Gujarat High Court
Vipinchandra vs State on 26 March, 2010
Author: Bhagwati Prasad
Bench: Bhagwati Prasad
Gujarat High Court Case Information System
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LPA/740/2002 28/ 28 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 740 of 2002
In
SPECIAL
CIVIL APPLICATION No. 9856 of 2000
With
LETTERS
PATENT APPEAL No. 606 of 2002
In
SPECIAL CIVIL APPLICATION No. 9856 of 2000
With
CIVIL
APPLICATION No. 5977 of 2002
In
LETTERS PATENT APPEAL No. 606 of 2002
With
CIVIL
APPLICATION No. 7009 of 2002
In
LETTERS PATENT APPEAL No. 740 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To be
referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ?
NO
=========================================================
VIPINCHANDRA
VADILAL BAVISHI & 1 - Appellant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
LPA NO.
740 OF 2002
MR S.H.
SANJANWALA, LD. SR. ADVOCATE, WITH MR. R.S.SANJANWALA, MR. J.R.
NANAVATI & MR. A.R. THAKKAR
for
Appellant(s) : 1 - 2.
MR. N.J. SHAH, AGP, for Respondent(s) : 1 -
2.
MR.
A.J. PATEL WITH MR. C.L. SONI, Advocate for Respondent
No. 3,
LPA NO.
606 OF 2002:
MR.
A.J. PATEL WITH MR. C.L. SONI, Advocate for the appellant
MR.
S.H. SANJANWALA, LD. SR. ADVOCATE WITH MR. R.S. SANJANWALA, MR. J.R.
NANAVATI & MR. A.R. THAKKAR for respondent No. 1 & 2
MR.
N.J. SHAH, AGP, for respondent No. 3
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 26TH /03/2010
CAV
JUDGMENT
(Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) These two appeals which are proposed to be decided by this decision are filed against the judgement of learned Single Judge dated 17.6.2002 passed in Special Civil Application No. 9856 of 2000 by the two appellants, one petitioners before learned Single Judge and the other by the respondent whose allotment of land is ordered to be cancelled by learned Single Judge.
2. The petitioners before learned Single Judge had a holding of land in village Nana Mauva bearing Survey No. 71. The area owned by the petitioners as alleged was 4610.41 sq. mtrs. Proceedings were initiated against the petitioners under the provisions of Urban Land (Ceiling & Regulations Act, 1976 (hereinafter referred to as "the Act"). The said Act came into force in the State of Gujarat on 20.8.1976. The petitioners filed two forms under Section 6 of the Act, as according to the petitioners they had different shares in the land in question. In a lis between the petitioners and the State, in relation to the question of separate holdings in village Nana Mauva, has resulted into rejection of the claim of the petitioners by the Hon'ble Supreme Court. It has been held that the holding of both the petitioners was liable to be clubbed in view of the provisions of the Act. Thus the proceedings were continued against the petitioners treating their holding to be joint.
3. Draft statement was prepared which was served upon the petitioners. Thereafter, the matter was considered under Section 8 of the Act. The authority under ULC Act , Rajkot, rendered its decision on 27.2.1986. It is also important to note here that an exemption application was made to the Government for commercial use of the land bearing Survey No. 71 measuring 4610 sq. mtrs. However, the same has been rejected by the Government in the year 1983. Therefore, the said land was not liable to be retainable land and the land in question has been declared as surplus.
4. While describing the land in village Nana Mauva bearing Survey No. 71 in Column No. 4, instead of the same being shown as plot Nos. 16 to 23 and 36 to 43, as 16 plots it was mentioned as plot Nos. 1 to 16.
5. On 24.3.1986, a Notification was issued under Section 10(1) of the Act in which the land was described as surplus land of the village Nana Mauva in Survey No. 71 measuring 9031.71 sq. mtrs. Further identification was also mentioned to plot Nos. 1 to 16. On 16.6.1986, Notification under Section 10(3) of the Act was published showing the details of the land in question as they were mentioned in the Notification under Section 10(1) of the Act.
6. Against the order declaring the land as surplus dated 27.2.1986, the petitioners preferred appeal being Appeal No. Rajkot/41/86 before the Urban Land Tribunal. On 17.6.1986 in the said appeal interim stay was granted against the publication of the Notification under Section 10(3) of the Act but prior to the injunction being granted, on 16.6.1986 the Notification under Section 10(3) of the Act has already been published. The said appeal was decided by the Urban Land Tribunal on 20.12.1988. Two appeals filed by both the petitioners were dismissed.
7. On 26.6.1989 corrigendum was issued for correcting the mistake occurred in the description of plot number and areas of the land in question and in this order of corrigendum it was mentioned that the plots are to be correctly read 16 to 23 and 36 to 43. It has been submitted by the State authorities that on 26.6.1989 itself the possession of the land in question bearing plot Nos. 16 to 23 and plot Nos. 36 to 43 was taken over and panchnama in this regard was drawn. Panchnama for taking the possession as drawn on 26.6.1989 shows that the possession of the land in question has been taken over and over plot Nos. 16, 17, 23 and 24 there are construction of houses.
8. The petitioners preferred Special Civil Application before this Court being Special Civil Application No. 3456 of 1989 against the orders of the authorities under the Act dated 27.2.1986 and 28.12.1988. In this Special Civil Application, interim orders were passed. The said petition has subsequently, however, been dismissed on 19.7.1993.
9. Against the said order of this Court, Special Leave Petition was preferred by the petitioners before the Hon'ble Supreme Court being Appeal No. 15853 of 1993 which has been dismissed by the Hon'ble Supreme Court. This was the lis which was preferred by the petitioners against the action of the authorities under the Act treating the holding of both the petitioners as consolidated one holding.
10. On 22.3.1999, Urban Land (Ceiling and Regulation) Repeal Act, 1999 came into force (hereinafter referred to as "Repeal Act"). The petitioners have preferred the Special Civil Application under reference in September, 2000 against the order of taking possession and other proceedings of the authorities under the Act. The order dated 26.9.1989 was challenged and the writ petition alleging, inter alia, that the Act having been repealed, the land in question i.e. land situated at Survey No. 71 of village Nana Mauva bearing plot Nos. 16 to 23 and 26 to 43 be declared as have not vested in the State Government. In the petition it was further averred that the land is purported to have been allotted to one Shram Deep Co-operative Housing Society by the Governemnt admeasuring 2100 sq. mtrs. that is illegal and without jurisdiction and therefore that also be set aside.
11. After considering the case of the petitioners, learned Single Judge came to the conclusion at para 20 thus:
".....It has come on record and there is no dispute on the point that the land bearing Survey No. 71 situated at Nana Mauva which was held by the petitioner is declared as surplus land. Not only that, but there is no dispute on the point that challenge made by the petitioner to the declaration of the land in question as surplus land has failed upto the Supreme Court........ "
12. Learned Single Judge has further held that when the respondents tried to raise unauthorized construction of the compound wall of the land in question, a panchnama was drawn on 23.10.1989 and the petitioners were informed on 23.10.1989 itself by a registered A.D. (acknowledgement due) Post that the competent authority under the Act has already taken possession of the land on 26.9.1989. The construction sought to be raised be stopped. Otherwise action will be taken against the encroachers in accordance with law.
13. Learned Single Judge has further noted that the notice was ordered to be published at the site on 27.10.1989 and report in this regard was made to the authorities under the Act. Learned Single Judge has further held that the proceedings drawn clearly show that the possession of the land in question was taken over on 26.6.1989, the petitioners had also thereafter made attempt to make encroachment on the land in question and the proceedings in this regard were also initiated. The argument of learned counsel for the petitioners was rejected by learned Single Judge that since in absence of the affidavit of the maintenance Surveyor, the Court cannot rely on the panchnama itself for taking over the possession. Learned Single Judge has further observed that since the petitioners had gone to the Hon'ble Supreme Court about the holding and their plea has been rejected and the land of the petitioners having been declared as surplus and possession having been taken, the present proceedings would be barred by the principles of constructive res judicata and learned Single Judge has held in paragraph No. 24 of the judgement thus:
"...........I am of the view that as the principle of constructive res judicata, the petitioners cannot be allowed to reopen the issue regarding the declaration of the land as the surplus land and regarding taking over the possession of the land in question. "
14. Learned Single Judge has also noticed that another parcel of land belonging to the petitioners was also declared as surplus in village Kotharia which was sold by way of publication in the year 1997. A final order in that regard has been passed on 31.12.1999 and no objection in that relation was taken by the petitioners whatsoever. Therefore, learned Single Judge has held in paragraph No. 25 of the judgement thus:
"In view of the facts that the portion of the other land which was also declared as surplus land together with the land in question is disposed of by the State government by public auction, it cannot be said that that panchnama are not genuine or that the panchnama are not acted upon."
15. Learned Single Judge has noticed that the petitioners have not disclosed all these facts in their petition and having withheld the facts regarding corrigendum, panchnama, proceedings initiated against them when they wanted to encroach the land and disposal of the land in village Kotharia, all this disclosure tantamounts lack of bana fide, so far as it relates to, challenge to the corrigendum and vesting of the land in question and also the factum of possession .
16. The argument of the learned counsel that the entry in the revenue record still continues in the name of the petitioners has been rejected by learned Single Judge on the ground that the same cannot be considered to be of material effect on the lawful vesting of the land in the State Government. The possession having taken by the competent authorities effect of the same cannot be defeated by the revenue entries because they are only for the fiscal purpose. Learned Single Judge has distinguished the facts in the case of MAVJIBHAI on the ground that in that case intimation was given in the year 1988 and possession was purportedly taken in the year 1996. Therefore, that much of the lapse of time was material to decide that case. Learned Single Judge has distinguished the case in the matter of AMBALAL PURSHOTTAM PATEL by saying that the principle that in every case the possession must be taken over by erecting boundary pillars or demarcation of land or by putting watch guard or fencing etc. is not necessary since the practice of preparing panchnama, taking of possession is an established process of taking possession.
17. Learned Single Judge has further held that the issues which have been sought to be raised could have been raised in the earlier petition and having not raised the same, he cannot be now allowed to raise the question. The case of AMBALAL PURSHOTTAM PATEL (supra) has been thus distinguished by learned Single Judge.
18. Learned Single Judge has further found that the petitioners had clearly noticed that the land in village Nana Mauva and situated at Survey No. 71 was declared as surplus and the question of declaring surplus was taken upto the Hon'ble Supreme Court and upheld the mistake in mentioning the numbers is only clerical mistake and that correction was possible under Section 45 of the Act and in view of this decision of this Court in the case of HIMMAT J. VAKHARIA ( 1988(1) GLR 205) corrigendum relates back to the earlier date and further it has been observed by learned Single Judge that all these contentions have not been raised in the earlier litigations, the petitioners are now estopped from challenging the same and in any case when the village and survey numbers were perfect even in the earlier order it cannot be said that there is any material change in the identity of the land or wrong mentioning of the plots.
19. Learned Single Judge has also observed that it cannot be said that any prejudice has been caused to the petitioner by wrong mentioning of the plot numbers when the petitioner has understood and accepted that the actual land was declared as surplus and whose possession is taken over pursuant thereto.
20. The second limb of the arguments of the learned counsel for the petitioners is that even if the land was rightfully acquired and taken possession of, it cannot be said that the same was liable to be allotted to the respondent Co-operative Society in the manner in which it has been done by the respondent. Because according to the Scheme of the Act under Section 23 the same was required to be auctioned by a public auction and the allotment in favour of the respondent society is bad in the eye of law. In that view of the matter, the allotment in favour of the respondent Co-operative Housing Society was quashed by learned Single Judge. Against such quashing, the Co-operative Society has challenged the order of learned Single Judge and in one of the appeals which is being decided by this decision.
21. Arguing the appeal learned counsel for the appellant submitted that the State authorities have committed a mistake in describing the land in Notification under Sections 10(1), 10(3) and 10(5) of the Act wherein it has been stated that the land situated in Survey No. 71 of village Nana Mauva plot Nos. 1 to 16 admeasuring 9030.71 sq. mtrs. This description is not correct description and thus misleading. The possession as taken is not correct. The description of the land being wrong, the land of the petitioners has not vested in the Government and therefore vesting cannot be presumed.
22. Learned counsel for the appellant has further urged that since the vesting was not in accordance with law, therefore, there was no question of possession being taken of the land in question. Panchnama has not been properly drawn and possession has not been taken by the authorized officer.
23. Learned counsel has further urged that a supplementary corrigendum is said to have been issued under the Act. Such corrigendum is without taking permission of the State Government and as per the case of the respondents this fact was brought to the notice of the Government in the year 2000. It was an unauthorized corrigendum. In any case this corrigendum was unauthorized, because it is not the power under Section 45 of the Act, that can be exercised to correct a mistake of the nature which has been committed by the authorities in drawing up the Notification under Sections 10(1), 10(3) and 10(5) of the Act. Thus the corrigendum is ineffective. In any case the fact of corrigendum having not been notified in gazette in Notification under Sections 10(1), 10(3) and 10(5) of the Act, the same would be ineffective.
24. This has also been urged by the learned counsel for the petitioners that the land as described in Notification cannot be presumed to be belonging to the petitioners and therefore it cannot be said that the land belonging to the petitioners was taken in possession. In that view of the matter, after the coming of the Repeal Act, pursuant to Section 3(2), the land is required to be restored to the petitioners, because it never vested in Government and its possession was not lawfully taken by the State Government.
25. Per contra: learned counsel for the State has supported the decision of learned Single Judge. According to learned counsel for the State village Nana Mauva and Survey No. 71 was correctly identified. Contentention that plot Nos. 1 to 16 which were declared as surplus they could be the subject matter of vesting in the Government. That being not the land of the petitioners is only a disguise. Petitioners knew that their land in village Nana Mauva bearing Survey No. 71 has been declared as surplus. Whatever land referred comes to the same area which is taken possession of. The area of plot No. 16 to 23 is 4460.61 sq. mtrs. and the area of plot Nos. 36 to 43 is 4610.10 sq. mtrs.. This being the land which has been taken in possession of there was no wrong description of the total area which was taken possession. Wrong mentioning of number of plots is of no consequence. In any case, the same was not challenged by the petitioners at the relevant time.
26. The corrigendum under Section 45 of the Act is legitimate corrigendum and it cannot be said that such corrigendum is not liable to be issued under the provisions of Section 45 of the Act. It has further been claimed on behalf of the State Government that all throughout the petitioners have been litigating about the wrong consolidation of their holding. The holding has been considered to be one for declaring the same as surplus. In that view of the matter when the petition was filed before the Hon'ble Supreme Court this issue was not raised. Not only this, in the proceedings before this Court, these questions were not raised. Thus in view of the principle of constructive res judicata the petitioners are estopped from raising these questions. It has been submitted on behalf of the petitioners that the appeal deserves to be dismissed and the Special Civil Application has rightly been dismissed by learned Single Judge.
27. Mr. Sanjanwala, learned Sr. Advocate, also appearing for the appellant has submitted that the Repeal Act came into force in the year 1999 and the possession having not been taken legally, the petitioners are entitled to the possession as has been held by the Hon'ble Supreme Court in the case of STATE OF MAHARASHTRA AND ANOTHER VS. B.E. BILLIMORIA AND OTHERS reported in (2003) 7 SCC 336 wherein the Hon'ble Supreme Court has held that the Act being an expropriatory legislation is required to be strictly construed. In that view of the matter, the possession having not been taken legally should be restored to the petitioners. He has relied on a case decided by this Court in the matter of RAJKOT MUNICIPAL CORPORATION VS. LAVJIBHAI M. PATEL THROUGH HIS P.O.A. HOLDER RAJESH J. DOSHI & ORS. 2000(3) GLR 2293 wherein this Court has held that if the possession of land has not been taken by the person duly authorized by the Government, the possession is liable to be restored to the petitioners.
28. Another case relied on by the learned counsel is in the matter of P.N.M. MEHTA VS. COMPETENT AUTHORITY & ADDL. COLLECTOR reported in 2009(3) G.L.R. 2270 wherein correct Notification under Section 10(3) of the Act is not issued then it cannot be said to be a correct proceedings.
29. Learned counsel has submitted that the total area of Survey No. 71 is 30000 sq. mtrs. Description of the land is not correctly given in Notification . Plots being not of the petitioners it made no effect on the petitioners. Corrigendum under Section 45 of the Act could not cure the defect in the Notification. Delay cannot be pressed into service against the petitioners because the land as described in Notification under Sections 10(1), 10(3) and 10(5) of the Act was of wrong description as plot Nos. 1 to 16 which never belonged to the petitioners and therefore there cannot be said any delay in filing the present litigation.
30. Learned counsel for the Co-operative Society has urged that they were the persons who prayed the State Government for allotment of land. Money as demanded was deposited by them in 1991. Land were not made available to the petitioners lawfully. Then they had to come to the Court wherein this Court had directed the respondent State to allot alternative land to them. In pursuance of this direction the land in question was allotted to them. The petitioners have no right whatsoever to challenge the allotment made in favour of the Society because after the land having vested in the State they lost their right and it cannot be said that they could maintain the present petition.
31. Learned counsel has further submitted that the declaration of title is outside the scope of authority covered by writ jurisdiction. It requires adjudication of disputed question of facts. In that view of the matter, the writ Court could not have decided this question and in this relation learned counsel has relied on a case in the matter of STATE OF RAJASTHAN VS. BHAWANI SINGH reported in AIR 1992 SC 1018 in which at paragraph No. 7 the Hon'ble Supreme Court has observed as under:
"Having heard the counsel for the parties, we are of the opinion, that the writ petition was misconceived insofar as it asked for, in effect, a declaration of writ petitioner's title to the said plot. It is evident from the facts stated hereinabove that the title of the writ petitioner is very much in dispute. Disputed question relating to title cannot be satisfactorily gone into or adjudicated in a writ petition. "
32. Learned counsel has further contended that after considering the unexplained delay, the remedy was barred and therefore the petitioners could not have been permitted to challenge the allotment in favour of the answering respondents. He has relied on the case in the matter of STATE OF MADHYA PRADESH & ANOTHER VS. BHAILAL BHAI reported in 1964 SC 1066 in which at paragraph No. 21 the Hon'ble Supreme Court has observed as follows:
"The learned Judges appear to have failed to notice that the delay in these petitions was more than the delay in the petition made in Bhailal Bhai's case, 1960 M.P.C. 304 out of which Civil Appeal No. 362 of 62 has arisen. On behalf of the respondents-petitioners in these appeals (C.A. Nos. 861 to 867 of 1962 Mr. Andley has argued that the delay in these cases even is not such as would justify refusal of the order for refund. We argued that assuming that the remedy of recovery by action in a civil Court stood barred on the date these applications were made that would be no reason to refuse relief under Art. 226 of the Constitution. Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after January 17, 1956 the delay in making these applications should be considered unreasonable. If, on the other hand, as Mr. Andley seems to argue, that the mistake discovered later this would be a controversial fact which cannot conveniently be decided in writ proceedings. In either view of the matter, we are of opinion the orders for refund made by the High Court in these seven cases cannot be sustained."
33. Learned counsel has further relied on a decision of the Hon'ble Supreme Court in the matter of STATE OF MAHARASHTRA VS. DIGAMBAR reported in AIR 1995 SC page 1991 particularly paragraph Nos. 23 and 24 which read as under:
"para 23 - In our view, the above allegation is in no way sufficient to hold that the writ petitioner (respondent here) has explained properly and satisfactorily the undue delay of 20 years which had occurred between the alleged taking of possession of his land and the date of filing of writ petition in the High Court. We cannot overlook the fact that it is easy to make such kind of allegations against anybody that too against the State. When such general allegation is made against a State in relation to an event said to have occurred 20 years earlier, and the State's non-compliance with petitioners demands, State may not at all be in a position to dispute such allegation, having regard to the manner in which it is required to carry on its governmental functions. Undue delay of 20 years on the part of the writ petitioner, in invoking the High Court's extraordinary jurisdiction under Article 226 of the Constitution for grant of compensation to his land alleged to have taken by the Governmental agencies would suggest that his land was not taken at all, or if it had been taken it could not have been taken without his consent or if it was taken against his consent he had acquiesced in such taking and waived his right to take compensation for it.
Para 24 - Thus, when the writ petitioner (respondent here) was guilty of laches or undue delay in approaching the High Court, the principle of laches or undue delay adverted to above, disentitled the writ petitioner (respondent here) for discretionary relief under Article 226 of the Constitution from the High Court, particularly, when virtually no attempt had been made by the writ petitioner to explain his blameworthy conduct of undue delay or laches. The High Court, therefore, was wholly wrong in granting relief in relation to inquiring into the allegation and granting compensation for his land alleged to have been used for scarcity relief road works in the year 1971-72. As seen from the judgement of the High Court the allegation adverted to above, appear to be the common allegation in other 191 writ petitions where judgements are rendered by the High Court following the judgement under appeal and which are subject of S.L.Ps. In this Court that are yet to be registered. We have, therefore, no hesitation in holding that the High Court had gone wholly wrong in granting the relief which it has given in the judgement under appeal, and judgements rendered following the said judgement in other 191 writ petitions, said to be the subject of S.L.Ps. or otherwise. All the said judgements of the High Court, having regard to the fact that they were made in writ petitions with common allegation and seeking common relief, are liable to be interfered with and set aside in the interests of justice even though only learned counsel appearing for a few writ petitioners were heard by us."
34. It was also urged that the petitioners had no locus standi to maintain the challenge of the allotment in favour of the respondent in the present form. If at all they wanted to challenge the allotment, Public Interest Litigation could only be filed. Thus the forum was wrong.
35. We have heard learned counsel for the parties. We have perused the records of the case. The seeds of this writ petition are obviously in the Repeal Act. Section 3 of the Repeal Act talks of restoration of land if it is not vested in the Government and its possession has not been taken by the Government or its duly authorized representative or the competent authority. Section 3 of the Repeal Act reads as under:
"Sec.
3 - Savings - (1) The repeal of the principal Act shall not affect -
(a) the vesting of any vacant land under sub-Section (3) of Section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;
(b) the validity of any order granting exemption under sub-Section (1) of Section 20 or any action taken thereunder, notwithstanding any judgement of any Court to the contrary;
(c) any payment made to the State Government as a condition for granting exemption under sub-Section (1) of Section 20.
(2) Where
-
(a) any land is deemed to have vested in the State Government under sub-Section (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 this behalf or by the competent authority; and
(b) any amount has been paid by the State Government with respect to such land, then such land shall not be restored unless the amount paid, if any, has been refunded to the State Government."
35.1 It is an admitted case of the petitioners that it was only in view of the Repeal Act that they have considered the filing of the present petition. The land is liable to be restored in view of Section 3 of the Repeal Act if the land has not vested in the Government or its possession has not been taken as delineated in the manner in which it is prescribed in the Section. On these two questions the parties are at variance. The petitioners' claim that neither the land has vested in the State Government nor the possession was lawfully taken. On the other side State Government claims that the land has vested in the Government and possession has lawfully been taken. Thus, very basis of claiming the land back for restoration is contentious one which involves adjudication on these two points, as to whether the land has vested in the State Government and the possession has been taken in accordance with the provisions of the Act. This being disputed questions of fact whether it should be gone into or not will have to be seen in the peculiar facts of this case.
36. The land in question was declared as surplus on 27.2.1986. The petitioners filed appeal before the Tribunal which was dismissed on 20.12.1988. Against such dismissal, the Special Civil Application was preferred by the petitioners before this Court which was dismissed on 19.7.1993. Thus, the question of the land in question getting declared as surplus has attained finality before this Court in the year 1993. The Hon'ble Supreme Court was also approached in relation to these proceedings and the Special Leave Petition of the petitioners was dismissed. Thus, the petitioners had lost the lis before the highest Court as far as the question of declaring the land as surplus is concerned and 1993 is the year which gave finality to these question.
37. In the aforesaid circumstances if the fact of taking possession is considered then it assumes importance because on 26.6.1989 the State authorities realized that the description of the land as given in the Notification under Sections 10(1), 10(3) and 10(5) of the Act was to the following effect that village Nana Mauva Survey No. 71 area 9031.71 sq. mtrs. Along with these facts it was also mentioned plot Nos. 1 to 16 which was incorrect and corrigendum was issued in this relation under Section 45 of the Act on 26.6.1989 and on that day after issuance of corrigendum the possession was taken by the authorities of the respondent Department after drawing panchnama. Thus, taking of possession was a fact which cannot be said was not known to the petitioners because on 23.10.1989 the petitioners tried to encroach the land. Proceedings were initiated against them and resisted notice was sent to them in this connection. Apart from this, on 27.10.1989 a notice was published on the site to this effect. Thus, in 1989 the petitioners knew about the fact of possession having been taken. Thus, having not raised this issue while the petitioners were before this Court until 1993 and thereafter before the Hon'ble Supreme Court shows that they had neglected to raise this issue before the competent Courts. This neglect has been held by learned Single Judge as to be a fact which goes against the petitioners and their rights are covered by the principle of constructive res judicata. We are of the considered opinion that the fact of the possession having been taken, being known to the petitioners in the year 1989, if no lis was raised against that then being before this Court in the year 1993 and then the Hon'ble Supreme Court, would amount to not raising an issue at the relevant time though it was within their knowledge and therefore if the principle of Order II Rule 2 are looked into then the petitioners have failed to raise this issue and when it was required to be agitated and such negligence would obviously be a kind of handicap which the petitioners had to suffer.
38. The answer to the aforesaid situation is tried to be given by the petitioners by saying that since the description of the land was incorrect in the Notifications referred to hereinabove and the plot numbers being incorrect, the land never belonged to them and therefore they were not required to challenge the same because they could safely contend that the land which is notified was not this land. In this regard a reference may be made to the letter issued by the petitioners to the respondent authorities dated 26.8.1976 which is reproduced hereinbelow:
" Dt. 26th August, 1976 To The Additional Collector, Urban Land Ceiling Act, 1976 Rajkot. Subject: Urban Land Ceiling Act 1976 Submission of Form No. I thereof Sir, While
submitting herewith three sets of form No. I duly filled in and signed, embodying therein the details of my holding, which consists of (1) plot of lands in survey No. 356/171 Sq. Mt. 719.13 Sq. Mt. 719.13 (2) as partner of V. Engineer's & Sons in survey No. 440B, as my share " 5883-67 (3) Survey No. 172, 174/2, 175/2 and 253 of Kotharia " 1078-50 (4) Survey No. 71 of Nana Mauwa " 4610.41 of these lands, I wish to retain as open lands as detailed below:
Lands of Survey No. 356/171 " 719.13 " " Survey No. 404B plot No. 7 " 585.15 " " " " portion of plot No. 8 195.72
--------------
1500 Sq.
Mt. As regards rest of my lands, except that of M/s. V. Engineers & Sons, I am submitting the scheme for construction of dwelling units of weaker sections of society, for which form No. V duly completed in all respects is submitted for favour of approval & sanction.
As regards other lands, M/s. V. Engineers & Sons as a firm has requested for exemption, of excess lands to be utilized in the interest of our industry, and if for any reasons, the said request is not granted, the firm has sought for permission to allow the use of the said alleged excess land for construction of dwelling units for weaker sections of the society, for which form No. V is submitted by the firm as required by the Act.
It is hoped that this request of mine to allow me to retain the above specified lands, will meet with your just consideration and will oblige.
With respects Yours faithfully Sd/-
(V.V. Bawishi)"
This letter describes the land as is stated hereinabove in the letter by survey number and village (survey No. 71 of Nana Mauva area 4610.41 sq. mtrs.). Thus, if the petitioners themselves have described their land only by survey number and village then it cannot be said that there was any misleading fact which did not inform the petitioners that their land has been taken off by the State Government. In any case when they tried to encroach, they were issued notice and that notice in the year 1989 is a sufficient information to them that the land has been taken over by the Government. Only after the Repeal Act they had chosen to come to this Court to hold that the possession and vesting was not legal would therefore not be a correct perception of the things to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India vide judgement of the Hon'ble Supreme Court in the case of STATE OF MAHARASHTRA VS. DIGAMBAR (supra) and STATE OF MADHYA PRADESH & ANOTHER (supra). In that view of the matter, the claim of the petitioners that they are entitled to get the restoration of land is based on a claim which gets defeated by delay and laches.
39. Learned Single Judge has non-suited the petitioners on the ground that their land at village Kotharia was sold in the year 1997 by the State Government authorities, no objection was raised by them in this relation. Thus, for all practical purposes they have understood that the land belonging to them having been declared as surplus has rightly vested in the State Government and the State Government had a right to sell the same and therefore no grievance whatsoever was raised in that relation. That tantamounts to acquiescence of the petitioners and we do not think that learned Single Judge was wrong in holding the same.
40. Learned Single Judge has also noticed that there is non-disclosure of necessary facts in the petition filed before this Court regarding the material questions, such as corrigendum, preparation of panchnama and the proceedings initiated by them for encroachment which tantamounts to withholding the material information and this shows that the petitioners had not come to this Court with clean hands and lack bona fides and therefore on that count also the judgement of learned Single Judge is not found vitiated by us.
41. The provisions of the Repeal Act would only show that if taking over of the possession and vesting is wanting, without there being any dispute on this proposition then simply the land can be restored but if the fact of taking possession is disputed and adjudication is required on this issue then such adjudication was required to be made when the petitioners first came to know of that in the year 1989, if not earlier and also when the possession was taken and they were issued notice for any encroachment. Having waited upto 2000 after 1989, the petitioners have acquiesced to this situation. In that view of the matter, it cannot be said that the petitioners' claim before this Court in seeking declaration that the land has not lawfully vested in the State Government and its possession has not been lawfully taken would be a relief that would be ordinarily be barred by the Law of Limitation because such declarations are only liable to be available within three years and having not been resorted to, the writ petition suffers from delay and laches.
42. Argument of learned counsel that the vesting being not according to law, the delay cannot be put against them is a misconceived thought because by efflux of time if the rights are lost then time becomes an essential factor and all those facts having come to the notice of the petitioners in the year 1989 it cannot be said that the question is available to the petitioners to be agitated in a jurisdiction under Article 226 of the Constitution of India.
43. In any case the corrections having been made under Section 45 of the Act because the corrections were of clerical nature, vesting was complete and it cannot be said that such corrections were required to be made in the Notifications issued under Sections 10(1), 10(3) and 10(5) of the Act because in these Notifications there was sufficient notice to the petitioners that their land belonging to village Nana Mauva situated in Survey No. 71 which has been declared as surplus and the fact of declaration of surplus having attained finality, nothing further was required to be notified. In that count the corrigendum and subsequent taking of possession is a sufficient legal sanctioned action. The cases relied on by learned counsel for the petitioners as decided are distinguishable on facts because it is clearly a case where the petitioner had knowledge of all actions having taken place in the year 1989, have not chosen to challenge the same on the pretext that there was a mis-description of the land whereas the petitioners in their letter dated 26.8.1976, as quoted hereinabove, described the land as stated hereinabove without mentioning the plot numbers. Thus, it cannot be said that those cases as has been relied on by learned counsel for the petitioners will have any bearing on the facts of this case. Therefore, they are not considered sufficiently applicable to the facts of the present case. On the contrary, the decisions of the Hon'ble Supreme Court noted hereinabove clearly cover the case of the petitioners wherein delay and laches have been held against the petitioners in those cases and we take support from the two decisions noted hereinabove in the case of STATE OF MAHARASHTRA VS. DIGAMBAR (supra) and STATE OF MADHYA PRADESH & ANOTHER (supra).
44. In view of the aforesaid, we are of the considered opinion that the petitioners' petition has rightly been dismissed by learned Single Judge. Since the petitioners' petition held by us to be not maintainable in the facts of this case, the question of allotment of the land acquired from the petitioners to the respondent/appellant Co-operative Society is not gone into by us because if the petition itself is held to be not maintainable then that question was not liable to be gone into by learned Single Judge because such allotment would not fall within the purview of its jurisdiction exercised by learned Single Judge. That could have been done in a Public Interest Litigation. In any case, the Co-operative Society having been made to deposit money in the year 1991 and the State having not allotted the land to it until this Court had issued a direction, we consider that that question is not required to be gone into at the instance of the petitioners. Therefore, the findings of learned Single Judge in that relation are considered by us to be not proper and therefore they are liable to be set aside.
45. In view of the above, the petition filed by the petitioners before learned Single Judge is dismissed. Since we have dismissed Special Civil Application filed by the petitioners, the findings in relation to the Co-operative Society are also set aside. In that view of the matter, the appeal of the Co-operative Society stands allowed.
46. In the result, the appeal filed by the appellants-petitioners is dismissed and the appeal filed by the Co-operative Society is allowed. The order of learned Single Judge in Special Civil Application so long as it relates to the petitioners is confirmed and the finding so far it relates to the Co-operative Society is set aside.
In view of the disposal of the main matters, the Civil Applications do not survive. They stand disposed of accordingly.
(BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J) The parties pray for the status quo to be extended for further period of six weeks. The status quo was already in operation. The same is extended upto six weeks.
Date:
26.3.2010 (BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J) (pkn) Top