Gujarat High Court
For Approval And Signature vs State Of Gujarat & on 11 August, 2017
Author: Anant S.Dave
Bench: Anant S. Dave, A.Y. Kogje
C/LPA/2040/2004 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 2040 of 2004
In
SPECIAL CIVIL APPLICATION NO. 3208 of 1992
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
CHANDULAL P. PATEL & 6....Appellant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
Appearance:
MR SH SANJANWALA SENIOR ADVOCATE WITH MR DILIP L KANOJIYA,
ADVOCATE for the Appellant(s) No. 1 - 7
MS DIVYANGNA JHYALA AGP for the Respondent(s) No. 1 - 2
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Page 1 of 53
HC-NIC Page 1 of 53 Created On Sat Aug 12 00:32:16 IST 2017
C/LPA/2040/2004 CAV JUDGMENT
Date : 11/08/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) The appellants have filed these appeals under Clause 15 of the Letters Patent against the judgment and order dated 23.04.2004 passed by the learned Single Judge dismissing the Special Civil Application No.3208 of 1992.
2 The facts in nutshell for the purpose of deciding this Appeal are as under: 2.1 The issue is pertaining to agricultural land bearing Survey No. 269/1, 552/1 and 552/2 of Village: Okaf (Sarkhej), Taluka: City of Ahmedabad.
2.2 One Prahladbhai Ramdas Patel who is the father of the appellants - orig. petitioners no. 1 to 6 and husband of appellant - orig. petitioner no. 7 filed a Form under Section 6 of the Urban Land Ceiling Act, 1976 (hereinafter referred to as 'the ULC Act' for the sake of brevity). Prahladbhai Ramdas Patel expired on 31.08.1978 leaving behind the aforementioned ancestral property in the form of agricultural lands.
Page 2 of 53HC-NIC Page 2 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT 2.3 In response to the Form No. 6 filed by the father of the appellants - orig. petitioners, the competent authority issued Draft Statement in 1982 and the appellant no.1 appeared before the competent authority on 01.01.1983 and submitted an application regarding death of his father, along with this, the appellant also contended that there is no excess vacant land and the agricultural holding of the family need not be treated as excess vacant land. The competent authority, however, by an order dated 22.03.1984 declared 26407 sq. mtrs. of the aforementioned land to be excess vacant land. This order was addressed in the name of a person who had filed a Form No.6 but who had expired.
2.4 When the appellants received the Final Statement under Section 9 of the ULC Act, they obtained a copy of the order dated 22.03.1984 and filed an Appeal under Section 33 of the ULC Act before the Urban Land Tribunal contending, inter alia, that since the order was passed against the dead person and that the land in question are all agricultural lands, the order of the competent authority be treated as nullity. It was also contended that, the part of the land which was a Vada land, for which an application under Section 20 of ULC Act was filed and pending the decision Page 3 of 53 HC-NIC Page 3 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT of the State Government. The Tribunal by its order dated 08.12.1988 dismissed the said Appeal and confirmed the order of the competent authority.
2.5 The aforementioned order of the competent authority, confirmed by the Tribunal was challenged by the appellants before this Court in Special Civil Application No. 4967 of 1989. This petition came to be dismissed by an order dated 02.07.1990, which reads as under: "The land has already vested in the State Government as notification under Section 10 (3) has already been issued in the month of March, 1989. The land having vested in the Government, the petitioners have no right, title or interest left in it. Merely because petitioner's application made under Section 20 has remained pending with the Government, it cannot effect the vesting of the property in the Government. The vesting takes place as a result of operation of law and not because of any administrative decision taken by the Government. Therefore, it will not be open to the Government now to grant that application. This petition is therefore, rejected summarily."
2.6 It appears that, under the pretext of there being an error on the face of the record, the appellants filed Review Application No. 431 of 1992, and this application appears to have Page 4 of 53 HC-NIC Page 4 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT been filed on 20.03.1992 i.e. after a period of almost 2 years. This review application was also rejected, the said oder reads as under: "In the petition, out of which Misc. Civil Application arises, the petitioners had prayed for a declaration that they were not holding excess vacant land as their application under Section 20 of the Urban Land & (Ceiling & Regulation) Act, 1976, was pending with the Government. They had also prayed for a writ, direction or order directing the Government to dispose of the application made under Section - 20 of the Act. No other point was urged before me. Validity of the notification issued under Section 10 (3) was not at all challenged. It was under those circumstances that I passed the order on July 2, 1990 rejecting the petition summarily by holding that the petitioner's application under Section 20 could not be considered now in view of the fact that Section 10 (3) Notification has been issued. If the petitioners feel that the Notification issued under Section 10 (3) is not valid, it will be open to them to challenge the same by filing a separate petition.
Such a point cannot be permitted to be raised in this review application. This review application is, therefore, rejected."
2.7 Thereafter, it appears that, on the basis of certain observations made in the aforementioned order in review application, the Page 5 of 53 HC-NIC Page 5 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT appellants filed the present petition under Articles 226 and 227 of the Constitution of India challenging the very same two orders i.e. orders dated 22.03.1984 passed by the competent authority and 08.12.1988 passed by the Urban Land Tribunal. Though, the prayer in this petition appears to have been worded differently, still the effect of the petition was the same as Special Civil Application No. 4967 of 1989 concluded under order dated 02.07.1990.
3 The chronology of dates which is not disputed is as under: 3.1 On 22.03.1984, the competent authority took a decision on the Form No.6 declaring 26,407 sq.mtrs. as excess vacant land. After this order, Notification under Section 10 (3) was issued on 29.06.1989. Notice under Section 10 (5) came to be issued on 31.05.1990. Thereafter, on 09.01.1992, the possession of the excess vacant land was taken over by preparing a Panchnama for possession.
3.2 The decision of the competent authority and the Tribunal was challenged by way of Special Civil Application No. 4967 of 1989, which came to be rejected by an order dated 02.07.1990 by holding that the land in question has vested in Page 6 of 53 HC-NIC Page 6 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT the Government and the petitioners cannot claim any right, title or interest, ultimately, rejected the petition. After the order passed in Review Application, the appellants filed present petition, on 20.04.1992. This Court initially granted an order to the effect that, if the possession of the land is already not taken, then the same may not be taken. The petition came to be admitted on 24.01.1994 and pending the petition, Urban Land (Ceiling and Regulations) Repeal Act came into force from 30.03.1999.
4 The petition thereafter came to be rejected by detailed CAV judgment dated 23.04.2004.
5 Heard learned Senior Advocate Mr. R.S.Sanjanwala with learned Advocate Mr. Dilip Kanojiya for the appellants and Ms. Divyagna Jhala, learned AGP for the State.
5.1 Learned Senior Advocate Mr. Sanjanwala has based his argument mainly on the ground of effect of Repeal Act, where the possession of the land is not taken over by the State Government, for substantiating his arguments, he has contended that, Panchnama dated 09.01.1992 for taking over of possession is bogus and concocted. He also contended that, the said Panchnama was Page 7 of 53 HC-NIC Page 7 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT executed without following due process and without serving any notice to all the affected persons including coowners of the land. He submits that, even if, the notice under Section 10 (5) is construed to be a proper notice, still the period of 30 days expired on 30.06.1990, during which admittedly the possession of the land in question is not taken but the possession was taken after 2 years i.e. on 09.01.1992.
5.2 The learned Senior Advocate further contended that, the Court should believe the appellants, that possession of land is not taken by the Government, as had the land been taken over by the Government, then the Government would have definitely proceeded further by taking steps prescribed under the ULC Act for the purpose of distribution of the excess vacant land.
5.3 The learned Senior Advocate also contended that, as the litigation in connection with the excess vacant land is live and pending before this Court, and that in fact, the possession is not taken, then the issue of whether the appellants have continued as unauthorized occupant would become insignificant after coming into force of the Repeal Act.
5.4 Relying upon the decision of the Hon'ble Page 8 of 53 HC-NIC Page 8 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT Apex Court in the case of State of Uttar Pradesh Vs. Hari Ram reported in (2013) 4 SCC 280, the learned Senior Advocate contends that, in the present case, no notice under Section 10 (6) of the ULC Act has been served for taking over the possession forcibly. According to him, as per the decision of the Hon'ble Apex Court in Hari Ram (supra) it is the burden of the State Government to establish use of force in taking over of the possession and having failed to do so, the Court has to presume that the possession continues to be with the petitioner. He submits that the said decision of Hari Ram (supra) is consistently followed by Apex Court in the case of Vipinchandra Vadilal Bavishi V/s. State of Gujarat reported in (2016) 4 SCC 531.
6 Relying upon subsequent additional affidavit filed in the proceeding of the present Appeal, where the appellants have produced certain revenue record and photographs to establish that the possession of the lands in question has not been taken over, in fact, as is claimed by the State Government.
7 Ms. Divyangana Jhala, learned AGP for the respondent authorities has relied on order passed in earlier litigation in Special Civil Page 9 of 53 HC-NIC Page 9 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT Application No.4967 of 1989 and submitted that the land in question was vested upon issuance of notification under Section 10(3) of the ULC Act. Learned AGP further submitted that the manner in which illegal construction was carried out on disputed land by the appellants for which various communications were addressed by the office of the Collector to discontinue for which even an endorsement was made that henceforth no such construction will be carried out as early as on 20.06.1995 and in spite of the prohibitory order passed by the competent authority it was noticed that such illegal construction continued and on further action undertaken against the person carrying illegal construction, such illegal construction was stopped.
7.1 Learned AGP then submitted that simply because names of the appellants were entered into revenue record it will not be a proof of any title or legal possession of the appellants. She further submitted that on the contrary, concerned Talati was directed by the competent authority to enter name of Government upon issuance of notification under Section 10(3) of the ULC Act and taking over possession of the disputed land. Learned AGP further contended that panchnama in detail mention about manner in which possession was taken over in presence of two witnesses which Page 10 of 53 HC-NIC Page 10 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT describe that in survey No.552/1 and 552/2 there was stock of coal and also open land. That belated admission on the part of the appellants to file review application in the year 1992 seeking clarification of earlier order dated 02.07.1990 passed in Special Civil Application No.4967 of 1989 is of no significance since the possession was already taken over by the competent authority on 09.01.1992. Even executing agreement of sale, irrevocable power of attorney and sale deeds in favour of third party by the official representative of the appellants to which even signatures of appellants also appeared and, therefore, considering the above aspect when learned Single Judge has passed a reasoned order based on appreciation of evidence on record about lawfully taking over possession of the disputed land and effect of Repeal Act, 1999 thereof and in absence of any error, no interference is called for by this Court. In support of her submissions learned AGP has placed reliance on the decision in the case of State of Assam v. Bhaskar Jyoti Sarma & Ors. [2014(13) SCALE 294].
8 Mr. Sanjanwala, learned Senior Advocate in rejoinder would emphasize on Section 10(5) and (6) of the ULC Act and submits that issuance of notice in writing even after vesting the subject Page 11 of 53 HC-NIC Page 11 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT vacant land in the State of Gujarat under subsection (3) is mandatory by the competent authority to any person who may be in possession of such land and no such notice is served upon owner / occupier. Though 30 days time was given as per record, no material does exist showing that person in possession was served with such notice and admittedly panchnama dated 09.01.1992 was drawn by the authority after 2 years of such notice where also some correction without any signature is made about date of panchnama. So far as rejection of earlier writ petition by learned Single Judge of this Court, it is clear that it was filed in the context of pending application under Section 20 of the Act and later on it was clarified by the learned Judge in the order passed in review application that any grievance with regard to vesting of the subject excess land under Section 10(3) of the ULC Act, it will be open for the petitioner to take an appropriate action. It is further submitted that the present writ petition was filed in the year 1992 and it came to be decided on 23.04.1994 against which the present Letters Patent Appeal continued in which also pleadings were filed by the parties and therefore it cannot be said that issue of possession of the subject land cannot be decided. In view of law laid down by the Apex Court in the case of Hari Ram [supra] and clear declaration of Page 12 of 53 HC-NIC Page 12 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT law in this regard, coupled with factual scenario of existence of constriction in the nature of shops, godown and other such construction even as per panchnama of 1992 it can easily be presumed that throughout the proceedings under ULC ULC Act petition was filed and pending before this Court and possession of the land remained with the petitioners. Mr. Sanjanwala, learned Senior Advocate has drawn our attention to Sections 3 and 4 of the Repeal Act, 1999 and submitted that even though vesting of vacant land under subsection (3) of Section 10 of the Act may taken place but possession of such land was not taken over by the State Government or any person duly authorized and by State Government and, therefore, benefit of Section 3 cannot be available to the authority. It is further submitted that when the repeal act is in force, writ petition was pending and under Section 4 of the Repeal Act, 1999 all proceedings relating to any order made shall abate. Learned Senior Advocate by referring to various affidavits filed in Special Civil Application by power of attorney holder of the petitioner submitted that only an agreement to sale / Banakath was entered into and in no manner such an agreement can said to be transfer of the land so defined in Section 5 of the ULC Act.
Page 13 of 53HC-NIC Page 13 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT 8.1 In the facts of this case possession allegedly taken over in the year 1992 do not reflect any acknowledgment on the part of the petitioner / owner / holder / occupier of the land and no peaceful possession was handed over as envisaged under Section 10(5) and so held by the Apex Court int eh case of Hari Ram [supra] and further for dispossession admittedly no action is taken for taking over forcible possession under Section 10(6) subject to appeal is squarely covered by the ratio laid down and followed in subsequent cases by the Apex Court in the cases of Hari Ram [supra] and Vipinchandra Vadilal Bavishi [supra] and, therefore this court may allow the appeal by quashing and setting aside the impugned order passed by the learned Single Judge.
9 Having regard to the facts and circumstances of the case, rival submissions made by learned Senior Advocate for the appellants and learned Government Pleader on behalf of the State authorities, the question involved in both these appeals has genesis as to whether possession of the subject land of appeals is with appellants or with the authorities of the Government visavis applicability of the decision of the Apex Court in the case of Hari Ram [supra] in which Section Sections 10(3) & (5), (6) of ULC Act and Sections Page 14 of 53 HC-NIC Page 14 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT 3 and 4 of Repeal Act,l 1999 came to be interpreted.
9.1 To appreciate the decision of the Apex Court in the case of Hari Ram [supra], the following facts contained in paras 2, 3 and 4 are reproduced:
"2. Hari Ram, respondent herein, had filed a statement on 28.9.1976 giving details of the vacant land he was holding in excess of ceiling limit prescribed under the Act, as provided under Section 6 of the Act. The competent authority under the Act surveyed the land and the respondent was served with a draft statement under Section 8(3) of the Act on 13.5.1981, calling for objection to the draft statement within thirty days. No objection was preferred by the respondent and it was found that he was holding excess land measuring 52,513.30 sq. meters and an order to that effect was passed by the competent authority under Section 8(4) of the Act, vide his proceeding dated 29.6.1981.
3. The competent authority later issued a notification dated 12.6.1982 under Section 10(1) of the Ceiling Act, which was published in the Government Gazette on 12.6.1982 giving the particulars of the vacant land held by the respondent. The competent authority then issued a notification dated 22.11.1997, which was published on the same date, stating the land shall be deemed to have been vested with the Government from 12.6.1982, free Page 15 of 53 HC-NIC Page 15 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT from all encumbrances. On 10.6.1999, the competent authority vide its letter dated
10.6.1999 informed the Bandobast Chakbandi Adhikar that the surplus land declared as per the Notification stood vested in the State Government. On 19.6.1999, the prescribed authority issued a notice under Section 10(5) of the Act directing the respondent to hand over possession of the land declared as surplus to a duly authorized person. Aggrieved by the same, the respondent preferred an appeal No.29 of 1999 before the District Judge, Varanasi under Section 33 of the Act, contending that before passing the order under Section 8(4) of the Act, no notice, as contemplated under Section 8(3) of the Act, was served on him. The appeal was allowed and the order dated 29.06.1981 was quashed, vide judgment dated 14.12.1999.
4. Aggrieved by the said order, State of U.P., through the competent authority, preferred Civil Misc. Petition No. 47369 of 2000 before the High Court of Allahabad under Article 226 of the Constitution of India, and the High Court, after elaborately considering the various contentions, took the view that sub section (3) of Section 10 does not envisage, taking physical and de facto possession of the surplus land, for which proceedings under subsection (5) of Section 10 have to be followed. On facts also, the Division Bench found no reason to interfere with the order of the District Judge, and the appeal was dismissed, against which this appeal has been preferred. Following the judgment in Writ Petition No.47369 of 2000, several writ petitions were disposed of by the High Court against which appeals are Page 16 of 53 HC-NIC Page 16 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT pending before this Court".
9.2 In the context of above facts, learned Senior Advocate for the State of Uttar Pradesh submitted that expression "deemed acquisition"
and "deemed vesting" as incorporated in Section 10(3) of the Act would take in not only de jure possession but also de facto possession. Inter alia it was submitted that in the cases where possession is seen having been taking over legally, statutorily and by presumption in law on account of publication of the notification and the deeming clause and the legal fiction provided under Section 10(3) of the Act, a requirement of Section 3(1)(a) of the Repeal Act shall stand satisfied and the land so vested and possessed by the Government shall remain intact in the ownership and possession of the State Government. The above submissions were countered by the learned advocate for the respondents - land owner. After adverting to Section 10 as a whole, statement of object and reasons of ULC Act, Sections 3 & 4 of the Repeal Act, 1999, and considering various decisions of foreign courts and legal fiction under subsection (3) of section
10 and taking recourse to dictionary and legal meaning of "vest" or "vesting", the Apex Court in para 30 held as under:
Page 17 of 53HC-NIC Page 17 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT "30. Vacant land, it may be noted, is not actually acquired but deemed to have been acquired, in that deeming things to be what they are not. Acquisition, therefore, does not take possession unless there is an indication to the contrary. It is trite law that in construing a deeming provision, it is necessary to bear in mind the legislative purpose. The purpose of the Act is to impose ceiling on vacant land, for the acquisition of land in excess of the ceiling limit thereby to regulate construction on such lands, to prevent concentration of urban lands in hands of few persons, so as to bring about equitable distribution. For achieving that object, various procedures have to be followed for acquisition and vesting. When we look at those words in the above setting and the provisions to follow such as subsections (5) and (6) of Section 10, the words 'acquired' and 'vested' have different meaning and content. Under Section 10(3), what is vested is de jure possession not de facto, for more reasons than one because we are testing the expression on a statutory hypothesis and such an hypothesis can be carried only to the extent necessary to achieve the legislative intent".
9.3 Thus, in view of the decision of the Apex Court, vesting under Section 10(3) means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. In para 32 the Apex Court referred to `the present case' and in the facts of the case found that vesting takes in every interest Page 18 of 53 HC-NIC Page 18 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT in the property, including de jure and not de facto possession. But it always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act.
9.4 The Apex Court in paras 34, 35 and 36 of the above judgment further examined and interpreted subsections (5) & (6) of Section 10 under heading peaceful dispossession and forcible dispossession and the directions contained about procedure for taking possession of the vacant land in excess of the prescribed ceiling limit in Directions of 1983 issued by the Uttar Pradesh Government under Section 35 of the ULC Act. For the sake of convenience, paras 34, 35 and 36 read as under:
"Peaceful dispossession
34. Subsection (5) of Section 10, for the first time, speaks of "possession" which says where any land is vested in the State Government under subsection (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorized by the State Government.
35. If de facto possession has already passed on to the State Government by the two deeming provisions under subsection Page 19 of 53 HC-NIC Page 19 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT (3) to Section 10, there is no necessity of using the expression "where any land is vested" under sub section (5) to Section
10. Surrendering or transfer of possession under subsection (3) to Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under subsection (5) to Section 10 to surrender or deliver possession. Subsection (5) of Section 10 visualizes a situation of surrendering and delivering possession, peacefully while subsection (6) of Section 10 contemplates a situation of forceful dispossession.
Forceful dispossession
36. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under subsection (5) of Section 10. Sub section (6) to Section 10 again speaks of "possession" which says, if any person refuses or fails to comply with the order made under sub section (5), the competent authority may take possession of the vacant land to be given to the State Government and for that purpose, force as may be necessary can be used. Sub section (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub section (5), in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted only in a situation which falls under subsection Page 20 of 53 HC-NIC Page 20 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT (6) and not under subsection (5) to Section 10. Subsections (5) and (6), therefore, take care of both the situations, i.e. taking possession by giving notice that is "peaceful dispossession" and on failure to surrender or give delivery of possession under Section 10(5), then "forceful dispossession" under subsection (6) of Section 10".
9.5 The Directions, 1983 of the Government of Uttar Pradesh provided an elaborate procedure for taking possession of the vacant land in excess of ceiling limit, register to be maintained and notices to be issued under subsections (3) and (5) of Section 10 of the ULC Act. Having referred to the above Directions, 1983 in para 39 the Apex Court held as under:
"39. Abovementioned directives make it clear that subsection (3) takes in only de jure possession and not de facto possession, therefore, if the land owner is not surrendering possession voluntarily under subsection (3) of Section 10, or surrendering or delivering possession after notice, under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land".
9.6 Thereafter, the effect of Section 3 of the Repeal Act, 1999 was examined by the Apex Court in the context of factual scenario of the Page 21 of 53 HC-NIC Page 21 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT case and the objects and reasons of the Repeal Act, 1999, and in paras 41 and 42, it is held as under:
"Effect of the Repeal Act
41. Let us now examine the effect of Section 3 of the Repeal Act 15 of 1999 on subsection (3) to Section 10 of the Act. The Repeal Act 1999 has expressly repealed the Act 33 of 1976. The Object and Reasons of the Repeal Act has already been referred to in the earlier part of this Judgment. Repeal Act has, however, retained a saving clause. The question whether a right has been acquired or liability incurred under a statute before it is repealed will in each case depend on the construction of the statute and the facts of the particular case.
[emphasis supplied]
42. The mere vesting of the land under subsection (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under subsection (5) of Section 10 or forceful dispossession under subsection (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and Page 22 of 53 HC-NIC Page 22 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act".
9.7 Thus, having found no infirmity in the judgment of the High Court, which was under
challenge, the appeal filed by the State of Uttar Pradesh came to be dismissed by the Apex Court. The above direction is followed having similar facts in the case of Vipinchandra Vadilal Bavishi [supra], Gajanan Kamlya Patil [supra] by the Apex Court. Further, a Division Bench of this Court relied on the above decision in the case of Gordhanbhai Motibhai Patel v. Competent Authority & Dy. Collector reported in 2016(0) AIJELHC 23574].
9.8 We are in respectful agreement with the law laid down by the Apex Court in the case of Hari Ram [supra] wherein it was categorically held that the question whether a right has been acquired or liability incurred under statute before it is repealed in each case will depend on the construction of the statute and facts of the particular case.
9.9 In the case of Gajanan Kamlya Patil [supra], the Apex Court was considering the fact about competent authority actually not taking Page 23 of 53 HC-NIC Page 23 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT possession of surplus land and the appellant had not voluntarily surrendered possession prior to coming into force of Repeal Act, 1999 and in the facts and circumstances of that case reliance was placed in the case of Hari Ram [supra] and was held that law laid down in the facts of Hari Ram [supra] would apply particularly in view of the fact that there was nothing to show that de facto possession has been taken from the appellants prior to the execution of the possession receipt in favour of Mumbai Metropolitan Region Development Authority [MMRDA].
9.10 In the case of Vipinchandra Vadilal Bavishi [supra], the Apex Court was considering peculiar facts that according to respondent authorities, possession of the land in question barring plot Nos.16 to 23 and plot Nos.36 to 43 were taken over and Special Civil Application filed before the High Court was dismissed.
However, neither the notification under Sections 10(1), 10(2), 10(3) and 10(5) were issued in respect of plot Nos.36 to 43 nor possession of those plots had been taken over by the respondents and possession of plot Nos.1 to 16 were only taken and the competent officer had sought sanction of the Government for publishing necessary corrigendum by mentioning in the letter that sanction is required for showing plot Nos.36 Page 24 of 53 HC-NIC Page 24 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT to 43, which were not mentioned in the notification earlier. The Apex Court found that no notice has been produced by the State to show that the appellants were asked to surrender or deliver the possession of the plot Nos.36 to 43 nor there was any evidence to show that the appellants were ever refused or failed to comply with any notice issued under Section 10(5) of the Act. Thus, case of Hari Ram [supra] was relied on.
9.11 In the case of Gordhanbhai Motibhai Patel [supra], Division Bench of this Court after considering various facts of the case in the context of prayer made in para 13 of the writ petition, in para 24 found that disputed question as to whether or not possession has been actually taken over is disputed question of fact and the court exercising powers under Article 226 of the Constitution of India would not render any finding thereon one way or the other. However, considering the facts on record, law laid down in the case of Hari Ram [supra] was applied.
9.12 In the case of State of Gujarat v. Pravinkumar R. Patel [2016(0) AIJELHC 235846] the basic issue was Notification under Section 10(3) of the ULC Act and later on of said notification Page 25 of 53 HC-NIC Page 25 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT came to be cancelled. However, cancellation recommended by the competent authority was not received by the Government Press and, therefore, it was not published in Government Gazette. Under the facts and circumstances, it was held that nonpublication of cancellation notification in Government Gazette would not create any right in favour of the Government. Besides, a series of orders passed in the very subject matter earlier by this Court revealed that possession remained with the land owner. Therefore, the above judgment is not applicable in the facts of this case.
9.13 As against the above, reliance placed by learned Senior Advocate for the appellants and learned Government Pleader in the case of Bhaskar Jyoti Sarma [supra], much emphasis was made by the Government Pleader about difference of facts in this case in which Hari Ram [supra] was distinguished, can be made applicable to the subject land of both the appeals. In the case of Bhaskar Jyoti Sarma [supra] in paras 11 and 12, the Apex Court readdressed itself to subsection (3) and (5) of the ULC Act and for the sake of convenience such discussion in paras 11 and 12 are reproduced hereinbelow:
"11. Section 3 of the Repeal Act Page 26 of 53 HC-NIC Page 26 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT postulates that vesting of any vacant land under subsection (3) of Section 10, is subject to the condition that possession thereof has been taken over by the competent authority or by the State Government or any person duly authorised by the State Government. The expression "possession" used in Section 3 (supra) has been interpreted to mean "actual physical possession" of the surplus land and not just possession that goes with the vesting of excess land in terms of Section 10(3) of the Act. The question, however, is whether actual physical possession of the land in dispute has been taken over in the case at hand by the competent authority or by the State Government or an officer authorised in that behalf by the State Government. The case of the appellant is that actual physical possession of the land was taken over on 7th December, 1991 no matter unilaterally and without notice to the erstwhile land owner. That assertion is stoutly denied by the respondents giving rise to seriously disputed question of fact which may not be amenable to a satisfactory determination by the High Court in exercise of its writ jurisdiction. But assuming that any such determination is possible even in proceedings under Article 226 of the constitution, what needs examination is whether the failure of the Government or the authorised officer or the competent authority to issue a notice to the land owners in terms of Section 10(5) would by itself mean that such dispossession is no dispossession in the eye of law and hence insufficient to attract Section 3 of the Repeal Act. Our answer to that question is in the negative. We say so because in the ordinary course actual physical possession Page 27 of 53 HC-NIC Page 27 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT can be taken from the person in occupation only after notice under Section 10(5) is issued to him to surrender such possession to the State Government, or the authorised officer or the competent authority. There is enough good sense in that procedure inasmuch as the need for using force to dispossess a person in possession should ordinarily arise only if the person concerned refuses to cooperate and surrender or deliver possession of the lands in question. That is the rationale behind Section 10(5) and 10(6) of the Act. But what would be the position if for any reason the competent authority or the Government or the authorised officer resorts to forcible dispossession of the erstwhile owner even without exploring the possibility of a voluntary surrender or delivery of such possession on demand. Could such use of force vitiate the dispossession itself or would it only amount to an irregularity that would give rise to a cause of action for the aggrieved owner or the person in possession to seek restoration only to be dispossessed again after issuing a notice to him. It is this aspect that has to an extent bothered us. The High Court has held that the alleged dispossession was not preceded by any notice under Section 10(5) of the Act. Assuming that to be the case all that it would mean is that on 7th December, 1991 when the erstwhile owner was dispossessed from the land in question, he could have made a grievance based on Section 10(5) and even sought restoration of possession to him no matter he would upon such restoration once again be liable to be evicted under Sections 10(5) and 10(6) of the Act upon his failure to deliver or surrender such possession. In reality Page 28 of 53 HC-NIC Page 28 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT therefore unless there was something that was inherently wrong so as to affect the very process of taking over such as the identity of the land or the boundaries thereof or any other circumstance of a similar nature going to the root of the matter hence requiring an adjudication, a person who had lost his land by reason of the same being declared surplus under Section 10(3) would not consider it worthwhile to agitate the violation of Section 10(5) for he can well understand that even when the Court may uphold his contention that the procedure ought to be followed as prescribed, it may still be not enough for him to retain the land for the authorities could the very next day dispossess him from the same by simply serving a notice under Section 10(5). It would, in that view, be an academic exercise for any owner or person in possession to find fault with his dispossession on the ground that no notice under Section 10(5) had been served upon him.
12. The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile land owner on 7th December, 1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by Page 29 of 53 HC-NIC Page 29 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure".
[emphasis supplied] 9.14 In the above case, another decision of the Apex Court in the case of State of Gujarat & Anr. vs. Gyanaba Dilavarsinh Jadeja [(2013)11 SCC 486] was considered. Thus, according to the Apex Court, the question, however, is whether actual physical possession of the land in dispute has been taken over in the case at hand by the competent authority or by the State Government or an officer authorised in that behalf by the State Government. The case of the appellant is that actual physical possession of the land was taken over on 07.12.1991 no matter unilaterally and without notice to the erstwhile land owner. That assertion is stoutly denied by the respondents giving rise to seriously disputed question of fact which may not be amenable to a satisfactory determination by the High Court in exercise of its writ jurisdiction. But assuming that any such Page 30 of 53 HC-NIC Page 30 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT determination is possible even in proceedings under Article 226 of the constitution, what needs examination is whether the failure of the Government or the authorised officer or the competent authority to issue a notice to the land owners in terms of Section 10(5) would by itself mean that such dispossession is no dispossession in the eye of law and hence insufficient to attract Section 3 the Repeal Act. Our answer to that question is in the negative. We say so because in the ordinary course actual physical possession can be taken from the person in occupation only after notice under Section 10(5) is issued to him to surrender such possession to the State Government, or the authorised officer or the competent authority. There is enough good sense in that procedure inasmuch as the need for using force to dispossess a person in possession should ordinarily arise only if the person concerned refuses to cooperate and surrender or deliver possession of the lands in question.
9.15 The Apex Court viewed the situation from another angle that when a person in possession makes a grievance long after the alleged violation of Section 10(5), such grievance ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over possession would acquire Page 31 of 53 HC-NIC Page 31 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under "Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure.
9.16 That the High Court of Bombay in the case of Chhaganlal Khimji and Co. Ltd. v. State of Maharashtra & Ors. [Writ Petition No.598 of 2012 decided on 27.10.2016] while dealing with the writ petition at the instance of builders and developers in the city of Mumbai of excess vacant lands already vested in the State by virtue of ULC Act by relying on the repeal thereof and though possession is taken over by the State legally and validly before the Repeal Act coming into force upheld that such land could not be reverted to the owner of those claiming to be in possession. In the above case also, a Division Bench of High Court of Bombay relied on decision in the case of Bhaskar Jyoti Sarma [supra] by quoting paragraphs 13 to 17 of the above Page 32 of 53 HC-NIC Page 32 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT judgment.
"13. The case of the appellant is that actual physical possession of the land was taken over on 7121991 no matter unilaterally and without notice to the erstwhile land owner. That assertion is stoutly denied by the respondents giving rise to seriously disputed question of fact which may not be amenable to a satisfactory determination by the High Court in exercise of its writ jurisdiction. But assuming that any such determination is possible even in proceedings under Article 226 of the constitution, what needs examination is whether the failure of the Government or the authorised officer or the competent authority to issue a notice to the land owners in terms of Section 10(5) would by itself mean that such dispossession is no dispossession in the eye of law and hence insufficient to attract Section 3 of the Repeal Act. Our answer to that question is in the negative.
14. We say so because in the ordinary course actual physical possession can be taken from the person in occupation only after notice under Section 10(5) is issued to him to surrender such possession to the State Government, or the authorised officer or the competent authority. There is enough good sense in that procedure inasmuch as the need for using force to dispossess a person in possession should ordinarily arise only if the person concerned refuses to cooperate and surrender or deliver possession of the lands in question. That is the rationale behind Sections 10(5) and 10(6) of the Act. But what would be the position if for Page 33 of 53 HC-NIC Page 33 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT any reason the competent authority or the Government or the authorised officer resorts to forcible dispossession of the erstwhile owner even without exploring the possibility of a voluntary surrender or delivery of such possession on demand. Could such use of force vitiate the dispossession itself or would it only amount to an irregularity that would give rise to a cause of action for the aggrieved owner or the person in possession to seek restoration only to be dispossessed again after issuing a notice to him. It is this aspect that has to an extent bothered us.
15. The High Court has held that the alleged dispossession was not preceded by any notice under Section 10(5) of the Act. Assuming that to be the case all that it would mean is that on 7th December, 1991 when the erstwhile owner was dispossessed from the land in question, he could have made a grievance based on Section 10(5) and even sought restoration of possession to him no matter he would upon such restoration once again be liable to be evicted under Sections 10(5) and 10(6) of the Act upon his failure to deliver or surrender such possession. In reality therefore unless there was something that was inherently wrong so as to affect the very process of taking over such as the identity of the land or the boundaries thereof or any other circumstance of a similar nature going to the root of the matter hence requiring an adjudication, a person who had lost his land by reason of the same being declared surplus under Section 10(3) would not consider it worthwhile to agitate the violation of Section 10(5) for he can well understand that even when the Court may uphold his Page 34 of 53 HC-NIC Page 34 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT contention that the procedure ought to be followed as prescribed, it may still be not enough for him to retain the land for the authorities could the very next day dispossess him from the same by simply serving a notice under Section 10(5). It would, in that view, be an academic exercise for any owner or person in possession to find fault with his dispossession on the ground that no notice under Section 10(5) had been served upon him.
16. The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile land owner on 7th December, 1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act him to raise the issue regarding his dispossession being in violation of the prescribed procedure.
17. Reliance was placed by the respondents Page 35 of 53 HC-NIC Page 35 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT upon the decision of this Court in Hari Ram's case (supra). That decision does not, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Ram's case (supra) considering whether the word 'may' appearing in Section 10(5) gave to the competent authority the discretion to issue or not to issue a notice before taking physical possession of the land in question under Section 10(6). The question whether breach of Section 10(5) and possible dispossession without notice would vitiate the act of dispossession itself or render it non est in the eye of law did not fall for consideration in that case. In our opinion, what Section 10(5) prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). In the case at hand if the appellant's version regarding dispossession of the erstwhile owner in December 1991 is correct, the fact that such dispossession was without a notice under Section 10(5) will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 the Repeal Act. That is because Bhabadeb Sarma erstwhile owner had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying thereby that he had waived his right to do so".
9.17 Both the above decisions viz. Bhaskar Jyoti Sarma [supra] and Chhaganlal Khimji [supra] are applicable in the facts of the present appeals.
Page 36 of 53HC-NIC Page 36 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT 9.18 Before we deal with the case law relied on by Mr. Sanjanwala, learned Senior Advocate in the cases of Hari Ram [supra] and Vipinchandra Vadilal Bavishi [supra], modus adopted by the appellants of usurping the excess vacant land already vested into the Government is as under:
9.19 Initially a communication addressed by all the persons connected with the land dated 03.03.1984 stating that, after the death of the father, the appellant no.1 Chandubhai Prahladbhai is taking up all the necessary action and anything that is done by Chandubhai is to be acceptable to all, and the statutory notices were served upon and received by appellant no.1 as a legal representative of deceased Prahladbhai.
9.20 That an order was passed by the competent authority on 20.06.1995, to stay any construction that may be carried out on the Government land in an attempt to grab the Government land. In the said order, it is endorsed that the construction is stopped. From the documents pertaining to the land in question executed by the appellants on one side and these documents which are executed in the year 1990 would also indicate that there exists no construction on the land in question. The Page 37 of 53 HC-NIC Page 37 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT appellants have produced the revenue record in support of their claim that, in revenue record, name of appellants is entered. However, the appellants have deliberately not produced permission / sanction, if any, with regard to putting up of construction from any local authority from which the permission / sanction, prior to construction is must. The nonproduction of such permission itself sufficient to establish the existence of no construction or construction if any carried out in breach of provisions of the ULC Act.
9.21 The record reveals that the competent authority by order dated 22.03.1984 declared 26407 square meters of land as excess and pursuant to the aforesaid order notification under Section 10(1) was issued on 14.08.1984 and thereafter notification under Section 10(3) was published in the Government Gazette on 29.06.1989. Thereafter, notice under Section 10(5) was given to the respondent on 31.05.1990 by which they were ordered to handover possession of the vacant land to the Government within 30 days and finally by preparing panchnama, possession was taken over by the competent authority on 09.01.1992 after Special Civil Application No.4967 of 1989 came to be dismissed on 02.07.1990 and even review application was Page 38 of 53 HC-NIC Page 38 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT filed on 20.03.1993 i.e. after taking over possession. The above panchnama contains description of the subject land declared excess and surrendering areas, including survey No.269/1 having some construction in the nature of shops and godown and stock of coal. Even on Survey Nos.552/1 and 552/2, on the open land, stock of coal was found. On the contrary, revenue record village form 7/12 reveals that possession of the vacant land was taken over by the Government on 09.01.1992. The above panchnama was signed by two witnesses. The issue of possession was already contended in the writ petition being Special Civil Application No.4967 of 1989 which came to be dismissed on 02.07.1990 and review application being Misc. Civil Application No.431 of 1992 filed after a period of 2 years, which also came to be disposed of on 28.03.1992. In the communication addressed by Chandulal Prahladbhal Patel it is stated that after death of Prahladbhai Ramdas Patel in the year 197778, death certificate was submitted and he had given the above statement in person and undertaken to remain present before the authority on the next date of hearing. By referring to communication dated 01.02.1992 addressed by the Competent Officer and Deputy Collector ULC to Talaticum Mantri, Okaf Taluka, Sarkhej whereby, the Talati cumMantri was directed to record in the revenue Page 39 of 53 HC-NIC Page 39 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT record about publication of notification under Section 10(3) of the Act and subject land was taken into possession. Pursuant to that, entries were recorded in village Form No.6 by Talaticum Mantri of village panchahat. That orders passed by all the authorities, including appellate authority reveal that no procedural irregularities or breach of any provision of the ULC Act was committed. Further, the payment of revenue or electricity dues of illegal construction carried out will not establish possession of the petitioner.
9.22 That issues about [i] effect of Repeal Act, 1999, which came into force on 20.03.1990 visavis challenge to the notification under Section 10(3) of the Act in the writ petition by the appellants of the Repeal Act containing saving clause in Section 3(1) of subsection (2) of Section 3 and [ii] possession of disputed land, it is profitable to refer to paras 21 to 23 of the CAV judgment dated 23.04.2004 rendered in Special Civil Application No.3208 of 1992. Paras 21 to 23 of the CAV judgment dated 23.04.2004 read as under:
"21. After having heard the learned advocates appearing for the respective parties and after having perused their respective pleadings and the documentary Page 40 of 53 HC-NIC Page 40 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT evidences produced before the Court and after having given my anxious thoughts and due considerations to the authorities cited before me by both the sides, I am of the view that the true nature and scope of the present writ petition is in a very narrow compass and the issues which were raised and decided in earlier writ petition being S.C.A. No.4967 of 1989 on 2.7.1990, cannot be reagitated for re adjudicated in the present proceedings. It is an admitted position that the competent authority has passed an order on 22.3.1984 declaring 26,407 sq. mtrs. land as excess vacant land. An appeal preferred against the said order under Section 33 of the ULC Act before the Tribunal was also dismissed on 8.12.1988. Despite the fact that the order of the competent authority was challenged on the ground that the order was a nullity as it was passed in the name of dead person and that part of the land was agricultural land or Vada land and hence could not be declared as excess vacant land and that application under Section 20 of the Act was pending, the said appeal was dismissed. Writ petition filed before this Court, being S.C.A. No.4967 of 1989 was also dismissed on 2.7.1990 and the review Application filed against the said order was also rejected on 26.3.1992, except to the extent that since the Notification under Section 10(3) of the act was not challenged in the earlier petition, the petitioners were permitted to challenge the said Notification by way of separate petition and that is how, the present petition was filed. The issue was, however, not decided till the Repeal Act, 1999 has come into force on 30.3.1999 and hence the proceedings may be deemed to have been abated in view of the decision Page 41 of 53 HC-NIC Page 41 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT of this Court in the case of Mangalal Mepabhai Patel V/s. Additional Collector, (1999) 40 (3) G.L.R. 2105 wherein it is held that "even the High Court's jurisdiction under Art. 226 of the Constitution of India, whether the Court call it a constitutional jurisdiction or a discretionary jurisdiction or a writ jurisdiction, is not beyond the statute.
Thus, if Section 4 creates the mandate in respect of abatement of all pending proceedings, the Court is of the opinion that such mandate would apply even to the High Court exercising its writ jurisdiction under Art.226. Even otherwise, the phrase "before any court, tribunal or other authority" is sufficiently wide to indicate the intention of parliament so as to cover all pending proceedings, irrespective of the forum where they were pending and irrespective of the nature of jurisdiction which that forum would be exercising". In view of these observations, the challenge to the Notification issued under Section 10(3) of the Act in the writ petition, the proceedings of which are deemed to have bee abated, would not survive. Since no rights are crystalised in favour of the petitioners, no protection can be granted to them nor any of their alleged rights are saved by virtue of the Repeal Act, 1999.
22. The Repeal Act, however, contains saving clause in Section 3 and Clause (a) of SubSection (2) of Section 3 states that any land is deemed to have vested in the State government under SubSection (3) of Section 10 of the Principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in Page 42 of 53 HC-NIC Page 42 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT this behalf or by the Competent authority, then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government. The petitioners have specifically pleaded that the possession of the disputed property was with them and it was not taken over by the State Government till the Repeal Act has come into force on 30.3.1999.
23. The issue regarding possession of disputed property, therefore, assumes much significance in the light of the Repeal Act, 1999. The very fact that while issuing the notice in this petition on 7.5.1992, this Court has restrained the respondent State and its officials from taking the possession of the disputed land, only in the event if the possession was not taken over on that day, itself proves that the petitioners' possession was not believed by the Court. Now, the State Government has placed on record several documents showing that possession was taken over on 9.1.1992. An entry was made on the basis of said Panchnama. Because of the pendency of the matter before this Court, the entry was not certified nor any allotment has been made under Section 11 (a) of the Act nor any proceedings were taken for determination of the amount to the petitioners. This, by itself, does not vitiate the factum of possession taken over by the State Government prior to the order passed by this Court on 7.5.1992. There might be some lapses in drawing Panchnama or recording transaction of possession. The State Government or its officials were not cautious or vigilant enough to protect completely the possession of the disputed property, after having taken such possession. On these basis, however, it Page 43 of 53 HC-NIC Page 43 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT cannot be believed that the petitioners are in possession, much less the lawful possession of the disputed property. If the petitioners are claiming to be in possession of the disputed property, the said possession may be believed to be this possession of an encroacher and may amount to land grabbing. This Court has already taken the same view in the case of Laxmanji Babaji Thakore (S.C.A.No.10315 of 2000 decided on 25.1.2001) and it has been confirmed in L.P.A. No.624 of 2003 decided on 1.7.2003. The Panchnama prepared by the Maintenance Surveyor cannot be said to be an illegal Panchnama as this Court has taken the view in the case of LALITABEN TANSUKHLAL SAMEJA (SUPRA) that if the Competent Authority has taken the help of its subordinates for preparing the on the spot Panchnama and taking of possession under its orders and supervision, it cannot be said that the action was unauthorised or invalid. Considering the Panchnama and Revenue records, it is difficult for this Court to hold that actual physical possession was not taken over by the State Government and no importance can be given to the affidavits filed by the panchas and produced before the Court at the belated stage, in view of the decision of the Hon'ble Supreme Court in the case of M/s. LARSEN & TOUBRO LIMITED (SUPRA). Moreover, on 9.1.1992, when Panchnama was drawn and possession was taken over, the issue did not assume much significance. It assumed so much importance only after 30.3.1999 when the Repeal Act has come into force and hence there is no justifiable reason to believe that Panchnama drawn on 9.1.1992 was false or concocted. Thus, taking overall view of the matter, the Court is of the firm opinion that the possession of the Page 44 of 53 HC-NIC Page 44 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT disputed property was taken over by the State Government on 9.1.1992 and on the date when the Repeal Act has come into force i.e. 30.3.1999, the petitioners were not in lawful possession of the disputed property."
9.23 The findings and reasoning of learned Single Judge about taking over possession by competent authority and that possession of the disputed land was taken over by the State Government on 09.01.1992 i.e. before the date when the Repeal Act, 1999 came into force on 30.03.1999 it cannot be said that the appellants were in lawful possession of the disputed land. The facts with regard to possession of the disputed land and litigation undertaken by the appellants earlier together reveal that the decisions relied on by learned Senior Advocate for the appellants in the cases of Hari Ram [supra] and Vipinchandra Vadilal Bavishi [supra] are not applicable to the facts of the present case.
9.24 Thus, the submissions made by Mr. Sanjanwala, learned Senior Advocate about flaws in panchnama and not taking over possession in accordance with law by respondent authority is not supported by any material on record.
9.25 The irrevocable power of attorney dated Page 45 of 53 HC-NIC Page 45 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT 01.02.1990 executed in favour of Mr. Mohmed Ahmed Alam for residential land admeasuring 591.5 square yards on survey No.269/1 is in contravention to the provisions of the Act. Likewise, another agreement to sale dated 01.02.1990 was executed in favour of Fazlu Rehman Nomani, contrary to provisions of Section 26 of the ULC Act.
9.26 That after subplotting of the land in question illegal transfer was effected. Initially, the competent authority and Additional Collector ULC, Ahmedabad passed prohibitory and mandatory order dated 20.06.1995 restraining the occupants not to carry out construction and even after service of the above mandatory order, on 05.07.1995 when the officers of ULC authority visited, the construction was continued in breach of the above mandatory order. However, on the very day, illegal occupier of the excess land assured that construction was discontinued. Thereafter, record further reveals that a proposal was prepared on 09.08.1995 by ULC authority to be forwarded to the District Collector, Ahmedabad to detain holder of excess vacant land illegally and his representative under the provisions of the Gujarat Prevention of Anti Social Activities Act, 1985.
Page 46 of 53HC-NIC Page 46 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT 9.27 That excess land already vested into Government upon issuance of notification under Section 10(3) of ULC Act, 1976 for which possession was already taken over by competent authority after issuance of notice under section 10(5) could have been utilized for public purpose. In spite of prohibitory mandatory and orders issued by the Collector, illegal construction was put up and upon strict action taken, an undertaking was given to the extent that now construction is discontinued. The above fact reveal that the appellant and transferee of excess land unauthorizedly and illegally made an attempt to grab government land. Such blatant and gross breach is not only against the provisions of Section 26 `transfer otherwise' of ULC Act but also an abuse of process of law when construction was carried out illegally cannot be said to be possession of the land in question by the appellant. Such unscrupulous occupants are not entitled to equitable, discretionary and conscientious jurisdiction of a writ court for which any relief can be granted.
9.28 The Apex Court in the case of Dalip Singh v. State of Uttar Pradesh & Ors. [(2010)2 SCC 114] deprecated such unscrupulous litigants abusing process of law by relying on previous decisions of the Apex Court and emergence of such unwarranted litigation in recent past to be dealt with sternly by the Court. Paras 1 to 9 of the Page 47 of 53 HC-NIC Page 47 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT above judgment, are reproduced herein below:
"1. For many centuries, Indian society cherished two basic values of life i.e., `Satya' (truth) and `Ahimsa' (non violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in preindependence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, postindependence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
2. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.
3. In Hari Narain v. Badri Das [AIR 1963 SCA 1558],this Court adverted to the aforesaid rule and revoked the leave Page 48 of 53 HC-NIC Page 48 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT granted to the appellant by making the following observations:
"It is of utmost importance that in making material statements and setting forth grounds in applications for special leave made under Article 136 of the Constitution, care must be taken not to make any statements which are inaccurate, untrue and misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. Thus, if at the hearing of the appeal the Supreme Court is satisfied that the material statements made by the appellant in his application for special leave are inaccurate and misleading, and the respondent is entitled to contend that the appellant may have obtained special leave from the Supreme Court on the strength of what he characterizes as misrepresentations of facts contained in the petition for special leave, the Supreme Court may come to the conclusion that in such a case special leave granted to the appellant ought to be revoked."
4. In Welcome Hotel and others v. State of Andhra Pradesh and others etc. AIR 1983 SC 1015, the Court held that a party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case.
5. In G. Narayanaswamy Reddy and others v. Governor of Karnataka and another AIR Page 49 of 53 HC-NIC Page 49 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT 1991 SC 1726, the Court denied relief to the appellant who had concealed the fact that the award was not made by the Land Acquisition Officer within the time specified in Section 11A of the Land Acquisition Act because of the stay order passed by the High Court. While dismissing the special leave petition, the Court observed : [SCC p.263, para 2] "2. Curiously enough, there is no reference in the Special Leave Petitions to any of the stay orders and we came to know about these orders only when the respondents appeared in response to the notice and filed their counter affidavit. In our view, the said interim orders have a direct bearing on the question raised and the nondisclosure of the same certainly amounts to suppression of material facts. On this ground alone, the Special Leave Petitions are liable to be rejected. It is well settled in law that the relief under Article 136 of the Constitution is discretionary and a petitioner who approaches this Court for such relief must come with frank and full disclosure of facts. If he fails to do so and suppresses material facts, his application is liable to be dismissed. We accordingly dismiss the Special Leave Petitions."
6. In S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others JT 1993 (6) SC 331, the Court held that where a preliminary decree was obtained by withholding an important document from the court, the party concerned deserves to be thrown out at any stage of the litigation.
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7. In Prestige Lights Ltd. V. State Bank of India (2007) 8 SCC 449, it was held that in exercising power under Article 226 of the Constitution of India the High Court is not just a court of law, but is also a court of equity and a person who invokes the High Court's jurisdiction under Article 226 of the Constitution is duty bound to place all the facts before the court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain petition filed under Article 226 of the Constitution. This Court referred to the judgment of Scrutton, L.J. in R v Kensington Income Tax Commissioners (1917) 1 K.B. 486, and observed: [Prestige Lights Ltd. case (2007)8 SCC 449, SCC p.462, para 35] "In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible."
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8. In A.V. Papayya Sastry and others v. Government of A.P. and others, AIR 2007 SC 1546, the Court held that Article 136 does not confer a right of appeal on any party. It confers discretion on this Court to grant leave to appeal in appropriate cases. In other words, the Constitution has not made the Supreme Court a regular Court of Appeal or a Court of Error. This Court only intervenes where justice, equity and good conscience require such intervention.
9. In Sunil Poddar & Ors. v Union Bank of India (2008) 2 326, the Court held that while exercising discretionary and equitable jurisdiction under Article 136 of the Constitution, the facts and circumstances of the case should be seen in their entirety to find out if there is miscarriage of justice. If the appellant has not come forward with clean hands, has not candidly disclosed all the facts that he is aware of and he intends to delay the proceedings, then the Court will nonsuit him on the ground of contumacious conduct".
9.29 Thus, the facts stated herein above can easily be distinguishable with the decisions of Hari Ram [supra] and Vipinchandra Vadilal Bavishi where process of law therein was not abused and in breach of provisions of ULC Act no action was taken by the land holders, which is not the case in the appeal on hand. The court exercising jurisdiction under Article 226 of the Page 52 of 53 HC-NIC Page 52 of 53 Created On Sat Aug 12 00:32:16 IST 2017 C/LPA/2040/2004 CAV JUDGMENT Constitution of India is equitable, discretionary and conscientious and litigant should approach the court with clean hands and not to take undue advantage of law declared in different sets of facts and circumstances as held by the Apex Court in the case of Dalip Singh [supra]. The learned Single Judge has assigned cogent reasons based on material on record and upon consideration of rival submissions by learned advocates for the parties, dismissed Special Civil Application No.3208 of 1992, and therefore, the findings with regard to possession of the disputed excess land taken over by the Government in accordance with law and inapplicability of Repeal Act, 1999, both. In absence of any error of law and facts, no interference is called for by this Court in exercise of appellate powers.
10 In view of the above discussion and in absence of merit this appeal fail and is hereby dismissed with costs of Rs.25,000/.
(ANANT S.DAVE, J.) (A.Y. KOGJE, J.) pvv Page 53 of 53 HC-NIC Page 53 of 53 Created On Sat Aug 12 00:32:16 IST 2017