring 1045 square metres, situated in the sim of Village: Saijpur Bogha, Taluka & District: Ahmedabad from the list of surplus land prepared by the Government. For the reasons stated hereinabove, the respondent authorities shall not treat the subject land to be excess vacant land acquired by the State Government under the provisions of the Urban Land Ceiling Act. The respondents shall also make corresponding mutation entry in the revenue record after deleting the subject land from the list of excess vacant land. Rule is made absolute accordingly with no order as to costs.
(HARSHA DEVANI, J.) Vahid Page 12 of 12