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Showing contexts for: ulc act in Chandralal Bulchand Ambavani vs State Of Gujarat on 22 February, 2021Matching Fragments
3. On the other hand, the original owner - Khumanbhai through his Legal Representatives represented before the Competent Authority in the ULC proceedings and the Respondent No.2 - Deputy Collector, U.L.C., Ahmedabad passed an order under Section 8(4) of the ULC Act on 21.12.1987 declaring 3947 Sq. Mtrs. of said Survey No.387/2 belonging to Khumanbhai Vaghri as excess vacant land under the provisions of the ULC Act. Thereafter, the Notification under Section 10(3) of the ULC Act was issued on 30.6.1989. Consequently, Section 10(5) Notice to handover possession was issued by the Competent Authority to the Legal C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 Representatives of Khumanbhai on 13.7.1990 and through Panchnama process, the possession is said to have taken in August, 1990. Thereafter, the State Government under Section 23 of the ULC Act is said to have allotted the plots of the land on such excess land vested in the State Government in favour of 83 allottees vide order dated 8.10.1991 / 17.12.1991 as per the List produced on record at AnnexureR10. Thus, while on the one hand, the Competent Authorities took the proceedings under ULC Act and the land upon vesting in the State stood allotted to 83 persons, who are not parties before us, the present writ proceedings were initiated by Baldevbhai Shivabhai Patel, the first Purchaser under Sale Deed dated 5.7.1979 represented by his Legal Representatives even though he executing Sale Deed in favour of Vishnubhai Patel and Balvantbhai Patel on 17.1.2007, who, in turn, further sold the land in question on 4.1.2008 as aforesaid. Thus, a person, who had actually no interest in the land at that point of time, initiated these legal proceedings before this Court under Article 226 of the Constitution of India.
6. On the other hand, Mr.Meet Thakkar, learned Assistant Government Pleader for the State, vehemently opposed these submissions and taking us through the aforequoted Paragraph Nos.13 and 14 of the learned Single Judge and referring to the documents on record, he submitted that not only the first sale by Khumanbhai and his Legal Representatives on 5.7.1979 was illegal and against the provisions of the ULC Act, as the land in question could not have been sold by the said Khumanbhai without taking prior permission of the State even if it was to be believed that Section 20 exemption was granted in favour of Khumanbhai. He submitted that Section 20 order was never referred and placed C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 before the Competent Authority while he took the proceedings under Sections 8(4) and 10(3) of the ULC Act and it is only for the first time that the Purchaser under the said Sale Deed dated 5.7.1979 (Baldevbhai Shivabhai Patel) challenged these proceedings after 8 years of passing of the order under Section 10(3) of the ULC Act in writ jurisdiction and that too, without filing any Appeal against the order under Section 10(3) of the ULC Act. He further submitted that Sections 10(5) and 10(6) proceedings were also taken and after taking over the possession of the land vested in the State Government, the land already stands now allotted to 83 persons who were also never arrayed as party in the present litigation by the person, who had no locus standi to file such Writ Petition.
12. Assuming that any such order like AnnexureA dated 19.4.1979 under Section 20 of the ULC Act ever existed, even that has lost its significance altogether, once the Competent Authority passed an order under Section 10(3) of the Act vesting the excess vacant land in the State under Section 10(3) of the ULC Act. The exemption, if validly granted and availed could survive in favour of C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 the party only if it was properly used it as a defence in the proceedings under Section 8(4) / 10(3) of the ULC Act before the Competent Authority. The original owner of the land in question - Khumanbhai and his Legal Representatives, though were facing these proceedings under ULC Act before the Competent Authority, they never brought it to the notice of the Competent Authority any such exemption and purportedly having sold the land in question to Baldevbhai Shivabhai Patel on 5.7.1979 and, therefore, they lost interest in the proceedings under Section 10(3) of the ULC Act, it was for so called Purchaser under the Sale Deed dated 5.7.1979, Baldevbhai Shivabhai Patel to defend in those proceedings under Section 10(3) of the ULC Act, which he never did during the contemporary period. The first challenge from his side comes after 8 years of the order under Section 10(3) of the ULC Act in 1995 before the learned Single Judge only by way of filing this writ petition, without availing the alternative remedy of a Regular Appeal under the provisions of the ULC Act.
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 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 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 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 C/LPA/1411/2016 JUDGMENT Dt.: 22.2.2021 CHANDRALAL BULCHAND AMBAVANI v. STATE OF GUJARAT & 2 proceedings under ULC Act can get concluded either under Section 10(5) or 10(6) of the Act as indicated above.