Gujarat High Court
Lhrs Of Decd. Himmatbhai Bhagwanbhai ... vs State Of Gujarat on 12 July, 2022
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9952 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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LHRS OF DECD. HIMMATBHAI BHAGWANBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR NV GANDHI(1693) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.4,1.4.1,1.4.2,1.4.3,1.5,1.5.1,1.5.2,1.5.3,2
for the Respondent(s) No. 2,3
MR J. K. SHAH, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 12/07/2022
ORAL JUDGMENT
1. By this petition, inter alia, under Article 226 of the Constitution of India, the petitioners have prayed for following reliefs:
"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus, or any other appropriate writ, order or directions and be pleased to direct the respondents to grant benefit of Urban Land (Ceiling & Regulation) Repeal Act, 1999 in relation to the Agricultural lands of Revenue Survey nos.522 paiky, 523/1, 523/2, 525, 526, 530 and 531 of Mouje/Village: Bapod, Tal. & Dist.: Vadodara as per representation dtd.04.05.2021 and in view of the guidelines issued by the State Govt. in their Revenue Dept. vide G.R. no.S-30/General-493/06/V-4, dtd.06.01.2020; AND Page 1 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 (B) During the pendency of final disposal of this petition YOUR LORDSHIPS may be pleased to direct the respondents to decide the representation dtd.04.05.2021, preferred by the petitioners in accordance with the G.R. dtd. 06.01.2020 or any other policy of the State Govt. after affording opportunity of hearing to the petitioners with in stipulated time as may be deemed fit and proper by this Hon'ble Court;"
2. The facts, as set out in the captioned writ petition, are that:
2.1 The ancestors of the petitioners namely Himmatbhai Bhagwanbhai Patel and Lallubhai Bhagwanbhai Patel (now deceased) have filed the declaration under sub-section (1) of section 6 of the Urban Land (Ceiling & Regulations) Act, 1976 (hereinafter referred to as "Act of 1976"). According to the petitioners, vide order dated 15.10.1986, the Competent Authority & Deputy Collector (Land Reforms), Vadodara passed an order declaring the lands, as indicated in the tabular form, as surplus lands as well as the lands to be retained by the respective land owners. According to the petitioners, the total holding of the land owners was admeasuring 84681 sq. mtrs. out of which, 73988 sq. mtrs. was declared as surplus land. The land admeasuring 12000 sq. mtrs., was directed to be retained by the land owners namely Lallubhai Bhagwanbhai Patel (one unit); Himmatbhai Bhagwanbhai Patel (two units) and the heirs of Ranchhodbhai Bhagwanbhai Patel (three units).
2.2 The petitioners, aggrieved by the order dated 15.10.1986, preferred an appeal under section 33 of the Act of 1976 being appeal no.16 of 1988 which, was dismissed vide order dated 12.5.1988. Thereafter, proceedings under sub-section (1) of section 10 were initiated. Notice dated 6.4.1987 was issued and was published on 10.6.1987; followed by notification under sub-section (3) of section 10 on 30.9.1987 and publication of the notice on 29.11.1987. According to the petitioners, notice under sub-section (5) of section 10 was issued on 30.12.1987 and again on 5.2.1992 Page 2 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 and 23.8.1993. It is the case of the petitioners that notice under sub-section (6) of section 10 was issued by the learned Mamlatdar on 6.10.1993. On 19.8.1994, by drawing two panchnamas, the possession of the excess land was taken over i.e. survey nos.522 paiki, 523/1, 523/2, 525, 526, 530, 531 and 526 admeasuring 18960 sq. mtrs. and 21364 sq. mtrs. respectively. It is the case of the petitioners that followed was a notice under section 11 on 18.10.1997; however, the amount of compensation has not been received.
2.3 It is further case of the petitioners that before the repeal of the Act of 1976, the heirs of Ranchhodbhai Bhagwanbhai Patel along with the other family members, have filed appeal before the Urban Land Tribunal being appeal no.23 of 1999 which was allowed by it on 30.3.1999, quashing and setting aside the order dated 15.10.1986. The facts further proceed that being aggrieved by the order dated 30.3.1999, the State Government, preferred a writ petition being Special Civil Application no.5270 of 1999 before this Court and this Court, vide oral judgment dated 19-20.10.2016, quashed and set aside the order dated 30.3.1999 passed by the Tribunal. Letters Patent Appeal no.1019 of 2017 was preferred before this Court and in the interregnum, one Bhailalbhai and others had preferred Special Civil Application no.9091 of 2019 praying for direction to the State Government to grant benefit of Act of 1999 as per the representations dated 15.12.2018, 29.12.2018 and others. It is the case of the petitioners that the Letters Patent Appeal, was withdrawn with a liberty to pursue Special Civil Application (stamp) no.8838 of 2019, that is, Special Civil Application no.9091 of 2019.
2.4 The petitioners further state that the writ petition being Special Civil Application no.9091 of 2019, came to be disposed of by this Court with a direction to the respondent authorities to decide Page 3 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 the representation dated 3.12.2018 and 15.12.2018 filed by the petitioners, after giving an opportunity of hearing. As is discernible from the record, the petitioners have submitted representation; however, since no steps were taken, learned advocate for the petitioners issued a notice under the Contempt of Courts Act on 13.8.2020, requiring the respondent authorities to decide the representations dated 3.12.2018 and 15.12.2018. The Miscellaneous Civil Application no.632 of 2020 was filed and came to be disposed of vide order dated 3.12.2020, inter alia, observing that there is no willful disobedience on the part of the State Government.
2.5 In the interregnum, the Competent Authority & Deputy Collector (Land Reforms), Vadodara has passed the order dated 1.12.2020 whereby, the Ranchhodbhai Bhagwanbhai Patel was allowed to retain 23614 sq. mtrs. of land and some land, was also directed to be retained by Himmatbhai Bhagwanbhai Patel and Lallubhai Bhagwanbhai Patel. Thereafter, the petitioners submitted a representation dated 4.5.2021 pointing out that the lands are ancestral land and that there is no order of block division and it continues to be the property of the joint family of late Himmatbhai Bhagwanbhai Patel and Lallubhai Bhagwanbhai Patel. Under the circumstances, the petitioners, being the heirs of Himmatbhai Bhagwanbhai Patel and Lallubhai Bhagwanbhai Patel are also entitled to enure the benefit of the Act of 1999, as no physical possession of the lands, which were declared excess by the Competent Authority & Deputy Collector (Land Reforms), Vadodara, has been taken over. It is prayed that the respondent authorities be directed to remove the lands as prayed for from the ULC register and accordingly, correct the revenue record. Since, no reply was received by the petitioners, that the captioned writ petition, has been filed with the aforementioned prayers.
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3. Mr N. V. Gandhi, learned advocate appearing for the petitioners, submitted that though the lands were declared excess, possession whereof was not taken over by the Competent Authority and therefore, upon repeal of the Act of 1976 in the year 1999, the petitioners are entitled for the benefits. It is submitted that so far as the earlier proceeding being Special Civil Application no.5270 of 1999 is concerned, the limited issue raised was, filing of the forms under sub-section (1) of section 6 of the Act of 1976 declaring the holdings and the order of Competent Authority & Deputy Collector (Land Reforms), Vadodara dated 15.10.1986. It is submitted that the petitioners preferred Letters Patent Appeal no.1019 of 2017 against the oral judgment dated 19-20.10.2016 before this Court which was disposed of keeping it open for the learned advocate for the appellants to pursue the writ petition being Special Civil Application (stamp) no.8838 of 2019 which was converted to Special Civil Application no.9091 of 2019 wherein, non-issuance of notification under sub-section (3) of section 10 of the Act of 1976 was under
challenge. It is submitted that therefore, the liberty was reserved to the petitioners to pursue the grievance that the possession has not been taken over as further proceedings under sub-section (3) of section 10 onwards, have not been initiated.
3.1 It is submitted that the said issue was not subject matter of Special Civil Application no.5270 of 1999 and therefore, it was open to the petitioners to have pursued the matter on the ground that upon introduction of the Repeal Act in the year 1999, the possession was not taken and therefore, the proceedings against the petitioners, with respect to the lands, stand abated. It is submitted that in the writ petition being Special Civil Application no.9091 of 2019 (Special Civil Application (stamp) no.8838 of 2019), the petitioners have not only prayed for direction to the respondent authorities to decide the representation dated 15.12.2018, Page 5 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 29.12.2018 and 3.1.2019 but also the declaration that the possession of the lands, was never taken by the State Government under section 4 of the Repeal Act 1999.
3.2 It is submitted that this Court, while disposing of the writ petition, directed the respondent authorities to decide the representations filed by the petitioners within a stipulated period after giving an opportunity of hearing. After the disposal of the writ petition, what came was the order dated 1.12.2020 whereby, Ranchhodbhai Bhagwanbhai Patel who, as recorded in the oral judgment, had not filled up the form, was allowed to retain 23614 sq. mtrs. of land whereas, Himmatbhai Bhagwanbhai Patel and Lallubhai Bhagwanbhai Patel were allowed to retain 4890 sq. mtrs.
of land each. It is submitted that the petitioners are also the legal heirs of Himmatbhai Bhagwanbhai Patel and Lallubhai Bhagwanbhai Patel, and hence are entitled to the benefits of the Act of 1999 as physical possession of the lands which were declared excess as per the order dated 15.10.1986 of the Competent Authority & Deputy Collector (Land Reforms), Vadodara, has not been taken. It is therefore submitted that by virtue of the Repeal Act, 1999, the petitioners are entitled for the lands inasmuch as, possession whereof, has not been taken by the State Government.
3.3 It is submitted that the said fact, is also clear from the internal communication dated 2.3.2020 issued by the Collector, Vadodara wherein, reference is of a query raised by the Under Secretary, Revenue Department about taking of the possession. Further reference is made that upon verification of the documents, it has been replied that after sub-section (3) of section 10, no further steps have been taken for taking the possession. It is submitted that the petitioners, are in possession of the lands in question and therefore, are entitled for taking the benefits arising out of the Repeal Act of Page 6 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 1999.
3.4 It is therefore urged that the respondent authorities, be directed to decide the representation dated 4.5.2021 of the petitioners in terms of the Government Resolution dated 6.1.2020. While referring to the said Resolution, it is submitted that the State Government, has provided for a mechanism to decide the cases pursuant to the Repeal Act of 1999 after considering the orders of the Courts as well as applications of the applicants concerned. It is submitted that as per sub-clause (3) of clause A of the Resolution, the State Government has been given the powers to decide the applications wherein, the cases involved the decision upto the stage of sub-section (5) of section 10, it is the Collector to decide. It is therefore submitted that it is the State Government, who is competent, to decide the representation of the petitioners, in view of the fact that the possession of the lands in question has not been taken and is with the petitioners. Accordingly, it is prayed that petition be allowed.
4. On the other hand, Mr J. K. Shah, learned Assistant Government Pleader, submitted that the captioned writ petition, seeking direction to the respondent authorities to decide the representation dated 4.5.2021 of the petitioners, is itself not maintainable. The petitioners are seeking direction to remove the lands in question that is land bearing survey nos.522 paiki, 523/1, 523/2, 525, 526, 530 and 531 of village: Bapod, Taluka & District Vadodara from the ULC register which are in favour of the heirs and legal representatives of Himmatbhai Bhagwanbhai Patel and Lallubhai Bhagwanbhai Patel. It is submitted that the captioned writ petition, is nothing but a dishonest attempt on the part of the petitioners to re-litigate the issue, which has already been crystallized against the petitioners and in favour of the respondent Page 7 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 State Government. While referring to the order dated 19- 20.10.2016, passed by this Court in Special Civil Application no.5270 of 1999, it is submitted that Bhagwanbhai Patel had three sons namely Himmatbhai Bhagwanbhai Patel, Lallubhai Bhagwanbhai Patel and Ranchhodbhai Bhagwanbhai Patel; out of which, Himmatbhai Bhagwanbhai Patel and Lallubhai Bhagwanbhai Patel had filled two separate forms under the provisions of sub-section (1) of section 6 of the Act of 1976 declaring their holding; however, the third son Ranchhodbhai Bhagwanbhai Patel, did not fill up the form. As a result of the proceeding under the Act of 1976, the Competent Authority & Deputy Collector (Land Reforms), Vadodara, passed an order dated 15.10.1986.
4.1 It is submitted that the said order was assailed before the Tribunal after a period of 13 years, for the second time by filing an appeal on 26.3.1999 and on 30.3.1999 the Tribunal had passed an order allowing it and that too without giving any opportunity of hearing to the State Government. It is submitted that it was very shocking that the appeal was filed on 26.3.1999 and on 30.3.1999, it came to be allowed. It is submitted that this Court, took serious note of the conduct on the part of the Tribunal in deciding the appeal within a period of one day inasmuch as, 27.3.1999, 28.3.1999 and 29.3.1999 were public holidays.
4.2 It is submitted that this Hon'ble Court, has not only dealt with the legality and validity of the order dated 15.10.1986 passed by the Competent Authority & Deputy Collector (Land Reforms), Vadodara but also the aspect of possession which, contention was raised by the petitioners and recorded in paragraph 4. It is submitted that paragraph 9 of the said judgment clearly deals with the said contention categorically observing that the contention raised, cannot be accepted and the petition filed by the State Page 8 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 Government came to be allowed.
4.3 It is further submitted that Letters Patent Appeal no.1019 of 2017, was filed challenging the oral judgment dated 19-20.10.2016; however, in view of Special Civil Application (stamp) no.8838 of 2019 (renumbered as Special Civil Application no.9091 of 2019), the appeal was not pursued and permission was requested for withdrawal of the said Letters Patent Appeal, which permission, was granted. It has been recorded in the order dated 8.4.2019 that the permission for withdrawal, is sought for with a view to pursue Special Civil Application (stamp) no.8838 of 2019 renumbered as Special Civil Application no.9091 of 2019 since non-issuance of notification under sub-section (3) of section 10 of the Act of 1976 was under challenge. It is submitted that the petitioners, consciously abandoned the cause and when, the cause was abandoned, it would be impermissible for the petitioners to re- agitate the issue which, has attained finality.
4.4 It is further submitted that so far as Special Civil Application no.9091 of 2019 is concerned, the petitioners have prayed for direction to the State Government to declare that the possession of the questioned lands i.e. survey nos.528, 533 and others, have never been taken and by virtue of the provisions of section 4 of the Act of 1999, the ownership and possession remains with the petitioners. It is submitted that the writ petition, came to be disposed of with a direction to the respondent authorities to decide the representation dated 3.12.2018 and 15.12.2018 within a stipulated period; however, no where in the said order, any liberty has been reserved in favour of the petitioners either to file a fresh writ petition or for revival of the writ petition. Therefore, when the writ petition was disposed of with a limited liberty to make a representation, the petitioners, have taken informed decision not to Page 9 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 pursue the petition. Hence, the captioned writ petition, seeking directions to the respondent authorities to decide the representation would not be maintainable.
4.5 While referring to the order dated 1.12.2020 passed by the Competent Authority & Deputy Collector (Land Reforms), Vadodara, it is submitted that Ranchhodbhai Bhagwanbhai has been allowed to retain 23614 sq. mtrs.; whereas, Himmatbhai Bhagwanbhai and Lallubhai Bhagwanbhai have been allowed to retain 4890 sq. mtrs. each. The rest of the land has been ordered to be continued in the name of the State Government. It is submitted that the subject matter of the writ petitions being Special Civil Application No. 5270 of 1999 as well as Special Civil Application No. 9091 of 2019, are the survey nos. 528, 533, 522 paiki, 523/1, 523/2, 525, 526, 530 and 531 of village Bapod, Taluka & District Vadodara and when the issue stands crystallized by this Hon'ble Court vide oral judgment dated 19-20.10.2016 as well as 8.5.2019, the captioned writ petition, is nothing but an abuse of process of Court and deserves to be dismissed with exemplary costs.
4.6 In support of such contention, reliance is placed on the judgment in the case of Punit Vidyalaya Primary School Vali Mandal v. State of Gujarat and Anr. reported in 1999 (1) GLH 499. It is submitted that this Court, has dealt with similar such situation and observed that "after realising the trend of the Court, request is made for withdrawal of the petition, and after the petition is withdrawn, representation is made and against the decision of the authority deciding the representation petition is again filed." This Court has held and observed that "this approach is erroneous. Once by withdrawing the petition filed before this Court, the party has accepted the decision of the Lower Court, thereafter if the party has submitted to the wisdom of the concerned authority by making a Page 10 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 representation, then it would not be permissible to file a writ petition against the order passed on the representation, more particularly when the Court has not reserved any liberty to challenge the order." It is submitted that reference is made to the judgment of the Apex Court in the case of Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior reported in AIR 1987 SC 88 wherein, the Apex Court has held and observed that "while the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission."
4.7 It is therefore submitted that withdrawal of the Letters Patent Appeal in the first instance and disposal of the writ petition being Special Civil Application no.9091 of 2019, was a conscious and informed decision of the petitioners not to pursue the cause. By withdrawal and the disposal, the petitioners chose to abandon the cause and therefore, when the cause itself was abandoned, without reserving any liberty; filing of the representation and seeking direction from the authorities to decide the same is nothing but a mischievous attempt on the part of the petitioners to re-agitate the issue which has attained finality. It is submitted that if the petitioners were confident about the grievance and/or cause, they should have pursued the Letters Patent Appeal and/or the writ petition without seeking withdrawal. Having not done so, it is explicitly clear that the petitioners, have abandoned the cause. Reliance is also placed on the judgment in the case of Gulammiya Husainmiya Malek v. Union of India reported in 2000 (2) GLH 545. In Page 11 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 the said case, petition was filed and was withdrawn without reserving any liberty followed by filing of the representation and decision on the representation, was challenged. This Court, has held that challenge to the subsequent decision, is nothing but an abuse of process of law.
4.8 Mr J. K. Shah, learned Assistant Government Pleader, has invited the attention of this Court to the report of the Competent Authority & Deputy Collector (Land Reforms), Vadodara dated 16.3.2019, reference whereof, is made in the order dated 8.5.2019 of this Court. It is submitted that owing to the discrepancy as regards mentioning of the survey numbers as well as plot numbers, it was clarified that so far as survey no.865, final plot no.528 as well as survey no.861, final plot no.533 are concerned, housing scheme has been sanctioned and proceedings have been initiated up to the stage of sub-section (1) of section 10 of the Act of 1976. It is submitted that when the authorities, found that with respect to survey nos.528 and 533, no further steps were initiated under the provisions of sub-section (2) of section 10 to sub-section (6) of section 10 of the Act of 1976, necessary benefits have been extended not only to Ranchhodbhai Bhagwanbhai Patel but also to Himmatbhai Bhagwanbhai Patel and Lallubhai Bhagwanbhai Patel. It is further submitted that as per details indicated in the tabular chart (page 156) so far as survey no.528 is concerned, land admeasuring 2698 sq. mtrs. each were directed to be retained by all three brothers i.e. Ranchhodbhai Bhagwanbhai Patel, Himmatbhai Bhagwanbhai Patel and Lallubhai Bhagwanbhai Patel. Similarly, for survey no.533, land admeasuring 2192 sq. mtrs. each were allowed to be retained by all three brothers i.e. Ranchhodbhai Bhagwanbhai Patel, Himmatbhai Bhagwanbhai Patel and Lallubhai Bhagwanbhai Patel. It is submitted that the land bearing survey no.528 was admeasuring 8094 sq. mtrs. whereas, survey no.533 was Page 12 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 admeasuring 6576 sq. mtrs. and whole of the survey nos.528 and 533 have been allowed to be retained by the respective share holders. It is therefore submitted that direction contained in the order dated 8.5.2019, stands fully complied with.
4.9 Reliance is also placed on the judgments in the case of Heirs of Dec. Jethabhai Ishwarbhai v. State of Gujarat & Others passed by this Court in Letters Patent Appeal no.405 of 2017 as well as in the case of Dineshkumar Jagubhai Patel v. State of Gujarat & Others passed in Letters Patent Appeal no.332 of 2017. It is submitted that this Court, has discussed the scope of the provisions of sub-section (5) of section 10 read with sub-section (6) of section 10 of the Act of 1976. It has been held and observed that sub-section (5) of section 10 envisages voluntary handing over of the possession and sub- section (6) of section 10 talks of forcibly taking over the possession.
4.10 It is therefore urged the captioned writ petition deserved to be dismissed with exemplary costs as, it is nothing but a dishonest attempt on the part of the petitioners to take advantage by one way or the other. It is submitted that when this Court, in the year 2016, has concluded against the petitioners, which order, has not been disturbed by the Hon'ble Division Bench, the captioned writ petition deserves to be dismissed with exemplary cost.
5. Heard the learned advocates appearing for the respective parties and accorded thoughtful consideration to the documents available on record.
6. This petition is filed, inter alia, under Article 226 of the Constitution of India, by the petitioners, being the legal heirs of Himmatbhai Bhagwanbhai Patel and Lallubhai Bhagwanbhai Patel. Petitioner no.2 has filed the petitioner being the legal heir (through Will), though the copy of the Will has not been placed on record. The Page 13 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 captioned writ petition has a chequered facts. The lands bearing various survey numbers belonged to Bhagwanbhai Patel who had three sons namely Himmatbhai Bhagwanbhai Patel, Lallubhai Bhagwanbhai Patel and Ranchhodbhai Bhagwanbhai Patel. Two sons namely Himmatbhai Bhagwanbhai Patel and Lallubhai Bhagwanbhai Patel have filled up two separate forms under the provisions of sub- section (1) of section 6 of the Act of 1976 declaring their holdings in respect of several parcels of land. The third son i.e. Ranchhodbhai Bhagwanbhai Patel did not fill up any form. The Competent Authority & Deputy Collector (Land Reforms), Vadodara, passed a common order dated 15.10.1986, considering the total holding of the ancestors of the petitioners to the tune of 84681 sq. mtrs.. The Competent Authority & Deputy Collector (Land Reforms), Vadodara declared that Lallubhai Bhagwanbhai Patel since was not having any heir, was entitled for one unit; Himmatbhai Bhagwanbhai Patel since was having three major sons namely Bhailalbhai, Govindbhai and Shantilal, was entitled to four units and legal heirs of Ranchhodbhai Bhagwanbhai Patel came to be entitled to three units. The total land, declared to be retained by the family of Bhagwanbhai Patel was considered to the tune of 12000 sq. mtrs. The remaining 73988 sq. mtrs., was declared as surplus land.
7. The order dated 15.10.1986 of the Competent Authority & Deputy Collector (Land Reforms), Vadodara was challenged by Himmatbhai Bhagwanbhai Patel, Lallubhai Bhagwanbhai Patel, Khusalbhai Rachhodbhai and Gordhanbhai Ranchhodbhai by filing an appeal being 16 of 1988 under section 33 of the Act of 1976 before the Tribunal which, vide order dated 12.5.1988 dismissed the same. On 26.3.1999, after a period of 13 years, the heirs of Bhagwanbhai and Ranchhodbhai, surreptitiously, preferred an appeal under the provisions of section 33 of the Act of 1976, which was registered as appeal no.23 of 1999. The Tribunal, passed an Page 14 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 order dated 30.3.1999 allowing the same, without giving an opportunity of hearing to the State Government which led to the filing of the Special Civil Application no.5270 of 1999. The said writ petition, filed by the State Government, came to be allowed vide oral judgment dated 19-20.10.2016. This Court, in the opening paragraph of the oral judgment, has recorded thus:
"This is one of the classic cases of misuse of powers and authority by the ULC Tribunal at the instance of the respondents, whereby the Tribunal not only entertained the grossly time-barred appeal filed by the respondents under Section 33 of the Urban Land (Ceiling and Regulations) Act, 1976 (hereinafter referred to as "the ULC Act") after a period of 13 years of the order passed by the competent authority, but allowed the said appeal within four days of its filing, without giving any opportunity of hearing to the petitioner Department, and that too, on the previous day of the repeal of ULC Act."
8. This Court, observed that the order dated 15.10.1986, was already challenged and the appeal was dismissed vide order dated 12.5.1988. This Court, took note of the fact that the appeal after 13 years was filed on 26.3.1999 which, came to be decided within a period of four days, vide order dated 30.3.1999, which was the previous day of the repeal of the Act of 1976. Out of four days, 27.3.1999, 28.3.1999 and 29.3.1999, were the public holidays. Moreover, this Court, required the learned advocate appearing for private respondents to clarify as to passing of the order on the previous day of the enforcement of the repeal Act of 1999; however, the queries could not be answered. This Court, was therefore, of the opinion that the appeal was filed by the respondents i.e. heirs of Bhagwanbhai and Ranchhodbhai, after the delay of 13 years, suddenly on 26.3.1999 on having acquired the knowledge that the Act of 1976 was to be repealed with effect from 31.3.1999 and they somehow could manage to obtain the impugned order from the Tribunal on 30.3.1999. This Court, has also observed that such an order passed by the Tribunal is not only arbitrary and violative of Page 15 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 principles of natural justice but absolutely dishonest order passed, only with a view to favour the respondents.
9. Moreover, the respondents heirs of Bhagwanbhai and Ranchhodbhai by filing an affidavit-in-reply, raised the contention that the Act of 1976 having been repealed by the Repeal Act of 1999, all the proceedings were deemed to have been abated and therefore, the State cannot pursue the remedy under the Act of 1976, which has already been repealed. Contention was also raised that though the Authority had taken over the possession of the land in question as per the panchnama, the possession of the surplus land in question had remained with the respondents. Additional affidavit, was also filed reiterating the aspect of possession of the land in question and the fact that it was not taken over by the authorities and the mandatory provisions for taking over the possession under sub-section (5) of section 10 of the Act of 1976, was not observed. Therefore, it was the case of the respondents therein that the possession taken over by drawing panchnama, was illegal.
10. In the said proceeding, affidavit of Deputy Collector was also brought on record containing the averments about viz; declaring 73988 sq. mtrs. of the land as excess vacant land; issuance of the notification under sub-section (1) of section 10 on 6.4.1987; notification under sub-section (3) of section 10 on 10.9.1987; further notices under sub-section (5) of section 10 to the concerned land owners in the years 1987, 1992 and 1993 duly served upon them; the notices under sub-section (6) of section 10 were also issued on 6.10.1993 and 13.8.1994. It is after observing the provisions under sub-section (1) of section 10 and sub-section (6) of section 10 that the possession of the lands in question was taken over on 19.8.1994 in presence of the panch witnesses. Not only that, order under Page 16 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 section 11 was passed by the Competent Authority on 18.10.1997 (page 95). Considering the reply, this Court, held that despite the said position, the respondents, have preferred an appeal before the Tribunal challenging the order dated 15.10.1986.
11. As stated hereinabove, this Court, came up heavily not only on the conduct of the Tribunal but also the conduct of the private respondents i.e. petitioners herein. This Court, has also taken note of the fact that the Tribunal, had acted against the interest of the State by passing the order, in utter disregard of the well established position and in violation of the principles of natural justice. This Court, not only quashed and set aside the order of the Tribunal, but also, directed that punitive action deserves to be taken against the concerned member of the Tribunal who passed the order to which, it was informed that the members, were facing departmental inquiries. Accepting the instructions, this Court, did not pass any further order.
12. Pertinently, the contention of the private respondent therein that the possession was not taken, has been dealt with by this Court in paragraph 9. The contention, has been categorically refused to be accepted by this Court for the simple reason that after the dismissal of the appeal in the year 1988 the possession of the land in question, declared as excess vacant land, was already taken over by the State Authorities and the said proceedings have remained unchallenged. This Court, therefore, has held and observed that the respondents cannot be permitted to raise such a plea that the possession was taken over illegally by the State Government. With this, the petition, came to be dismissed. Relevant paragraphs 4, 5, 6 and 9 read thus:
"4. The respondents have filed their affidavit-inreply contending inter alia that the ULC Act having been repealed by the ULC Repeal Act 1999, all the proceedings were deemed to Page 17 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 have been abated and therefore the State could not have pursued the remedy under the Act, which has already been repealed. It is also contended that though the authority had allegedly taken over the possession of the land in question, as per the panchnama, the possession of the surplus land in question had in fact remained with the respondents. The respondents had also filed additional affidavit reiterating inter alia that the possession of the land in question was not taken over by the appellants and the mandatory provision for taking over the possession under Section 10(5) of the ULC Act having not been followed, the alleged possession taken over by drawing panchnama was illegal. As against that the competent authority and the Deputy Collector has filed the additional affidavit on behalf of the petitioner stating inter alia that after the passing of the order dated 15.10.1986 by the competent authority declaring 73988 sq. mtrs., of land an excess vacant land, Notification under Section 10(1) was issued on 6.4.1987 and the same was published in the official gazette on 18.6.1987. Thereafter the Notification under Section 10(3) was issued on 30.9.1987, which was published on 29.11.1987 in respect of the lands in question, except for the Revenue Survey Nos.528 and 533, as the permission under Section 21 was granted by the State |Government in respect of the said two survey numbers vide the order dated 21.4.1984. It has been further stated that the notices under Section 10(5) were issued to the concerned land owners on 15.12.1987, 5.2.1992 and 23.8.1993, which notices were duly served upon the said owners and the acknowledgement receipts were also duly received back by the petitioner. Thereafter the notices under Section 10(6) were issued on 6.10.1993 and 13.8.1994 to the concerned owners and the possession of the lands in question was taken over on 19.8.1994 in presence of the panch witnesses. It is also stated that the order under Section 11 was also passed by the competent authority on 18.10.1997. Despite the said position, the present respondents had filed appeal before the Tribunal and the Tribunal without calling for the record and without giving opportunity of hearing passed the impugned order.
5. Though the learned Counsel for the parties had argued at length, the short question that arises for consideration before this Court is whether the Tribunal could have entertained the appeal filed by the respondents challenging the order of the competent authority after a gross delay of 13 years, and allowed such appeal on merits without calling for the record of the case and without giving opportunity of hearing to the representative of the State authorities and that too, on the previous day of the enforcement of the Repeal Act, 1999.
6. Despite specific queries were put by the Court to the learned Counsel Mr.Bhatt for the respondents in respect of the aforesaid question, he was not in a position to answer the same or justify the impugned order passed by the Tribunal. It has not been disputed by the respondents that the competent Page 18 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 authority had passed the order on 15.10.1986 and the appeal was filed by the respondents before the Tribunal under Section 33 of the ULC Act on 26.3.1999. It is also not disputed that 27th , 28th, and 29th March 1999 were public holidays and the impugned order was passed by the Tribunal on 30.3.1999 i.e. one day prior to the date on which the Repeal Act had come into force. It is also not disputed that there was no separate application for condonation of delay given by the respondents seeking condonation of the delay of about 13 years occurred in filing the appeal. It is also not disputed that neither the record of the case was called for nor anybody was heard on behalf of the State before passing the impugned order. It is also not disputed that the original holders of the lands in question i.e. Himatbhai Bhagwanbhai, Lallubhai Bhagwanbhai, Gordhanbhai Ranchhodbhai and Khushalbhai Ranchhodbhai had filed the appeal being No.18/1988 challenging the very order of the competent authority passed on 15.10.1986 before the Tribunal, and the Tribunal had vide the order dated 12.5.1988 dismissed the same. It is also not disputed that the present respondents had never made any attempt to be impleaded them as party respondents in any of the proceedings filed by the original land owners. It is pertinent to note that respondent No.1 happened to be the grandson of Bhagwanbhai, respondent No.2 happened to be daughter of Himatbhai and the respondent Nos.3 to 6 happened to be the children of Khushalbhai. There is also nothing to suggest that the respondents had any strained relationship with their father or uncle. Under the circumstances, it clearly transpires that the appeal was filed by the respondents after a delay of 13 years suddenly on 26.3.1999 on having acquired the knowledge that the ULC Act was to be repealed w.e.f. 31.3.1999 and they somehow could manage to obtain the impugned order from the Tribunal on 30.3.1999. Such an order passed by the Tribunal is not only arbitrary and violative of principles of natural justice, but was absolutely dishonest order passed only with a view to favour the respondents and suffers from legal malice.
9. Though it was sought to be contended by the learned Counsel Mr.Bhatt for the respondents that the possession of the lands in question was not taken over by the petitioner Authority after following the due process of law and that the respondents were subjected to injustice by the order passed by the competent authority, such submission cannot be accepted for the simple reason that after the dismissal of appeal filed by the land owners challenging the order of the competent authority, the possession of the lands in question declared as excess vacant lands was already taken over by the State authorities, and such proceedings having remained unchallenged at the instance of the original land owners, who were none else but the father and uncle of the present respondents, the respondents cannot be permitted to raise such plea that the possession was taken over illegally by the State Government."Page 19 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022
C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022
13. The said oral judgment of the learned single Judge dated 19- 20.10.2016 was the subject matter of appeal before the Division Bench and the appellants, that is, the heirs, sought permission to withdraw the appeal as not pressed with a view to pursue the Special Civil Application (Stamp) no.8838 of 2019 (converted as Special Civil Application no.9091 of 2019) wherein, non-issuance of notification under sub-section (3) of section 10 of the Act of 1976 was under challenge. The Division Bench, granted the permission and the Letters Patent Appeal, was disposed of as not pressed. Therefore, the oral judgment of the learned single Judge was subject matter of challenge; in Letters Patent Appeal, but was disposed of with a limited liberty of pursuing the writ petition being Special Civil Application (stamp) no.8838 of 2019 (converted as Special Civil Application no.9091 of 2019) pending before the learned single Judge. There is no quarrel to the fact that the oral judgment of the learned single Judge, has not be disturbed and would be governing the issues amongst the parties.
14. What comes next is the order of the learned single Judge, disposing of the writ petition being Special Civil Application no.9091 of 2019. The prayers, in the writ petition being Special Civil Application no.9091 of 2019, were seeking direction to the Government authorities to declare and hold that the possession of the questioned lands i.e. survey nos.528 and 533 and others as mentioned in the representation has never been taken by the Government authorities and under section 4 of the Repeal Act of 1999, the ownership and possession remains with the petitioners without any encumbrance from any corner in the interest of justice. In furtherance of the said prayer, submission was made by the learned advocate appearing for the petitioners before this Court that though the orders were passed under the Act of 1976, possession of the excess land was not taken over. Therefore, before this Court, Page 20 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 submission was made on the basis of the communication dated 16.3.2019 that the possession of the land is not taken over. Accepting the submission, this Court, directed the respondent authorities to decide the representations dated 3.12.2018 and 15.12.2018 filed by the petitioners.
15. The said representation, has been decided by the Competent Authority & Deputy Collector (Land Reforms), Vadodara vide order dated 1.12.2020 allowing the retention of the land not only by Ranchhodbhai Bhagwanbhai Patel but also by Himmatbhai Bhagwanbhai Patel and Lallubhai Bhagwanbhai Patel. As per the details indicated in the tabular form in the order dated 1.12.2020 (page 156), the respondent authorities have allowed retention of survey nos.528 and 533 totally admeasuring 8094 sq. mtrs. and 6576 sq. mtrs. As per the said order, all the three brothers, Himmatbhai Bhagwanbhai Patel, Lallubhai Bhagwanbhai Patel and Ranchhodbhai Bhagwanbhai Patel have been allowed 2698 sq. mtrs. each to be retained so far as survey no.528 is concerned. Whereas, 2192 sq. mtrs. each has been allowed to be retained with respect to survey no.533. Therefore, the grievance raised in the writ petition being Special Civil Application no.9091 of 2019 and the direction to the respondent authorities, in the opinion of this Court, stands fully complied with.
16. It is said that there can be no end to greed which, has led to the filing of the captioned writ petition by the petitioners. The tone and tenor of the writ application is that, the petitioners have prayed for the direction to the respondent to grant benefit of the Act of 1999 in relation to the land bearing revenue survey nos.522 paiki, 523/1, 523/2, 525, 526, 530 and 531 and again requested for direction to decide the representation dated 4.5.2021 in view of Government Resolution dated 6.1.2020. Therefore, the center to the Page 21 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 grievance is the benefit of the Repeal Act of 1999 with respect to survey nos.522 paiki, 523/1, 523/2, 525, 526, 530 and 531.
17. In support of such prayer, the petitioners have raised following grounds in "PART-III (GROUNDS TO CHALLENGE)":
(i) that the actions and proceedings taken under the Act of 1976 in relation to the subject lands namely survey nos.522 paiki, 523/1, 523/2, 525, 526, 530 and 531 are per se illegal, nullity and inaction thereof is contrary to the Government Resolution dated 6.1.2020. It has also been urged that the respondent be directed to grant the benefit of the Repeal Act of 1999 with respect to the said survey numbers.
(ii) that the petitioners are in physical possession of the subject lands i.e. survey nos.522 paiki, 523/1, 523/2, 525, 526, 530 and 531 since their father's time. It is the specific contention raised by the petitioners that the possession of the subject lands could not have been taken as provided under sub-
section (5) of section 10 read with sub-section (6) of section 10 of the Act of 1976 as the same are under joint cultivation and no further division has taken place.
(iii) that the petitioners have continued in the physical possession of the land which has been declared surplus.
(iv) that without there being any type of partition of joint ownership land, the order dated 15.10.1986 is illegal, unreasonable and contrary to the provisions of section 44.
(v) that transfer of possession of subjected lands of undivided family under the Act of 1976 and the Repeal Act, 1999 is neither legal nor enforceable.
(vi) that Competent Authority is to establish whether there has Page 22 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022
been any voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of section 10 and sub-section (6) of section 10 of the Act of 1976.
With these grounds, it is the stand of the petitioners that land owner or holder can claim the benefit of section 3 of the Act of 1999.
18. Taking the last ground first, that is, whether there was a voluntary surrender of the vacant land or surrender and delivery of peaceful possession under sub-section (5) of section 10 and sub- section (6) of section 10 of the Act of 1976 the said issue is no longer res integra in view of the CAV judgment dated 22.1.2021 of this Court in the case of Heirs of Dec. Jethabhai Ishwarbhai v. State of Gujarat & Others (supra) as well as in the case of Dineshkumar Jagubhai Patel v. State of Gujarat & Others (supra). This Court, in the case of Heirs of Dec. Jethabhai Ishwarbhai v. State of Gujarat & Others (supra), while discussing the scope of the notices issued, possession taken; vesting of the surplus land with the State Government as per the provisions of sub-section (5) of section 10 of the Act of 1976, in paragraphs 18 to 20 has held and observed thus:-
"18. Sub-section (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 sub- section (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. Sub-section (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 sub-sections (1) and (2) of Section 10. Once the land Page 23 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 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 sub-section (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 under sub-section (5) is done in pursuance of the notice-cum- 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 notice- cum-order under Section 10(5) of the Act is, therefore, a misnomer. If the possession is handed over in compliance with the notice-cum-order 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 notice-cum-order 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 subsection (5), then the Competent Authority may take possession of vacant land and may use such force as may be necessary for that purpose. Sub-section (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 such taking over of the possession. The last part of sub-section (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. Sub-section (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 sub-sections 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."
19. Therefore, the contention raised stands answered by the aforesaid judgment. Even otherwise, the facts and documents, Page 24 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 which are available on the record, would not permit the petitioners to raise such contention inasmuch as, vide order dated 15.10.1986 the land were treated as surplus lands and thereafter, the proceedings were initiated for taking the possession of the lands of which the petitioners are seeking possession.
20. Notices issued under sub-section (1) of section 10 of the Act of 1976 with respect to the subject land are placed on the record (pages 55 to 74). The petitioners, have also placed on record, the notices issued under sub-section (5) of section 10 of the Act of 1976 dated 15.12.1987 (page 80) referring to all the survey numbers; notices dated 30.12.1987; 5.2.1992; 23.8.1993, issued and addressed to Himmatbhai Bhagwanbhai Patel and Lallubhai Bhagwanbhai Patel respectively. Sub-section (5) of section 10 of the Act of 1976 notices, were followed by notices dated 6.10.1993 and 16.8.1994 under sub-section (6) of section 10 of the Act of 1976 with respect to all the survey numbers. The Competent Authority & Deputy Collector (Land Reforms), Vadodara, has passed an order dated 18.10.1997 under section 11 of the Act of 1976 in favour of Himmatbhai Bhagwanbhai Patel and Lallubhai Bhagwanbhai Patel with respect to all the survey numbers determining the compensation (page 91). Therefore, it is clear that the proceedings under section 10 of the Act of 1976 were initiated and concluded by the proceedings under section 11 of the Act of 1976 with respect to the lands in question.
21. Despite the said issue having been decided against the petitioners, the captioned writ petition has been filed seeking direction to decide the representation, which is nothing but an attempt on the part of the petitioners to re-agitate the issue, raising frivolous ground that the possession of the subject lands could not have been taken as the lands are under joint cultivation without any Page 25 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022 C/SCA/9952/2022 JUDGMENT DATED: 12/07/2022 further division. In the opinion of this Court, the only attempt on the part of the petitioners, is to keep alive the litigation and to secure maximum benefit by any possible means, despite the fact that the issue, not only has been crystallized in the year 2017, but in the subsequent round of litigation as well by passing order dated 1.12.2020 allowing the retention of the lands in favour of the respective brothers.
22. Such attempt on the part of the petitioners, is nothing but a mischievous one only with a view to gain maximum advantage and to get lands of the survey nos.522 paiki, 523/1, 523/2, 525, 526, 530 and 531, which by operation of law have been vested in the State Government and same has received the stamp of this Court by reasoned judgment and not disturbed in Letters Patent Appeal. The practice of seeking direction to decide representation and keeping the issue alive, is to be deprecated and the conduct of the party coming with such plea as well. Hence, the captioned writ petition, seeking direction to the State Government to decide representation, cannot be entertained and deserves to be dismissed in limine.
23. The captioned writ petition, therefore, is dismissed in limine without grant of any relief, as prayed for. The time, which this Court has invested so also the conduct of the petitioners, the captioned writ petition has to be dismissed with exemplary costs. The cost, is quantified to the tune of Rs.50,000/-. Let the petitioners pay the cost of Rs.25,000/- to the Gujarat State Legal Services Authority and cost of Rs.25,000/- to the Office of the Government Treasury, State of Gujarat.
Sd/-
(SANGEETA K. VISHEN,J) RAVI P. PATEL Page 26 of 26 Downloaded on : Sat Dec 24 20:56:49 IST 2022