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Showing contexts for: ulc act in Bavabhai Tapubhai Patel vs State Of Gujarat on 30 June, 2021Matching Fragments
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 judgement of the Supreme C/LPA/515/2007 CAV Judgement DATED: 30/06/2021 BAVABHAI TAPUBHAI PATEL Versus STATE OF GUJARAT & 1 other(s) Court in the case of Bhaskar Jyoti Sarma (Supra) said so that such a further Notice even after NoticecumOrder is 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.
26. That as far as the proceeding under provisions of the ULC Act, 1976 is concerned, in the present case, we are satisfied that the same stood concluded and closed way back in the year 1985 itself and therefore, there was no occasion to claim that the possession continued to be with the land holders viz. these four brothers and mere revenue entry continuing in the name of Javerbai does not upset the declaration of vesting of land in the State under Section 10(3) of the ULC Act, 1976 nor the factum of possession taken over by the Competent Authorities under Section 10(5) / 10(6) of the ULC Act, 1976. The alleged minor irregularity of non- serving of the Notices under Section 10(5) of the ULC Act, 1976 on all the four brothers though admittedly some of such notices were served on all four of them or that the possession was taken in the absence of these brothers at the site on the date of taking over the possession, is of no consequence and the law in this regard has been settled by the Hon'ble Supreme Court in the case of Bhaskar Jyoti Sarma (supra) which has been followed by this Court in the case of Heirs of Dec. Jethabhai Ishwarbhai (supra) distinguishing the earlier decision of the Hon'ble Supreme Court in the case of Hari Ram (supra). The relevant extract of the judgement in the case of Heirs of Dec. Jethabhai Ishwarbhai C/LPA/515/2007 CAV Judgement DATED: 30/06/2021 BAVABHAI TAPUBHAI PATEL Versus STATE OF GUJARAT & 1 other(s) (supra) is quoted below for ready reference:
(iv) Prabhatbhai Shivabhai Solanki Vs. State of Gujarat and others (Page-46 Judgement) Letters Patent Appeal No.1281 of 2016;
Decided on 23.03.2021;
The following portions of the said judgement are quoted below for ready reference:
"11. In our opinion, the learned Single Judge was perfectly justified in holding that once the Notification under Section 10(3) has been issued in the present case on 3.8.1989 vesting the land in the State free from all encumbrances and in pursuance thereof, upon issuance of Notice under Section 10(5) of the ULC Act, 1976, the possession also has been taken over by the State Government on 1.4.1992 under Section 10(6) of the ULC Act, 1976 through Panchnama Process, there was no question of deciding the pending Application under Section 21 of the ULC Act, 1976 upon remand by the Tribunal and that too should be deemed to have stood abated. The learned Single Judge has further noted in the extract C/LPA/515/2007 CAV Judgement DATED: 30/06/2021 BAVABHAI TAPUBHAI PATEL Versus STATE OF GUJARAT & 1 other(s) of judgement quoted above that Notification under Section 10(3) of the ULC Act, 1976 and the proceedings of taking over the possession under Section 10(5) / 10(6) of the ULC Act, 1976 have not been assailed by the Petitioners at all and he is merely banking upon the pendency of the Application under Section 21 of the ULC Act, 1976 and have sought the benefit of Section 4 of the Repeal Act treating the proceedings concluded under Section 10(3) Notification as well as under Section 10(5) and Section 10(6) of the ULC Act, 1976 as null and void or non est.
19. There is no question of any voluntary handing over of possession on the part of the land owner. Whatever is done under sub-section (5) is done in pursuance of the notice-cum-order 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 notice-cum-order under Section 10(5) of the Act is, therefore, a misnomer. If the possession is handed over in compliance with the notice-cum-order under Section 10(5) of the Act to the State authorities or person C/LPA/515/2007 CAV Judgement DATED: 30/06/2021 BAVABHAI TAPUBHAI PATEL Versus STATE OF GUJARAT & 1 other(s) 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 notice-cum- order 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 sub-section (5), then the Competent Authority may take possession of vacant land and may use such force as may be necessary for that purpose. Sub-section (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 sub-section (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 by anybody including the land owner in that process. Otherwise use of force is not necessary. Sub-section (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 sub- sections 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 C/LPA/515/2007 CAV Judgement DATED: 30/06/2021 BAVABHAI TAPUBHAI PATEL Versus STATE OF GUJARAT & 1 other(s) the Act as indicated above.