Gujarat High Court
State Of Gujarat vs Valimohmad Pirmohd Shaikh on 10 May, 2018
Bench: Harsha Devani, A.S. Supehia
C/LPA/1664/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO.1664 of 2004
In SPECIAL CIVIL APPLICATION NO.769 of 1989
With
R/SPECIAL CIVIL APPLICATION NO.3340 of 1989
With
R/SPECIAL CIVIL APPLICATION NO.3346 of 2001
With
R/LETTERS PATENT APPEAL NO.1665 of 2004
In SPECIAL CIVIL APPLICATION NO.9037 of 1992
With
R/LETTERS PATENT APPEAL NO.1666 of 2004
In SPECIAL CIVIL APPLICATION NO.9038 of 1992
With
R/LETTERS PATENT APPEAL NO.1667 of 2004
In SPECIAL CIVIL APPLICATION NO.9039 of 1992
With
R/LETTERS PATENT APPEAL NO.1668 of 2004
In SPECIAL CIVIL APPLICATION NO.9040 of 1992
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI Sd/
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA Sd/
===================================================
1 Whether Reporters of Local Papers may
be allowed to see the judgment ? NO
2 To be referred to the Reporter or not
? NO
3 Whether their Lordships wish to see
the fair copy of the judgment ? NO
4 Whether this case involves a
substantial question of law as to the
interpretation of the Constitution of NO
India or any order made thereunder ?
Page 1 of 28
C/LPA/1664/2004 JUDGMENT
===================================================
STATE OF GUJARAT
Versus
VALIMOHMAD PIRMOHD SHAIKH
===================================================
Appearance:
LPA NO.1664/2004 TO 1668 2004
MR PRANAV TRIVEDI, AGP for the APPELLANTS
MR SHIRISH SANJANWALA, SENIOR ADVOCATE, with
MR DILIP L. KANOJIYA for RESPONDENT No.1
MR BB NAIK, SENIOR ADVOCATE, WITH MS KJ BRAHMBHATT,
ADVOCATE for respondent No.36 (in LPA No.1664/04)
MR BB NAIK, SENIOR ADVOCATE, WITH MS KJ BRAHMBHATT,
ADVOCATE for respondent No.34 (in LPAs No.1665/04,
1666/04 and 1668/04)
MR BB NAIK, SENIOR ADVOCATE, WITH MS KJ BRAHMBHATT,
ADVOCATE for respondent No.34 & 69) (in LPA
No.1667/04)
SCA NO.3340/1989 and 3346/2001
MR BB NAIK, SENIOR ADVOCATE, WITH MS KJ BRAHMBHATT,
ADVOCATE FOR THE PETITIONER
MR PRANAV TRIVEDI, AGP for the respondent State
MR SHIRISH SANJANWALA, SENIOR ADVOCATE, with
MR DHAVAL SHAH AND MR MANAV MEHTA, ADVOCATES for
RESPONDENTS NO.2.1 to 2.8 (in SCA NO.3340/1989) AND
for RESPONDENTS NO.2.1 to 2.4 (in SCA NO.3346/2001)
===================================================
CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 10/05/2018
COMMON ORAL JUDGMENT
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) Page 2 of 28 C/LPA/1664/2004 JUDGMENT
1. This batch of petitions and letters patent appeals relate to the same lands and are intrinsically connected with each other and the parties are also common and, therefore, were ordered to be heard together and were accordingly taken up for hearing together and decided by this common judgment.
2. In all, four petitions came to be filed by Valimohmad Pirmohmad Shaikh, being Special Civil Applications No.9037, 9038, 9039 and 9040 of 1992 challenging the cancellation of the auction sales in which he had purchased the lands which are subject matter of these writ petitions and letters patent appeals, whereas one petition, being Special Civil Application No.769 of 1989 had been filed by him challenging the cancellation of the mutation entries made pursuant to the auction sales.
3. By a judgment and order dated 24.07.2003, all the said writ petitions came to be allowed by a learned Single Judge. In Special Civil Application No.769 of 1989, the order of the Assistant Collector dated 06.01.1986, the order of the Collector dated 05.08.1988 and the order of the revisional authority dated 23.01.1989 came to be quashed and set aside and in the other writ petitions the separate orders of the Collector Page 3 of 28 C/LPA/1664/2004 JUDGMENT dated 29.11.1988 and the Secretary (Appeals), Revenue Department dated 24.01.1992 came to be quashed and set aside. Being aggrieved by the judgment and order dated 24.07.2003 passed by the learned Single Judge, the State of Gujarat has filed five letters patent appeals being Letters Patent Appeals No.1664, 1665, 1666, 1667 and 1668 of 2004.
4. Special Civil Application No.3340 of 1989 was filed by Shri Chandulal Zaverbhai Patel, the original owner of lands bearing survey No.106 and 111 of Village Bhestan, Taluka Choryasi, District Surat, challenging the order dated 09.03.1989 passed by the Urban Land Tribunal (hereinafter referred to as the "Tribunal"), confirming the order dated 05.12.1985 passed by the Competent Authority and Deputy Collector, Surat (hereinafter referred to as the "Competent Authority") under subsection (4) of section 8 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the "ULC Act"). By the order dated 05.12.1985, the Competent Authority had declared, in all, 35,199 square metres of land owned by the petitioner Shri Chandulal Zaverbhai Patel to be excess vacant land.
Page 4 of 28C/LPA/1664/2004 JUDGMENT
5. Special Civil Application No.3346 of 2001 had been filed by Shri Chandulal Zaverbhai Patel challenging the mutation entries that came to be made pursuant to such land being declared to be excess vacant. By an order dated 05.05.1999, Special Civil Application No.3340 of 1989 as well as the order impugned therein came to be disposed of as abated. Special Civil Application No.3346 of 2001 came to be allowed by a judgment and order dated 20th August, 2001 holding that since the earlier petition namely, Special Civil Application No.3340 of 1989 was decided by the learned Single Judge holding that the petitioner abated, inasmuch as, possession of surplus land was not taken by the Competent Authority, there was no justification either in continuing the entry or for making the entry in records in face of subsisting interim order in the earlier writ petition. The order dated 05.05.1999 passed in Special Civil Application No.3340 of 1989 came to be challenged by the State of Gujarat by filing a letters patent appeal being Letters Patent Appeal No.1246 of 2004. By a judgment and order dated 19.08.2004, the letters patent appeal came to be allowed by setting aside the impugned order and restoring the petition to be decided afresh on merits. Against the judgment and order dated 20th August, 2001 passed by the learned Single Judge in Special Civil Application No.3346 of 2001, the Page 5 of 28 C/LPA/1664/2004 JUDGMENT State of Gujarat filed a letters patent appeal being Letters Patent Appeal No.628 of 2003, which came to be allowed by a judgment and order dated 19.08.2004, whereby the matter was remanded for a fresh decision. It appears that pursuant to a request made by the learned advocate for the petitioner in Special Civil Application No.3340 of 1989, the letters patent appeals and both the above writ petitions came to be linked together for hearing, that is how both the writ petitions along with the letters patent appeals have come up for hearing before this court.
6. A perusal of the orders passed by the Collector, Surat and the Secretary (Appeals), Revenue Department, which were subject matter of challenge in the writ petitions being Special Civil Applications No.9037, 9038, 9039 and 9040 of 1992 filed by Valimohmad Pirmohmad Shaikh, shows that suo motu powers came to be exercised by the Collector, Surat under section 211 of the Bombay Land Revenue Code, 1879 (hereinafter referred to as the "Code") mainly for the reason that the auction sales appeared to have been made with a view to bypass the provisions of the ULC Act. A perusal of the said orders shows that the auction sales had been set aside mainly on the ground that the same were made fraudulently with a view to render the provisions of the ULC Act Page 6 of 28 C/LPA/1664/2004 JUDGMENT nugatory as the lands which were put up for auction fell within the urban agglomeration and were subject to the provisions of the ULC Act. Otherwise the subject lands are private lands and are owned by the private individuals, who have not challenged the auction sales of their lands.
7. The writ petitions as well as the letters patent appeals arise in the backdrop of the following facts. Lands bearing Survey No.113/part, 106, 111, 105/1 of Village Bhestan, Taluka Choryasi, District Surat came to be purchased by Valimohmad Pirmohmad Shaikh on behalf of the Paramount Industrial Cooperative Society Limited in an auction sale held on 29.05.1981 by the Special Recovery Officer, Surat, pursuant to certificates issued under section 106 of the Gujarat Cooperative Societies Act, 1961 for recovery of the amounts stated therein to be due as arrears. Pursuant to the auction sale, corresponding mutation entries came to be recorded in the record of rights being mutation entry No.971 in relation to survey No.113/part, mutation entries No.973 in relation to survey No.106 and 111 and mutation entry No.974 in relation to survey No.105/1. The orders passed by the Special Recovery Officer came to be taken into suo motu revision by the Collector, Surat in exercise of powers under section 211 of Page 7 of 28 C/LPA/1664/2004 JUDGMENT the Code by issuing show cause notices dated 12.10.1988, which evidently were issued after a period of more than seven years from the date of auction. The Collector, Surat vide orders dated 29.11.1988 set aside the orders dated 29.05.1981 passed by the Special Recovery Officer,Surat whereby the subject lands were sold to Shri Valimohmad Pirmohmad Shaikh by way of a public auction. Shri Valimohmad Pirmohmad Shaikh, in his capacity as the principal promoter of Paramount Industrial Cooperative Society Limited, filed a revision application challenging the order passed by the Collector, Surat before the Additional Chief Secretary (Appeals), Revenue Department (hereinafter referred to as the "revisional authority", which came to be dismissed vide separate orders dated 24.01.1991. Against the said orders, Shri Valimohmad Pirmohmad Shaikh approached this court by way of writ petitions being Special Civil Applications No.9037 to 9040 of 1992.
8. Thus, the letters patent appeals arise out of the orders dated 29.11.1988 passed by the Collector, Surat; the orders dated 24.01.1991 passed by the revisional authority; and the common judgment and order dated 24.07.2003 passed by the learned Single Judge in Special Civil Application No.769 of 1989 and Special Civil Page 8 of 28 C/LPA/1664/2004 JUDGMENT Applications No.9037 to 9040 of 1992 which relate to the auction sale of the subject lands and the mutation entries made pursuant thereto. The subject matter of challenge in Special Civil Application No.3340 of 1989 is the order dated 05.12.1985 passed by the Competent Authority under section 8(4) of the ULC Act declaring 35199 square meters of land held by Shri Chandulal Zaverbhai Patel to be excess vacant as well as the order dated 09.03.1989 passed by the Tribunal dismissing the appeal filed by the petitioner and confirming the order dated 05.12.1985 passed by the Competent Authority. The subject matter of challenge in Special Civil Application No.3346 of 2001 is the mutation entry made pursuant to the order passed by the Competent Authority.
9. A significant development has taken place during the pendency of these matters, namely that the Urban Land (Ceiling and Regulation) Act, 1976 has been repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as the "Repeal Act") with effect from 30.03.1999. Section 3 of the Repeal Act which is relevant for the present purpose reads thus:
3. Savings.--(1) The repeal of the principal Act shall not affect--
(a) the vesting of any vacant land under subsection (3) of Section 10, possession Page 9 of 28 C/LPA/1664/2004 JUDGMENT of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;
(b) the validity of any order granting exemption under subsection (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary;
(c) any payment made to the State Government as a condition for granting exemption under subsection (1) of Section 20. (2) Where--
(a) any land is deemed to have vested in the State Government under subsection (3) of Section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and
(b) any amount has been paid by the State Government with respect to such land, then, such land shall not restored unless the amount paid, if any, has been refunded to the State Government.
10. Section 4 of the Repeal Act provides for "Abatement of legal proceedings" and postulates that all proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of the Act, before any court, tribunal or other authority shall abate. The proviso thereto provides that the section shall not apply to the proceedings relating to sections 11, 12, 13 and Page 10 of 28 C/LPA/1664/2004 JUDGMENT 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.
11. Thus, by virtue of the provisions of the repeal Act, the taking over of the possession of the lands declared excess vacant assumes significance, inasmuch as, section 3 of the Repeal Act saves the vesting of any vacant land under subsection (3) of section 10 of the ULC Act, 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. Under section 4 of the Repeal Act provides for abatement of all proceedings under the ULC Act except where possession of the land declared excess vacant has been taken over on behalf of the State Government.
12. In view of the subsequent development, what is required to be examined in this case is whether Special Civil Application No.3340 of 1989 would abate in view of the repeal of the ULC Act. For this purpose the court would be required to ascertain as to whether the possession of the Page 11 of 28 C/LPA/1664/2004 JUDGMENT lands declared excess vacant has been taken over on behalf of the State Government as contemplated under section 3 of the Repeal Act. If the answer is in the negative the proceedings would abate and if the answer is in the affirmative the petition would be required to be decided on merits. In case it is found that the possession of the lands declared excess vacant has not been taken over by the State Government prior to the coming into force of the Repeal Act, in view of the provisions of the Repeal Act, the proceedings under the ULC Act would abate, and consequently, the State Government would no longer have any right or interest in the land declared excess vacant and as a necessary corollary, the State Government would no longer have any interest in the validity or otherwise of the auction proceedings.
13. Therefore, before going into the merits of the letters patent appeals relating to the orders passed by the revisional authority, confirming the orders passed by the Collector, Surat setting aside the auction sales in favour of Shri Valimohmad Pirmohmad Shaikh, it would be necessary to examine as to whether or not the proceedings under the ULC Act which are subject matter of challenge in Special Civil Application No.3340 of 1989 have abated. For this purpose, as Page 12 of 28 C/LPA/1664/2004 JUDGMENT discussed hereinabove, what is relevant is whether the possession of the lands declared excess vacant had been taken over in accordance with law prior to the coming into force of the Repeal Act, that is, 30.03.1999.
14. In this regard, Mr. B. B. Naik, learned Senior Advocate, learned counsel with Ms. Kalpana J. Brahmbhatt, learned advocate for the petitioners, submitted that the respondent State authorities claim to have taken possession of the land bearing survey No.113/part and survey No.106 as well as plot No.41 owned by the petitioner, however, such possession is merely a paper possession and the actual possession, as contemplated under the ULC Act, has never been taken over. It was submitted that under the ULC Act, a procedure has been prescribed for taking over possession of the land declared excess vacant and any deviation therefrom would result in vitiating the proceedings.
14.1 It was submitted that in this case, notice under subsection (5) of section 10 of the ULC Act has not been served upon the petitioner, and hence, without service of notice, the next step of taking possession under subsection (6) of section 10 of the ULC Act could not have been resorted to. In support of such submission, the Page 13 of 28 C/LPA/1664/2004 JUDGMENT learned counsel placed reliance upon the decision of this court in the case of Indrajitsing P. Geel v. Competent Authority and Deputy Collector & Anr., 2006 (3) G.L.H. 487, wherein the court has held that it is not open for the authorities under the ULC Act to resort to the provisions of subsection (6) of section 10 of the ULC Act without first complying with the provisions of subsection (5) thereof.
14.2 Next it was submitted that assuming for the sake of argument that the notice under sub section (5) of section 10 of the ULC Act has been served upon the petitioner, no notice whatsoever under subsection (6) of section 10 of the ULC Act has even been issued by the respondents. Thus, nonservice of notice under subsection (6) of section 10 of the ULC Act would render the possession if any, taken subsequent thereto invalid. Referring to the panchnama dated 16.03.1990 at AnnexureRIV to the affidavitin reply filed by the Competent Authority, it was submitted that the same does not disclose as to which part of the survey number possession has been taken over nor has any map been produced along with the panchnama demarcating the boundaries of the lands of which possession is alleged to have been taken over. It was submitted Page 14 of 28 C/LPA/1664/2004 JUDGMENT that in the light of the glaring infirmities in the procedure followed by the respondent authorities, the socalled possession taken over on 16.03.1990 is illegal and has no sanctity in the eye of law and in the absence of possession having been taken over prior to the coming into force of the Repeal Act, the proceedings under the ULC Act would abate.
14.3 In support of his submissions, the learned counsel placed reliance of the decision of the Supreme Court in the case of State of Uttar Pradesh v. Hari Ram, (2013) 4 S.C.C. 280, wherein the court has held thus:
"Peaceful dispossession
34. Subsection (5) of Section 10, for the first time, speaks of "possession" which says that where any land is vested in the State Government under subsection (1) 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 authorised by the State Government.
35. xxxxx Subsection (5) of Section 10 visualises a situation of surrendering and Page 15 of 28 C/LPA/1664/2004 JUDGMENT delivering possession, peacefully while sub section (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 Page 16 of 28 C/LPA/1664/2004 JUDGMENT on failure to surrender or give delivery of possession under Section 10(5), then "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 sub sections 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 in the land holder being dispossessed without notice, therefore, the word "may" has to be read as "shall"."
"42. The mere vesting of the land under sub section (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. The State has to establish that there has been a voluntary surrender of vacant land or surrender and Page 17 of 28 C/LPA/1664/2004 JUDGMENT delivery of peaceful possession under sub section (5) of Section 10 or forceful dispossession under subsection (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act.
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 4 of the Repeal Act."
14.4 It was submitted that thus, the Supreme Court has held that the requirement of giving notice under subsections (5) and (6) of section 10 of the ULC Act is mandatory. It was contended that in the facts of the present case, no notice under subsection (6) of section 10 of the ULC Act has Page 18 of 28 C/LPA/1664/2004 JUDGMENT even been issued and hence, taking over the possession of the lands declared excess vacant is not in accordance with law.
14.5 Various other submissions had also been advanced on merits of the order passed by the competent authority under subsection (4) of section 8 of the ULC Act, including the submission that as the agricultural lands were exempted under section 20 of the ULC Act from the provisions of Chapter 3 of the said Act, the same could not have been declared excess vacant land; however, for the reasons that follow, it is not necessary to dilate upon the same.
15. Opposing the petition, Mr. Pranav Trivedi, learned Assistant Government Pleader, invited the attention of the court to the affidavitinreply filed by the Competent Authority to submit that notice under subsection (5) of section 10 of the ULC Act had been issued to Shri Chandulal Zaverbhai Patel on 31.08.1989 and the same was duly served upon him. It was submitted that the notice under subsection (5) of section 10 of the ULC Act was sent to the petitioner through Registered Post A.D., the acknowledgment receipt whereof was available on the record; however, the concerned Deputy Mamlatdar, Shri Ashok D. Lodhe, in the year 2010, has misplaced the original Page 19 of 28 C/LPA/1664/2004 JUDGMENT Registered Post A.D. slip and in respect of the same, a show cause notice was issued to him and after considering the reply submitted by him, punishment has also imposed upon him. It was submitted that thus, the original Registered Post A.D. slip, whereby the petitioner has acknowledged the notice under subsection (5) of section 10 of the ULC Act is presently not available on record, though earlier it was in fact available on the record of the case. It was contended that all the proceedings under the ULC Act have been duly followed by the Competent Authority, viz. the order under section 8(4) of the ULC Act declaring the lands to be excess vacant came to be passed by the Competent Authority and was duly served upon the declarant; the final order came to be made under section 9 of the ULC Act; notification under subsection (1) of section 10 of the ULC Act was issued on 02.01.1986, notification under subsection (3) of section 10 of the ULC Act came to be issued on 08.01.1987; and notice under subsection (5) of section 10 of the ULC Act came to be issued on 31.08.1989 and was duly served upon the petitioner; however, since the petitioner did not hand over peaceful possession of such lands within a period of thirty days from such notice, on 16.03.1990, the possession of the said land was taken over in the presence of panchas under Page 20 of 28
C/LPA/1664/2004 JUDGMENT subsection (6) of section 10 of the ULC Act. It was submitted that after taking over possession of the subject lands, corresponding mutation entry has also been made in the record of rights being mutation entry No.1322. It was submitted that the necessary proceedings having been undertaken before taking over the possession of the lands, and possession having been taken over in accordance with law prior to the coming into force of the Repeal Act, the proceedings under the ULC Act would not abate.
16. This court has also heard Mr. S.H. Sanjanwala, Senior Advocate, learned counsel with Mr. Dhaval Shah and Mr. Manav Mehta, learned advocates for the respondents No.2.1 to 2.8 in Special Civil Application No.3340 of 1989 and for the respondents in the letters patent appeals, who has supported the petitions and reiterated the submissions advanced by Mr. Naik.
17. Since the question as to whether the proceedings under the ULC Act would abate, depends solely on the question as to whether the possession was taken over prior to the coming into force of the Repeal Act, this court by way of abundant caution had called for the learned Assistant Government Pleader to produce the original record of the case before this court for its perusal.Page 21 of 28
C/LPA/1664/2004 JUDGMENT
18. A perusal of the record of the case reveals that there is no acknowledgment receipt regarding service of notice under subsection (5) of section 10 of the ULC Act on the original petitioner Shri Chandulal Zaverbhai Patel.
However, a dispute has been raised in the further affidavit filed by the respondents stating that though such acknowledgment receipt was on record it was subsequently misplaced by the concerned Deputy Mamlatdar. Nonetheless, as rightly pointed out by the learned counsel for the petitioner, the ULC Act contemplates not only issuance and service of notice under subsection (5) of section 10 of the Act but also under subsection (6) of section 10 of the ULC Act, if after service of notice under subsection (5) of section 10 of the ULC Act, possession is not surrendered or delivered peacefully. A perusal of the record of the case reveals that no notice has been issued to the petitioner under subsection (6) of section 10 of the ULC Act. At this juncture reference may be made to the decision of the Supreme Court in the case of State of Uttar Pradesh v. Hari Ram (supra), on which strong reliance has been placed by the learned counsel for the petitioner. The court, in the decision, has held that the requirement of giving notice under subsections (5) and (6) of section 10 of the ULC Act is mandatory. It has been held that Page 22 of 28 C/LPA/1664/2004 JUDGMENT the ULC Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under subsection (5) of section 10 of the ULC Act. Subsection (6) of section 10 of the ULC Act 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. The court has held that sub section (6), therefore, contemplates a situation of a person refusing or failing to comply with the order under subsection (5) of section 10 of the ULC Act, in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted to only in a situation which falls under subsection (6) of section 10 of the ULC Act and not under subsection (5) of section 10 of the ULC Act. Subsections (5) and (6) of section 10 of the ULC Act, therefore, take care of both the situations, that is, taking possession by giving notice that is, "peaceful dispossession" and on failure to surrender or give delivery of possession under section 10(5) of the ULC Act, then "forceful dispossession"
under subsection (6) of section 10 of the ULC Act. The court has held that the State has to Page 23 of 28 C/LPA/1664/2004 JUDGMENT establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under subsection (5) of section 10 of the ULC Act or forceful dispossession under subsection (6) of section 10 of the ULC Act. On failure to establish any of these two situations, the landowner or holder can claim the benefit of section 4 of the Repeal Act.
19. In the facts of the present case, insofar as notice under subsection (5) of section 10 of the ULC Act is concerned, the original record does not contain the acknowledgment receipt evidencing the fact regarding the petitioner having received the same. As regards service of notice under sub section (6) of section 10 of the ULC Act, from the record of the case it is evident that no such notice has been issued leave alone served upon the petitioner. Clearly, therefore, the mandatory provisions of subsections (5) and (6) of section 10 of the ULC Act have not been satisfied in the facts of the present case.
20. Under the circumstances, in the light of the principles enunciated by the Supreme Court in the case of State of Uttar Pradesh v. Hari Ram (supra), on failure of the State to establish any situation of either voluntary surrender of vacant land, or surrender and delivery of peaceful Page 24 of 28 C/LPA/1664/2004 JUDGMENT possession under subsection (5) of section 10, or forceful dispossession under subsection (6) of section 10 of the ULC Act, the landowner or holder can claim the benefit of section 4 of the Repeal Act, the petitioner herein is, therefore, entitled to the benefit of section 4 of the Repeal Act.
21. In the light of the above discussion it is evident that though the State authorities claim to have taken over possession of the subject lands, such possession has not been taken over in accordance with the provisions of subsections (5) and (6) of section 10 of the ULC Act and hence, such possession has no sanctity in the eye of law. Under the circumstances, the State authorities have failed to establish that they have taken possession of the subject lands prior to the coming into force of the Repeal Act and consequently, the proceedings under the ULC Act would, therefore, abate.
22. In the light of the fact that the proceedings under the ULC Act stand abated, the State Government would no longer have any interest in the subject lands as they are freehold lands belonging to private individuals.
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23. Insofar as the letters patent appeals filed by the State challenging the judgment and order dated 24.07.2003 passed by the learned Single Judge are concerned, whereby the orders passed by the revisional authority confirming the order passed by the Collector, Surat, setting aside the auction sales have been set aside, the State had interest in such lands because they were governed by the provisions of the ULC Act. Therefore, due to the intervening events that took place due to efflux of time, once the provisions of the ULC Act do not apply to the subject lands, the State no longer has any right or interest in the subject lands. Consequently, the State can have no grievance regarding any infirmity in the conduct of the auction proceedings when the original owners whose lands had been auctioned have raised no grievance against the same. Therefore, apart from the fact that the suo motu proceedings had been initiated after an inordinate delay of more than seven years, which ipso facto would vitiate the proceedings, in view of the lapse of time, the State no longer has any interest in the subject lands inasmuch as the subject lands are no longer governed by the provisions of the ULC Act. As recorded earlier, the original owners whose lands were sold in the auction sales had not challenged the auction proceedings. Even before this court, no grievance Page 26 of 28 C/LPA/1664/2004 JUDGMENT has been raised in this regard. Under the circumstances, since the State Government has no interest in the subject lands and the interested parties are not aggrieved by the auction sales, there is no warrant for interference with the judgment and order passed by the learned Single Judge.
24. In the light of the above discussion, Special Civil Application No.3340 of 1989 is allowed. It is held that the State Government could not establish that possession of the lands declared excess vacant was taken over either by voluntary surrender of vacant land or surrender or delivery of peaceful possession under subsection (5) of section 10 or forceful dispossession under sub section (6) of section 10 of the ULC Act. The petitioners are therefore, entitled to get the benefit of section 4 of the Repeal Act. Accordingly, it is held that the proceedings under the ULC Act have abated and hence, the orders passed by the competent authority and the Urban Land Tribunal are rendered non est. Rule is made absolute accordingly with no order as to costs.
25. Since the mutation entries which are subject matter of challenge in Special Civil Application No.3346 of 2001 have been made pursuant to the Page 27 of 28 C/LPA/1664/2004 JUDGMENT subject land having been declared excess vacant, in view of the abatement of the proceedings under the ULC Act, the mutation entries no longer have any basis and, therefore, are required to be set aside. Accordingly, Special Civil Application No.3346 of 2001 is hereby allowed. The respondents are hereby directed to delete the mutation entry No.1322 of 1996, declaring the lands of the petitioner bearing survey nos.106 and 111 of Village Bhestan, Taluka Chorasi, District Surat as excess vacant and having vested in the State Government from the record of rights with due intimation to the petitioners. RULE is made absolute accordingly with no order as to costs.
26. For the foregoing reasons, Letters Patent Appeals No.1664 to 1668 of 2004, are hereby dismissed with no order as to costs.
27. Registry to place a copy of this order in each of the connected matters.
Sd/ [HARSHA DEVANI, J] Sd/ [A. S. SUPEHIA, J] *** Bhavesh[pps]* Page 28 of 28