Gujarat High Court
Chandrprabha Nathalal Damani & 4 vs The State Of Gujarat & on 18 July, 2017
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/1457/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1457 of 2016
In SPECIAL CIVIL APPLICATION NO. 9886 of 2007
With
CIVIL APPLICATION NO. 12926 of 2016
In
LETTERS PATENT APPEAL NO. 1457 of 2016
With
LETTERS PATENT APPEAL NO. 869 of 2017
In
SPECIAL CIVIL APPLICATION NO. 12605 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE
MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
==========================================================
1 Whether Reporters of Local Papers may be allowedYes to see the judgment ?
2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy ofNo the judgment ?
4 Whether this case involves a substantial question ofNo law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== CHANDRPRABHA NATHALAL DAMANI & 4....Appellants Versus THE STATE OF GUJARAT & 1....Respondents ========================================================== Page 1 of 22 HC-NIC Page 1 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT Appearance:
LETTERS PATENT APPEAL NO.1457 OF 2016:
MR YATIN N OZA, SENIOR ADVOCATE WITH MR RAJESH K SAVJANI, ADVOCATE for Appellants MS ML SHAH, GOVERNMENT PLEADER for Respondents LETTERS PATENT APPEAL NO.869 OF 2016:
MR NAVALDAN R LANGA, ADVOCATE for Appellants MS ML SHAH, GOVERNMENT PLEADER for Respondent Nos.1 and 2 MR YATIN N OZA,SENIOR ADVOCATE WITH MR RAJESH K SAVJANI, ADVOCATE for Respondent No.5 ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date :18/07/2017 COMMON CAV JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY)
1. Both these Letters Patent Appeals under clause-15 of Letters Patent are filed against common judgment dated 20- 21.10.2016 passed by the learned single Judge in Special Civil Application Nos. 9886 of 2007 and 12605 of 2014.
2. When Letters Patent Appeal No. 1457 of 2016 was being heard for final disposal, Letters Patent Appeal No. 869 of 2017 came up for admission after condonation of delay. As both these Letters Patent Appeals arise out of the common judgment passed by the learned single Judge, with the consent of the learned counsel appearing for both the parties, both the matters were heard together and are disposed of by this Page 2 of 22 HC-NIC Page 2 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT common judgment.
3. The lands which are subject-matter of these appeals are the lands bearing old survey no. 28, new survey no. 119 (corrected Survey No. 126) comprising of plot no. 11 admeasuring 574.42 sq.mts; plot no. 29 admeasuring 497.96 sq mts and plot no.31 admeasuring 522.43 sq.mts of village Mavadi, District-Rajkot.
The appellant nos. 1/1 to 1/4 in Special Civil Application No. 9886 of 2007 are legal heirs of original petitioner Nathalal Jethabhai Damani. The said petitioners are respondent nos. 5.1 to 5.4 in Special Civil Application No. 12605 of 2014.
4. Special Civil Application No. 9886 of 2007 was filed with the prayers which read as under:
"(A) YOUR LORDSHIPS may be pleased to admit this petition.
(B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction to hand over the vacant possession of the lands bearing old Survey No. 28, New Survey No. 119 comprising of Plot No. 11 admeasuring 574.42 sq.mtrs., plot No. 29 admeasuring 497.96 sq.mtrs. and plot No. 31 admeasuring 522.43 sq.mtrs of village Mavadi, Dist. Rajkot to the petitioners.
(C) Pending admission, hearing and final disposal of the petition, YOUR LORDSHIPS may be pleased to hand over the vacant possession of the lands bearing old Survey No. 28, New Survey No. 119 comprising of Plot No. 11 admeasuring 574.42 sq.mtrs., plot No.29 admeasuring 497.96 sq.mtrs and plot No.31 admeasuring 522.43 sq.mtrs of village Mavadi, Dist.Rajkot to the Petitioner(s).(sic) (D) YOUR LORDSHIPS may be pleased to pass any other and further reliefs as may be deemed fit and proper in the interest of justice."
5. Special Civil Application No. 12605 of 2014 was filed with the Page 3 of 22 HC-NIC Page 3 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT following prayers:
"A. YOUR LORDSHIPS may be pleased to admit and allow this SCA.
B. YOUR LORDSHIPS may be pleased hold & declare that notices issued annexed at ANNEXURE-`A' are unwarranted, illegal & be quashed. (sic) C. YOUR LORDSHIPS by writ of certiorari, mandamus or any other writ, order, may be pleased to direct Respondent No.1 to 3 Government authorities to not act upon the notices annexed at ANNEXURE- `A' with this petition and be restrained from demolishing the houses or constructions on their plots of any of the Petitioner(s). D. Pending hearing, admission & till final disposal of this petition YOUR LORDSHIPS may be pleased to direct Respondent No.1 to 3 Government authorities to not act upon the notices annexed at ANNEXURE - `A' with this petition and be restrained from demolishing the houses or constructions on their plots of any of the petitioner(s).
xxx xxx xxx"
6. Deceased-Nathalal Jethabhai Damani, Narendra Jethabhai
Damani and Batukbhai Jethabhai Damani are real brothers. As per the case of the appellants in Letters Patent Appeal No. 1457 of 2016, lands in question were purchased out of the earnings of Shri Batukbhai and Nathabhai, in the name of Shri Narendrabhai by way of registered sale deed executed in the year 1965, as the said two brothers were staying in Sudan.
After enforcement of the provisions under the Urban Land (Ceiling & Regulation) Act, 1976 ("ULC Act" for short), Narendrabhai filled in form no.1 under section 6(1) of the ULC Act, declaring his holding including the lands in question.
Competent authority, by order dated 31st December, 1987, declared the aforesaid lands as excess vacant lands. The said Narendrabhai approached the appellate authority by filing an Page 4 of 22 HC-NIC Page 4 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT appeal by challenging the quantum of compensation awarded under the ULC Act. The said appeal was dismissed by the appellate Tribunal by order dated 18.8.1988.
6.1. The said Nathabhai and Batukbhai having come to know about the orders passed by the ULC authorities filed review application under section 34 of the ULC Act before the State Government and the State Government dismissed the said review application by order dated 4.5.1989. As against the said order, Special Civil Application No. 4825 of 1990 was filed by Nathabhai Jethabhai Damani, which petition came to be dismissed by judgment dated 27.3.1995. Aggrieved by the said judgment dated 27.3.1995, Letters Patent Appeal No. 318 of 1995 was filed, which appeal was partly allowed by judgment dated 14.3.2000. At this stage, we deem it appropriate to refer to paragraph-6 of the judgment passed in Letters Patent Appeal No. 318 of 1995. The said paragraph- 6 reads as under:
"6. We have heard the learned Counsel for the parties and taken into consideration the documents forming part of the petition. The registered document dated November 15, 1965 which is at Annexure-B to the petition, makes it more than clear that Narendrakumar Jethalal Damani had purchased the property in question from Odhavji Ambarambhai. However, another registered deed of transfer executed by Narendrakumar Jethalal Damani on December 14, 1966 in favour of the appellants makes it manifest that Narendrakumar Damani had purchased the property from the funds which were remitted by the appellants and the Page 5 of 22 HC-NIC Page 5 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT appellants were the real owners of the property. It would be necessary to reproduce herein below the relevant recital made in the said registered deed of transfer, which indicates that the appellants are the real owners of the property.
"Thus, 613.80 sq.yds. (514 sq.mts.) of land of plot No.6(six) of Survey No.26 within the aforesaid four boundaries was purchased for you only and with your money only. Therefore, you alone are the real and true owner of the said land and possession and enjoyment of the said land is yours only and the same is in your possession. Accordingly, you are also the legal, real and true owner of the said land and I or my heirs and legal representatives or any other person have no right, share or interest whatsoever in that land. However, if anybody comes forward raising any objection,obstruction or dispute in regard to this lands, then the same is null and void under this document and you are the only real and true owner of this land. Therefore, you are fully entitled and authorised to dispose of this land as the absolute owner by way of sale, mortgage, gift or will."
The perusal of the above-referred to recital leaves no doubt that the appellants were the real owners of the property in question and Narendrakumar who was their real brother, was merely benamidar for them. However, while submitting the statement under section 6(1) of the Act with reference to parcels of land owned by him, Narendrakumar had also included this property, which ultimately came to be declared as excess vacant land by an order dated December 31, 1987. It is true that Narendrakumar, who is benamidar of the appellants, had filed an appeal under section 12 of the Act, but the said appeal was directed against inadequacy of compensation determined by the Competent Authority under section 11 of the Act and the question whether benamidar was the real owner of the property or not, was never raised nor decided in the said appeal. Therefore, in our view, the learned Single Judge was not justified in concluding that the appellants were not entitled to invoke the jurisdiction of the State Government under section 34 of the Act because the appeal filed by the benamidar under section 12 of the Act was dismissed by the Urban Land Tribunal. In view of the provisions of section 34 of Page 6 of 22 HC-NIC Page 6 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT the Act, the appellants would not have been justified in invoking revisional jurisdiction of State Government against order determining the compensation payable either to the appellants or their benamidar, but question of title having not been adjudicated in an appeal under section 33 of the Act, they were justified in invoking revisional jurisdiction of the State Government under section 34 of the Act. It is relevant to note that the State Government had not refused to exercise powers under section 34 of the Act on the ground that there was unreasonable delay on the part of the appellants in invoking the jurisdiction of the State Government under section 34 of the Act. The order of the State Government which is produced at Annexure-E to the petition establishes that the State Government had refused to exercise powers under section 34 of the Act because the appeal preferred by Narendrakumar Damani against an order passed under section 11 of the Act was disposed of. However, the learned Single Judge has upheld the order of the State Government also on the ground that there was delay of nearly two decades on the part of the appellants from the declaration made in favour of the appellants by the benamidar on December 14, 1966 in challenging the order and, therefore, the appellants were not entitled to any relief. As observed earlier, the Competent Authority had passed order declaring the disputed land to be excess vacant land on December 31, 1987 and within reasonable time the jurisdiction of the State Government was sought to be invoked by the appellants by filing an application under section 34 of the Act in January 1989. Therefore, it would not be correct to say that there is delay of about two decades on the part of the appellants in invoking the jurisdiction of the State Government under section 34 of the Act. Moreover, it is not the case of the respondents that Narendrakumar was the real owner of the property in question and that the appellants had no title whatsoever to the said property. Therefore, the property belonging to the appellants could not have been included by Narendrakumar in his statement which was submitted under section 6(1) of the Act, nor could it have been declared to be excess vacant land under the Act. Thus, order being nullity, the appellants were justified in challenging the same within reasonable time of one year. The finding that in view of the provisions of the Benami Transactions (Prohibition) Act, 1988, the appellants are not entitled to get any relief against benamidar in any proceedings is liable to be Page 7 of 22 HC-NIC Page 7 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT set aside because the decision in the case of Mithilesh Kumari and another (supra) has been specifically overruled by the Supreme Court in the subsequent decision rendered in the case of R. Rajagopal Reddy (supra) wherein the view taken is that the provisions of Benami Transactions (Prohibition) Act, 1988 operate prospectively and not retrospectively. The result of the above discussion is that the impugned judgment will have to be set aside.
For the foregoing reasons, the appeal succeeds.
The judgment dated March 27, 1995 rendered by the learned Single Judge in Special Civil Application No.4825/90 which is impugned in the present appeal is set aside and quashed. The petition filed by the appellants is partly accepted. The order dated December 31, 1987 passed by the Competent Authority and Additional Collector, Urban Land Ceiling, Rajkot under section 8(4) of the Act as well as order dated May 4, 1989 passed by the State Government under section 34 of the Act are set aside. Rule is made absolute in the petition to the extent indicated hereinabove only, with no order as to cost. The Competent Authority and Additional Collector, Urban Land Ceiling, Rajkot shall decide the matter afresh under the Act treating the disputed property as belonging to the appellants and if necessary, shall call upon the appellants to submit a fresh statement under section 6(1) of the Act regarding their holdings of properties as on February 17, 1976 within the Urban Agglomeration of Rajkot. The respondents shall be entitled to recover the amount of compensation paid to Narendrakumar Damani in respect of land in question, in accordance with law including as arrears of land revenue. The appeal accordingly, stands allowed with no order as to costs."
6.2. As evident from the aforesaid order passed in Letters Patent Appeal No. 318 of 1995, Division Bench set aside the order dated 31.12.1987 passed by the competent authority as well as the order dated 4.5.1989 passed by the State Government under section 34 of the ULC Act and issued further directions to the competent authority to decide the matter afresh by treating the lands in question as the lands Page 8 of 22 HC-NIC Page 8 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT belonging to the appellants therein.
6.3. Pursuant to orders passed in the aforesaid Letters Patent Appeal No. 318 of 1995, when Nathabhai and Batukbhai approached the competent authority and the competent authority refused to accept form no.1 on the ground that ULC Act, 1976 has already been repealed, they filed Misc. Civil Application No. 1879 of 2001 in Letters Patent Appeal No. 318 of 1995 and the Division Bench of this Court by order dated 28.12.2001, directed the competent authority to decide the matter afresh under the provisions of the ULC Act, 1976 by treating the disputed lands as the lands belonging to the said appellants. When again the competent authority did not accept form no.1, the appellants approached this Court by filing Misc. Civil Application No. 1016 of 2002, which came to be withdrawn on 30.8.2002, as the competent authority accepted form no.1 during pendency of the said application.
6.4. It appears that the State Government also filed Misc. Civil Application No. 1066 of 2002 for review of the judgment dated 14.3.2000 passed in Letters Patent Appeal No. 318 of 1995. However, the said application was dismissed by this Court. The competent authority, thereafter heard the parties and by order dated 7.9.2002, confirmed the earlier order dated 31.12.1987 passed by the competent authority. The said order was under challenge before this court in Special Civil Application No. 9596 of 2002 and contempt application being Misc. Civil Application No. 1840 of 2002 was also filed. During pendency of contempt proceedings, a statement was made by the Assistant Government Pleader to the effect that competent authority will look into the matter and pass fresh Page 9 of 22 HC-NIC Page 9 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT order. Thereafter, the competent authority passed further order dated 5.4.2005 holding that out of total area only to the extent of 32.52 sq.mts of land is excess vacant land. In view of the said order passed by the competent authority, Special Civil Application No. 9596 of 2002 was allowed to be withdrawn with liberty to approach this Court in case of necessity.
7. It is the case of the appellants in Letters Patent Appeal No. 1457 of 2016 that after possession of the lands was taken by the government pursuant to earlier order passed by the competent authority, declaring the lands in question as surplus lands on the declaration made by Narendrabhai, certain persons encroached upon the lands in question and made kachcha-pucca construction. It is their case that in spite of final order dated 5.4.2005 passed by the competent authority holding that subject lands are not excess vacant lands except to the extent of 32.52 sq.mtrs, the respondents are not taking steps to hand over vacant and clear possession of the lands in question. The persons who claim to be in possession of the lands and have made kachcha-pucca construction, filed Civil Application No. 10400 of 2007 for their impleadment as party- respondents in Special Civil Application No. 9886 of 2007. This Court, by order dated 2.2.2009 rejected the said application. Against such order of rejection, Letters Patent Appeal No. 156 of 2009 was preferred by the said persons, which was dismissed by order dated 16.1.2014.
7.1. The record shows that thereafter, the concerned Mamlatdar initiated proceedings against the encroachers of excess vacant lands under section 61 of the Bombay Land Page 10 of 22 HC-NIC Page 10 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT Revenue Code, 1879 and passed an order on 13th August, 2007, calling upon the encroachers to remove the encroachment. Thereafter, when the Mamlatdar issued notices under section 202 of the Bombay Land Revenue Code, 1879 for removal of encroachments on 22nd August, 2014, the encroachers approached this Court by filing Special Civil Application No. 12605 of 2014 with the prayers which are already referred herienabove.
8. It is the case of the appellants in Letters Patent Appeal No. 869 of 2017 that the original respondent nos. 4 and 5 therein authorized respondent nos. 6 to 8 therein to sell the land and the appellants have purchased the land covered by survey no. 126 in small holdings ranging from 50 yards to 150 yards, made constructions and are living therein. Precisely it is their case that they are bona fide purchasers from respondent nos. 6 to 8 who are authorized by the original owners to sell the same to circumvent the provisions of the ULC Act, 1976. The appellants in Letters Patent Appeal No. 1457 of 2016, who were respondent nos. 4 and 5/1 to 5/4 in Letters Patent Appeal No. 869 of 2017 filed affidavit in reply mainly contending that encroachers have no right over the lands and they had not authorized third parties to sell the lands on their behalf. It is further stated that the said petitioners in Special Civil Application No 12605 of 2014 are encroachers on the lands in question and they have no right to claim title or possession of the said lands. It was mainly their case in the affidavit in reply that the said petitioners-encroachers have suppressed material facts and have filed Civil Suit No. 17 of 1996, Civil Suit No. 72 of 2014 and Civil Suit No. 192 of 2014 before the Civil Court and having failed to obtain any relief in the said Civil Suits, they Page 11 of 22 HC-NIC Page 11 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT have approached this Court by suppressing material facts.
9. Learned single Judge, mainly by recording a finding that both the petitioners have tried to misuse the process of law by filing proceedings and taking the courts for a ride, dismissed both the petitions.
10. So far as the Letters Patent Appeal No. 1457 of 2016 is concerned, it is held by learned single Judge that the appellants-petitioners, right from the beginning have tried to take undue advantage of their own wrongs, inasmuch as though form no.1 filled in by Narendrabhai Jethabhai under section 6(1) of the ULC Act, 1976 was already finalized by the competent authority vide order dated 31.12.1987 and the appeal preferred before the Tribunal was dismissed on 18.8.1988, possession of the lands in question was taken over by the government. The learned single Judge has found that in view of the provisions under the Benami Transactions (Prohibition) Act, 1988, the appellants in Letters Patent Appeal No. 1457 of 2016 could not have claimed any right in respect of the property held benami against the persons in whose names the property was held, as per section 4 of the Benami Transaction (Prohibition) Act, 1988 and in view of such provision, the claim of the said appellants-petitioners to be the real owners of the lands after the lands had already vested in the government under the ULC Act, 1976, was not maintainable. Further, mainly on the ground that possession of the lands in question was taken by the State authorities during the year 1987-88 and further that such possession was not handed over back after the order dated 5.4.2005, the learned single Judge held that proceedings under the ULC Act, 1976 Page 12 of 22 HC-NIC Page 12 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT would not survive. Learned single Judge further referring to the provision under section 3 of the Urban Land (Ceiling & Regulation) Repeal Act, 1999 held that as the lands were legally vested in the State Government before the Repealed Act came into force, all proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the Court or other Court stood abated, and therefore, it is not possible to grant any relief as prayed for. Thus, Special Civil Application No. 9886 of 2007 was dismissed.
11. So far as Special Civil Application No. 12605 of 2017 is concerned, in view of suppression of material facts regarding pendency of the suits filed by them and having regard to the disputed questions of facts, the said Special Civil Application was not entertained and the same was also dismissed.
12. Heard Mr. Yatin N. Oza, learned Senior Counsel appearing with Mr. R.K. Savjani, learned counsel for the appellants in Letters Patent Appeal No. 1457 of 2016 and on caveat for Respondent no.5 in Letters Patent Appeal No. 869 of 2017, Mr. N.R.Langa, learned counsel for appellants in Letters Patent Appeal No. 869 of 2017 and Ms. M.L. Shah, learned Government Pleader for Respondent Nos. 1 and 2 - State authorities in both the Letters Patent Appeals.
13. Before we proceed to record the submissions made by learned counsel appearing for both the sides, we notice that the appellants in Letters Patent Appeal No. 1457 of 2016 have filed Civil Application No. 1286 of 2017, which came to be dismissed by order dated 2.2.2017. The said order reads as under:
Page 13 of 22HC-NIC Page 13 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT "[1] This application is filed by the applicants with the prayers with read as under :-
7(A) Your Lordships may be pleased to admit and allow this Civil Application.
(B) Your Lordships may be pleased to permit the present applicants to be joined as party respondent No.3 to 21 in Letters Patent Appeal No.1457 of 2016 filed by the respondents herein and direct the respondent no.1 to 5 to amend the title clause of the said LPA accordingly. (C) Your Lordships may be pleased to grant such other and further reliefs as may be deemed just in the facts and circumstances narrated in this application.
[2] Letters Patent Appeal is preferred against the order dated 20.01.2016 passed by the learned Single Judge in Special Civil Application No.9886 of 2007. During the pendency of Special Civil Application, the very applicants have filed Civil Application No.10422 of 2007 to be joined as party respondents. Learned Single Judge by recording reasons rejected the application by order dated 02.02.2009. Against the order dated 02.02.2009 passed in Civil Application No.10422 of 2007, the applicants carried the matter by way of Letter Patent Appeal No.156 of 2009 and Division Bench of this Court by order dated 16.01.2014 dismissed the appeal confirming the order passed by the learned Single Judge with further observation that the applicants have no right, title or interest in the property and as such they cannot be allowed to be joined as party respondents.
[3] Though this application is filed by the very same parties for joining them as party respondents, unfortunately, factum of order passed by the learned Single Judge, confirmed by the Division Bench of this Court is not disclosed. Such conduct on the part of the applicants is deplorable. Further in absence of any changed circumstances and in view of the order dated 02.02.2009 passed by the learned Single Judge confirmed by the Division Bench of this Court, we are of the view that the applicants are neither necessary nor proper party. Accordingly, the Civil Application is dismissed."
14. Shri Y.N. Oza, learned Senior Counsel, appearing with Shri R.K. Savjani, learned counsel for the appellants in Letters Page 14 of 22 HC-NIC Page 14 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT Patent Appeal No. 1457 of 2016 submits that the judgment passed by learned single Judge is contrary to the judgment and order passed by a Division Bench of this Court in Letters Patent Appeal No. 318 of 1995 which has attained finality. It is contended that when the Division Bench of this Court, by setting aside the earlier orders declaring the lands in question as excess vacant land, directed the Competent Authority and Additional Collector, Urban Land Ceiling, Rajkot to reconsider the case and when the Competent Authority has considered the case declaring only 32.52 sq.mts of land as excess vacant land, it was not open for the learned single Judge to go into the said aspect. It is submitted that finding of the learned single Judge that the appellants have tried to misuse the process of law is contrary to the facts of the case and without any basis. It is further contended that when the earlier Division Bench has considered the effect of the provisions under the Benami Transactions (Prohibition) Act, 1988 and passed order, the learned single Judge ought not to have recorded any finding with reference to the provisions under the Benami Transactions (Prohibition) Act, 1988. Further, it is contended that the learned single Judge erred in holding that since the possession of excess vacant land was taken into government custody during the year 1987-88, the proceedings under the ULC Act, 1976 will abate. It is contended that once the order of the Competent Authority is set aside by the Division Bench of this Court, all consequential steps, including taking possession of lands in question, will stand quashed and such finding recorded by learned single Judge is contrary to law and facts of the case. It is further contended that when the authorities took possession of the lands in question, it was excess and vacant and it was obligatory on the part of the respondent authorities to return Page 15 of 22 HC-NIC Page 15 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT such excess vacant land when the Competent Authority passed subsequent order declaring that land admeasuring only 32.52 sq.mts is excess out of the entire lands. It is submitted that in the absence of any valid authority in favour of third party from the owners, it is not open for the appellants in Letters Patent Appeal No. 869 of 2017 to claim title and possession based on the purchase admittedly made from third parties on the alleged instructions given by the said appellants. In the absence of any valid documents, their claim for title and possession is absolutely illegal and such stand also cannot be accepted in view of the provisions of section 5(3) of the ULC Act, 1976.
15. Ms M.L.Shah, learned Government Pleader, appearing for the State authorities submits that as third parties are claiming possession based on the rights claimed pursuant to instructions from the original owners, it is for them to get back possession on their own and it is not for the government to hand over vacant possession. At the same time, it is fairly submitted by the learned Government Pleader that when possession was taken into government custody, pursuant to earlier order passed by the Competent Authority, the lands in question were vacant and clear lands and subsequently, third parties have encroached upon the lands and made constructions and have been residing therein. In view of such unauthorized encroachments and construction, the respondent authorities have already taken steps for removal of such encroachments. With the aforesaid submission, it is submitted that in view of the factual disputes, the appellants are not entitled for any relief sought for in these appeals.
16. Mr. N.R.Langa, learned counsel appearing for the Page 16 of 22 HC-NIC Page 16 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT appellants in Letters Patent Appeal No. 869 of 2017 submits that the said appellants are bona fide purchasers for valuable consideration from respondent nos. 6 to 8, who sold the lands on instructions given by the original owners, to circumvent the provisions of the ULC Act, 1976, and therefore, they are entitled to continue with possession of the lands in question. It is submitted that as they have made construction of small kachcha-pucca houses and are residing therein, if their possession is not protected, they will suffer irreparable loss and injury.
17. Having heard the learned counsel for the parties, we have carefully perused the entire material on record. As some constructions came up on the lands in question and as there was a move for settlement between the owners and the persons who are in possession of the lands in question, these matters were adjourned from time to time. Though number of opportunities were given, as the matter was not settled, we have heard both these Letters Patent Appeals and dispose them of on merits by this common judgment.
18. Deceased-Nathalal Jethabhai Damani Narendra Jethabhai Damani and Batukbhai Jethabhai Damani are real brothers. It is the case of Batukbhai and Nathabhai that they were staying in Sudan and with the money sent by them, the lands were purchased by way of registered sale deed in the year 1965 in the name of Narendra Jethabhai Damani. When the Urban Land (Ceiling & Regulation) Act, 1976 came into force in 1976, Narendrabhai filed a declaration in form no.1 under section 6(1) of the ULC Act, 1976, declaring his holding including the lands in question. At the first instance, the Competent Authority Page 17 of 22 HC-NIC Page 17 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT passed an order on 31st December, 1987, declaring the lands in question as excess vacant lands. But coming to know of the orders of the Competent Authority, Shri Batukbhai and Nathabhai filed review petition before the government under section 34 of the ULC Act, 1976. On dismissal of the said review petition, they approached this Court by filing Special Civil Application No. 4825 of 1990 under Article 226 of the Constitution of India. The said Special Civil Application also came to be dismissed by order dated 27.3.1995, against which, Letters Patent Appeal No. 318 of 1995 was preferred, which came to be allowed by order dated 14.3.2000, the relevant portion of which is referred by us hereinabove. From a careful perusal of the judgment, particularly para-6, it is clear that after purchase of the land by registered sale deed dated 15th November, 1965, registered deed of transfer was executed by Narendrabhai Jethabhai Damani on December 14, 1966 in favour of other two brothers making it manifest that Narendrakumar Jethabhai Damani had purchased the lands from the moneys, which were remitted by other brothers, and the appellants were real owners of the property. By extracting relevant receipts of the documents and by considering the effect of provisions of Benami Transactions (Prohibition) Act, 1988, a Division Bench of this court set aside the order of primary authority, directing the authorities to pass an order under section 8(4) of the ULC Act, 1976. Even after the judgment dated 14th March, 2000 passed in Letters Patent Appeal No. 318 of 1995, when immediate steps were not taken by the authorities, other two brothers approached this Court and ultimately the Competnt Authority passed an order on 5.4.2005, holding that Batukbhai and Nathabhai were entitled to hold one unit of 1500 sq.mts and only an extent of 32.52 Page 18 of 22 HC-NIC Page 18 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT sq.mts of land was excess land. It is relevant to note that by virtue of the orders of the Division Bench passed in Letters Patent Appeal No. 318 of 1995 and the consequential order passed by the Competent Authority dated 5.4.2005, only land to the extent of 32.52 sq.mt was declared as excess vacant land under the provisions of the ULC Act, 1976. It is true that after the earlier orders were passed, particularly, order dated 31.12.1987, by the Competent Authority, declaring the lands in question as excess vacant lands, possession was taken over by the government, but once such order of Competent Authority and after further order passed by the government rejecting the application of the appellants herein under section 34 of the Act, are set aside remanding the matter, all consequential steps will not survive. The stand of the respondents is that possession was taken over pursuant to earlier order of the Competent Authority declaring the lands as excess vacant lands, but no reason is given to retain the same with the authority, particularly in the order passed in Letters Patent Appeal No. 318 of 1995 and consequential order dated 5.4.2005. When the judgment dated 14.3.2000 passed in Letters Patent Appeal No. 318 of 1995 has attained finality and further consequential order dated 5.4.2005 has also become final, it was obligatory on the part of the respondents to restore the possession of the lands to the appellants in Letters Patent Appeal No. 1457 of 2016. Having regard to the orders passed by this Court, it cannot be said that the appellants have abused the process of law. At the same time, we are also not in agreement with the view taken by the learned single Judge that as the lands are already vested with the State in the year 1987-88, the proceedings under the provisions of ULC Act, 1976 will abate, in view of the enforcement of provisions of the Urban Land Page 19 of 22 HC-NIC Page 19 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT (Ceiling & Regulation) Repeal Act, 1999. Once the order dated 31.12.1987 is set aside in Letters Patent Appeal No. 318 of 1995, the respondent authorities cannot claim vesting of their lands, pursuant to the said judgment. When the order of Competent Authority is quashed, all consequent steps including taking possession will stand quashed.
19. It is also not in dispute that when possession of lands was taken over pursuant to the first order of the Competent Authority, declaring the lands in question as excess vacant lands, the said lands were vacant and clear. Only due to the negligence on the part of the concerned authorities, encroachers who are appellants of Letters Patent Appeal No. 869 of 2017 have stepped into the land and made kachcha- pucca constructions and therefore, their claim also cannot be accepted that they purchased the land from respondent nos. 6 to 8 therein. During the course of arguments, learned counsel for the appellants in Letters Patent Appeal No.869 of 2017 submitted that the said appellants are agents of original owners but no document of authorization is produced in support of their claim. In the absence of any valid documents for transfer of title from the original owners, their claim cannot be accepted. In any event, no transfer can be made of the excess lands in view of the provision under section 5(3) of the ULC Act, 1976 and even if transfer is made by original owners also, such transfer is null and void. In the case on hand, there is no document at all in support of the appellants in Letters Patent Appeal No. 869 of 2017 to justify their title and possession of the lands. Their claim that they have purchased the lands from third parties on instructions from original owners of the lands cannot be accepted to believe their possession. As they are Page 20 of 22 HC-NIC Page 20 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT encroachers on the lands in question and such encroachments have come up during the custody of possession of the lands with the government, it was obligatory on the part of the authorities to take appropriate steps against such encroachers and hand over actual and vacant possession of lands to its original owners, who are the appellants in Letters Patent Appeal No. 1457 of 2016. So far as Letters Patent Appeal No. 869 of 2017 is concerned, there is absolutely no basis to accept the claim of the appellants in the said appeal that they have purchased the lands from third parties other than the owners on instructions from the owners. Such a stand cannot be countenanced at all to seek protection for their possession. Further, it is also clear from the material on record that the appellants in Letters Patent Appeal No. 869 of 2017 have approached this Court by suppressing material facts of pendency of the civil suits which are referred earlier by us. Having filed civil suits against the government and private parties, they have not disclosed the said fact before this Court, which is nothing but material suppression of facts, which disentitles them for any relief under Article 226 of the Constitution of India. Further, we are also constrained to hold that the said appellants have no right to claim title and possession of the lands. In view of the same, Letters Patent Appeal No. 869 of 2017 filed by the encroachers deserves to be rejected.
20. For the aforesaid reasons, we allow Letters Patent Appeal No. 1457 of 2016 and set aside the judgment dated 20- 21.10.2016 passed by the learned single Judge in Special Civil Application No.9886 of 2007 and consequently we direct to restore the possession of the lands which were taken from the Page 21 of 22 HC-NIC Page 21 of 22 Created On Fri Aug 18 08:33:27 IST 2017 C/LPA/1457/2016 CAV JUDGMENT possession of appellants of Letters Patent Appeal No. 1457 of 2016, pursuant to order dated 31.12.1987 passed by the Competent Authority under the provisions of the ULC Act, 1976. Such possession shall be restored to them within a period of 4 months from the date of receipt of this judgment. It will be open for the authorities to take necessary steps against third parties-encroachers to hand over vacant possession of the lands to the appellants of Letters Patent Appeal No. 1457 of 2016.
21. Letters Patent Appeal No. 869 of 2017 is dismissed. There shall be no order as to costs.
22. Since Letters Patent Appeal No. 1457 of 2016 is allowed, the connected Civil Application does not survive and the same is disposed of.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) pirzada Page 22 of 22 HC-NIC Page 22 of 22 Created On Fri Aug 18 08:33:27 IST 2017