For Approval And Signature vs State Of Gujarat & on 11 August, 2017

[Cites 40, Cited by 0]

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/139/2007 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 139 of 2007 In SPECIAL CIVIL APPLICATION NO. 9247 of 1999 With LETTERS PATENT APPEAL NO. 129 of 2007 In SPECIAL CIVIL APPLICATION NO. 9247 of 1999 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 ?

MADHUBINDU JAYSHANKER VYAS....Appellant(s) Versus STATE OF GUJARAT & 1....Respondent(s) Appearance:

[LPA No.139 of 2007] MR ND NANAVATY SENIOR ADVOCATE WITH MR VH KANARA, ADVOCATE for the Appellant(s) No. 1 Page 1 of 62 HC-NIC Page 1 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT MS MANISHA SHAH GOVERNMENT PLEADER for the Respondent(s) No. 1 [LPA No.129 of 2007] MR SHALIN MEHTA SENIOR ADVOCATE WITH MR VINOD M GAMARA, ADVOCATE for the Appellant No.1 MS MANISHA SHAH GOVERNMENT PLEADER for the Respondent(s) No. 1 MR PRADIP J PATEL ADVOCATE for the Respondent(s) No.2 CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE and HONOURABLE MR.JUSTICE A.Y. KOGJE Date : 11/08/2017 COMMON CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) 1 The appellants have filed these appeals under Clause 15 of the Letters Patent against the judgment and order dated 13.10.2006 passed by the learned Single Judge in writ petition being Special Civil Application No.9247 of 1999. The appellant, a land owner has preferred Letters Patent Appeal No.139 of 2007, while purchaser and developer of the subject land has filed Letters Patent Appeal No.129 of 2007 2 The above writ petition was preferred by the State of Gujarat challenging the judgment and order passed by the Urban Land Ceiling Tribunal [in short, `the Tribunal'] on 22.01.1999 allowing Review Application No.Jamnagar/31/98 Page 2 of 62 HC-NIC Page 2 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT whereby its earlier order came to be reviewed and declared that no land of the original declarant was excess vacant land and the proceedings under Urban Land [Ceiling and Regulation] Act, 1976 [for short, `the Act, 1976'] were treated as closed. Inter alia, by further amendment it was prayed that sale transactions entered into with M/s. Sagar Raj Land Developers, which was later on joined as respondent No.2 in the writ petition, by way of registered sale deed dated 14.05.1999 be declared as illegal and void.

3 Learned Single Judge, at the outset, noticed that it was a unique case of fraud by the original land owner in connivance with the Tribunal and/or office of Urban Land Ceiling Department since powers of review came to be exercised after 11 years in which earlier order dated 14.05.1987 passed by the Tribunal in Appeal No.1647 of 1984 upholding the declaration of excess land by the competent authority, came to be reviewed though Special Civil Application No.5238 of 1987 preferred before this court against order dated 14.05.1987 of Tribunal came to be rejected vide order dated 19.11.1987 and even Letters Patent Appeal No.511 of 1988 filed against the order dated 19.11.1987 passed in Special Civil Application No.5238 of 1987 also came to be rejected as not maintainable by an Page 3 of 62 HC-NIC Page 3 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT order dated 07.01.1991. In absence of non availability of the record qua a certificate issued under Section 26 of the Act, 1976 the genuineness of the certificate was doubted.

Thus, learned Single Judge found that exercise of jurisdiction of reviewing its earlier order by the Tribunal belatedly after 11 years by applying the judgment in the case of Smt. Meera Gupta v. West Bengal & Ors. [AIR 1992 SC 1567] was misconceived and erroneous particularly when possession of the subject excess land was taken over by the authority by drawing panchnama on 29.09.1988.

3.1 Learned Singe Judge considered various issues raised opposing the writ petition on law as well as on facts including that writ petition could not have been filed by the State of Gujarat against its own authority, the Act, 1976 came to be repealed on 31.03.1999 and prior to that by order dated 22.01.1999 while allowing Review Application No.31 of 1998, no land remained excess and further a certificate under Section 26 of the Act, 1976 was issued by the authority on 15.03.1999 declaring that the Government was not inclined to purchase the land which was declared surplus by the competent authority and thereafter the land in question was purchased by M/s. Sagar Raj Land Developer Pvt. Ltd. by way of registered Page 4 of 62 HC-NIC Page 4 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT sale deed on 14.05.1999 after paying consideration and stamp duty and thereafter lay out plan was sanctioned by the Jamnagar Municipal Corporation on which construction was carried out for residential and commercial units consisting of 15 shops, 45 offices and 32 residential units for which even Building Use Permission was also granted.

4 In view of various steps taken by the parties to agitate and reagitate their grievance about excess land, it is necessary to refer to certain facts to which by and large there is no dispute and so far as the contention raised about law applicable in the backdrop of facts, we will deal with the same later on. The facts giving rise to filing of the present appeal are as under:

4.1 The appellant submitted form No.1 under section 6(1) of the Act, 1976 on 14.08.1984 and vide order dated 12.10.1984 the Deputy Collector, ULC, i.e. competent authority passed order dated 12.10.1984 under Section 8(4) of the Act, 1976 declaring 746.147 square meters excess land and final statement was prepared by the competent authority on 15.10.1984 and the same was served to the appellant on 17.10.1984.

Page 5 of 62

HC-NIC Page 5 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 4.2 The competent authority has issued notification under Section 10(1) of the Act, 1976 for 746.14 square meters excess land on 30.10.1984. Against the order dated 12.10.1984 passed by the competent authority, the appellant filed Appeal No.1647 of 1984 before the Tribunal under Section 8(4) of the Act, 1976 and vide order dated 14.05.1987 the Tribunal rejected the said appeal. The appellant being aggrieved by order dated 14.05.1987 preferred Special Civil Application No.5238 of 1987 on 15.08.1987. Thereafter, the competent authority has issued notification under Section 10(3) of the Act, 1976 on 17.09.1987 and the Government has issued notification / notice under section 10(5) of the Act, 1976 to the appellant on 15.10.1987.

4.3 This Court [Coram : Hon'ble Mr. Justice : R.C.Mankad][as His Lordship then was] vide order 19.11.1987 rejected Special Civil Application No.5238 of 1987 filed by the appellant confirming order dated 14.05.1987 of the Tribunal and competent authority. On 29.09.1988 rojkam / panchnama of taking over the possession of the excess vacant land was drawn. This fact is disputed by the appellants.

4.4 The appellant had preferred Letters Patent Appeal No.511 of 1988 challenging the Page 6 of 62 HC-NIC Page 6 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT order dated 19.11.1987 passed by the learned Single Judge in Special Civil Application No.5238 of 1987 and a Division Bench of this Court rejected the said appeal vide order dated 07.01.1991 holding that the appeal was not maintainable.

4.5 The appellant thereafter filed Review Application No.31 of 1998 before the Tribunal on 13.11.1998 as per the decision of the Apex Court in the case of Meera Gupta [supra] and the Tribunal vide order dated 22.01.1999 allowed the Review Application No.31 of 1998. On 10.03.1999 permission for whole land under Section 26 was sought by the original land owner and the competent authority vide order dated 15.03.1999 granted permission under Section 26 of the Act, 1976 to sale the entire land.

4.6 On 30.03.1999 Urban Land Ceiling Act came to be repealed and pursuant to the same the competent authority and Deputy Collector ULC, Jamnagar has published statement on 30.03.1999 wherein the disputed property was not shown under possession of the authority under the Act, 1976. On 14.05.1999 the appellant executed sale deed in favour of respondent No.2 - Sagar Raj Land Developers Pvt. Ltd. for whole land admeasuring.

Page 7 of 62

HC-NIC Page 7 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 4.7 The State Government has filed Special Civil Application No.9247 of 1999 challenging the order dated 22.01.1999 passed by the Tribunal in Review Application No.31 of 1998.

4.8 In the meantime, on 03.08.1999 the Municipal Corporation has given permission for subplotting the land. In Special Civil Application No.9247 of 1999, learned Single Judge of this Court while issuing rule vide order dated 25.11.1999 granted stay of order dated 22.01.1999 by the Tribunal and the appellant filed affidavit in reply on 18.12.2000.

4.9 On 18.08.2001 the Municipal Corporation granted development permission in respect of the construction of residential and commercial units on the land so purchased and on the basis of the development permission, M/s. Sagar Raj Developers Pvt. Ltd. constructed 15 shops, 45 offices and 32 residential units on the land and spent in all Rs.2.4 crores. On 20.02.2003 even Building User Permission was granted by the competent authority. M/s. Sager Raj Developers Pvt. Ltd. thereafter sold 88 units out of total 92 units to different persons by executing of registered sale deeds.

4.10 The State of Gujarat preferred Civil Page 8 of 62 HC-NIC Page 8 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT Application No.9808 of 2005 with a prayer to join purchaser of the land as party respondent after delay of six years in Special Civil Application No.9247 of 1999 and M/s. Sagar Raj Land Developers Pvt. Ltd. filed reply affidavit on 18.10.2005 and ultimately by order dated 19.10.2005 Civil Application No.9808 of 2005 came to be allowed and the State of Gujarat filed further affidavit in reply in the said petition.

4.11 On 24.10.2005 further affidavit in reply to amend the petition was filed by the appellant wherein the appellant has specifically raised contention with regard to the actual physical possession being not taken in accordance with law and M/s. Sagar Raj Land Developers filed affidavit in reply in Special Civil Application No.9247 of 1999.

4.12 The appellant and M/s. Sagar Raj Land Developers Pvt. Ltd. preferred Letters Patent Appeal Nos.1455 and 1456 of 2005 against the order dated 19.10.2005 of joining party respondent passed by this Court in Civil Application No.l9808 of 2005 and both the appeals came to be dismissed by this Court vide order dated 28.10.2005.

4.13 On 28.11.2005 further affidavit in reply Page 9 of 62 HC-NIC Page 9 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT was filed by the appellant in Special Civil Application No.9247 of 1999 wherein a specific contention with regard to the actual physical possession has been raised by the appellant and M/s. Sagar Raj Land Developers Pvt. Ltd. filed further affidavit in reply and brought on record material facts and documents on record and on 20.06.2006 the appellant and M/s. Sagar Raj Land Developers Pvt. Ltd. filed written submissions and the State of Gujarat also filed written submissions on 10.07.2006 in Special Civil Application No.9247 of 1999.

4.14 Learned Single Judge of this Court vide order dated 13.10.2006 allowed Special Civil Application No.9247 of 1999 filed by the State of Gujarat. The appellant and M/s. Sagar Raj Land Developers Pvt. Ltd. have preferred Letters Patent Appeal Nos.139 and 129 of 2007 respectively.

4.15 The appellant has filed further affidavit in Letters Patent Appeal No.139 of 2007 for producing the documents of permission under section 26 of the Act, 1976 on 12.09.2007 and on 29.11.2007 this Court granted stay in Letters Patent Appeal No.139 of 2007 of the operation of the impugned order of the learned Single Judge. On 28.01.2014 further affidavit was filed in Page 10 of 62 HC-NIC Page 10 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT Letters Patent Appeal No.139 of 2007 by the appellant to bring on record material facts showing that there are third party rights created in the disputed property. On 26.02.2014 the appellant filed further affidavit in Letters Patent Appeal No.139 of 2007 to produce the material documents on record and on 12.03.2014 one more affidavit was filed to show that the Corporation has granted permission after following due process of law.

4.16 Though it is not directly an issue, but some more facts about application preferred by the land owner under Section 21 of the Act, 1976 are as under:

That application under Section 21 of the Act, 1976 was preferred by the land owner for exemption on 17.12.1987, which came to be rejected on 21.04.1988. Against which, Appeal No.11 of 1988 was preferred before the Tribunal under provisions of Section 13 of Act, 1976 in which initially stay was granted, but finally came to be rejected on 02.08.1988. That Special Civil Application No.6860 of 1988 was preferred before this court against the above orders passed by the competent authority as well as Tribunal on 28.09.1988. That panchnama of taking over possession of subject land was drawn on Page 11 of 62 HC-NIC Page 11 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 29.09.1988. It appears from the record that initially on 13.10.1988 in Special Civil Application No.6860 of 1988, Rule was issued making it returnable on 24.10.1988 and notice as to interim relief was also made returnable on the same day. After hearing the parties, on 08.12.1990 this Court granted interim relief as to possession only. Finally, the above writ petition came to be dismissed on 19.10.2005.

5 Mr. Shalin Mehta, learned Senior Advocate appearing for the appellant, would contend that one of the main issues in this appeal to be decided by this court is the aspect of possession of the subject land which according to the appellant remained throughout with the appellant and was not taken over by following due procedure of law and contrary to decision in the case of State of Uttar Pradesh vs. Hari Ram [2013(4) SCC 280]. It is vehemently submitted that socalled rojkam / panchnama of taking over possession of the excess vacant land on 29.09.1988 was only a paper possession and at no point of time holder / owner of the subject land was informed and the panchnama was drawn unilaterally and neither the appellant nor any representative was present when such exercise was undertaken. In support of his submissions, learned Senior Advocate placed reliance on the Page 12 of 62 HC-NIC Page 12 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT decision in the case of Hari Ram [supra]. Learned Senior Advocate has taken us through the decision in which threadbare discussion of provisions of Section 10 of the Act, 1976 and Repeal Act, 1999 and their effects were discussed and referring to word `vest' and its dictionary meaning as well as decisions of the Apex Court laying down law in para 39 that subsection (3) of Section 10 takes in only de jure possession and not de facto possession and, therefore, if the land owner is not surrendering possession voluntarily under subsection (3) of Section 10 or surrendering or delivering possession after notice, it cannot be said that the State Government has taken possession of the vacant land. According to learned Senior Advocate, even effect of section 3 of the Repeal Act 15 of 1999 and subsection (3) of Section 10 of the Act 33 of 1976, mere vesting of the land under Sub section (3) of Section 10 of the Act, 1976 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 or surrender and delivery of peaceful possession under subsection (5) of Section 10 or forcible dispossession under subsection (6) of Section 10. Therefore, on the aspect of possession of the subject land and in facts and circumstances of this case, the Government and Page 13 of 62 HC-NIC Page 13 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT its authorities have failed to establish taking over possession of the socalled vacant land in excess of ceiling limit and panchnama dated 29.09.1988 is a merely an eyewash having lack of proper description of land, including details of the land holder, without any prior notice or intimation and, therefore, issue is squarely covered by the above decision and the appeal deserves to be dismissed.

5.1 However, learned Senior Advocate for the appellant was candid enough in submitting that exercise of jurisdiction and powers of the Tribunal under Section 45 of the Act, 1976 confine to four corners of law as provided in the Section, alternatively, even if such exercise of jurisdiction and powers, both, by the Tribunal may not be sustainable strictly on plain reading of the provisions, but the facts emerging on record reveal possession of the subject land remained with land owner and later on with M/s. Sagar Raj Land Developers Pvt. Ltd. in favour of which sale deed was executed on 14.05.1999 immediately after the Repeal Act for which even permission under Section 26 for the whole land viz. 2805.58 square meters as sought by the original land owner was granted on 15.03.1999. Therefore, no proceedings were pending as such with regard to subject land before any fora when Page 14 of 62 HC-NIC Page 14 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT the Repeal Act, 1999 came into force.

6 Following are the decisions relied on by the learned counsels for the parties in which Hari Ram [supra] is relied on or followed:

[1] Gajanan Kamlya Patil vs. Additional Collector and Comp. Authority [AIR 2014 SCA 1843].

[2] State of Assam vs. Bhaskar Jyoti Sarma & Ors.

[2014(13) SCALE 294].

[3] Vipinchandra Vadilal Bavishi [D] by Lrs. & Anr. vs. State of Gujarat & Ors. [2016(1) SCALE 620] [4] Letters Patent Appeal Nos.498 and 699 of 1995 in the case of Mavjibhai Parbatbhai Trapasia vs. State of Gujarat decided on 04.10.2001.

7 Mr. N.D.Nanavaty, learned Senior Advocate appearing for one of the appellants submitted that in the present twin appeals, issue need to be addressed by this Court is about actual de facto physical possession of the subject land and whether it is taken over by the authority by following procedure required under law and as per interpretation put forth by the Page 15 of 62 HC-NIC Page 15 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT Apex Court in the case of Hari Ram [supra] including that of effect and consequence of Repeal Act, 1999. It is further submitted that learned Judge has erred in law by drawing adverse inference in view of nonavailability of record with regard to permission granted under Section 26 of the Act, 1976 and now the very record is available which reveals that while granting certificate, the concerned authority in clear terms had shown no willingness to purchase the land in question, and therefore, decision rendered by the learned Single Judge deserves to be set aside by this Court by applying the law laid down in the case of Hari Ram [supra] extensively. Learned Senior Advocate referred to various dates of issuance of notices under Sections 10(3), 10(5) and socalled possession taken over on 29.09.1988 and lacuna in drawing of panchnama for which no notice was issued to the land holders, and submitted that the order impugned accordingly deserves to be quashed and set aside.

7.1 Mr. Nanavaty, learned Senior Advocate submits that once Review Application No.31 of 1998 was allowed by the Tribunal by order dated 22.01.1999 and permission was granted under Section 26 of the Act, 1976 on 15.03.1999 for the whole parcel of land since Government was not Page 16 of 62 HC-NIC Page 16 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT inclined to purchase the land and on anvil of Repeal Act, 1976 w.e.f. 31.03.1999, sale transactions entered by the land holder by registered sale deed dated 14.05.1999, were legally permissible as there was no surplus vacant land remained on record of the authority. It is further submitted that even statement prepared by the authorities had not shown survey number of the land owner having any excess vacant land. That Special Civil Application No.9247 of 1999 filed by the State of Gujarat on 23.07.1999 challenging the review order of the Tribunal dated 22.01.1999 after the Repeal Act came into force is of no consequence.

7.2 It is also submitted that certain findings of facts and applicability of law by the learned Single Judge are simply based on written submissions filed for which no contention was raised in the pleadings nor it was argued or submitted by the learned Assistant Government Pleader. Thus, the very issue of possession of the subject land throughout remained with land holder / owner and in absence of any forceful dispossession by taking recourse to Section 10(6) of the Act, 1976 in view of Hari Ram [supra] and other decisions, the order impugned is required to be quashed and set aside.

Page 17 of 62

HC-NIC Page 17 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 8 Ms. Manisha Shah, learned Government Pleader appearing for the respondent - State of Gujarat and Urban Land Ceiling Authority - respondents herein has vehemently opposed prayer of appellants in both these appeals and submitted that bypassing all norms of judicial discipline and though challenge was made to the order dated 12.10.1984 passed by the competent authority, Jamnagar declaring land admeasuring 746.14 square meters to be surplus and further Appeal No.1647 of 1984 before the Tribunal also came to be dismissed on 14.05.1987 confirming order passed by the competent authority and even Special Civil Application No.5238 of 1987 filed against both the orders came to be rejected on 19.11.1987 and thereafter Letters Patent Appeal No.511 of 1988 preferred against the order of learned Single Judge also came to be dismissed on 07.01.1991 allowing Review Application No.31 of 1988 by the Tribunal vide order dated 22.01.1999 was nothing but a fraud committed on the statute disregarding the finality of the proceedings before this Court. That preferring review application after a period of 11 years from the order passed by the learned Single Judge and after 8 years of order passed in Letters Patent Appeal irrespective of pronouncement of law laid down in the case of Meera Gupta [supra], the Tribunal lacked jurisdiction in absence of any power to review Page 18 of 62 HC-NIC Page 18 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT and Section 45 of the Act, 1976 only provides correction of clerical or arithmetic mistakes crept in any order passed by the officer or authority under the Act, 1976 or errors arising out therein from any accidental slip or omission only can be corrected by following procedure. None of the above circumstance did exist and order came to be passed on 22.01.1999 allowing review application and declaring that no vacant surplus land was available in the holding of the land owner. The above order is not only without jurisdiction but also in complete disregard to the earlier round of litigation which attained finality up to this Court and, therefore, on the above two grounds viz. lack of jurisdiction on the part of the Tribunal to exercise powers of review which was filed belatedly after 11 years, and proceedings attaining finality up to this Court in which the appellant / land owner lost up to this court on merit in which even issue about possession of the subject land was also considered and the writ petition and Letter Patent Appeal both came to be rejected.

8.1 According to learned Government Pleader, the issue of possession of land cannot be reopened either by referring to or relying upon the law laid down in the case of Hari Ram [supra] and alternatively even the law laid down in the Page 19 of 62 HC-NIC Page 19 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT case of Hari Ram [supra] if clearly understood the same would not be applicable in the facts of the present case.

8.2 Learned Government Pleader has taken us through definitions contained in Section 2 of the Act, 1976 particularly Section 2[a] `appointed day', [c] `ceiling limit', [o] `urban land' and [q] `vacant land', and Sections 3 and 4 about persons not entitled to hold vacant land in excess of the ceiling limit and ceiling limit, respectively and emphasis on the language of Section 5 pertaining to transfer of vacant land and in juxtaposition to Section 26 about notice to be given before transfer of vacant land which prohibits even transfer of the vacant land within the ceiling limit by a person holding such land either by way of sale, mortgage or gift, lease or otherwise without giving notice in writing of the intended transfer to the competent authority. Learned Government Pleader has extensively referred to various affidavits filed by the authorities under the Act, 1976 including the affidavit filed by the Secretary of the State of Gujarat and submitted that possession of the subject land declared surplus, was taken over by authorized representative of the competent authority in presence of panchas on 29.09.1988 after following procedure in accordance with law Page 20 of 62 HC-NIC Page 20 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT which included notification under section 10(1) on 30.10.1984, under Section 10(3) on 17.09.1987, under Section 10(5) of the Act, 1976 on 15.10.1987. Even land owner was given notice calling upon the land owner to hand over possession of land within 30 days failing which land would be taken over and the said action attained finality up to the High Court, as submitted earlier.

8.3 With regard to certificate dated 15.03.1999 issued under Section 26 of the Act, 1976 by the authority of its intention not to purchase the subject land was based on allowing review application vide order dated 22.01.1999 passed by the Tribunal and, therefore, even if such certificate is issued as a result of the order, which can be termed as nullity and void ab initio in absence of jurisdiction of the Tribunal under Section 45 of the Act, 1976 and the same is inconsequential. To remove illconsequences and side effects of the order, the decision taken by the State of Gujarat to challenge review order of the Tribunal by filing writ petition was not only to restore earlier orders passed by the competent authority and Tribunal, but also to uphold dignity, decorum and authority of the judgments and orders of writ court, which attained finality. The modus operandi of the appellants Page 21 of 62 HC-NIC Page 21 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT was clearly noticed by the leaned Single Judge while allowing writ petition filed by the State of Gujarat based on due appreciation of facts as well as law for which reasons are assigned and conclusions are drawn by giving proper opportunities to the parties, which do not require any interference in these appeals.

8.4 Learned Government Pleader has made following submissions and distinguished facts of the present case in support of her stand on the ratio laid down by the Apex Court in the case of Hari Ram [supra] as is not applicable in the facts of the present case.

8.5 According to learned Government Pleader, Hari Ram [supra] was considered and decided in the backdrop of peculiar facts mentioned in paras 3 and 4 of the judgment whereby a notification under Section 10(1) of the Act, 1976 was issued on 12.06.1982 and was published in the Government Gazette on the same day. That a notification under Section 10(3) dated 01.22.1997 was published on the same date stating that land in question shall be deemed to have been vested in the Government with effect from 12.06.1982, free from all encumbrances and on 10.06.1999, the competent authority vide its letter dated 10.06.1990 informed the concerned Bandobust Chak Page 22 of 62 HC-NIC Page 22 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT Bandi Adhikari accordingly. On 19.06.1999 a notice under Section 10(5) of the Act, 1976 directing the respondent to hand over possession of the land declared as surplus to a duly authorized person was issued and against which appeal was preferred before the District Judge, Varanasi under Section 33 of the Act, 1976 raising various contentions of law and appeal came to be allowed by quashing and setting initial order dated 29.06.1981 passed under Section 8(4) of the Act, 1976 declaring the land as surplus. The State of Uttar Pradesh being aggrieved with the above decision preferred writ petition before the High Court of Allahabad under Article 226 of the Constitution of India in which decision was rendered taking a view that subsection (3) of Section 10 of the Act does not envisage taking physical and de facto possession of the surplus land for which procedure under subsection (5) of Section 10 have to be followed. Even on facts also, Division Bench found, no reason to interfere with the order of the learned District Judge passed under Section 33 of the Act. Learned Government Pleader emphasized submissions made by learned Senior Advocate appearing for the State of Uttar Pradesh and so recorded in para 6 of the above decision that the High Court had committed an error in interpreting subsection (3) of Section 10 of the Page 23 of 62 HC-NIC Page 23 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT Act and further submitted that expression "deemed acquisition" and "deemed vesting", which find place in Section 10(3) of the Act would take in not only de jure possession but also de facto possession. Therefore, the Apex Court answered the above contention in para 39 and thereafter even effect of the Repeal Act was answered in paras 41 and 42 and therefore, facts of Hari Ram [supra] are carefully considered and analyzed and it is clear that before Repeal Act came into force i.e. on 01.04.1999, notification under Section 10(3) of the Act, 1976 was already issued and published on 22.11.1997 and accordingly declaration was made about procedure to be followed by the authority under Section 10(5) taking over actual physical de facto possession. In case of failure on the part of land holder to hand over possession, he can be dispossessed of the land by taking recourse to Section 10(6) of the Act. In this case, before Repeal Act came into force and the Tribunal passed the order in appeal in absence of jurisdiction under Section 45 of the Act, 1976, notice under Section 10(5) was already issued and the whole issue about subject land which included exercise of power in accordance with law and taking over possession under the Act, 1976 attained finality when writ petition and Letters Patent Appeal both came to be rejected before 11 years and 8 years Page 24 of 62 HC-NIC Page 24 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT respectively well before such illegal exercise of powers of review without jurisdiction by the Tribunal and therefore, case of Hari Ram [supra] would not apply. Likewise, the learned Government Pleader distinguished judgments relied by the learned counsel for the appellants and submitted that the Apex Court in the case of Bhaskar Jyoti Sarma & Ors. [supra] distinguished the facts in that case and found that the High Court held that the alleged dispossession was not preceded by any notice under Section 10(5) of the Act, that means, the erstwhile owner was dispossessed from the land in question, he could have made a grievance based on section 10(5) and even could have 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. 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. The Apex Court also considered the very issue from another angle that question is whether such grievance could be made long after the alleged violation of Section 10(5) of the Act when actual possession was taken over from the erstwhile land owner on 07.12.1991, the grievance ought to have Page 25 of 62 HC-NIC Page 25 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT made based on Section 10(5) within the reasonable time of such dispossession if did not do so, forcibly taking over possession would acquire legitimacy by sheer lapse of time. In such situation, the owner or a person in possession may be deemed to have waived his right under section 10(5) of the Act.

8.6 Therefore, according to learned Government Pleader even Hari Ram [supra] is not applicable to the facts of this case in view of belated grievance made by the appellant about dispossession of the land which took place as early as on 29.09.1988, which attained finality for all purposes in the proceedings undertaken by the land owner before this court, which need not require reiteration.

8.7 Ms. Manisha Shah, learned Government Pleader placed reliance on the judgment dated 26.04.2011 rendered by a Division Bench of this Court in the case of State of Gujarat & Anr. vs. Kapilaben Ambalal Patel, heirs of Decd. Ambalal P. Patel in Letters Patent Appeal No.233 of 2006 in which the order passed by the learned Single Judge was reversed and it was held that possession taken over by the competent authority in exercise of powers under ULC Act, 1976 was just, proper and in accordance with law.

Page 26 of 62

HC-NIC Page 26 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 9 Having regard to the facts and circumstances of the case, considering the rival submissions made by learned counsel 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 Act, 1976 and Sections 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 Page 27 of 62 HC-NIC Page 27 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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 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 Page 28 of 62 HC-NIC Page 28 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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 pending before this Court".

9.2 In the context of above facts, learned counsel 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 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 taken 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 Page 29 of 62 HC-NIC Page 29 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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 Act, 1976, 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:

"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 Page 30 of 62 HC-NIC Page 30 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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 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 Act, 1976. For the sake of convenience, paras 34, 35 and 36 read as under:

Page 31 of 62

HC-NIC Page 31 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT "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 (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 Page 32 of 62 HC-NIC Page 32 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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 (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 Act, 1976. Having referred to the above Directions, 1983 in para 39 the Apex Court held as under:

Page 33 of 62

HC-NIC Page 33 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT "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 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] Page 34 of 62 HC-NIC Page 34 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT

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 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 Page 35 of 62 HC-NIC Page 35 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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 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 Page 36 of 62 HC-NIC Page 36 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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 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 Page 37 of 62 HC-NIC Page 37 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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 Act, 1976 and later on of said notification 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 counsel for the appellants and learned Government Pleader in the case of Bhaskar Jyoti Sarma [supra], much emphasis was made by the Page 38 of 62 HC-NIC Page 38 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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 Act, 1976 and for the sake of convenience such discussion in paras 11 and 12 are reproduced hereinbelow:

"11. Section 3 of the Repeal Act 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 Page 39 of 62 HC-NIC Page 39 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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 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 Page 40 of 62 HC-NIC Page 40 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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 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.

Page 41 of 62

HC-NIC Page 41 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT

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 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 Page 42 of 62 HC-NIC Page 42 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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 29.09.1988 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 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 Page 43 of 62 HC-NIC Page 43 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT concerned refuses to cooperate and surrender or deliver possession of the lands in question. In the present case, since possession of the land was already taken over before Repeal Act came into force on 30.03.1999, contention raised about restoring possession of the land owner is misconceived and accordingly not accepted.

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 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 Page 44 of 62 HC-NIC Page 44 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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 Act, 1976 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 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 Page 45 of 62 HC-NIC Page 45 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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 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 Page 46 of 62 HC-NIC Page 46 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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 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 Page 47 of 62 HC-NIC Page 47 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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 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 Page 48 of 62 HC-NIC Page 48 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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".

Both the above decisions viz. Bhaskar Jyoti Sarma [supra] and Chhaganlal Khimji [supra] are applicable in the facts of the present appeals.

9.17 We are in full agreement with legal principles laid down in the case of Hari Ram [supra] and other decisions which followed Hari Ram [supra], but considering the peculiar facts of this case and conduct of the appellants of abusing process of law by filing such proceedings, including that of review application and scope and contours of Section 45 of the Act, 1976, earlier order of the ULC Tribunal could not have been reviewed under any circumstance, particularly, the subject was finalized up to High Court and the appellants - land owners lost their case. Finally, the issue about possession Page 49 of 62 HC-NIC Page 49 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT of the subject land, which was disputed by owner of the excess vacant land and disputed by the competent authority and in absence of any evidence on record, the question of fact about possession disputed by both the sides is not amenable to a satisfactory determination by the High Court in the proceedings under Article 226 of the Constitution of India, no matter the High Court may in its discretion in certain situations may do such determination.

9.18 Section 45 of the Act, 1976 reads as under:

"45. Correction of clerical errors - Clerical or arithmetical mistakes in any order passed by any officer or authority under this Act or errors arising therein from any accidental slip or omission may at any time be corrected by such officer or authority either on his or its own motion or on an application received in this behalf from any of the parties"

9.19 Thus, at the outset, it is clear that with regard to subject land, order dated 14.05.1987 passed by the Tribunal in Appeal No.1647 of 1984 upholding the declaration of excess vacant land by the competent authority, came to be reviewed even after Special Civil Application No.5238 of 1987 against the order Page 50 of 62 HC-NIC Page 50 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT dated 14.05.1987 of the Tribunal, came to be rejected on 19.11.1987 and even Letters Patent Appeal No.511 of 1988 filed against the above order of learned Single Judge in above Special Civil Application also came to be rejected as not maintainable on 07.01.1991. In the above context, issuance of notification under Section 10(1) of the Act, 1976 by the competent authority for the excess vacant land viz. 746.14 square meters on 30.10.1984, which was subject matter of the earlier proceedings before the Tribunal and this Court up to appellate stage are not in dispute. During the pendency of Special Civil Application No.5238 of 1987, notification under Section 10(3) of the Act, 1976 was issued on 17.09.1987 and the competent authority issued notice under Section 10(5) of the Act, 1976 to the appellants - original land owners on 15.10.1987. that possession was taken over on 29.09.1988 by drawing Rojkam and Panchnama by the competent authority and as noted earlier Special Civil Application No.5238 of 1987 came to be rejected on 19.11.1987 and even Letters Patnet Appeal No.511 of 1988 on 07.0.1991. Thus, the whole issues about the subject land arising under the Act, 1976 virtually came to an end.

9.20 Further, even application preferred under Section 21 of the Act, 1976 by the land Page 51 of 62 HC-NIC Page 51 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT owner for seeking exemption also came to be rejected by the authority on 21.04.1988 and Appeal No.11 of 1988 before the Tribunal under the provisions of Section 13 of Act, 1976 came to be rejected on 02.08.1988. Even Special Civil Application No.6860 of 1988 filed against the order of the Tribunal and the competent authority, came to be dismissed on 19.10.2005. That panchnama of taking over possession of the subject land was drawn on 29.09.1988 and interim relief granted on 08.12.1990 in the above petition also came to be rejected.

9.21 In the above circumstances, Review Application No.31 of 1998 resurrecting the whole issue before the Tribunal by relying on the case of Smt. Meera Gupta [supra] allowing review application reviewing its earlier order dated 14.05.1987 by order dated 22.01.1999 i.e. after 12 years of first order of review and after 8 years of the decision of this Court in which challenge by the land owner to the original order dated 14.05.1987 failed when Letters Patent Appeal came to be dismissed on 07.01.1991 confirming order of learned Single Judge rejecting the writ petition. Thus, the issue attained finality up to this court and thereafter exercise of powers of review by the Tribunal was Page 52 of 62 HC-NIC Page 52 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT wholly illegal and without jurisdiction. Naturally, thereafter permission sought for under Section 26 of the Act, 1876 from the competent authority and disinclining to purchase the land was based on relying review application by the Tribunal vide order dated 22.01.1999. That learned counsel appearing for the appellants, therefore, have wisely submitted before this Court that on the aspect of exercise of power of review no legal contention is available to them. That Rojkam of taking over possession on 29.09.1988 reads as under:

"ROJ KAM Jamnagar Date : 2991988 This Roj Kam is hereby drawn that the Government has declared land admeasuring 746.14 sq. t., in words Sq.Mts. Seventy hundred fourtysix point fourteen, out of City Survey No.37 of G5 situated in the main portion in the city of Jamnagar is declared surplus in U.L.C. Case No.252/76. Possession thereof is taken over today; and this land is open. When possession was taken over, we were present and possession is taken over pursuant to the order passed on 15101987.

                Before me,                              Sd/ Illegible
                Sd/ Illegible.                         Sd/ Illegible
                Maintenance Surveyor"



         9.22          Further,   taking   over   possession   by   the 

                                      Page 53 of 62

HC-NIC                              Page 53 of 62     Created On Sat Aug 12 00:32:41 IST 2017
                C/LPA/139/2007                                        CAV JUDGMENT

competent authority on 29.09.1988 was during pendency of Special Civil Application No.6860 of 1988 in which initially on 13.10.1988 Rule was issued making it returnable on 24.10.1988 along with the notice as to interim relief and after hearing the parties only on 08.12.1990 interim relief qua possession was granted. But, ultimately that writ petition also came to be dismissed on 19.10.2005. Therefore, after taking over possession by the competent authority on 28.09.1988 interim relief granted later on viz. on 08.12.1990 shall have no effect on the aspect of possession already taken over by the Government and the fact remains that the above writ petition came to be dismissed and interim relief also came to be vacated on 19.10.2005. Therefore, the fact about possession of the excess vacant land by the competent authority appears on the record and further affidavit filed by the deponent from the office of the Collector, Jamnagar confirms this aspect. That panchnama / rojkam are made in presence of Maintenance Surveyor and other two persons whose signatures are not legible but details about the excess vacant land, situation of such land etc. are mentioned therein. At earlier stage in first round of litigation challenge to declaration of excess vacant land failed and thereafter appellants resorted to unavailable legal remedy Page 54 of 62 HC-NIC Page 54 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT of filing review application under Section 45 of the Act, 1876 which came to be allowed by the Tribunal in spite of the fact that the litigation came to be allowed on 07.01.1991, which was the subject matter of challenge in the writ petition by the State Government, which came to be allowed by the learned Single Judge.

9.23 It is trite that jurisdiction and power conferred upon a writ court exercising jurisdiction under Article 226 of the Constitution of India is based on the principles of equity, good consciences and discretionary and persons taking recourse to applying dubious means and abuse of process of law and defeat the right accrued in favour of Government cannot be given any relief even in a given case law may favour such persons.

9.24 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 above judgment, are reproduced herein below:

"1. For many centuries, Indian society Page 55 of 62 HC-NIC Page 55 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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 granted to the appellant by making the following observations:

"It is of utmost importance that in making material statements and setting Page 56 of 62 HC-NIC Page 56 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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 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 Page 57 of 62 HC-NIC Page 57 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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.

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 Page 58 of 62 HC-NIC Page 58 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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."

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 Page 59 of 62 HC-NIC Page 59 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT 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".

9.25 As held in the case of Hari Ram [supra] in para 41, it is clear that even under the Repeal Act, 1999, the question as to whether a right has been acquired or liability incurred under statute before it is repealed will in each case depend on the facts of a particular case. The case on hand is covered by the law laid down in the case of Bhaskar Jyoti Sarma [supra] in which even the case of Hari Ram [supra] was extensively considered to which detailed discussion is made in earlier part of this judgment. That subsequent transactions of sale Page 60 of 62 HC-NIC Page 60 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT of excess vacant land by executing sale deeds, grant of permission or construction of commercial and residential complex by Municipal Corporation of Jamnagar and other authorities have genesis in exercise of powers illegally and wholly without jurisdiction under Section 45 of the Act, 1976 and thus executing sale deeds by transferring land, construction thereon have to face consequences that may arise under law applicable in such facts. Even possession of the excess land of the subject appeals was taken over by the competent authority by following procedure in accordance with law and challenge by the land owner failed up to this court and, therefore, learned single Judge rightly upheld the contentions of the Government of Gujarat while allowing the writ petitions.

10 In view of the above discussion and in absence of merit both these appeals fail and are hereby dismissed with costs of Rs.25,000/ per each appeal.

(ANANT S.DAVE, J.) (A.Y. KOGJE, J.) At this stage, Mr. Shalin Mehta, learned Senior Advocate appearing for one of the Page 61 of 62 HC-NIC Page 61 of 62 Created On Sat Aug 12 00:32:41 IST 2017 C/LPA/139/2007 CAV JUDGMENT appellants prays to stay this order for a period of 3 weeks and learned Government Pleader opposed the same. However, we are inclined to stay this order for a period of 3 weeks from today.

(ANANT S.DAVE, J.) (A.Y. KOGJE, J.) pvv Page 62 of 62 HC-NIC Page 62 of 62 Created On Sat Aug 12 00:32:41 IST 2017

Legal Document View

Unlock Advanced Research with PRISMAI

Gujarat High Court