Gujarat High Court
Dineshkumar Jagubhai Patel vs State Of Gujarat on 5 March, 2021
Author: Vineet Kothari
Bench: Vineet Kothari
C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021
DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
1. R/LETTERS PATENT APPEAL NO. 332 of 2017
IN
R/SPECIAL CIVIL APPLICATION NO. 3776 of 1997
WITH
CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
IN
R/LETTERS PATENT APPEAL NO. 332 of 2017
AND
2. R/LETTERS PATENT APPEAL NO. 334 of 2017
IN
SPECIAL CIVIL APPLICATION NO. 3776 of 1997
WITH
CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
IN
R/LETTERS PATENT APPEAL NO. 334 of 2017
IN
SPECIAL CIVIL APPLICATION NO. 3776 of 1997
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
================================================================
1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy YES
of the judgment ?
Page 1 of 55
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C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021
DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others
4 Whether this case involves a substantial question YES
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
LETTERS PATENT APPEAL NO. 332 of 2017
DINESHKUMAR JAGUBHAI PATEL
Versus
1. STATE OF GUJARAT
2. THE COMPETENT AUTHORITY & DEPUTY
COLLECTOR
3. VINODBHAI JERAMBHAI
4. VALLABHBHAI PADAMSIBHAI
5. VIJAYKUMAR VALLABHBHAI
6. DHARMESHBHAI PADAMSHIBHAI
7. GHANSHYAMBHAI RAVJIBHAI
8. KANUBHAI RAVJIBHAI
9. BABUBHAI LALJIBHAI
10. KIRITKUMAR SHANTILAL PATEL
================================================================
Appearance:
LETTERS PATENT APPEAL NO. 332 of 2017
MR. DHAVAL C. DAVE, Senior Counsel with MR. JIGAR P
RAVAL(2008) for the Appellant
MR. UTKARSH SHARMA, Assistant Government Pleader for the
Respondent No. 1
Notice Served (4) for the Respondent(s) No. 2
LETTERS PATENT APPEAL NO. 334 of 2017
MR. MC BHATT, Senior Counsel with MS SHACHI G. MATHUR for
Appellants
MR. UTKARSH SHARMA, Assistant Government Pleader for the
Respondent No. 2
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C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021
DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others
Notice Served (4) for the Respondent(s) No.32
===============================================================
CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 05/03/2021
CAV JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. These two IntraCourt Letters Patent Appeals are directed against the common order of the learned Single Judge (Coram : Bela M. Trivedi, J.), dismissing the Special Civil Application No.3776 of 1997 (Dineshkumar Jagubhai Patel & Others v. State of Gujarat & Others) and Special Civil Application No.2612 of 1997 (Jagubhai Dayabhai Patel & Others v. Competent Authority & Additional Collector) . The matter arises under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 ('the ULC Act' for short) and though we, prima facie, found the controversy to be covered by our decision in the case of Heirs of Deceased Jethabhai Ishwarbhai v. State of Gujarat & Others rendered in Letters Patent Appeal No.405 of 2017, dated 22.1.2021, Mr.Dhaval C. Dave, learned Senior Counsel appearing for the Appellants - Petitioners, urged and took almost entire day of hearing for taking Page 3 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others us through a complex matrix of facts and Documents with their widespread litigative history of the present case, pertaining to the land admeasuring 36,827 Sq. Mtrs. declared as excess or surplus land under the provisions of the ULC Act which, according to the said enactment, would vest with the State Government once the draft order under Section 8(4) and final order under Section 9 of the ULC Act is made by the Competent Authority and a Notification under Section 10(3) of the ULC Act is issued by the State Government vesting the surplus land in the State free from all encumbrances. Thereafter, a NoticecumOrder under Section 10(5) of the ULC Act has to be served on the land owners or occupants of the land in question and if the possession is not handed over to the State Authorities within 30 days in compliance of such Noticecum Order under Section 10(5) of the ULC Act, the State Authorities can take forcible possession of the land in question under Section 10(6) of the ULC Act and then, allot the same to needy persons in terms of Section 23 of the Act.
2. The exception to compulsory take over of the surplus / excess land beyond the prescribed limits of the urban ceiling in the Act is provided under Sections 20 and 21 of the ULC Act, where the State Page 4 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others Government has power to exempt and let the land remain with the landholder under Section 20 of the ULC Act in the given circumstances or under Section 21 of the ULC Act, upon a Scheme for housing for Weaker Section of the Society, if approved, as submitted by the land owner, his land can be so exempted under Sections 20 or Section 21 of the ULC Act.
3. What the Division Bench of this Court held in the case of Heirs of Deceased Jethabhai Ishwarbhai (Supra) following the Supreme Court decision in the case of State of Assam v. Bhaskar Jyoti Sarma, reported in (2015) 5 SCC 321, is that earlier judgment in the case of State of U.P. v. Hari Ram, reported in (2013) 4 SCC 280 was watered down and distinguished and it was held that no Notice under Section 10(6) of the ULC Act is required to be given and if the possession in pursuance of the NoticecumOrder under Section 10(5) of the ULC Act is not handed over and an objection against that is raised belatedly, the taking over of the possession under Section 10(6) of the ULC Act even through Panchnama process, even in the absence of land owner, would get legitimacy and later on, such belated challenges cannot be accepted and will be deemed to have been waived by the landholder. Page 5 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022
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4. We deem it appropriate to quote here the relevant part of the aforesaid Judgment rendered by this Division Bench in the case of Heirs of Deceased Jethabhai Ishwarbhai (Supra) on 22.1.2021, about a month ago, after discussing both the aforesaid Supreme Court judgments through its relevant extract as under :
"18. Subsection (5) of Section 10 after vesting of the surplus land with the State Government provides that the Competent Authority may, by notice in writing, order any person who may be in possession of it, to surrender or give the possession thereof to the State Government or any person duly authorised by the State Government within 30 days of service of notice. The plain language of subsection (5) of Section 10 means and envisages a notice in writing in the form of an order to surrender or make over the possession to the State. Subsection (5) notice is not in the form of a show cause notice but in the form of an order apparently because the process of hearing the objections to such declaration of surplus land is already taken care in subsections (1) and (2) of Section 10. Once the land is vested, after dealing with such objections, in the State Government, the only activity remaining to be done is to complete the process and achieve the object of this Act, was to take over the physical possession of such declared excess land. Therefore, a notice in the form of an order was prescribed in subsection (5) to deliver the possession within 30 days of service of the notice.Page 6 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022
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19. There is no question of any voluntary handing over of possession on the part of the land owner. Whatever is done under subsection (5) is done in pursuance of the noticecumorder of the Competent Authority under Section 10(5) of the Act.
20. The argument based on the premise of voluntary handing over of the possession within 30 days of the said noticecumorder under Section 10(5) of the Act is, therefore, a misnomer. If the possession is handed over in compliance with the noticecumorder under Section 10(5) of the Act to the State authorities or person nominated by the State, the proceedings under the ULC Act get concluded under Section 10(5) of the Act. If that is not done by the land owner in pursuance of noticecumorder under Section 10(5) of the Act, whatever thereafter is done to take over the physical possession of the excess land in question, that can only fall under Section 10(6) of the Act, which says that if any person refuses or fails to comply the order made under subsection (5), then the Competent Authority may take possession of vacant land and may use such force as may be necessary for that purpose. Subsection (6) does not require any other notice or order once again to be passed by the Competent Authority. It only envisages act of taking over the physical possession in the manner known to law including Panchnama process and presence of the owner of the land is not a condition precedent for such taking over of the possession. The last part of subsection (6) is only enabling and empowering provision for the Competent Authority who may use the force for taking over the physical possession, if there is any obstruction or hindrance created Page 7 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others by anybody including the land owner in that process. Otherwise use of force is not necessary. Subsection (6), therefore, is not of an adjudicatory nature, but it only provides for a physical process to take de facto possession with or without the use of force. Then the proceedings under ULC Act get concluded under Section 10(6) of the Act. Both these subsections are not necessary to be operated and invoked in each and every case. The proceedings under ULC Act can get concluded either under Section 10(5) or 10(6) of the Act as indicated above.
21. Therefore, in our opinion, the arguments raised before us that subsection (5) envisages voluntary handing over of possession and subsection (6) talks of forcible taking over possession, both are incomplete and misleading arguments. The scheme of this two subsections as explained above does not put these two provisions in silos or watertight compartments. They, on the other hand, provide for a smooth and barrierless process of taking over of the possession under the 1976 Act.
22. In these circumstances, if the possession is not handed over within 30 days of service of notice under Section 10(5), it will amount to failure to comply with the order under subsection (5) and thereafter whenever the possession is taken by the State authorities, even though after 6 years, as it has happened in the present case through Panchnama process in the absence of physical presence of the land owner, it does not vitiate those proceedings which will fall under Section 10(6) of the Act. The taking over of the possession through Panchnama Page 8 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others process in the presence of two witnesses is a well recognised process for taking over the possession in law and cannot be said to be void, non est or illegal in any manner. The land owner cannot claim that since such possession was taken over after a belated period after expiry of 30 days as prescribed in Section 10(5) of the Act, he was entitled to again a notice in this regard requiring his presence on the spot giving him option either to voluntarily surrender such possession or obstruct the same. No such notice or opportunity is intended to be given under Section 10(6) of the Act. Therefore, in the present facts before us, the possession taken over by the State authority on 24.11.1993 was justified and legally undertaken through Panchnama process and in our opinion, no valid exception to the same can be taken by the Appellant.
23. As far as reliance placed on the case of Hari Ram (supra) is concerned, we are of the clear opinion that the learned Single Judge was right in distinguishing the said judgment as it is not a case before us where no notice under Section 10(5) of the Act was issued to the land owner. On the contrary, it is admitted position that such notice was given to the land owner on 4.6.1988. The later judgment of the Hon'ble Supreme Court fully explained the purport of the decision in the case of Hari Ram (supra) in the case of Bhaskar Jyoti Sarma (supra) where even Section 10(5) notice was not given and still taking over the possession was held as valid, as quoted in extenso by the learned Single Judge and that in our respectful understanding, clinches the issue in favour of the State.Page 9 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022
C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others
24. As far as the question of exemption under Section 21 as sought by the Appellant land owner is concerned, we are of the opinion that it was the just an excuse or ruse to save the land in the hands of the land owners themselves as neither any concrete scheme for development of dwelling units for weaker sections was ever placed by the land owner before the Competent Authority or before this Court, nor the said application appears to have been pursued by the Appellant in an appropriate manner. Mere filing of the application could not have led the authorities to grant exemption to such excess or surplus land under Section 21 of the Act and save the said land from the rigour and scheme of the 1976 Act of taking over of excess land in the larger public interest and therefore, the learned Single Judge was right in rejecting the said contention as well.
25. Thus, on the overall analysis of the facts and legal position as discussed above, we do not find any merit in the present appeal filed by the Appellant and the same is liable to be dismissed. The appeal is accordingly dismissed. No order as to costs.
26. Consequently, the Civil Application stands also dismissed."
5. Mr.Dhaval C. Dave, learned Senior Counsel, however, emphasized more on the factual aspects of the matter, that the land in question was exempted by the Competent Authority under Section 20 of the ULC Act vide order dated 5.10.1979 but, the very Page 10 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others foundation of this argument was doubtful, as the learned Single Judge, after specially summoning and perusing in detail the original record of the Competent Authority, found that there was no such exemption order under Section 20 of the ULC Act available on the record and the said Document as produced by Appellants - Petitioners appeared to be forged and concocted by the Petitioners.
6. Since the very basic foundation of case thus became a very seriously disputed question of fact and doubtful, normally it cannot be even expected to be decided in writ jurisdiction, but we still permitted the learned counsel for the Appellants, Mr.Dhaval C. Dave to take us through the other Documents and earlier orders passed by the Court in this matter in the earlier round of litigation also, to test his argument and to give at least the satisfaction of full hearing to the Appellants.
7. While on the State Government side, it was pinpointed and emphasized before us that not only a Draft order under Section 8(4) of the ULC Act was made, but a Final order under Section 9 of the ULC Act was also passed by the Competent Authority after hearing the objections during which no such case of exemption under Section 20 of the ULC Act was made out and then determining the surplus Page 11 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others or excess land of 36,827 Sq. Mtrs., the Notification under Section 10(3) of the ULC Act was also issued on 3.4.1986 vesting the surplus land in the State free from any encumbrance and consequently, by a Panchnama process, in the presence of two independent witnesses, namely, (i) Ramanbhai Maganbhai Patel and (ii) Chhaganbhai Devjibhai, the physical possession of the land in question was taken over by the State Authorities on 9.9.1986 and even Mutation Entry No.770 was recorded in favour of State on 20.4.1988 .
8. While reiterating that the exemption order under Section 20 of the ULC Act dated 5.10.1979 was a forged and concocted Document, the learned Assistant Government Pleader also drew our attention to another unsigned order dated 7.10.1979 produced as AnnexureR 3 with the Affidavit of Mr.N.R.Dhadhal, Deputy Collector (L.R.) dated 15.12.2016, with which the alleged exemption under Section 20 of the ULC Act for Survey No.11 of Village Parvat for 36,827 Sq.Mtrs. of land was mentioned in the Table but, the said order was never signed by any Authority, but was available in the record.
9. The learned Senior Counsel for the Appellants, Mr.Dhaval C. Dave, sought to submit that on the top of the said unsigned Page 12 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others Document, some other Survey No.73/1 was mentioned, even though in the Table in the middle part of the said order, Survey No.11 of Village Parvat with which only the Appellants are concerned in this case was also mentioned and, therefore, it could only be a Draft of said order under Section 20 of the ULC Act which was not signed by the Competent Authority, whereas he claimed that a duly signed order by one Mr.A.A. Dudani was produced with the Affidavit of Kirtikumar Shantilal Patel, the Purchaser from the Petitioner - Appellant (Dineshkumar Jagubhai Patel) dated 12.9.2016 after 19 years of filing of Special Civil Application No.3776 of 1997 by said landholder Mr.Dineshkumar Jagubhai Patel and the said purported order under Section 20 of the ULC Act dated 5.10.1979 was signed by Mr.A.A.Dudani as Deputy Secretary Revenue Department, Surat. He also submitted that no controverting Affidavit of Mr.A.A.Dudani has been filed by the State.
10. While obviously the writ Court under Article 226 of the Constitution of India could not enter into such seriously disputed questions of facts and decide the same, we appreciate, that still the learned Single Judge took the pains to summon the Original Record and after going through it thoroughly, recorded a definite finding of Page 13 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others fact in the impugned judgment that there was no such exemption order dated 5.10.1979 signed by Mr.A.A.Dudani available in the Original Record of the said Revenue Department, Surat. We have no reason to even doubt this finding of fact of learned Single Judge, what to talk of setting it aside. Therefore, obviously the production of such a document after 19 years of pendency of Writ Petition by a subsequent Purchaser of the land in question, Mr.Kirtikumar Shantilal Patel, the validity of such Sale in his favour itself being questionable as the land stood vested in the State Government way back in the year 1986, in our opinion, creates a very serious doubt about the existence and veracity of said Document and it disentitles the subsequent Purchasers from claiming any relief in the present matter on the anvil of exemption under Section 20 of the ULC Act in the present case.
11. Another main plank of the arguments of Mr.Dhaval C. Dave, learned Senior Counsel about the factual possession of the land in question still being with the Appellants - Petitioners and subsequent Purchasers was the interim orders passed by the learned Single Judge of this Court in the earlier round of disposal of this very Special Civil Application No.3776 of 1997, against which Page 14 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others present Letters Patent Appeal No.332 of 2017 is filed by Dineshkumar Jagubhai Patel.
12. Mr.Dhaval C. Dave, learned Senior Counsel, first drew our attention towards the order passed on 9.5.1997 (Coram : R.R.Jain, J.). In the said adinterim order, the learned Single Judge observed as under :
"Draft amendment is allowed, Para (B) of the draft amendment suggests the exemption under Section 20 of the Act granted on 5.10.1979 qua the land in question is in force. Therefore, in the face of it, the land cannot be considered as holding for all purpose under the Act and cannot be declared as excess land yet the record shows that the land has been declared as surplus. Hence, it requires consideration. Rule returnable on 27.6.1997, statusquo qua the land in question. Notice as to interim relief in terms of Para 6(B)."
13. The said adinterim order, learned Senior Counsel urged, came to be confirmed by another learned Single Judge (Coram : H.L. Gokhle, J.) on 9.9.1997 after hearing both the parties. The said interim order date 9.9.1997 is also quoted below for ready reference :
"Heard Mr.Pahwa with Mr.Thakkar for the petitioner and Page 15 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others Mr.Sompura for the respondents. The order of status quo granted on 9th May 1997 in terms of para 6(B) is hereby confirmed. This is with a rider that both the parties will maintain status quo with respect to the land. The petitioner will continue to use it only for agricultural purposes and will not create any third party rights whatsoever. In the event of any breach of this order detected by the respondents, they will have liberty to apply to this Court for getting the interim relief vacated. Liberty to the respondents also in the event of any difficulty."
14. The present Special Civil Application No.3776 of 1997 (Dineshkumar Jagubhai Patel v. State of Gujarat) thus earlier came to be disposed of by the learned Single Judge on 10.5.1999 after the Urban Land (Ceiling and Regulation) Repeal Act, 1999 was enforced w.e.f. 31.3.1999 and the learned Single Judge (Coram :
Kundan Singh, J.) held that the proceedings under the Act shall stand abated. The said order dated 10.5.1999 is also quoted below for ready reference :
"The learned counsel for the petitioner states that proceedings under section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 were pending. The Page 16 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others possession of the land was not taken over by the Government.
Learned counsel for the petitioner has brought to the notice of this Court the Urban Land (Ceiling and Regulation) Repeal Act, 1999 which, according to him, has already come into force on 30.3.99, in view of the Resolution passed by the Legislative Assembly under Article 252 of the Constitution. Section 4 of the aforesaid Repealing Act, 1999 reads as under:
"4. All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any Court, Tribunal or other authority shall abate;
Provided that this section shall not apply to the proceedings relating to sections 11,12,13 and 14 of the principal Act in so far as such proceedings are relatable to the land, 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."
Proceedings in this petition therefore, abate. Orders accordingly. Rule is discharged with no order as to costs. Page 17 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022
C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others Interim relief, if any, stands vacated. The petition stands disposed of. "
15. The State filed a Review Application against the said order of learned Single Judge, namely, Misc. Civil Application No.1583 of 1999 in Special Civil Application No.3776 of 1997 (State of Gujarat v. Dineshkumar Jagubhai Patel) which was dismissed by the same learned Single Judge (Coram : Kundan Singh, J.) on 12.1.2001. The said order is also quoted below for ready reference :
"Special Civil Application No.3776 of 1997 was filed for quashing and setting aside the notifications issued by the competent authority and the Government under sections 10(3) and 10(5) of the Act on 3.4.86 and 26/27.5.86 as also the orders passed by the Competent Authority dated 8.11.85 being illegal, arbitrary, without application of mind and violative of principles of natural justice. The said petition was under the provisions of Urban Land (Ceiling and Regulation) Act, 1976. The State of Gujarat has passed Urban Land (Ceiling and Regulation) Repeal Act, 1999 which came into force on 30th March 1999. On the basis of the said Act, Special Civil Application No. 3776 of 1997 was decided by the order dated 10.5.99. It is mentioned in the order that the learned counsel for the petitioner stated that the possession of the land was not taken over by the Page 18 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others Government. This review application has been filed on the ground that the possession of the excess vacant land was taken over by the Government of Gujarat in presence of the panchas on 9.9.86 and mutation entry no. 770 was also effected on 20.4.88 in the register of village form no.6. It is also stated on behalf of the applicant that the aspect regarding taking over the possession by the Government on 9.9.86 was not brought to the notice of this Court partly due to inadvertence and partly due to mistake and therefore, in view of the fact and circumstances, the writ petition will not abate under section 4 of the Repeal Act of 1999.
2. Heard the learned A.G.P.Mr. H.H.Patel for the applicant and learned Senior Advocate Mr. P.M.Thakkar for the respondent. The learned counsel for the respondent submitted that the land was declared excess on 8.11.85.
In the counter affidavit, the State has requested the Court that the respondent no. 2 (prescribed authority) may be permitted to proceed further under section 23 of the Urban Land (Ceiling and Regulation) Act, 1976 as to use of the land of the petitioner for being allotted to the poor persons of the city of Surat as per the policy decision taken by the Government of Gujarat to allot 25 sq.mtrs. of land to each poor person. The learned counsel for the petitioner also submitted that the Government of Gujarat by an order dated 5.10.79 has already exempted Page 19 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others the land under the Ceiling Act and that is in respect of survey nos. 11/1 and 11 and the main petition no.3776 of 1997 was filed only in respect of these two survey numbers.
It was also mentioned in the counteraffidavit that the Court has taken into consideration the assertions made in the counteraffidavit that the possession of the surplus land was taken by the Government and mutation entry no.770 dated 20.4.88 recorded in the revenue recorded and that affidavit was filed on 14.7.97. The petitioners challenged the ceiling proceedings in the main petition and the proceedings of the petition have abated due to Repeal Act. It appears that this Court found the original petitioner present opponent in possession and order of status quo granted on 9.5.97 in terms of para 6(B) was confirmed whereby both the parties were directed to maintain status quo with respect to the property in question. It is also mentioned in the order that the petitioner will continue to use it only for agricultural purpose and will not create any third party rights whatsoever by an order dated 9.9.97. As such, it appears that after hearing both the parties, this Court came to the conclusion that the opposite party was the only party in possession and that party was permitted to continue in possession only to use it for agricultural purpose. The contention of the learned counsel for the applicant is that due to inadvertence and mistake, the applicant could not point out at the time Page 20 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others of passing the order sought to be reviewed.
3. Considering the facts and circumstances of the case, I do not find any reason to review the order passed by this Court in the Special Civil Application and that is in accordance with the provisions of law and it appears that the opposite party was already found in possession as noticed by this Court in the order dated 9.9.97 and he was permitted to continue in possession for the agricultural purpose. This Review application is therefore, misconceived and is liable to be dismissed. It is accordingly, dismissed. "
16. However, the Appeal filed against the said order of the learned Single Judge, namely, Letters Patent Appeal No.1777 of 2003 in Misc. Civil Application No.1583 of 1999 in Special Civil Application No.3776 of 1997 (State of Gujarat v. Dineshkumar Jagubhai Patel) came to be allowed by the Division Bench of this Court (Coram : B.J. Shethna & M.C. Patel, JJ.) and the matter was remanded back to learned Single Judge for deciding again the Special Civil Application No.3776 of 1997 in accordance with law.
17. Thereafter, by the impugned order dated 18.1.2017, the learned Single Judge (Coram : Bela M. Trivedi, J.) dismissed the writ petition by the aforesaid detailed order which is now under Page 21 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others Appeal before us in the present IntraCourt Letters Patent Appeal No.332 of 2017 before us.
18. From the aforesaid two adinterim orders dated 9.5.1997 (Coram : R.R.Jain, J.) and order dated 9.9.1997 (Coram :
H.L.Gokhle, J.), though these orders lost their existence and significance altogether once the Division Bench of this Court set aside the final order also passed by learned Single Judge on
19.8.2004 and thus, the matter was restored on the file of learned Single Judge to decide Special Civil Application No.3776 of 1997 again, Mr.Dhaval C. Dave, learned Senior Counsel, still tried to rely upon the observations made by the earlier learned Single Judges in the orders dated 9.5.1997 and 9.9.1997, to submit that they proved the possession of the land in question with the Appellant - Petitioner (Dineshkumar Jagubhai Patel) at that point of time.
19. We are not at all impressed by these submissions and purported inferences sought to be drawn by the learned counsel for the Appellants, because those observations tentatively made in the interim orders on the basis of averments made in the writ petition and arguments are in the nature of reasons for grant of interim Page 22 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others relief and are made without any crossverification from the other side. They are of no significance while finally arriving at any finding of fact. Even otherwise, we need not over emphasize that interim orders passed by the Court stand merged with the final order and in the present case, even the final order lost its existence and significance when it was set aside by the Division Bench of the Court on 19.8.2004. The Appellants - Petitioners cannot rely upon such tentative observations of learned Single Judge made at that point of time, while passing adinterim order or stay order on the Stay Application in the first round of disposal of the Special Civil Application No.3776 of 1997.
20. Mr.Utkarsh Sharma, learned Assistant Government Pleader, on the other hand, heavily relied upon the findings of facts recorded by the learned Single Judge in the order dated 18.1.2017 (Coram :
Bela M. Trivedi, J.) that while both father and son, namely, Dineshkumar S/o Jagubhai Patel, who is said to have born in the year 1963, filed separate writ petitions, namely, Special Civil Application No.3776 of 1997 (Dineshkumar Jagubhai Patel) and Special Civil Application No.2612 of 1997 (Jagubhai Patel himself) and both came to be dismissed by learned Single Judge on Page 23 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others 18.1.2017 by common order. But the father - Jagubhai Patel did not file any Letters Patent Appeal against the dismissal of Special Civil Application No.2612 of 1997. This was explained by Mr.Dhaval C. Dave, learned Senior Counsel, by submitting that said Jagubhai Patel had expired on 27.6.2001 and a copy of Death Certificate No.0279754 dated 19.3.2010 issued by Surat Municipal Corporation was produced before us which was taken on record.
21. Mr.Utkarsh Sharma, learned Assistant Government Pleader, further urged before us that sales made by Dineshkumar Jagubhai Patel in 3 parts under 3 different Sale Deeds, the details of which are given below, were illegal as land stood vested with the State Government by issuing Notification under Section 10(3) of the Act on 3.4.1986, therefore, no right enures to such Purchasers either to claim any interest in the said land or to even contest this litigation. He submitted that following Sale Deeds were executed with regard to said land in question admeasuring 36,827 Sq. Mtrs. situated in Village Parvat; (i) Sale Deed dated 30.7.2001 by Dineshkumar Jagubhai Patel in favour of Jerambhai Padamshibhai, whose Legal Representatives are now Respondent Nos.3 to 9 before the learned Single Judge, purportedly selling 11,705 Sq.Mtrs. of land of Survey Page 24 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others No.11, Block No.14 situated in Village Parvat, (ii) The second Sale Deed dated 4.5.2002 executed by Dineshkumar Jagubhai Patel in favour of Kirtibhai Shantibhai Patel, who is Respondent No.10 before the learned Single Judge, to whom one 1 Hectare 67 Ares 22 Sq.Mtrs. (total 16,722 Sq.Mtrs.) is alleged to have been sold vide Sale Deed dated 4.5.2002 and (iii) The 3rd Sale Deed is said to have been executed on 24.12.2001 by Dineshkumar Jagubhai Patel in favour of Jerambhai Padamshibhai and others for 8361 Sq.Mtrs.
22. Mr.Utkarsh Sharma, learned Assistant Government Pleader, therefore, submitted that such sales based on the foundation of Section 20 exemption claimed by the Appellant - Petitioner (Dineshkumar Jagubhai Patel) were nonest in the eye of law and deserve to be ignored as the land in question stood vested in the State Government and the possession of the same was also taken over by Panchnama process on 9.9.1996. He drew our attention to AnnexureRI, the said Panchnama dated 9.9.1986 which was executed in the presence of two independent witnesses, namely, (i) Ramanbhai Maganbhai Patel and (ii) Chhaganbhai Devjibhai, in which Panchnama Report dated 9.9.1986 prepared by the Deputy Page 25 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others Collector, Surat in which at Serial No.2 the land of Survey No.11 admeasuring 36,827 Sq.Mtrs. of Village Parvat is also included.
23. Mr.Dhaval C. Dave, learned Senior Counsel for the Appellants
- Petitioners sought to raise a doubt of the said Panchnama dated 9.9.1986 merely by submitting that it was not possible for the said Deputy Collector to take possession of 4 parcels of land situated at 3 different Villages Parvat, Dumbhal and Limbayat as it would apparent from the details given. On the Court question, both Mr.Dhaval C. Dave, learned Senior Counsel and Mr.Utkarsh Sharma, learned Assistant Government Pleader, fairly informed the Court that all the 3 Villages are within the periphery of 15 kms. only. Therefore, we cannot accept as truth the said doubt expressed by Mr.Dhaval C. Dave, learned Senior Counsel appearing for the Appellants - Petitioners that such Panchnama process could not be carried out in a area of 15 kms. only in one day on 9.9.1986 in the year of 1986 when fast modes of transportation were also available. The signatures, presence and availability of persons who signed, the said Panchnama is not otherwise disputed and, therefore, merely casting a shadow of doubt on such a flimsy basis cannot be accepted.
The same is accordingly rejected, as there is no other reasons Page 26 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021
DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others available to discard the said Panchnama Possession Report dated 9.9.1986. The absence of landholder - Dineshkumar Jagubhai Patel and even his father - Jagubhai Patel, who was alive in the year 1986 at the site, does not affect the validity of the same as the Supreme Court and this Court have time and again held that absence of landholder or occupant will not vitiate the possession taken over under Section 10(6) of the ULC Act.
24. Yet another argument which was raised by Mr.Dhaval C. Dave, learned Senior Counsel and with which also, we are not impressed is that in the year 2012, on the directions of the learned Single Judge of this Court, the concerned Mamlatdar, Surat sent a Report on 15.2.2012 in pursuance of the Court order dated 27.1.2012 in Misc. Civil Application No.1560 of 2011 in Special Civil Application No.2612 of 1997 filed by Jagubhai Patel with which the Panchnama for taking over the possession was also annexed. But, however, such Panchnama was not so actually annexed with the said letter addressed to Government Authorities which was produced at AnnexureRII by the State Government. The doubt expressed by Mr.Dhaval C. Dave, learned Senior Counsel, was that such Panchnama was, therefore, prepared only in the year 2012 when the Page 27 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others Report dated 15.2.2012 was forwarded by the concerned Mamlatdar, Surat to learned Government Advocate with reference to aforesaid Court order dated 27.1.2012.
25. The said argument of Mr.Dhaval C. Dave, learned Senior Counsel is also without any substance and merit. Firstly, it is an internal communication between the client and the Advocate, namely, the Mamlatdar of Revenue Department and the learned Government Advocate under the Communication dated 16.2.2012 in compliance with the Court order. Secondly, the Report of the Mamlatdar dated 15.2.2012 does not refer to any date of the Panchnama which is sought to have been annexed with the said Report. Even the Panchnama of 9.9.1986 might have been annexed with the Report dated 15.2.2012 of the Mamlatdar. Therefore, it cannot be validly said that the possession of the surplus land in question was not actually taken over on 9.9.1986 but, after the repeal of the Act in the year 1999, in the year 2012. Such Reports and Communications during the process of long litigation without any definite material is not enough to draw unnecessary inferences or assumptions as Mr.Dhaval C. Dave, learned Senior Counsel, was trying to draw and wanted us to believe him.
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26. In fact, we may observe, with great respects to learned Senior Counsel, that almost all his arguments in the present Letters Patent Appeal raised before us, were largely based on suspicions and surmises, assumptions and presumptions, bereft of Documents and Evidences and findings of facts. This is coupled with a very serious case of forgery apparently made out against the Appellants - Petitioners and even subsequent Purchasers, who have produced the exemption order under Section 20 of the ULC Act dated 5.9.1979 which was not even found to be existing on record by the learned Single Judge. We could have directed prosecution of such litigants, who not only seek to mislead the Court by producing false and forged documents after 19 years of pendency of Writ Petition itself, making the fulcrum of justice dirty by such long drawn litigation and contrary to the letter and spirit and scheme of the ULC Act, under which not only the land vested in the State Government free from any encumbrances as per Section 10(3) of the ULC Act but it was also dealt with and sold by landholder - Dineshkumar Jagubhai Patel in series of alleged sales to multiple Purchasers, who would buy such litigation from the original landholders and then, fight such unfounded litigation in the Courts for long number of years, Page 29 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others either in the name of original landholders or in their own name under the purported Sale Deeds which have no legal sanction or value and also hit by Section 10(4) of the ULC Act. While we are not directing any such criminal prosecution for now, we leave it free for the concerned Government Authorities to file appropriate proceedings in the Competent Court.
27. From the record, it also transpires that the litigation in the present case was mainly taken up by such alleged subsequent Purchaser, namely, Kirtibhai Shantibhai Patel in the year 2016 much even after the purported Sale Deeds in his favour executed in the year 200102 i.e. after 14 years as aforesaid and even the said concocted exemption order under Section 20 of the ULC Act was produced with the Additional Affidavit of the said Kirtibhai Shantibhai Patel only filed in this Court, namely, Additional Affidavit dated 12.9.2016 as AnnexureIIA (Page263 of the Paper book) but, the explanation for such a huge delay in producing the same as given in Para.1 of his Affidavit which is rather curious. The Para.1 and 2 of the said Additional Affidavit are quoted below for ready reference :
"1. I submit that after respondent no.3 to 10 were Page 30 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others joined as party as Respondents an affidavit dated 12.8.2016 is filed. In respect one document i.e. permission granted under Section 20 of ULC Act dated 5.10.1979 some disputes are raised by the authority, some procedure was followed for obtaining another signature of the concerned Officer (what was that procedure is not explained or detailed here) and I have been able to obtain the ultimate opinion of the handwriting expert dated 30.8.2016 and therefore it has become necessary to file additional affidavit.
2. According to the contention of the land owners, authority had granted permission under Section 20 of ULC Act granting exemption of the questioned land for the purpose of carrying out agricultural activities. This permission was granted by order dated 5.10.1979. A copy of the order dated 5.10.1979 passed by Under Secretary, Revenue Department, State of Gujarat (Mr.A.A.Dudani) is annexed herewith and marked as AnnexureIIA."
28. Thereafter, in the same Additional Affidavit, Mr.Kirtibhai Shantibhai Patel further goes on to build falsehood by submitting that through the process of RTI Application, he came to know that the concerned Outward Register was not traceable despite all efforts and, therefore, he obtains the so called HandWriting Page 31 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others Expert's opinion to justify the signatures of A.A.Dudani on the said concocted document. This Affidavit dated 23.5.2016 is nothing but tissues of lies to justify a 'procured' order, concocted and forged by the interested parties to justify the exemption and sales made of the land in question which stood vested in the State way back in the year 1986, one ought to know that 'no one can pass a Title, if he does not have it.'
29. The said Affidavit was controverted by the reply counter Affidavit from the side of the State Government. An Affidavit of N.R.Gandhal, Deputy Collector (L.R.), Office of the Collector, Surat dated 15.12.2016 with which not only the Panchnama dated 9.9.1986 has been produced but, the unsigned purported order under Section 20 of the ULC Act which was never signed has also been produced at AnnexureR3 and, therefore, the alleged order under Section 20 of the ULC Act was not even still born in the Revenue Department, what to talk of a final exemption order passed purportedly on 5.10.1979. Had there been any such order given in favour of Petitioners on 5.10.1979, nothing prevented them to produce before the Competent Authority during the contemporary period straightway in the form of a valid objection even during the Page 32 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others proceedings under Section 8(4) of the ULC Act or Section 9 of the ULC Act and that could have prevented even the issuance of the Notification under Section 10(3) of the ULC Act and vesting the land in the State on 3.4.1986. All these subsequent efforts of the vested interest parties to create a story of exemption order dated 5.10.1979 has no substance and is a flimsy ground to justify the execution of such multiple Sale Deeds and buying the litigation from the original landholders and then, create 'Castles in the Air' as it were.
30. Even the Rejoinder Affidavit dated 15.12.2016 in the same spirit was filed by said Purchaser Kirtibhai Shantibhai Patel, with which again an effort was made to cast doubt on the real Panchnama Report dated 9.9.1986 by relying upon a Document (AnnexureR4) dated 9.9.1986 delegating the Authority to take possession in favour of Deputy Collector by the learned Collector himself. Mr.Dhaval C. Dave, learned Senior Counsel, sought to draw our attention that at the bottom of the said Letter dated 9.9.1986 itself, it is stated that copy is forwarded by Regd. Post A.D. and, therefore, how despite the letter for delegation of authority not even reaching the Deputy Collector, he could take the physical possession on 9.9.1986.
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31. In our opinion, this argument is also equally misconceived as the copy only is said to have been sent by Regd. Post A.D. It does not mean that original order or another copy thereof could not be made available to the concerned Authority on the same day and a copy thereof could be sent by Regd. Post also. In any case, even without such delegation also, the Deputy Collector or the Competent Authority could proceed under Section 10(6) of the ULC Act to take possession of the land in question on 9.9.1986 and then, take ex post facto approval. The said Document also clearly reflects that it was issued from the office of the Additional Collector at Surat and copies were endorsed to Deputy Collector at Surat only. Therefore, the question of it being not available with the Deputy Collector is not of any significance. The said Competent Authority, therefore, could very well proceed to the site in question in Village Parvat and take the possession of the land in question in the presence of two independent witnesses, which he did on 9.9.1986 and even mutation entries were made in favour of State vide No.770 on 20.4.1988. Then, what can be the justification or validity of such Sales Deeds executed in 2001 and 2004 of such Government land, in favour of private parties. Obviously None ! Page 34 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others
32. Therefore, having dispelled and rejected all the arguments and submissions of Mr.Dhaval C. Dave, learned Senior Counsel appearing on behalf of the Appellants - Petitioners, namely, original land owners and the alleged subsequent Purchasers, we do not find even an iota of merit in these Letters Patent Appeals and they deserve to be rejected. On the other hand, the learned Single Judge, who recorded the detailed findings of facts going deeper into all the details and documents, are found to be unassailable findings of facts.
33. Likewise, Mr.M.C.Bhatt, learned Senior Counsel appearing for the Purchasers in connected Letters Patent Appeal No.334 of 2017, while supporting and adopting the arguments raised by Mr.Dhaval C. Dave, learned Senior Counsel in Letters Patent Appeal No.332 of 2017, also relied upon the said exemption order under Section 20 of the ULC Act and the observations made by the learned Single Judges' in the interim orders passed in the earlier round of disposal of Special Civil Application No.3776 of 1997. Mr.M.C. Bhatt, learned Senior Counsel, additionally also relied upon the Report of the HandWriting Expert - Mr.Vijaysing Jhala for verification of the signatures of Mr.A.A. Dudani on the said exemption order dated Page 35 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others 5.9.1979 and sought to urge that the Respondent - State ought to have filed the Affidavit of A.A. Dudani to disown the said order dated 5.7.1979 under Section 20 of the ULC Act.
34. The said argument of Mr.M.C.Bhatt is also equally devoid of merit and no such negative burden can be cast upon the State to disprove a nonexistant document. The Petitioner, who comes to the Court, has to prove his case and no Petitioners or Applicants can be allowed to strengthen his case on the basis of any short coming in the defence of other side. No such short coming in the defence of State in the present case even exists. It is well settled proposition of law and it does not entitle the Petitioners - Appellants to claim any such inquiry or rebuttal on the part of State Government.
35. Therefore, we are of the clear opinion that all the proceedings under the ULC Act for acquiring the surplus or excess land was duly undertaken by the Competent Authority in the present case and such findings are unassailable and validly rendered.
36. The reliance placed by learned counsel for the Appellants on the case of Hari Ram (Supra) and the decision of the Division Bench of this Court in the case of Mamtaben d/o Narottambhai Page 36 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others Chandulal Zaveri v. Urban Land Tribunal rendered in Letters Patent Appeal No.1458 of 2015, decided on 1.12.2016 by the Bench headed by the then Hon'ble the Chief Justice, does not support the case of the Appellants - Petitioners much.
37. Firstly, the conduct of the Petitioners disentitles them from any relief and raising the said argument of the applicability of the judgments to their facts. If their case itself is founded on concocted and forged document and said litigation is pursued by purported Purchasers or land grabbers, who illegally encroached on the land of the State under the purported Sale Deeds. Therefore, this Court cannot grant any such indulgence to such litigants to raise the legal question of interpretation of the provisions of the Act or judgments.
38. Nonetheless, even if such argument was to be considered, we do not find any merit in that too as the judgment of Supreme Court in the case of Hari Ram (Supra) stood watered down substantially and distinguished in the later judgment in the case of Bhaskar Jyoti Sarma (Supra) which we have discussed in our recent judgment delivered on 22.1.2021 in the case of Heirs of Deceased Jethabhai Ishwarbhai (Supra) which we have already quoted Page 37 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others above. The judgment in the case of State of U.P. v. Hari Ram (Supra) heavily relied upon by learned counsel for the Appellants, Mr.Dhaval C. Dave was decided in the context of following facts. Paragraph Nos.2 to 4 of the said judgment are quoted below for ready reference:
"2. Hari Ram, respondent herein, had filed a statement on 28.9.1976 giving details of the vacant land he was holding in excess of ceiling limit prescribed under the Act, as provided under Section 6 of the Act. The competent authority under the Act surveyed the land and the respondent was served with a draft statement under Section 8(3) of the Act on 13.5.1981, calling for objection to the draft statement within thirty days. No objection was preferred by the respondent and it was found that he was holding excess land measuring 52,513.30 sq. meters and an order to that effect was passed by the competent authority under Section 8(4) of the Act, vide his proceeding dated 29.6.1981.
3. The competent authority later issued a notification dated 12.6.1982 under Section 10(1) of the Ceiling Act, which was published in the Government Gazette on 12.6.1982 giving the particulars of the vacant land held by the respondent. The competent authority then issued a notification dated 22.11.1997, which was published on the Page 38 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others 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 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 subsection (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 Page 39 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others 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."
38.1 In the context of the aforesaid facts, the two Judges' Bench of the Supreme Court in Hari Ram's case (Supra) held in Paragraph Nos.42 and 43 specifically finding that the State has not produced any documents to show that the State Authorities have dispossessed the landholders from the land in question. Paragraph Nos.42 and 43 are reproduced below for ready reference :
"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 Page 40 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act.
43. We, therefore, find no infirmity in the judgment of the High Court and the appeal is, accordingly, dismissed so also the other appeals. No documents have been produced by the State to show that the respondents had been dispossessed before coming into force of the Repeal Act and hence, the respondents are entitled to get the benefit of Section 3 of the Repeal Act. However, there will be no order as to costs."
38.2 These significant contextual facts are missing in the case in our hands where Sections 10(3), 10(5) and 10(6) proceedings have been established with the documents on record, which were not the facts available in the case of Hari Ram (Supra).
39. The judgment in the case of Hari Ram (Supra), in our humble opinion, was watered down, explained and distinguished by the two Judges' Bench of the Supreme Court in the case of State Assam v. Bhaskar Jyoti Sarma (Supra). The facts of Bhaksar Jyoti Sarma's case (Supra) were noted by the Supreme Court in the following manner :
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C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others "The father of the respondents was recorded as Pattadar of the land in dispute. In 1976, after adoption of the Urban Land (Ceiling and Regulation) Act, 1976, the father of the respondents submitted returns. After completing legal proceedings, it was concluded that the father of the respondent had land measuring 7981 sq m to be in excess of permissible limits and a declaration to that effect was issued vide statement dated 3.8.1982 and Notification under Section 10(1) dated 16.5.1984. Thereafter, in November 1984 the father of the respondents sold the lands to 6 persons under six different sale deeds. In 1987, the appellant State issued a Notification under Section 10(3) of the Act to the effect that surplus land of the father of the respondents belonged to the Government. Consequently, no tax was collected on that land and name of father of the respondents was deleted from revenue records. It was contended that possession of land was taken in 1992. The subsequent owners challenged the proceedings but were unsuccessful up to the Supreme Court. Thereafter, in 2003, the appellant State allotted land measuring 8.03 ares to Guwahati Metropolitan Development Authority (GMDA).
On 12.12.2003, the Urban Land (Ceiling and Regulation) Act, 1976 was repealed by coming into force of the Repeal Act on 6.8.2003. On 25.12.2003, GMDA was handed over the allotted land. This action was challenged before the High Court. The Page 42 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others Single Judge upheld the allotment in favour of GMDA. Whereas in the appeal, the Division Bench of the High Court reversed findings of the Single Judge and ordered for restoration of possession of land. Hence, these appeals." 39.1 On these facts, the Supreme Court held that even if Notice under Section 10(5) of the ULC Act is not served and the same is not challenged for a long period, the take over of possession would acquire legitimacy by sheer lapse of time and in such a situation, the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the ULC Act. Distinguishing the judgment in the case of Hari Ram (Supra), the Supreme Court held that any other view would 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 of the fortuitous circumstance of the Repeal Act, tempting to raise the issue regarding dispossession being in violation of the prescribed procedure. The relevant portion of the judgment of the Supreme Court in the case of Bhaskar Jyoti Sarma (Supra) from the Head Note is quoted below for ready reference :
"In the ordinary course actual physical possession can be taken from the person in occupation only after notice under Section Page 43 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 is issued to him to surrender such possession to the State Government, or the authorized 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 (6) of the Act.
(Para.14) The High Court 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 7.12.1991 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 (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 possession 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 Page 44 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others 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. (Para 15) 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 landowner on 7.12.1991 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 Page 45 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others the Act. Any other view would 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.
(State of U.P. v. Hari Ram (2013) 4 SCC 280 : (2013) 2 SCC (Civ) 583, distinguished on facts.
The fact that the dispossession was without a notice under Section 10(5) in the present case will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act. That is because the erstwhile owner that is the father of the Respondents 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.
Hence, the order of the Single Judge of the High Court is restored. (Para. 17) 39.2 Paragraph No.17 of the said judgment (Bhaskar Jyoti Sarma (Surpa)) is also relevant and, therefore, quoted below:
"17. Reliance was placed by the respondents upon the decision of this Court in Hari Ram case. That decision does not, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Ram case, considering Page 46 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others 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 the law did not fall for consideration in that case. In our opinion, what Section 10(5) prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). In the case at hand if the appellant's version regarding dispossession of the erstwhile owner in December 1991 is correct, the fact that such dispossession was without a notice under Section 10(5) will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of 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."
40. Thus, in our understanding, the judgment of the Supreme Court in the case of Hari Ram (Supra), not only stands fully explained, distinguished and watered down by the later judgment in the case of Bhaskar Jyoti Sarma (Supra), but, the facts of the present case also are poles apart from the facts in the case of Hari Page 47 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others Ram (Supra) and, therefore, it has no application in the facts of the present case before us.
41. Likewise, for the same reasons, the Division Bench's judgment in the case of Mamtaben d/o Narottambhai Chandulal Zaveri v. Urban Land Tribunal (Supra) rendered in Letters Patent Appeal No.1458 of 2015, decided on 1.12.2016, will also not apply to the facts of the present case and is of little help to the Appellants - Petitioners before us. The rival contentions of the Appellants - Petitioners and the State, as noted by the Coordinate Division Bench in the case of Mamtaben d/o Narottambhai Chandulal Zaveri (Supra), are quoted below for ready reference :
"9. Further it is also submitted by the learned counsel that the appellant petitioner continued in possession of the land which is declared surplus and which is allegedly taken possession by the respondent authorities by drawing Panchnama. It is submitted that after dismissal of the writ petition for non prosecution when the authorities were interfering with the possession, the appellant has filed Civil Suit No.1 of 2011 in the City Civil Court at Ahmedabad, in which Court Commissioner was appointed, who had inspected the property and submitted report which shows that the appellant is in fact in physical Page 48 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others possession of the property in question. It is submitted that in any event even according to the case of the respondent authorities, no notice has been issued as contemplated under section 10(6) of the Urban Land (Ceiling and Regulation) Act, 1976, and thus, the appellant is entitled to the benefits of section 3 of the Act. It is submitted that the alleged taking over of possession by drawing Panchnama even without issuing notice under section 10(6) of the Act is per se illegal. Such possession cannot be recognized to accept the plea of the respondents. It is submitted that in view of the Repeal Act all the proceedings are entitled to be lapsed, the appellant petitioner is entitled to hold the property which is allegedly declared excess, taken possession by drawing Panchnama.
Affidavit in reply is filed in the Special Civil Application. In the affidavit in reply, while denying various allegations made by the appellant petitioner, it is stated that the petition was filed in the year 1991 and the same was dismissed for non prosecution, viz for non removal of objections and the same was restored by order dated 11.04.2014. It is submitted that as restoration application was filed with gross delay of 20 years, while opposing amendment which was sought to add additional pleas, it is submitted that the appellant petitioner Mamtaben, daughter of Narottambahi Zaveri has filed declaration on 11.09.1976 and the same was scrutinized on 03.12.1982 under section 8(1) of the Act. Order under section Page 49 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others 8(4) of the Act was passed on 13.06.1988, based on which notification under section 10(1) of the Act was published on 11.04.1989. While referring to dismissal order of the Appellate Authority dated 31.08.1990 it is stated that possession of the land in question admeasuring 642.45 sq meters was taken over after issuance of notice under section 10(5) of the Act on 08.02.1991. While pleading that possession of surplus land was taken in accordance with law while drawing Panchnama, it is the case of the respondents that it is not open to the appellant to raise any objection with regard to validity of taking possession at this stage. With reference to the allegation of the appellant petitioner that she was not served with notice as contemplated under section 10(6) of the Act following averment is made in para 11 of the affidavit in reply:
"11. I most humbly say and submit that thereafter the occupant of the land in question was paid to hand over the possession as per notice under section 10 (five) of the act and therefore, the position (sic. possession) of the land in question was taken over by drawing Panchnama on 30.04.1991 is provided under section 10(6) of the Act."
10. The learned Assistant Government Pleader (AGP) appearing for respondent no.3, after verifying the record, fairly admitted that notice under section 10(6) of the Act was not issued. However, possession was taken by drawing Page 50 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others Panchnama on 30.04.1991, after issuing notice under section 10(5) of the Act. It is submitted by the learned AGP that when possession was not handed over after issuance of notice under section 10(5) of the Act it is always open for the respondents to take possession by drawing Panchnama. The learned AGP placed reliance on the very judgment which was referred to by the learned Single Judge in the case of State of Assam Vs. Bhaskar Jyoti Sarma and others reported in (2015) 5 SCC 321."
42. Thus, it is clear that on the concession from the learned Government counsel side, though no Notice under Section 10(6) of the ULC Act was issued and even though the possession was taken by drawing Panchnama on 30.4.1991 after issuing Notice under Section 10(5) of the ULC Act on 8.2.1991, the Court proceeded to hold in favour of landholders, after distinguishing the judgment of the Supreme Court in the case of Bhaskar Jyoti Sarma (Supra) in the following manner :
"17. We also feel that there is logic behind such provision under section 10(6) of the Act that when declarant failed to deliver possession even after issuance of notice under section 10(5) of the Act. The authorities can notify date for taking possession by issuing notice under section 10(6) of the Page 51 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others Act. If such notice under section 10(6) of the Act is not issued, declarant owner will be in dark as to on which date possession will be taken. In view of the aforesaid provision and having regard to the judgments relied on by the learned counsel for the appellant, we are of the view that the plea of the appellant petitioner deserves to be accepted.
The respondents have not taken possession in accordance with law. As it is not in dispute that the respondent authorities have not issued notice under section 10(6) of the Act, the alleged taking over of possession on 30.04.1991 by drawing Panchnama is no possession in the eye of law, which can be reckoned to accept the plea of the respondents. Further it is also clear from the material placed on record that in Civil Suit No.1 of 2011 filed by the appellant petitioner in the City Civil Court at Ahmedabad, Court Commissioner was appointed. The Court Commissioner clearly revealed that the appellant petitioner is in physical and actual possession of the land in question. For the aforesaid reasons and having regard to the facts and circumstances of the case, we are of the view that the learned Single Judge has committed error in placing reliance on the judgment of the Hon'ble Supreme Court in the case of State of Assam Vs. Bhaskar Jyoti Sarma and others reported in (2015) 5 SCC 321. From perusal of the judgment of the Hon'ble Supreme Court in the aforesaid Page 52 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others case of State of Assam, it is to be noticed that the persons claiming possession were third parties and when owners failed to challenge any proceedings taken under section 10(5) of the Act, in the present case when the very declarant before this Court challenging the orders of the authorities, it is also to be noticed that when the order restoring the writ petition and order allowing to raise additional pleas have become final and merely on the ground that alleged possession was taken by drawing Panchnama about 22 years back, is no ground to deny the statutory benefits conferred on the declarant - appellant under the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. As much as we are of the view that no possession is taken in accordance with law by issuing notice under section 10(6) of the Act, we are of the clear view that the appellant petitioner is entitled to have benefits under the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. No steps can be taken further. All the proceedings stand abated. "
43. With great respects, we may only observe and as we have held in the case of Heirs of Deceased Jethabhai Ishwarbhai (Supra), decided on 22.1.2021, that Section 10(6) of the ULC Act does not envisage the issuance of any Notice at all and nor the judgment of the Supreme Court in the case of Bhaskar Jyoti Sarma (Supra) said so that such a further Notice even after NoticecumOrder is Page 53 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022 C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others given under Section 10(5) of the ULC Act is necessary, if possession is taken under Section 10(6) of the ULC Act by the State Authorities. Therefore, again, the facts of the case decided by the Coordinate Bench of this Court in the case of Mamtaben d/o Narottambhai Chandulal Zaveri (Supra) being different, we cannot apply the same to the facts of the present case.
44. We have discussed the aforesaid case laws in little more detail, even though we have indicated above that the Appellants - Petitioners are not entitled to raise these questions of law in view of its own reprehensible and abhorrent conduct in producing a false and fabricated document in the form of Exemption Order under Section 20 of the ULC Act, which the learned Single Judge as well as we have found to be a nonexistent document, a false and forged document produced by a subsequent Purchaser of Government land in question under a Sale which itself stands vitiated and that too, after a delay of 19 years in a pending Writ Petition. Therefore, while we are imposing costs on the Appellants - Petitioners while dismissing the present Letters Patent Appeals, we have left it for State Authorities to file prosecution proceedings against the Appellants Petitioners.
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C/LPA/332/2017 CAV JUDGMENT Dt.: 5.3.2021 DINESHKUMAR JAGUBHAI PATEL v. STATE OF GUJARAT & 9 others
45. Therefore, we do not find any substance in the arguments raised by learned counsel for the side of Petitioners - Appellants and we find the judgment and order of the learned Single Judge absolutely unassailable.
46. The present Letters Patent Appeals are accordingly dismissed with cost of Rs.50,000/ (Rupees Fifty Thousand only) to be paid by the Appellants - Petitioners for each of the two Appeals to the Respondent - State within a period of 3 months from today.
(DR. VINEET KOTHARI,J) (GITA GOPI,J) Ms.Shachi Mathur, learned counsel appearing for the Appellant - Vinodbhai Jerambhai, heir of deceased Jerambhai Padamsibhai in Letters Patent Appeal No.334 of 2017, after pronouncement of the judgment, made an oral request for staying the operation of the said judgment for a period of 8 weeks.
We do not consider it appropriate to grant the said request. Therefore, same is declined.
(DR. VINEET KOTHARI,J) (GITA GOPI,J) VJ SATWARA Page 55 of 55 Downloaded on : Thu Jan 13 06:38:04 IST 2022