Gujarat High Court
Mafatlal Lallubhai Thro Heirs ... vs State Of Gujarat & on 24 April, 2014
Author: Ks Jhaveri
Bench: Ks Jhaveri
C/LPA/1285/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1285 of 2010
In SPECIAL CIVIL APPLICATION NO. 14530 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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MAFATLAL LALLUBHAI THRO HEIRS NATWARLAL MAFATLAL PATEL &
1....Appellant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR PC KAVINA, SENIOR COUNSEL WITH MR P P MAJMUDAR, ADVOCATE
for the Appellant(s) No. 1 - 2
MS NISHA THAKORE, ASST GOVERNMENT PLEADER for the
Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
Page 1 of 14
C/LPA/1285/2010 JUDGMENT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 24/04/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. We have heard Mr. P.C. Kavina, learned Senior Counsel appearing with Mr. P.P. Majmudar, learned advocate for the appellants and Ms. Nisha Thakore, learned AGP appearing for the respondent - State.
2. This intra-court Letters Patent Appeal has been filed under Clause 15 of the Letters Patent challenging the order dated 21.01.2010 passed by the learned Single Judge in Special Civil Application No. 14530 of 2008 whereby the learned Single Judge dismissed the writ petition and imposed cost of Rs. 10,000/- on the appellants.
3. The appellants by way of the writ petition had sought for quashing and setting aside the the order dated 21.08.2008 as well as order dated 02.11.2006 passed by Competent Authority & additional Collector (ULC), Ahmedabad rejecting the applications of the appellants wherein they had sought deletion of the disputed lands from the list of excess lands and also to quash and set aside the entry of the State Government from the revenue records pertaining to the land bearing Survey Nos. 1034 and 1035 situated at village Vastral, Tal. Daskroi, Ahmedabad. The appellants has also prayed to declare that the panchnama dated 18.09.1998 and the purported action of the respondent authorities under the ULC Page 2 of 14 C/LPA/1285/2010 JUDGMENT Act are without authority of law and illegal.
4. Mr. P.C. Kavina, learned Senior Counsel appearing with Mr. Majmudar, learned advocate for the appellants has drawn the attention of this Court to the document dated 30.09.1980 at Annexure 'B' to the writ petition and submitted that the learned Single Judge ought to have appreciated that vide the said order State Government had already granted exemption to the appellants under Section 20(1) of the Act for the purpose of land bearing Survey Nos. 1034 and 1035. Mr. Kavina submitted that in fact in the year 1976, the father of the appellants namely late Mafatlal Lallubhai had filed a statement under Section 6(1) of the Act wherein he had specifically mentioned that he was determined to make an application for exemption under Section 20(1) of the Act.
4.1 Mr. Kavina further contended that the exemption of the land continued from 30.09.1980 till 30.03.1999 which is when the The Urban Land ( Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as 'the Repeal Act') came into force and therefore unless the exemption granted under Section 20(1) of the Act is withdrawn as per the provision contained under Section 20(2), the exempted lands will not come under the purview of the Act and therefore all the proceedings initiated or culminated under the Act in respect of the lands in question are bad and illegal and infact null and void. He contended that in view of the Section 20 of the Act, the subsequent action ought not to have been taken by the competent authority under the Act as it is well settled that once the original order is nullity any subsequent order shall also be nullity.
Page 3 of 14C/LPA/1285/2010 JUDGMENT 4.2 Mr. Kavina has drawn the attention of this Court to the provisions of Repeal Act and submitted that in view of Section 4 of the Repeal Act read with the Resolution passed by the Gujarat Legislative Assembly adopting the ULC Repeal Act, 1999, it is not competent to the respondents to take any further steps in respect of the lands declared as excess land under order dated 16.01.1988 passed by the competent authority so long as the order of exemption under Section 20(1) is in existence and the State has no right to proceed beyond Section 10(2) of the ULC Act.
5. Ms. Nisha Thakore, learned AGP appearing for the respondents supported the impugned order and submitted that the same having been passed in accordance with law does not call for any interference by this Court. She submitted that the appellants had made representation that they were granted exemption for the suit land as per Section 20(1) of the Act on 30.09.1980 but thereafter again in the year 1992 application was made for exemption which came to be dismissed by the Government on 28.07.1992. She submitted that the same is evident from the order dated 02.11.2006 passed by the Deputy Secretary, Revenue Department, Government of Gujarat at Annexure - L to the petition.
5.1 Ms. Thakore submitted that the actual possession of the land in question has already been taken over by the State Government way back in the year 1990 and that not a single document evidencing the actual possession and enjoyment over the land in question by the appellants has been produced. She submitted that this Court may take note of the Page 4 of 14 C/LPA/1285/2010 JUDGMENT fact that the writ petition was filed through Power of Attorney Holder one Shri Bhikhabhai Madhavlal Patel, who is neither interested party nor proper party.
5.2 Ms. Thakore has drawn the attention of this Court to the affidavit-in-reply filed on behalf of respondent no. 2, more particularly to the list of events which have been enumerated therein and submitted that the question of excess land was concluded way back in the year 1994 as no appeal seems to have been filed after the order dated 06.10.1994 passed in Special Civil Application No. 4985 of 1994. She submitted that the possession of the land in question has already been taken over by the State Government after following due procedure of law way back in the year 1990 and even thereafter continued to remain with the State Government till date since the passing of the order of vesting, absolutely free from encumbrances of the land in dispute under Section 10(3) in the year 1984 and therefore physical possession of the land in dispute was taken by drawing panchnama in the year 1990 in the presence of witnesses.
6. We have gone through the records of the case. Certain facts which is evident from the records is that the father of the appellants had got an exemption certificate under section 20 of the ULC Act in respect of land bearing revenue survey nos. 960 admeasuring 17402 sq. mts and 1037 admeasuring 2529 sq. mts of village Vastral vide order dated 19.08.1980. However, order being ULC/Fr.1/U-5/vastral/71 was passed by the Competent Authority under the ULC Act and the same was served upon the holders informing them that around 11837 sq.mts of their total land is declared excess land. The final Page 5 of 14 C/LPA/1285/2010 JUDGMENT statement under Section 9 of the ULC Act was issued to the holder by RPAD and received on 28.12.1987. As there was a typographical error in the order a revised order was passed. Thereafter notification under section 10(1) was issued and published in the State Government Gazette Part IV-C on 04.08.1988.
6.1 Thereafter appeal under Section 33 of the ULC Act was preferred by the heirs of the original owner being Appeal No. 359 of 1988 which came to be rejected by the Gujarat Urban Land Ceiling Tribunal vide order dated 15.12.1988 thereby upholding the order of competent authority dated 18.11.1988 declaring 11,137 sq. mts as excess land. Publication of notification under section 10(3) was issued on 06.01.1989 and the same was published in the Government gazette on 09.03.1989 whereby the excess land vested in the State Government was stated to be free from all encumbrances. Thereafter, notice under section 10(5) was served upon the appellants in person directing the original owner to hand over the land which was declared excess within thirty days but as the possession was not handed over within 30 days, the respondent authorities proceeded with the taking over of the physical possession of the land declared excess by undertaking panchnama on spot on 10.09.1990.
6.2 It is also required to be noted that the heirs and legal representatives filed an application under section 20 of the ULC Act seeking exemption in respect of the lands bearing Survey No. 1034, 1035 and 931 of village Vastral, Ahmedabad. However, the same was rejected by the State Government vide order dated 28.07.1992. The appellants Page 6 of 14 C/LPA/1285/2010 JUDGMENT thereafter preferred writ petition before this Court being SCA No. 7913 of 1991 challenging the judgement dated 15.12.1988 passed by the Tribunal but the same came to be dismissed for default on 15.03.1994 and again restored vide MCA No. 1230 of 1994 on 23.06.1994.
6.3 The appellants also preferred another writ petition being SCA No. 4985 of 1994 challenging the order dated 28.07.1992 and 03.03.1993 regarding refusal/rejection of Section 20 exemption but the same was disposed of on 06.10.1994. Even SCA No. 7913 of 1991 was dismissed by this Court against which the appellants preferred appeal being LPA No. 919 of 1995 which was withdrawn alleging that an order is passed in favour of the appellant under Section 20 of the ULC Act.
7. Therefore, going by the entire turn of events it is clear that the question of excess land was concluded in the year 1994 itself as the order in the writ petitions had attained finality. In other words the proceedings between the parties had been concluded before the Repeal Act came into force. The parties ought to have produced the relevant documents at the relevant time even if it is assumed without admitting that the appellants had a good case in their favour. Therefore, producing the said documents after the Repeal Act came into force in 1999 cannot be beneficial to the appellants as finality in the proceedings had already been achieved by 1997 when the appeal was withdrawn.
7.1 Moreover, the appellants have approached this Court after a considerable long time and therefore even if it is assumed without admitting that the documents relied upon by Page 7 of 14 C/LPA/1285/2010 JUDGMENT the appellants are genuine, in our view when the proceedings had attained finality the contention of the appellants that the proceeding is nullity cannot be accepted. Even if the exemption has been given the status of decree by way of civil suit, execution of the same cannot be permitted after these many years. Therefore the appellants cannot try and take advantage of the order passed in the year 1980 after 17 years.
8. It is also pertinent to note that if there was any so called exemption granted in the year 1980 there was no need for the appellants to apply for exemption again in the year 1982. At this juncture it shall also be relevant to peruse Section 3 of the Repeal Act which reads as under
"3. (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 judgment 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, Page 8 of 14 C/LPA/1285/2010 JUDGMENT then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government."
9. The learned Single Judge by way of the impugned judgement and order dated 21.01.2010 in Special Civil Application No. 14530 of 2008 has observed as under:
"13. It appears from the facts narrated herein above and even from the documents on record that by order dated 19.11.1987, the Competent Authority declared 10,137 sq.mtrs. of land as excess vacant land out of the land bearing Survey No.1034 and 1035 and declaring the aforesaid land as excess vacant land under the provisions of the ULC Act and the said order was further came to be revised by order dated 16.1.1988 declaring 11,137 sq.mtrs. of land out of land bearing Survey Nos.1034 and 1035 and another land as excess vacant land. That being aggrieved and dissatisfied with the order passed by the Competent Authority, an appeal was preferred before the ULC Tribunal which came to be rejected by the Tribunal vide order dated 15.12.1988. That thereafter, nothing was done by the petitioners and the proceedings under the ULC Act were proceeded further more particularly, proceedings under Section 10 of the Act and the notification under Section 10(3), 10(5) and 10(6) were issued and published and the notification 10(6) was issued in the year 1989 and the lands in question which are declared as excess vacant land were vested in the State Government absolutely free from all encumbrances. That thereafter, even the possession of the lands in question was taken over by the Competent Authority by drawing the panchnama dated 10 th September, 1990. That thereafter, the petitioners preferred Special Civil Application No.7913 of 1991 before this Court and the learned Single Judge dismissed the said special civil application observing that the said petition is filed belatedly and it is nothing but an afterthought and after the notification under Section 10(6) of the ULC Act Page 9 of 14 C/LPA/1285/2010 JUDGMENT which were issued in the year 1989. It appears that even on that day also such proceedings had already reached upto Section 10(6) of the ULC Act. That thereafter, petitioners preferred Letters Patent Appeal No.919 of 1995, before the Division Bench and the learned advocate appearing on behalf of the petitioners withdrew the said Letters Patent Appeal as he stated before the Division Bench that order has been passed in favour of the appellants under Section 20 of the ULC Act. That the said Letters Patent Appeal came to be withdrawn on 1.4.1997. Nothing is on record which order was passed by the State Government under Section 20 of the ULC Act which prompted the petitioners to withdraw the said Letters Patent Appeal. No such order under Section 20 of the ULC Act is forthcoming. That thereafter, nothing was done by the petitioners for a long time and all of a sudden in the year 2001 and after the ULC Act came to be repealed, the petitioner submitted an application on 10th March, 2001 to delete the lands bearing Survey No.1034, 1035 and 931 from the order as excess vacant land by submitting that there was an agricultural exemption under Section 20 of the ULC Act by order dated September, 1980. Again thereafter, nothing was done and thereafter, after a period of 4 years, the petitioners submitted another application dated 26.11.2005 to delete the aforesaid lands from the list of excess vacant land and the said application came to be rejected by the State Government vide communication dated 2.11.2006 pointing out that the orders declaring the aforesaid lands in question as excess vacant land have become final and that subsequent application of the petitioners for agricultural exemption in the year 1992 has been rejected by the State Government on 28.7.1992 and therefore, the application of the petitioners deserves to be rejected as nothing can be done, more particularly, as the ULC Act is repealed. Again nothing was done by the petitioners for 2 (two) years and thereafter, again the petitioners submitted another application in the month of June, 2008, which came to be rejected again by impugned communication dated 2.11.2006 by observing that their earlier Page 10 of 14 C/LPA/1285/2010 JUDGMENT application has been rejected. It is to be noted, at this stage, that in the application submitted in the month of June, 2008 in paragraph No.9 it is the case on behalf of the petitioners that petitioners withdrew Letters Patent Appeal No.919 of 1995 as petitioners wanted to make representation before the State Government. However, the order passed by this Court by the Division Bench in Letters Patent Appeal No.919 of 1995 speaks otherwise. While permitting the petitioners to withdraw the aforesaid Letters Patent Appeal, the Division Bench recorded the statement of the learned advocate appearing on behalf of the petitioners original appellants that as the order has been passed under Section 20 of the ULC Act, he withdraws the said appeal. There was no reference to any representation to be made to the State Government and to permit the appellants to withdraw the said Letters Patent Appeal to make representation before the State Government. As stated above, the alleged order under Section 20 of the ULC Act on the basis of which, the petitioners withdrew the said Letters Patent Appeal is not forthcoming at all. On the contrary, as stated above, petitioners have come out with a case in the application dated June, 2008 that they withdrew the said Letters Patent Appeal as they wanted to make representation to the State Government. All these facts are mentioned with a view to show the conduct of the petitioners as to how the petitioners have changed their stand at different time and at different stages. That after the aforesaid representation, petitioners had instituted Regular Civil Suit No.645 of 2008 for the declaration stated herein above and got the panchnama prepared by the Court Commissioner after getting appointment of Court Commissioner. However, considering even the panchnama prepared by the Court Commissioner, it cannot be said that petitioners are in possession of the lands in question. Solely on the basis of the public notices, it cannot be presumed that petitioners are in possession of the land in question. Assuming that the petitioners are in possession, in that case also, as the lands in question have been declared as excess vacant land under the provisions of the ULC Act and even the notification have been issued Page 11 of 14 C/LPA/1285/2010 JUDGMENT under Section 10(6) of the Act, the lands, in question, have been vested absolutely in the State Government and even the possession was taken over in the year 1990 and subsequent possession of the petitioners, if any, is absolutely illegal and unauthorized. Again at the cost of repetition, it is to be noted that even at the time when earlier Special Civil Application was filed in the year 1991, proceedings upto Section 23 of the Act had reached. In view of the aforesaid facts and circumstances of the case and when the orders declaring the lands in question as excess vacant land under the provisions of the ULC Act have become final and when a necessary entry is made in the register of the lands of which the possession is taken over by the State Government is made and the application to delete the said lands from the list of excess vacant land is rejected ,it cannot be said that respondents have committed any illegality.
14. Even the prayer of the petitioners to declare that the panchnama dated 10.9.1990 and the purported action of the respondent-Authorities under the ULC Act as without Authority of law, illegal and of no legal effect also cannot be granted now, more particularly, when the ULC Act is already repealed in 1999 and the orders declaring the lands in question as excess vacant land have become final upto the Division Bench of this Court. No relief can be granted to the petitioners now. The aforesaid prayer of the petitioners is nothing but a mala-fide and dishonest attempt on the part of the petitioners and as stated above, is nothing but an abuse process of the Court. Present petition is an example of frivolous litigations by the petitioners. "
10. The order passed by the learned Single Judge does not reveal any infirmity and therefore we are not inclined to accept any contention raised in the present appeal. The action taken by the respondents is just and proper. It shall also not be out of place to mention that the original owners Page 12 of 14 C/LPA/1285/2010 JUDGMENT are not before the Court but the proceedings have been filed through the Power Of Attorney holder and therefore it can be said that the original owner has accepted the order passed by the authorities below and pursuant to the Repeal Act coming into force in 1999, the Power of Attorney was granted in the year 2005 which is after six years.
11. So far as the contention of Mr. Kavina regarding cost imposed by learned Single Judge is concerned, we are of the considered view that the learned Single Judge has infact imposed cost on lower side. Looking to the fact that the Power of Attorney is granted after six years of Repeal Act, we do not think that this is a bonafide litigation. The learned Single Judge has rightly come to the conclusion that when the ULC Act is already repealed in 1999 and the orders declaring the lands in question as excess vacant land have become final upto the Division Bench of this Court, no relief can be granted to the appellants and that the prayer of the appellants is nothing but a malafide and dishonest attempt on their part and the same is nothing but an abuse process of the Court. This does not seem to be a bonafide litigation but only a chance taking. We would not like to be party to such a frivolous and fraudulent litigation and therefore shall not be inclined to reduce or waive off the cost which has been rightly imposed by the learned Single Judge.
12. Accordingly, the appeal being devoid of any merits is hereby dismissed. The order dated 21.01.2010 passed by the learned Single Judge in Special Civil Application No. 14530 of 2008 is hereby confirmed.
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(K.S.JHAVERI, J.)
(A.G.URAIZEE,J)
divya
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