This Letters Patent Appeal under Clause 15 of the Letters Patent is arising out of the judgment and order dated 11.12.2002 passed by the Learned Single Judge in Special Civil Application No.7084 of 1999 whereby the Learned Single Judge dismissed the writ petition filed by the State of Gujarat, the appellant herein on the ground that in view of Urban Land (Ceiling and Regulation) Repeal Act, 1999, the writ petition stood abated. 2. In the writ petition being Special Civil Application No.7084 of 1999, the appellant had challenged the order dated 22.3.1999 passed by the Urban Land Tribunal and Ex- officio Additional Deputy Secretary, Government of Gujarat in Appeal No.Surat/25/1998 by which the appeal filed by the respondent under Section 33 of the ULC Act came to be allowed and the order dated 6.4.1977 passed by the Competent Authority and Additional Collector, Urban Land Ceiling, Surat under Section 8 of the ULC Act was quashed and set aside.
3. We have heard Mr. Jirga Jhaveri, learned Assistant Government Pleader appearing for the appellant and Mr. K. K. Trivedi, learned counsel appearing for the respondent. We have also gone through the order passed by the Learned Single Judge as well as the order passed by the Tribunal in Appeal No.Surat/25 of 1998. Except the order of the Tribunal, the appellant – State has not produced any other annexures along with its writ petition.
4. Ms. Jirga Jhaveri has submitted that after processing the Form No.1 filed by the respondent under Section 6 (1) of the Urban Land (Ceiling and Regulation) Act, 1976, the Competent Authority declared 78029 Sq. Mts. of land as excess vacant land by order dated 6.4.1977. Thereafter, proceedings under Sections 10 (1)and 10 (5) were followed. The possession of the land in question was taken over by the State Government and the respondent is not in possession of the land. Ms. Jhaveri has submitted that the Learned Single Judge ought to have decided the matter on merits and ought not to have dismissed the writ petition on the ground that Section 4 of the Repeal Act would be applicable in the present case. She has placed reliance on the decision of the Apex Court in the case of Darothi Clare Parreira (Smt.) and others v. State of Maharashtra and others, (1996) 9 SCC 633 (paragraphs 5 and 6).
5. On the other hand, Mr. K. K. Trivedi, learned counsel appearing for the respondent has submitted that the Appellate Tribunal passed the order on 22.03.1999. The appellant preferred Special Civil Application No.7084 of 1999 on 19.8.1999. The Urban Land (Ceiling and Regulation) Repeal Act, 1999 came into force w.e.f. 30.3.1999. In view of the provisions of Repeal Act, more particularly, Section 4 of the Repeal Act, all proceedings shall abate which are pending immediately before the commencement of the Repeal Act before any Court, Tribunal or any other authority. Hence, he submitted that the Learned Single Judge has rightly dismissed the writ petition filed by the appellant herein and no interference is called for in the impugned judgment and order. He has, therefore, submitted that the present Letters Patent Appeal may be dismissed. He relied on the unreported decision of the Division Bench of this Court in the case of Bhikhiben Wd/o. Devjibhai Patel (Since Deceased) v. State of Gujarat through the Principal Secretary and others, delivered in Letters Patent Appeal No.2206 of 2007 in Special Civil Application No.7342 of 2007 on 15.12.2010.
6. It is an undisputed fact that the order dated 6.4.1977 passed by the Competent Authority under Section 8 (4) of the ULC Act was quashed and set aside by the Tribunal on 22.3.1999. The Urban Land (Ceiling and Regulation) Repeal Act, 1999 came into force w.e.f. 30.3.1999. The State Government challenged the decision of the Tribunal by way of Special Civil Application which was filed on 19.8.1999. As per Section 4 of the Repeal Act, all proceedings undertaken by the Competent Authority in continuation of the order passed under Section 8 (4) shall be treated as null and void. In absence of any other order passed by any Court or authority, the original position of the land is to be restored. Before filing of the writ petition by the State Government on 19.8.1999, Repeal Act came into force on 30.3.1999. Therefore, as per Section 4 of the Repeal Act, 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 be treated as abated. Section 4 of the Repeal Act is extracted below :-
“4. Abatement of legal proceedings :-
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 authorized by the State Government in this behalf or by the competent authority."
7. Furthermore, the Division Bench of this Court in the unreported decision in the case of Bhikhiben Wd/o. Devjibhai Patel (Supra) has observed as under :-
“The Learned Single Judge having dismissed the petition as having been abated and the Government having already taken over the possession of the land, the possession of the land would remain with the Government and the land owners cannot claim any further right, title or interest. We are afraid, the contention cannot be accepted. Firstly, possession was taken pursuant to the order under Section 8 (4) of the ULC Act and after issuing necessary notice and notification under Section 10 (3) and 10 (5) of the ULC Act. All these proceedings and orders were set aside by the Urban Land Tribunal. Even if the possession was bonafide taken over by the Government, by virtue of quashing the orders under which such possession was taken over, the possession would no longer be legally tenable. Further, the Learned Single Judge came to a definite finding that by virtue of repeal of the ULC Act, the proceedings have abated. If the Learned Single Judge was of the opinion that the Government had rightly and legally taken over the possession of the land, there was no question of abating the proceedings and by virtue of the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, the issues had to be decided on merits. If the Government was of the opinion that the possession was legally taken over and that decision of the Tribunal was required to be tested on merits, it had to request the Single Judge to decide the petition on merits, and if the request was not accepted, had to challenge the order of the Learned Single Judge. We find the Government did neither. Order of the Single Judge gives an impression that it was an invited order. In any case it was never challenged further.
Accepting the stand of the Government would result into anomalous situation. The land holders would continue to be the legal owners of the land whereas the Government would continue to hold the possession thereof in perpetuity. Such a situation was never envisaged by the Urban Land (Ceiling and Regulation) Repeal Act.”
8. The case relied upon by Ms. Jhaveri, learned Assistant Government Pleader in the case of Darothi Clare Parreira (Smt.) and others (Supra), in our opinion, is not applicable to the facts of the present case. In the aforesaid case, the proceedings under Sections 20 & 21 of the ULC Act, 1976 were pending before the Competent Authority and in the meantime, the proceedings were completed upto Section 10 (4) of the Act. Here, the entire proceedings have been treated as abated in view of Section 4 of the Repeal Act.
9. We are in agreement with the observations made hereinabove. In the present case also, even though the possession of the excess land was taken in accordance with law by the appellant, it cannot be treated as a legal one. The possession was taken by the authority pursuant to the order of Competent Authority which was quashed by the Tribunal and there was no order in existence on 30.3.1999 when the Repeal Act came into force.
10. We are also in agreement with the view taken by the Learned Single Judge. In the above view of the matter, the present Letters Patent Appeal lacks merit and is accordingly dismissed with no order as to costs. Interim relief granted earlier stands vacated.
11. In view of dismissal of appeal, Civil Application also stands dismissed.
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[V. M. SAHAI, J.] Sd/-
[A. J. DESAI, J.] Savariya