Gujarat High Court
Patel Mahendrabhai Bhailalbhai & 2 vs State Of Gujarat & 3 on 13 June, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/17364/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17364 of 2016
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PATEL MAHENDRABHAI BHAILALBHAI & 2....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR HRIDAY BUCH, ADVOCATE WITH BHOOMI M THAKORE, ADVOCATE
for the Petitioner(s) No. 1 - 3
MR. HARSH K THAKAR, ADVOCATE for the Petitioner(s) No. 1 - 3
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1 - 4
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 13/06/2017
ORAL ORDER
1. The land in question is an agricultural land situated at Village Narol, Taluka & DistrictAhmedabad bearing survey no.41.
2. The land in dispute was originally in possession of the father of the petitioner no.1 as a tenant under the Bombay Tenancy and Agricultural Lands Act under Section32(G). The father was cultivating the land.
3. On 11/02/1981 the proceedings under Section43 of the Tenancy Act came to be initiated by the Deputy Collector and the said land came to be transferred in the name of Bhailalbhai Patel being the father of the petitioners herein as restricted tenure land.
4. On 25/01/1982, an appeal was preferred by the father of the Page 1 of 9 HC-NIC Page 1 of 9 Created On Fri Aug 18 08:55:21 IST 2017 C/SCA/17364/2016 ORDER petitioners under Section74 of the Tenancy Act for conversion of new tenure to old tenure. The same came to be allowed and entry regarding the same came to be mutated in the revenue records being the entry no.2242 dated 30/01/1984.
5. On 28/01/1987, the said land came to be declared as a vacant land by the competent authority under the ULC Act 1976 though the same was used only for the agricultural purpose.
6. On 24/03/1988, a notice under Section 10(3) came to be issued under the ULC Act.
7. On 21/06/1990, a notice under Section10(5) came to be issued under the ULC Act (petitioners allege that the same was not served upon them).
8. The father of the petitioners did not hand over the possession of the land, since he was not aware of any notice being issued to him. Nor did the authority come to take the same forcefully.
9. On 23/12/1991, the panchnama of the said land was drawn by the authority as if the possession was being taken.
10. It is the case of the petitioners that in fact no actual physical possession was taken by the authority and the panchnama was drawn behind their back.
11. The petitioners continued to do agriculture activity alongwith their father on the said land.
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12. The father of the petitioners had obtained loan over the said land from the Sewa Sahkari Mandli, which was repaid by him and the same came to be mutated vide mutation entry no.2959 in the revenue record on 26/02/1998.
13. On 12/01/1999, the father of the petitioners passed away and the name of his legal heirs came to be mutated vide mutation entry no.2814 on 15/01/1999.
14. On 12.05.1999, an entry came to be made in the revenue records as if the possession of the land was taken over under the ULC Act. On 18/03/1998 the ULC Act had been repealed.
15. On 28/07/2001, the Deputy Collector ordered the cancellation of the entry. On 13/03/2007 the Collector took the order passed by the Deputy Collector in suo moto revision. It appears that the land is covered under the Town Planning Scheme No. 57 of Ahmedabad and the same has been given the Final Plot Nos.45/1 and 45/2. The petitioners claime to be in lawful and physical possession of the land in question.
16. The principal argument canvassed is that in the absence of any notice notifying the date of taking possession under Section10(6) of the U.L.C. the contention of the State that the possession was taken over by drawing the panchnama is not tenable.
17. Strong reliance has been placed on a recent pronouncement of this Court in the case of Mamtaben, D/o. Narottam Chandulal Zaveri Verus Urban Land Tribunal and Exofficio Secretary & Ors.; Letters Patent Appeal No.1458 of 2015; decided on 01/12/2016. In the said decision, the Division Bench of this Court observed in Paragraphs13, 14, Page 3 of 9 HC-NIC Page 3 of 9 Created On Fri Aug 18 08:55:21 IST 2017 C/SCA/17364/2016 ORDER 15, 16, 17 as under:
13. On perusal of the order passed by the learned Single Judge it is clear that the learned Single Judge has mainly rejected the plea of the appellant petitioner of not taking valid possession and her entitlement to have benefit of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, mainly on the ground that possession of the land was taken 22 years back and the same cannot be allowed to reopen. In support of such plea the learned Single Judge has placed reliance on the decision 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. Before we proceed further, we want to refer to the authorities relied on by learned counsel for the appellant Shri Navin Pahwa. Shri Pahwa, learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in the case of State of Uttar Pradesh Vs. Hari Ram, reported in (2013) 4 SCC 280. In the aforesaid judgment, while interpreting the provisions under section 10(3) and (5) of the Urban Land (Ceiling and Regulation) Act, 1976, the Hon'ble Supreme Court has held that deemed vesting of excess land in the State under section 10(3) of the Act after issuance of notification under section 10(1) of the Act and issuance of notice under section 10(5) of the Act, does not amount to taking possession of surplus land by the State Government. In such a situation, the Hon'ble Supreme Court has held that ceiling proceedings would abate in all cases where factually possession has not been handed over or delivered before the Urban Land (Ceiling and Regulation) Repeal Act, 1999 coming into force by virtue of section 4 of the said Act. In the aforesaid judgment while dealing with section 10(5) and (6) of the Act, the Hon'ble Supreme Court has held that, 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) of Section 10, there is no necessity of using the expression where any land is vested under subsection (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.
Page 4 of 9HC-NIC Page 4 of 9 Created On Fri Aug 18 08:55:21 IST 2017 C/SCA/17364/2016 ORDER Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under subsection (5) to Section 10 to surrender or deliver possession. Subsection (5) of Section 10 visualizes a situation of surrendering and delivering possession, peacefully while subsection (6) of Section 10 contemplates a situation of forceful dispossession.
Forceful dispossession
36.The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub section (5) of Section 10. Subsection (6) to Section 10 again speaks of possession which says, if any person refuses or fails to comply with the order made under subsection (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. Subsection (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under subsection (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), than forceful dispossession under subsection (6) of Section 10.
37. The requirement of giving notice under subsections (5) and (6) of Section 10 is mandatory. Though the word may has been used therein, the word may in both the subsections has to be understood as shall because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of nonissue of notice under subsection (5) or subsection (6) of Section 11 is that it might result the land holder being dispossessed without notice, therefore, the word may has to be read as shall.
In the above judgment it is clearly held that the requirement of giving notice under subsections (5) and (6) of section 10 of the Act is mandatory while construing the word 'may' which is used in section in section 10(5) and (6) of the Act, the Hon'ble Supreme Court has held that said expression has to be understood as 'shall'. It is further held that the effect of nonissuance of notice under subsections (5) and (6) of section 10 of the Act will result in the landholder being dispossessed Page 5 of 9 HC-NIC Page 5 of 9 Created On Fri Aug 18 08:55:21 IST 2017 C/SCA/17364/2016 ORDER without notice. Therefore, the word 'may' has to be read as 'shall'.
14. Further in the judgment in the case of Gajanan Kamlya Patil Vs. Additional Collector and Competent Authority (ULC) and others, reported in (2014) 12 SCC 523, while considering the provisions of subsections (3) and (6) of section 10 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. the Hon'ble Supreme Court has held as under:
"12. We have, therefore, clearly indicated that it was always open to the authorities to take forcible possession and, in fact, in the notice issued under Section 10(5) of the ULC Act, it was stated that if the possession had not been surrendered, possession would be taken by application of necessary force. For taking forcible possession, certain procedures had to be followed. Respondents have no case that such procedures were followed and forcible possession was taken. Further, there is nothing to show that the Respondents had taken peaceful possession, nor there is anything to show that the Appellants had given voluntary possession. The facts would clearly indicate that only de jure possession had been taken by the Respondents and not de facto possession before coming into force of the repeal of the Act. Since there is nothing to show that de facto possession had been taken from the Appellants prior to the execution of the possession receipt in favour of MRDA, it cannot hold on to the lands in question, which are legally owned and possessed by the Appellants. Consequently, we are inclined to allow this appeal and quash the notice dated 17.2.2005 and subsequent action taken therein in view of the repeal of the ULC Act. The above reasoning would apply in respect of other appeals as well and all proceedings initiated against the Appellants, therefore, would stand quashed."
15. Further, the learned counsel has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Chandra Kishore Jha Vs. Mahavir Prasad and others, reported in (1999) 8 SCC 266. In support of his argument that if the Statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. Para 17 of the said judgment reads as under:
17. In our opinion insofar as an election petition is concerned, proper presentation of an election petition in the Patna High Court can only be made in the manner prescribed by Rule 6 of Chapter XXIE. No other mode of presentation of an election petition is envisaged under the Act or the Rules thereunder and, therefore, an election petition could, under no circumstances, Page 6 of 9 HC-NIC Page 6 of 9 Created On Fri Aug 18 08:55:21 IST 2017 C/SCA/17364/2016 ORDER be presented to the Registrar to save the period of limitation. It is a wellsettled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. (See with advantage : Nazir Ahmad v. King Emperor, Rao Shiv Bahadur Singh V. State of V.P., Stae of U.P v. Singhara Singh.) An election petition under the Rules could only have been presented in the open Court upto 16.5.1995 till 4.15 P.M. (working hours of the Court) in the manner prescribed by Rule 6 (supra) either to the Judge or the Bench as the case may be to save the period of limitation. That, however, was not done.
However, we cannot ignore that the situation in the present case was not of the making of the appellant. Neither the designated election Judge before whom the election petition could be formally presented in the open Court nor the Bench hearing civil applications and motions was admittedly available on 16.5.1995 after 3.15 P.M., after the Obituary Reference since admittedly the Chief Justice of the High Court had declared that "the Court shall not sit for the rest of the day" after 3.15 P.M. Law does not expect a party to do the impossible impossiblium nulla obligatio est as in the instant case, the election petition could not be filed on 16.5.1995 during the Court hours, as far all intent and purposes, the Court was closed on 16.5.1995 after 3.15 P.M.
16. From the aforesaid judgments relied on by the learned counsel for the appellant petitioner and looking to the provisions of subsections (5) and (6) of section 10 of the Urban Land (Ceiling and Regulation) Act, 1976, it is clear that after notification issued under section 10(1) and 10(3) of the Act, it is open for the respondents to issue notice under section 10(5) of the Act asking the declarant to hand over possession of the vacant land. Section 10(6) of the Act comes into play when the declarant/ owner fails to hand over possession pursuant to notice under section 10(5) of the Act. When possession is not handed over by the owner to the declarant even after receipt of notice under section 10(5) of the Act, it is mandatory on the part of the authorities to give notice under section 10(6) of the Act for taking forceful possession.
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 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 Page 7 of 9 HC-NIC Page 7 of 9 Created On Fri Aug 18 08:55:21 IST 2017 C/SCA/17364/2016 ORDER 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 respondentauthorities 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 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.
18. The matter deserves consideration. Let rule be issued to the respondents, returnable 04/07/2017. Mr. Utkarsh Sharma, the learned AGP waives service of notice of rule for and on behalf of the respondents. Let there be an adinterim order in terms of paragraph 8(D). Direct service is permitted.
(J.B.PARDIWALA, J.) Page 8 of 9 HC-NIC Page 8 of 9 Created On Fri Aug 18 08:55:21 IST 2017 C/SCA/17364/2016 ORDER aruna Page 9 of 9 HC-NIC Page 9 of 9 Created On Fri Aug 18 08:55:21 IST 2017