Gujarat High Court
Ravhjibhai Chhotabhai Patel vs Competent Officer & Dy Collector on 25 March, 2021
Author: Vineet Kothari
Bench: Vineet Kothari, Biren Vaishnav
C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21
RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR
In Re: ULC Act, 1976 : Litigation by P/A : FB Followed
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 941 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 2206 of 1986
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the Yes
judgment ?
4 Whether this case involves a substantial question of law Yes
as to the interpretation of the Constitution of India or
any order made thereunder ?
1. RAVHJIBHAI CHHOTABHAI PATEL
1.1 MINABEN RAVJIBHAI CHHOTABHAI PATEL
1.2 UMESHBHAI RAVJIBHAI CHHOTABHAI PATEL
2. NARAYANBHAI C PATEL
2.1 SUMITRABEN WD/O NARANBHAI PATEL
2.2 KUSUMBEN D/O NARAYANBHAI CHHOTUBHAI
2.3 MANISHABEN D/O NARAYANBHAI CHHOTUBHAI
2.4 NAINABEN D/O NARAYANBHAI CHHOTUBHAI
2.5 SHWETABEN D/O NARAYANBHAI CHHOTUBHAI
2.6 KAPILBHAI S/O NARAYANBHAI CHHOTUBHAI
3. MANHARBHAI C PATEL
3.1 SUSHILABEN WD/O. MANHARBHAI CHHOTABHAI PATEL
Page 1 of 43
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C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21
RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR
In Re: ULC Act, 1976 : Litigation by P/A : FB Followed
3.2 HETALBEN D/O MANHARBHAI CHHOTABHAI PATEL
3.3 NEETABEN D/O MANHARBHAI CHHOTABHAI PATEL
3.4 BHAVIKABEN D/O MANHARBHAI CHHOTABHAI PATEL
3.5 PINKALBEN D/O MANHARBHAI CHHOTABHAI PATEL
3.6 BHAGYESHBHAI S/O MANHARBHAI CHHOTABHAI PATEL
4. SHANTILAL C PATEL
All through the Power of Attorney Holder
Shri Anamisharan Narharibhai Brahmbhatt &
Smt. Vimlaben Anamisharan Brahmbhatt,
Residing at F/1, Tirupati Flats, Old Padra Road, Vadodara20
Versus
1. COMPETENT OFFICER & DY COLLECTOR
2. STATE OF GUJARAT
3. THE COLLECTOR
Appearance:
MR JITENDRA M PATEL for Appellant(s) No. 1.1,1.2,3.1,3.2,3.3,3.4, 3.5,3.6,4
MR K.M. ANTANI, Assistant Government Pleader for State
CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 25/03/2021
CAV JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. With the chequered and littered history of litigation, present Intra Court Appeal in a dispute arising under provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (ULC Act, 1976), has landed on our board from a dispute arising with the Page 2 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed execution of a purported Will on 30.5.1974 by one Javerbai w/o Somabhai Mohanbhai in respect of agricultural land bearing Survey No.660/2 and Survey No.662 of Village: Kapurai, District:
Vadodara allegedly in favour of the present Petitioners / Appellants namely, (i) Ravhjibhai Chhotabhai Patel, now represented by his Legal Heirs namely, daughter Minaben and son Umeshbhai; (ii) Narayanbhai Chhotabhai Patel; (iii) Manharbhai Chhotabhai Patel; and (iv) Shantilal Chhotabhai Patel, all four said to be related to her, being sons of her husband's brother - Chhotabhai.
2. The learned Single Judge, by the impugned judgment and order dated 27.7.2016, dismissed Special Civil Application No.2206 of 1986 after 30 years of its being filed in the High Court and that too in the second round before the learned Single Judge only; once the earlier order of learned Single Judge dated 16.6.2000 holding the proceedings under ULC Act, 1976 to have abated due to Repeal Act coming into force on 30.3.1999 which was set aside by the Division Bench in Letters Patent Appeal No.81 of 2002, vide CAV Judgment dated 9.5.2002 and again the learned Single Judge dismissed the writ petition on 27.7.2016 against which the present Intra Court Appeal was filed in 2016 Page 3 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed and was taken up after hearing the lengthy arguments of Mr.Jitendra M. Patel, learned counsel the Appellants and Mr.K.M. Antani, learned Assistant Government Pleader, the same is being disposed of by the present judgment.
3. The said litigation is now being conducted by the Power of Attorney Holder of the Petitioners / Appellants - 4 brothers who were claiming through the Will dated 30.5.1974 by one Anamisharan Brahmbhatt and who seems to be introduced in this litigation in the year 2013 only and whose shoddy role has come under critical comments by the learned Single Judge in the impugned order.
4. The litigation under the ULC Act, 1976 actually started and bloomed out of proportion after the Repeal of the Act itself on 30.3.1999 in the State of Gujarat in pursuance of the enactment of Urban Land Ceiling Repeal Law by Parliament enacted on 18.3.1999 and the State of Gujarat adopted the same in view of Article 252 of the Constitution of India with effect from 30.3.1999 and because of Section 4 of the Repeal Act, 1999 providing for the pending proceeding under the ULC Act, 1976 to be treated as abated, the spree of litigation, started by various stakeholders, Page 4 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed bona fide or other type of persons viz. land grabbers or buyers of litigation who made all efforts to show that possession under Section 10(5) / 10(6) of the land in question declared surplus or excess under the ULC Act, 1976 was actually never taken and they continued to be in possession and therefore, the proceedings should be treated as abated and the land should continue to vest in the landholders or such successive purchasers, Agreement holders or persons claiming under unproved or unsubstantiated Wills, Power of Attorney Holders, etc. The length of litigation and series of adjournments in such cases with the ever increasing prices of the land in the meanwhile made this area of litigation far more 'valuable' litigation and such cases fought with all possible weapons in the arsenals of litigants and lawyers.
5. The present case is another such example of the aforesaid type of litigation. The four brothers - Ravhjibhai Chhotabhai Patel and three others claimed under the Will dated 30.5.1974 of Javerbai w/o Somabhai Mohanbhai who died soon after execution of the said Will dated 30.5.1974 on 11.7.1974 without proving the said Will in any Court in probate proceedings or otherwise, they filed Declaration under Section 6 of the ULC Act, 1976 in Form No.1 and vide order dated 30.12.1982, the Page 5 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed Competent Authority instead of giving benefit of four deductions of 1,500 sq.mtrs. of each, gave only deduction of one unit of 1,500 sq.mtrs. treating them as a 'Body of Individuals' or 'Association of Persons' and thus determined the surplus land of 101 sq.mtrs. of Survey No.660/2 and 3,154 sq.mtrs. of Survey No.662 which order dated 30.12.1982 came to be challenged by the Petitioners on 1.4.1985 after 2 years and 3 months by filing Appeal No.69 of 1985 before the Urban Land Tribunal who dismissed the Appeal of the Petitioners. The Tribunal refused to condone the delay of 2 years and 3 months in filing the said Appeal under Section 33 of the ULC Act, 1976 and the Appeal came to be dismissed on 25.9.1985.
6. The Petitioners preferred the present Special Civil Application No.2206 of 1986 aggrieved by the said order dated 25.9.1985 and it was claimed before the learned Single Judge in present Special Civil Application in the first round argued by Mr.Jitendra M. Patel, learned counsel himself that despite service of Notice under Section 10(5) of the ULC Act, 1976 and possession allegedly taken over on 19.9.1985, since all the four Petitioners were not served with the last Notice in the series of such Notices under Section 10(5) of the ULC Act, 1976 dated Page 6 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed 31.8.1985 though, the earlier such Notices under Section 10(5) were served admittedly on all four of them, but since the possession was taken over on 19.9.1985 in pursuance of the last Notice dated 31.8.1985 only, which was not served on all four of them, therefore, relying upon the decision of the Hon'ble Supreme Court in the case of State of U.P. vs. Hari Ram [(2013) 4 SCC 280], the land in question could not be deemed to have vested in the State under Section 10(3) of the ULC Act, 1976 and the State cannot be said to have taken over the valid possession de facto under Section 10(5) of the ULC Act, 1976 and therefore, all four coowners of the land under the Will of Javerbai, they were entitled to challenge the said action of the State. The learned Single Judge (Coram: B.C. Patel, J.) disposed of this writ petition being Special Civil Application No.2206 of 1986 in the first instance on 16.6.2000 treating the proceedings as abated in view of Repeal of 1976 Act but the Letters Patent Appeal No.81 of 2002 filed by State came to be allowed by the Division Bench (Coram: J.N. Bhatt & Akshay H. Mehta, JJ.) on 9.5.2002 which held as under:
"In above view of the matter, we find that the judgment of the learned Single Judge was based on Page 7 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed incorrect facts and in consequence thereof the conclusion reached by the learned Single Judge was erroneous. In view of proviso to section 4 order regarding abatement of proceedings could not have been passed by the learned Single Judge. We are, therefore, inclined to accept the main submission of Mr. Pujari and we find no merit in the contention raised by Mr. Vakharia that the possession of the land in question is still with the respondents and the proceedings stand abated. Since the matter is at the stage of section 11, the question regarding abatement does not arise at all.
5. So far the contention raised by Mr. Vakharia with regard to agricultural land and individual holding are concerned, they are purely questions of fact and this Court while exercising appellate powers in proceedings filed under Articles 226 and 227 of the Constitution of India is not inclined to go into questions of fact, more so when in all the three earlier stages, namely, at the stage of proceedings pending before the Competent Authority, pending before the Urban Land Tribunal in appeal and in Special Civil Application before the learned Single Judge of this Court the matter has been proceeded with on the footing that the land in question is not agricultural land and the entire block of land has been treated as one unit, since the proceedings have been dealt with under the provisions of the Act.Page 8 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021
C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed
6. In light of the above discussions, we hold that the judgment of the learned Single Judge is erroneous and it is required to be quashed and set aside and this appeal is required to be allowed.
7. In the result, this appeal is allowed with costs. The appellants are at liberty to proceed further and take all the necessary steps from the stage of section 11 of the Act onwards."
7. After 11 years of a lull and peace, the Power of Attorney Holder Anamisharan Brahmbhatt took an entry in the litigation and without any order from the Division Bench allowing him to join the lis in the capacity of Power of Attorney Holder, he filed a Misc. Civil Application No.50 of 2013 in Letters Patent Appeal No.81 of 2002 after 11 years of its decision on 9.5.2002 allowing State's appeal, the said Misc. Civil Application appears to have been allowed by another Division Bench of this Court (Coram:
Ravi R. Tripathi & R.D. Kothari, JJ.) on 9.1.2013 and that is how the matter was again remanded back to the learned Single Judge to decide the writ petition again.
8. The said Power of Attorney Holder Anamisharan Brahmbhatt after revival of the petition, filed his own Affidavit on Page 9 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed 18.6.2015 and another AffidavitinRejoinder on 3.9.2015 before learned Single Judge and made certain statements in those Affidavits contrary to the statements made the original petition filed by the Petitioners - the four brothers regarding the Notice under Section 10(5) of the ULC Act, 1976 as noted by the learned Single Judge in para 7 of the impugned order.
9. The said Power of Attorney Holder Anamisharan Brahmbhatt with his Affidavits dated 18.6.2015 and 3.9.2015 at this belated stage sought to assail not only the findings of facts and orders passed by the ULC Tribunal and Declaration / Notification under Section 10(3) of the ULC Act, 1976 vesting the land in the State free from all encumbrances but has also tried to create a confusion that even Panchnama papers were not properly drawn and with the help of the revenue entries, he had claimed that the land continued to be in the name of Javerbai upto the year 2009 and therefore giving the benefit of the ULC Repeal Law with effect from 30.3.1999, the proceedings should be deemed to be abated.
10. On the other hand, Mr. K.M. Antani, learned Assistant Government Pleader has adseriatium pointed out that the Page 10 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed proceedings under the ULC Act, 1976 stood completed in accordance with the provisions of the ULC Act, 1976. He submitted that the Declaration in Form No.6 was filed by Ravhjibhai Chhotabhai Patel himself on 27.8.1982 whereon the Draft order of the Competent Authority was passed on 8.10.1982 and under Section 8(4) of the ULC Act, 1976 on 30.12.1982. He further submitted that the Final Statement under Section 9 of the ULC Act, 1976 was made on 21.12.1983 and the land was acquired by the State under Section 10(1) of the ULC Act, 1976 on 15.2.1983. The Notification under Section 10(3) of the ULC Act, 1976 vesting the land in question free from all encumbrances in the State was issued on 9.6.1983 and in pursuance of the Notices under Section 10(5) of the ULC Act, 1976 dated 29.1.1985, the possession of the land in question was taken over on 19.9.1985. Therefore, all the contentions raised by learned counsel for the Appellants / Petitioners are without any substance and deserve to be rejected.
11. Defending the order of the learned ULC Tribunal, learned Assistant Government Pleader submitted that the condonation of delay of more than 2 years was a matter of discretion of the learned Tribunal and it was not mandatory or incumbent upon Page 11 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed the Tribunal to enter in the appeal on merits. He also submitted that the Tribunal even dismissed the appeal on merits too following Full Bench view of Gujarat High Court.
12. Mr. K.M. Antani, learned Assistant Government Pleader also submitted that the doubt sought to be created by learned counsel for the Appellants / Petitioners on the basis of Affidavits of the Power of Attorney Holder Anamisharan Brahmbhatt that the order dated 30.12.1982 of Competent Authority (Mr. C.R. Shah) was not signed or that the Panchnama for taking over the possession was not properly prepared and that the land continued to be in possession of four brothers, etc. are without any substance and as an afterthought raised by the said Power of Attorney Holder who has no locus standi as the cause title was amended to indicate his name to represent the cause of the Petitioners / Appellants, without any order or permission of the Court. He submitted that order of Competent Authority dated 30.12.1982 not only bears the official seal, but a certified copy of the same has been issued by the Mamlatdar to the Petitioner, which could not have issued unless the order was signed by the said Authority (Mr. C.R. Shah) who only later on issued Notification under Section 10(3) of the Act on 9.6.1983, which is Page 12 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed duly signed by him. He also relied upon Section 90 of Evidence Act to uphold the genuineness of the order dated 30.12.1982. Therefore, his Affidavits and documents annexed therewith cannot be relied upon.
13. He further submitted that the case laws relied upon by learned counsel for the Appellants / Petitioners are also not applicable to the facts of the present case and the various contentions raised are now covered by the decision of this Court in the case of Heirs of Dec. Jethabhai Ishwarbhai vs. State of Gujarat & Ors. Letters Patent Appeal No.405 of 2017 decided on 22.1.2021 and therefore, the present Letters Patent Appeal deserves to be dismissed.
14. He also questioned the role of Power of Attorney Holder and relied upon the judgment of the Hon'ble Supreme Court in the case of Suraj Lamp & Industries Pvt. Ltd. vs.. State of Haryana, [(2012) 1 SCC 656], where the Hon'ble Supreme Court deprecated such litigation in no uncertain terms. He further submitted that the earlier judgment of the Hon'ble Supreme Court in the case of Hari Ram (supra) is stood watereddown and distinguished in the later decision of the Hon'ble Supreme Court Page 13 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed in the case of State of Assam vs. Bhaskar Jyoti Sarma [(2015) 5 SCC 321] and therefore, the contentions raised by learned counsel for the Appellants Mr. Jitendra M. Patel are without any substance and deserve to be rejected and therefore, the order impugned in the present Appeal passed by the learned Single Judge deserves to be confirmed.
15. We have heard learned counsel at length and perused the record and judgments cited at the bar. We do not find any merit in the present Appeal filed by the Appellants represented by their Power of Attorney Holder Anamisharan Brahmbhatt who introduced himself in the litigation as late as in 2013 in the writ petition filed way back in the year 1986 and was able to persuade the Coordinate Bench of this Court to recall the earlier order dated 9.5.2002 allowing on merits the Letters Patent Appeal No.81 of 2002 filed by State and get the matter restored for re decision by the learned Single Judge who has dismissed the same again now with costs of Rs.50,000/ by order dated 27.7.2016.
16. None of the contentions raised by the learned counsel Mr.Jitendra M. Patel has impressed us and the concluded proceedings under the ULC Act, 1976 have been assailed Page 14 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed unnecessarily and this litigation has been kept alive for such a long period on wholly untenable grounds.
17. The first contention of Mr. Jitendra M. Patel, learned counsel that the four Petitioners claiming through the Will of Javerbai w/o Somabhai Mohanbhai were entitled to four units deduction, is a misconceived claim. The alleged Will dated 30.5.1974 soon after which the said testator Javerbai w/o Somabhai Mohanbhai expired on 11.7.1974 was never proved in any proceedings whatsoever. Therefore, the Competent Authority was justified in passing the order giving deduction of only one unit treating four brothers as a 'Body of Individuals' or 'Association of Persons' and no valid exception to the same could be taken. The appeal against that order also failed as time barred, as the same was filed belatedly after 2 years and 3 months as well as it was dismissed on merits relying on Full Bench decision of this Court. The writ petition filed against that order of Tribunal came to be disposed of as abated but the State's Letters Patent Appeal came to be allowed by Division Bench of this Court on 9.5.2002 but somehow at the instance of the Power of Attorney Holder, a later Coordinate Bench of this Court was pleased to recall the said order dated 9.5.2002 and directed the learned Page 15 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed Single Judge to decide the same on merits, which the learned Single Judge painstakingly collated all the facts and dismissed the writ petition again by the detailed order with costs discussing the facts as well as the case laws cited at the bar.
18. The judgments relied upon by learned counsel for the Appellants with regard to condonation of delay viz. in the case of Haribhai Lakhubhai Seedhav vs. State of Gujarat [2010 (2) GLH 97]; in the case of Babubhai Bhagwanji Mehta vs. State of Gujarat Special Secretary [2003 (0) GLHELHC 201089]; in the case of State of Karnataka vs. Y. Moideen Kunhi (Dead) By LRs. [AIR 2009 SC 2577], etc. are all distinguishable on facts and in the peculiar facts of those cases merely because delay came to be condoned by the Court, the said cases have no application to the facts of the present case as ultimately it remains a matter of discretion for the Competent Court or Tribunal to look into the reasons assigned for delay in filing the appeal then fairly exercising such discretion either to condone or not to condone this such delay.
19. In the present case, only ignorance of law was given out as reason for seeking delay condonation which was not found to be Page 16 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed cogent reasons by the Tribunal and the Tribunal dismissed the appeal on 25.11.1985 not only as barred by limitation but following the Full Bench Judgment of Gujarat High Court in the case of Shah Jitendra Nanalal vs. Patel Lallubhai Ishverbhai Patel [1984 (2) GLR 1001] also dismissed the appeal on merits as well holding that in view of Full Bench Judgment of Gujarat high Court, the appeal could not be allowed, after the Notification under Section 10(3) of the ULC Act, 1976 was already issued on 9.6.1983 vesting the land in the State. The said Full bench view of Gujarat High Court clearly was binding on the Tribunal and it still holds the field and equally binds us too.
20. The Full Bench of Gujarat High Court in the case of Shah Jitendra Nanalal (supra) held as under:
"17. At the commencement of the Act, persons may be "holding vacant land in excess of ceiling limit", but as the 'vacant land' does not automatically 'vest' in the State Government, they hold it subject to certain obligations. There are restrictions imposed concerning dealing with such land. Until a notification issued under sec. 10(3), the land does not vest in the Government and that is why we have referred to the situation as one of 'suspense' till that date. Once the land 'vests' in the State Government, there is no Page 17 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed question of invoking the 'exemption' clause under sec. 20(1)(a) and (b); but until then, there is a right to move the Government for exemption and there is an 'obligation' on the Government to 'exempt' the land in case the conditions which warrant the exemption sought are satisfied. In case such conditions are shown to be satisfied, it is not as if the power of exemption could be exercised at the sweet will and pleasure of the State Government. The State Government has necessarily to be guided by the policy indicated in the provision itself and cannot traverse that policy. Consequently, the Government cannot also refuse to exempt if the case falls within those subsections. Therefore, until 'vesting' is under sec. 10(3) of the Act, there is always a possibility of 'defeasance of such vesting' on a motion for such exemption. If so, in a case where the person holding excess land is under a contractual obligation to convey property under an agreement to another, could he defeat that obligation by contending that transfer by him would be void and at the same time seeking exemption and obtaining benefit of such exemption in respect of such land?
18. So long as the provision declaring the transfer under sec. 5(3) as void is subject to the right to move for exemption, obtain exemption and transfer the property, the power of an owner of vacant land in excess of the ceiling limit to 'alienate' such land is dormant in him and such power could be exercised by Page 18 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed him in case he seeks exemption, satisfies the Government that the grounds for exemption exist, and obtains such exemption. That being the case, a decree cannot be defeated on the ground that 'transfer' inter partes would not be possible. The possibility of obtaining exemption survives till the notification under sec. 10(3) of the Act is issued. That being the situation, until then, a plaintiff seeking specific performance cannot be told that the terms of the contract cannot be fulfilled. Once it is said so, the plaintiff loses his right to get a decree for specific performance, though, invoking the provisions of the very Act, based on which the plaintiff was told that he could not get conveyance of the property agreed to be sold to him, the owner of excess land obtains exemption and continues in possession of property and perhaps even alienates it later. We see no reason either in law or in logic to countenance such a situation. There is nothing prohibiting a decree being passed for specific performance, with, of course, such alternative remedies as may be called for in a situation where that decree may become inoperative. The decree for specific performance may be made conditional on the exemption under sec. 20(1)(a) or
(b) operating. Of course, it is not for us in this reference to envisage how safeguards should be built in such a decree. Resourcefulness, of course, must necessarily find answer to possible situations."Page 19 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021
C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed
21. The said Full Bench view was approved by Hon'ble Supreme Court in the case of Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit (Regd.) vs. Ramesh Chander [(2010 14 SCC 596].
22. So far as the judgment in the case of Chhaganlal Trikamdas Thakker & Ors. vs. Competent Authority, Rajkot & Ors. [1994 (1) GCD 1 (Guj)] relied upon by the learned counsel for the Appellants Mr. Jitendra M. Patel on the issue of 'Tenants in Common' not to be treated as 'Association of Persons' or 'Body of Individuals' is concerned, the Division Bench of this Court has clearly held that it is the nature and scope of holding that is decisive on this point if individuals, with specified shares, though acquired under or through a single source or transaction of dealing, then they may not come within the ambit of 'Association' or 'Body of Individuals' holding the land. The said judgment is of no avail to the present Appellants because as already stated above the source of their own claim viz. Will of Javerbai was not proved before any Competent Authority or Tribunal and therefore, merely on the basis of declaration in Form No.6, they could not be treated as Tenants in common or coowners of the Page 20 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed property. This contention also loses its significance in view of Full Bench view of Gujarat High Court in the case of Shah Jitendra Nanalal (supra) in view of conclusion of ULC proceedings by Notification under Section 10(3) of the ULC Act, 1976 dated 9.6.1983 and possession taken on 19.9.1985.
23. Another judgment, which was heavily relied upon by the learned counsel for the Appellants for condonation of delay, of the learned Single Judge in the case of Dahyabhai M. Patel vs. Competent Authority [1988 AIR 52 (Guj)] holding that the delay in filing the appeal under Section 33 of the Act should be condoned usually and liberal approach as adopted by the Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. Katiji [AIR 1987 SC 1353] and the learned Single Judge condoned the delay in filing the appeal which was of 10 months. The said judgment of the learned Single Judge also, in our opinion, is distinguishable as the delay in the present case was not a minor delay but a huge delay of 2 years and 3 months and no sufficient reasons with the delay of condonation application were furnished by the Appellants at all except pleading ignorance of law before the Tribunal and the Tribunal, even after discussing the case laws, found that the facts did not Page 21 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed deserve any condonation of delay and that exercise of discretion in favour of the Appellants is untenable. The Tribunal also discussed merits of the case and dismissed the appeal on merits following Full Bench decision of Gujarat High Court.
24. The observations made by the learned Single Judge in the said judgment (Coram: A.P. Ravani, J.) about Section 10(3) declaration vesting the land absolutely in the State Government free from all encumbrances and possession proceedings under Section 10(5) of the Act also being subject to appeal under Section 33 of the Act is an obiter of the learned Single Judge which is clearly contrary to the decision of Full Bench of this Court in Shah Jitendra Nanalal (supra). Therefore, it has to be treated as impliedly overruled and no longer a good law. We need not express our further opinion in the present case on hand about the interpretation of Section 10 visavis adjudicatory process in Sections 8 and 9 subject to appeal under Section 33 of the Act and revision by the State under Section 34 of the Act which will be discussed in some other appropriate case on merits. Since on merits, we have found in the present case that the proceedings under the ULC Act, 1976 were concluded properly in accordance with the provisions of the ULC Act, 1976 and the Page 22 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed Tribunal was justified in rejecting the appeal filed belatedly after 2 years and 3 months as time barred as well as on merits, we do not find any merit in the contentions raised by learned counsel for the Appellants relying upon these judgments and they are found to be distinguishable on facts, as aforesaid.
25. We are not at all satisfied with the entry of the Power of Attorney Holder at a belated stage for the same being for any bona fide reasons. Such strangers without proper right or interest in the property cannot be permitted to continue with the vexatious litigation in this manner. The Notarised (not registered) Power of Attorney in her favour dated 24.10.2009 bearing Registration No.1187 dated 12.3.2010 in the office of Mr.A.L. Vohara, Notary, only shows that he is neither related to the executants nor he has any interest in the property but he was a 'man of confidence' for them. The Hon'ble Supreme Court deprecated such practices in the judgment in the case of Suraj Lamp & Industries Pvt. Ltd. (supra), the relevant part which is quoted below for ready reference:
"1. By an earlier order dated 15.5.2009 [reported in Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr. 2009 (7) SCC 363], we had referred to the ill Page 23 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed effects of what is known as General Power of Attorney Sales (for short `GPA Sales') or Sale Agreement / General Power of Attorney / Will transfers (for short `SA/GPA/WILL' transfers). Both the descriptions are misnomers as there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and Will. As noticed in the earlier order, these kinds of transactions were evolved to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty and registration charges on deeds of conveyance, to avoid payment of capital gains on transfers, to invest unaccounted money (`black money') and to avoid payment of `unearned increases' due to Development Authorities on transfer.
2. The modus operandi in such SA/GPA/WILL transactions is for the vendor or person claiming to be the owner to receive the agreed consideration, deliver possession of the property to the purchaser and execute the following documents or variations thereof:
(a) An Agreement of sale by the vendor in favour of the purchaser confirming the terms of sale, delivery of possession and payment of full consideration and undertaking to execute any document as and when required in future.
Or Page 24 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed An agreement of sale agreeing to sell the property, with a separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute sale deed whenever required.
(b) An Irrevocable General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing him to manage, deal with and dispose of the property without reference to the vendor. Or A General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing the attorney holder to sell or transfer the property and a Special Power of Attorney to manage the property.
(c) A Will bequeathing the property to the purchaser (as a safeguard against the consequences of death of the vendor before transfer is effected). These transactions are not to be confused or equated with genuine transactions where the owner of a property grants a power of Attorney in favour of a family member or friend to manage or sell his property, as he is not able to manage the property or execute the sale, personally. These are transactions, where a purchaser pays the full price, but instead of getting a deed of conveyance gets a SA/GPA/WILL as a mode of transfer, either at the instance of the vendor or at his own instance.
Page 25 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021
C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed Ill effects of SA/GPA/WILL transactions:
3. The earlier order dated 15.5.2009, noted the ill effects of such SA/GPA/WILL transactions (that is generation of black money, growth of land mafia and criminalization of civil disputes) as under:
"Recourse to `SA/GPA/WILL' transactions is taken in regard to freehold properties,even when there is no bar or prohibition regarding transfer or conveyance of such property, by the following categories of persons:
(a) Vendors with imperfect title who cannot or do not want to execute registered deeds of conveyance.
(b) Purchasers who want to invest undisclosed wealth/income in immovable properties without any public record of the transactions. The process enables them to hold any number of properties without disclosing them as assets held.
(c) Purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to these methods to avoid multiple stamp duties/registration fees so as to increase their profit.
Whatever be the intention, the consequences are disturbing and far reaching, adversely affecting the Page 26 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed economy, civil society and law and order. Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the government and the public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption. This kind of transactions have disastrous collateral effects also. For example, when the market value increases, many vendors (who effected power of attorney sales without registration) are tempted to resell the property taking advantage of the fact that there is no registered instrument or record in any public office thereby cheating the purchaser. When the purchaser under such `power of attorney sales' comes to know about the vendors action, he invariably tries to take the help of musclemen to `sort out' the issue and protect his rights. On the other hand, real estate mafia many a time purchase properties which are already subject to power of attorney sale and then threaten the previous `Power of Attorney Sale' purchasers from asserting their rights. Either way, such power of attorney sales indirectly lead to growth of real estate mafia and criminalization of real estate transactions."
It also makes title, verification and certification of title, which is an integral part of orderly conduct of Page 27 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed transactions relating to immovable property, difficult, if not impossible, giving nightmares to bonafide purchasers wanting to own a property with an assurance of good and marketable title.
4. This Court had, therefore, requested the learned Solicitor General to give suggestions on behalf of Union of India. This Court also directed notice to States of Delhi, Haryana, Punjab, Uttar Pradesh to give their views on the matter. The four states have responded and confirmed that SA/GPA/WILL transfers required to be discouraged as they lead to loss of revenue (stamp duty) and increase in litigations due to defective title. They also referred to some measures taken in that behalf. The measures differ from State to State.
In general, the measures are:
(i) to amend Registration Act, 1908 by Amendment Act 48 of 2001 with effect from 24.9.2001 requiring documents containing contract to transfer for consideration (agreements of sale etc.) relating to any immoveable property for the purpose of section 53A of the Act, shall be registered; and
(ii) to amend the stamp laws subjecting agreements of sale with delivery of possession and/or irrevocable powers of attorney in favour of nonfamily members authorizing sale, to the same stamp duty as deed of Page 28 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed conveyance. These measures, no doubt, to some extent plugged the loss of revenue by way of stamp duty on account of parties having recourse to SA/GPA/WILL transactions, instead of executing deeds of conveyance. But the other illeffects continued.
Further such transaction which was only prevalent in Delhi and the surrounding areas have started spreading to other States also. Those with ulterior motives either to indulge in black money transactions or land mafia continue to favour such transactions. There are also efforts to thwart the amended provisions by not referring to delivery of possession in the agreement of sale and giving a separate possession receipt or an affidavit confirming delivery of possession and thereby avoiding the registration and stamp duty. The amendments to stamp and registration laws do not address the larger issue of generation of black money and operation of land mafia. The four States and the Union of India are however unanimous that SA/GPA/WILL transactions should be curbed and expressed their willingness to take remedial steps."
25.1 The Hon'ble Supreme Court then proceeded to give detailed reasoning for laying down the law in this regard in the following epochmaking words:
"16. Section 54 of TP Act makes it clear that a contract Page 29 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A.Kamtam and Anr., (1977) 3 SCC 247, observed:
A contract of sale does not of itself create any interest in,or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR 293). The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein." In India, the word `transfer' is defined with reference to the word `convey'. The word `conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership... ...that only on execution of conveyance ownership passes from one party to another....".Page 30 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021
C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed
17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [2004 (8) SCC 614] this Court held:
"Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party." [This clinches the issue involved before us].
18. It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred. It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and Page 31 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed registered as required by law), no right, title or interest in an immoveable property can be transferred.
19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.
Scope of Power of Attorney
20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney Page 32 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed does not have the effect of transferring title to the grantee.
21. In State of Rajasthan vs. Basant Nahata 2005 (12) SCC 77, this Court held :
"A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the PowersofAttorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf.
Except in cases where power of attorney is Page 33 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.
Scope of Will
22. A Will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a Will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. It is said that so long as the testator is alive, a Will is not be worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the Will, by operation of law, the Will stands Page 34 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed revoked. (see sections 69 and 70 of Indian Succession Act, 1925). Registration of a Will does not make it any more effective.
Conclusion
23. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank - 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction"
when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or Page 35 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."
26. That as far as the proceeding under provisions of the ULC Act, 1976 is concerned, in the present case, we are satisfied that the same stood concluded and closed way back in the year 1985 itself and therefore, there was no occasion to claim that the possession continued to be with the land holders viz. these four brothers and mere revenue entry continuing in the name of Javerbai does not upset the declaration of vesting of land in the State under Section 10(3) of the ULC Act, 1976 nor the factum of possession taken over by the Competent Authorities under Section 10(5) / 10(6) of the ULC Act, 1976. The alleged minor irregularity of nonserving of the Notices under Section 10(5) of the ULC Act, 1976 on all the four brothers though admittedly Page 36 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed some of such notices were served on all four of them or that the possession was taken in the absence of these brothers at the site on the date of taking over the possession, is of no consequence and the law in this regard has been settled by the Hon'ble Supreme Court in the case of Bhaskar Jyoti Sarma (supra) which has been followed by this Court in the case of Heirs of Dec. Jethabhai Ishwarbhai (supra) distinguishing the earlier decision of the Hon'ble Supreme Court in the case of Hari Ram (supra). The relevant extract of the judgment in the case of Heirs of Dec. Jethabhai Ishwarbhai (supra) is quoted below for ready reference:
"18. Subsection (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 subsection (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. Subsection (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 Page 37 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed objections to such declaration of surplus land is already taken care in subsections (1) and (2) of Section 10. Once the land 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 subsection (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 subsection (5) is done in pursuance of the noticecumorder 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 noticecumorder under Section 10(5) of the Act is, therefore, a misnomer. If the possession is handed over in compliance with the noticecumorder 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 noticecumorder 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 Page 38 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed 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. Subsection (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. Subsection (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 subsections 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.
21. Therefore, in our opinion, the arguments raised Page 39 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed before us that subsection (5) envisages voluntary handing over of possession and subsection (6) talks of forcible taking over possession, both are incomplete and misleading arguments. The scheme of this two subsections as explained above does not put these two provisions in silos or watertight compartments. They, on the other hand, provide for a smooth and barrierless process of taking over of the possession under the 1976 Act.
22. In these circumstances, if the possession is not handed over within 30 days of service of notice under Section 10(5), it will amount to failure to comply with the order under subsection (5) and thereafter whenever the possession is taken by the State authorities, even though after 6 years, as it has happened in the present case through Panchnama process in the absence of physical presence of the land owner, it does not vitiate those proceedings which will fall under Section 10(6) of the Act. The taking over of the possession through Panchnama process in the presence of two witnesses is a well recognised process for taking over the possession in law and cannot be said to be void, non est or illegal in any manner. The land owner cannot claim that since such possession was taken over after a belated period after expiry of 30 days as prescribed in Section 10(5) of the Act, he was entitled to again a notice in this regard requiring his presence on the spot giving him option Page 40 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed either to voluntarily surrender such possession or obstruct the same. No such notice or opportunity is intended to be given under Section 10(6) of the Act. Therefore, in the present facts before us, the possession taken over by the State authority on 24.11.1993 was justified and legally undertaken through Panchnama process and in our opinion, no valid exception to the same can be taken by the Appellant.
23. As far as reliance placed on the case of Hari Ram (supra) is concerned, we are of the clear opinion that the learned Single Judge was right in distinguishing the said judgment as it is not a case before us where no notice under Section 10(5) of the Act was issued to the land owner. On the contrary, it is admitted position that such notice was given to the land owner on 4.6.1988. The later judgment of the Hon'ble Supreme Court fully explained the purport of the decision in the case of Hari Ram (supra) in the case of Bhaskar Jyoti Sarma (supra) where even Section 10(5) notice was not given and still taking over the possession was held as valid, as quoted in extenso by the learned Single Judge and that in our respectful understanding, clinches the issue in favour of the State.
24. As far as the question of exemption under Section 21 as sought by the Appellant land owner is concerned, we are of the opinion that it was the just an excuse or ruse to save the land in the hands of the land owners Page 41 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed themselves as neither any concrete scheme for development of dwelling units for weaker sections was ever placed by the land owner before the Competent Authority or before this Court, nor the said application appears to have been pursued by the Appellant in an appropriate manner. Mere filing of the application could not have led the authorities to grant exemption to such excess or surplus land under Section 21 of the Act and save the said land from the rigour and scheme of the 1976 Act of taking over of excess land in the larger public interest and therefore, the learned Single Judge was right in rejecting the said contention as well.
25. Thus, on the overall analysis of the facts and legal position as discussed above, we do not find any merit in the present appeal filed by the Appellant and the same is liable to be dismissed. The appeal is accordingly dismissed. No order as to costs.
26. Consequently, the Civil Application stands also dismissed."
27. The matter also stands covered by Full Bench decision in the case of Shah Jitendra Nanalal (supra) quoted above.
28. In view of the aforesaid factual and legal position, we are satisfied that the learned Single Judge was perfectly justified in dismissing the writ petition filed by the Petitioners / Appellants Page 42 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021 C/LPA/941/2016 CAV JUDGMENT DT. 25.3.21 RAVHJIBHAI CHHOTABHAI PATEL v. COMPETENT OFFICER & DY COLLECTOR In Re: ULC Act, 1976 : Litigation by P/A : FB Followed and pursued later on by the Power of Attorney Holder with costs of Rs.50,000/ and we have no reason to take a different view of the matter and therefore, the present Letters Patent Appeal deserves to be dismissed. The same is accordingly dismissed and the judgment and order of the learned Single Judge dated 27.7.2016 is upheld. No further costs.
(DR. VINEET KOTHARI,J) (BIREN VAISHNAV, J) Bharat Page 43 of 43 Downloaded on : Fri Mar 26 03:27:05 IST 2021