IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 617 of 2007 In SPECIAL CIVIL APPLICATION No. 3915 of 1992 With CIVIL APPLICATION No. 6383 of 2007 In LETTERS PATENT APPEAL No. 617 of 2007 For Approval and Signature:
HONOURABLE MR.JUSTICE D.H.WAGHELA HONOURABLE MR.JUSTICE N.V. ANJARIA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= POPATJI CHHAGUJI & 4 - Appellant(s) Versus THE STATE OF GUJARAT THE SECRETARY & 1 - Respondent(s) ========================================================= Appearance :
MR AJ PATEL for Appellant(s) : 1 - 5.
MS. MONALI BHATT AGP for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2, =========================================================
CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA
and HONOURABLE MR.JUSTICE N.V. ANJARIA Date :29/03/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE N.V. ANJARIA)
1. This appeal under Clause 15 of the Letters Patent is preferred against the judgment and order of learned Single Judge dated 20.12.2006 in Special Civil Application No. 3915 of 1992. The appellants are the original petitioners, claiming ownership and possession of the land bearing survey No.1284 admeasuring 13,152 sq. mtrs. situated at Vejalpur, Taluka Ahmedabad.
2. In the writ petition, the petitioners have prayed to set aside order dated 31.01.1992 of the Urban Land Tribunal at Ahmedabad in Appeal No.136 of 1991. Also challenged was the order dated 13.07.1988 passed by the competent authority under section 8(4) of the Urban Land (Ceiling and Regulation) Act, 1976 (‘the Act’ for sake of brevity), declaring 7856.68 sq. mtrs. of land of the petitioners to be excess vacant land. It was further prayed to set aside notifications under section 10(1) and section 10(3) of the Act. The principal contention of the petitioners was that as their application under section 20 of the Act was pending, the authorities could not have proceeded beyond the stage of section 10(2) of the Act, and notification issued under section 10(3) of the Act was illegal.
3. A profile of relevant facts in the backdrop was that the petitioners had applied in 1976 for grating exemption to their land under section 20 of the Act, which was granted in respect of entire land on 15.09.1979. The petitioners later wanted to make application under section 21 of Act. Therefore, they filed application dated 07.08.1987 for revocation of order passed under section 20 of the Act. On 10.12.1987, authorities passed order revoking the exemption earlier granted. Thereupon, as per the case of the petitioners, they submitted an application under section 21 of the Act mooting a scheme for construction of dwelling houses for the weaker section. In the meantime, however, the competent authority passed an order under section 8(4) of the Act declaring 7856.68 sq. mtrs. of land as excess vacant land. By order dated 31.08.1989, the application which was made under section 21 came to be rejected. Admittedly, that order dated 31.08.1989 has not been challenged. It appears that by filing an Appeal under section 33 of the Act, order dated 13.07.1988 declaring the land surplus was challenged.
3.1 The appeal of the petitioners before the Tribunal, preferred in 1991 under section 33 of the Act, challenged order dated 13.07.1988 even as the limitation for preferring appeal was 30 days and any application for condonation of delay was not shown to this Court to be on record. Be as it may. The Tribunal by order dated 31.01.1992 dismissed the appeal coming to a conclusion that upon issuance of notification under section 10(3) of the Act, the land had vested in the State Government, recording further that it was transparent from the evidence on record that possession of the land in question had been taken over by the State Government on 25.09.1991. This order of the Tribunal came to be upheld by learned Single Judge by dismissing Special Civil Application No. 3915 of 1992 of the petitioners challenging the order of the Tribunal.
3.2 By filing affidavit-in-reply, the respondent authorities inter-alia contended that possession of the land was duly taken over by the authorities on 25.09.1991, for which notice was given on 25.03.1991. It was submitted that in Special Civil Application No. 3915 of 1992 of the petitioners filed upon coming into force of The Urban Land (Ceiling and Regulation) Repeal Act, 1999, learned Single Judge had wrongly recorded that possession was not taken over, and therefore, a review application being Misc. Civil Application No.1503 of 1999 was filed by the State Government which was rejected, against which Letters Patent Appeal No.989 of 2001 was preferred and the Division Bench, by order dated 28.12.2001, recorded that possession was taken over, and remanded the petition for decision afresh by learned Single Judge.
3.3 The other relevant facts noticed and not in dispute were that the present petitioners executed agreement to sell in favour of one Shreenathji State Bank Co-operative Housing Society. That Co-operative Society also filed application on 20.02.1991 being the same date the petitioners filed similar application, under section 20 of the Act. It came to be rejected on 20.01.1995.
3.4 The Government issued notification under section 10(1) on 30.08.1989. The notification under section 10(3) was issued on 27.08.1990, and was published in the Government Gazette on 21.02.1991. Notice under section 10(5) was given on 25.03.1991 for taking possession of the land and possession was taken by the State Government on 25.09.1991 as per the panchnama and other record.
4. Learned advocate for the appellants submitted that the land was not vested in the government as the notification under section 10(3) was incompetent. According to him the possession of the land of the petitioners was not taken in accordance with the provisions of section 10(5) and 10(6) as per the procedure prescribed therein and therefore the land had not vested in the State Government. It was submitted that notice under section 10(5) of the Act was not served on the petitioners even though it was shown to have been issued. He pressed that the relief in the writ petition ought to have been granted by learned Single Judge.
4.1 Learned advocate for the appellants in support of his contentions relied on the following decisions :
1. Samrathben Manilal Chokshi v. State of Gujarat (15 (1) GLR 203)
2. Savitaben Ramanbhai Patel v. State of Gujarat (40 (1) GLR 860)
3. Special Officer and Competent Authority, Urban Land Ceilings, Hyderabad v. P.S. Rao JT 2000 (1) SC 393
4. State of Gujarat v. Kishorkumar Rengildas Lotwala (LPA No.5 of 2002)
5. Rameshchandra Shamjibhai Raniga v. State of Gujarat 2000(4) GLR 2777
6. State of Maharashtra v. B.E. Billimoria (2003) 7 SCC 336
7. State of Gujarat v. Bharatkumar Lalbhai Vasa (LPA 1132 of 2007)
8. Competent Authority & Additional Collector (ULC) v. Laxmanbhai K. Chokshi (LPA No.67 of 2008)
9. Maninagar Vaishalipart Co-op Housing Society Ltd. v. Competent Authority and Dy. Collector (SCA 7812 of 1993)
10. Indrajitsing P. Geel v. Competent Authority (SCA No.6111 of 1991)
11. Pt. Madan Swaroop Shrotiya v. State of U.P. (2000 AIR SCW 1882)
12. State of Gujarat v. Kashiben w/d. Nathibhai S. Prajapati (LPA No. 1727of 2010)
13. Mangalsen v. State of U.P. (Civil Appeal No.2763 of 2012)
14. Darothi Clare Parreira (Smt.) v. State of Maharashtra (JT 1996 (7) SC 113).
4.2 Learned Assistant Govt. Pleader supported the judgment of learned Single Judge and submitted that the possession was taken over long back in accordance with law. It was submitted that the lands were already vested in the government. She relied on following decisions in support of her submissions :
1. M/s. Larsen and Toubro Limited v. State of Gujarat (AIR 1998 SC 1608)
2. Kalpeshkumar Naranbhai Patel v. Gujarat Housing Board (2011 (1) GLR 370)
3. Dip Co-op. Housing Soc. v. State of Gujarat 2008 (2) GLR 1382
4. Indequip Eng. Ltd. v. Urban Land Tribunal 2006 (1) GLR 215
5. State of Gujarat v. Ravjibhai Chhotabhai Patel (2002 (3) GLR 2387.
5. In view of the facts that on 16.08.1990, the petitioners had executed agreement to sell in favour of a Co-operative Society and subsequently sale deed was also executed on 16.09.1999 coupled with the fact that the purchaser Society had also indisputably filed an application for exemption which was rejected in 1995, the present petitioners could hardly claim locus standi to file the petition. Nor could they claim their possession and agitate any grievance, as they had transferred the lands on their own showing.
5.1 The appellant, original petitioners, could not have contended that the possession was not taken over. The aspect of possession was settled by the Division Bench in Letters Patent Appeal No.978 of 2001 preferred by the present appellants in which the court was observed:
“We are also of the considered opinion that the learned Single Judge committed grave error in dismissing all the writ petitions as having been abated in view of the Repeal Act of 1999 coming into force with effect from 30.3.1999 on the ground that the Authority had not taken possession of the land in question from the petitioners, which was not in dispute. At least from the judgment and order of the learned Tribunal it appears that the possession of the land in question was already taken over from the petitioners long back before the Repeal Act, 1999 coming into force on 30.03.1999. Therefore, in our considered opinion, the learned Single Judge has committed grave error in dismissing all the writ petitions as having been abated and consequently the impugned orders passed by the Authority below also having been abated.”
5.2 The Tribunal's order dated 31.01.1992 impugned in the original petition unequivocally recorded that the possession of the lands of the petitioners was taken over on 25.09.1991 as could be seen from the evidence on record. In the impugned of learned Single Judge the finding as regards factum of taking over possession was confirmed, observing even further that if the State Government had already taken the possession and assuming subsequent to dispossession of the petitioners, the petitioners had again entered into the possession, it would not amount to legal possession and such possession would not be that of the owner for the purpose of the Act and on repeal of the Act, it would be that of a trespasser or an encroacher. The finding on possession being a finding of fact and having been concurrently recorded on the basis of record first by the Tribunal and learned Single Judge, it called for no interference in the present proceeding of appeal.
5.3. Even otherwise, the contention of the appellants about possession having not been taken over or that the notice under section 10(5) of the Act was not received by them, could not be believed, as it had been not the case that the notice was not issued. The record showed that notice was issued to one Somabhai Patel, who was a constituted power of attorney holder of the appellants. He was the person who had applied on behalf of the appellants under section 20 of the Act, pursuant to which the order dated 31.08.1989 was made. In that proceeding that Somabhai had submitted a written reply on behalf of the appellants. On behalf of the appellants another one Mr. Dinesh Thakkar had made submissions. Said Dinesh Thakkar has also filed affidavits-in-reply in this proceedings of appeal. It could not be therefore said that the possession was taken without the knowledge of the petitioners. These facts only fortify and reinforce in retrospect the finding on possession recorded by the Tribunal and learned Single Judge.
5.4. The contention that the land had not vested in the Government stands answered from provisions of section 10(3) of the Act, which read as under:
“10. Acquisition of vacant land in excess of ceiling limit. (1) As soon as may be after the service of the statement under section 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that-
(i) such vacant land is to be acquired by the concerned State Government; and
(ii) the claims of all persons interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land, to be published for the information of the general public in the Official Gazette of the State concerned and in such other manner as may be prescribed.
(2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under sub-section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit.
(3) At any time after the publication of the notification under sub-section (1), the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant land referred to, in the notification published under sub -section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified.”
5.5. The above provision provides for a deeming fiction. Upon publication of declaration under sub-section (1) of section 10, the land shall absolutely vest in the State Government free from all encumbrances. The vesting contemplated under this provision is vesting in ownership. It cannot be said that the vesting contemplated under sub-section (3) is dependant upon the operation of sub-section (5) and sub-section (6) of section 10. In law, the vesting is complete once notification under sub-section (3) is issued. Taking over of possession of the land is a corollary and a necessary incidence of vesting. In any view, in the facts of the present case, possession of the land was found to have been taken over long back and the vesting which occurred under section 10(3) became complete.
6. Various decisions relied on by learned counsel for the appellants were considered by the court. The decisions in Samrathben (supra) and Savitaben (supra) are of no help to the appellants. It was held therein that once applications under section 20 or 21 were made and pending, proceedings beyond the stage of section 10(2) of the Act must be stayed. In the present case, the applications under section 21 was already rejected on 31.08.1989 and the order of rejection was never challenged and further the possession of the land was concurrently found to have been taken over making the vesting complete.
6.1 In Special Officer and Competent Authority (supra) Supreme Court held that until the actual excess land is determined, the owner could not meaningfully apply for exemption. The ratio of that decision does not apply in any way to the facts of the present case. Again, in Kishorkumar Rengildas Lotwala (supra) Division Bench of this Court held that until application under section 21 of the Act was decided, all proceedings beyond section 10(2) were not competent, which is not the case here. In another decision in Rameshchandra Shamjibhai Raniga (supra) relied on by learned advocate for the appellants, it was held that after the land was vested in the State, the classification by Legislature between the lands on the basis of possession cannot be questioned. In that case, the challenge was directed against constitutional validity of section 3(1)(a) and section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. Therefore, reliance on that decision was misconceived in the context of facts and the issues involved in the present case. The next decision relied on was in B.E. Billimoria (supra) being on the aspect of determination of vacant land in excess of ceiling, what was held therein is in no way applicable in the present case.
6.2 Decisions in Bharatkumar (supra) and Laxmanbhai (supra) were relied on to submit that possession of the land was not taken over in accordance with the procedure set out in section 10 of the Act. As discussed above, the factual finding by the Tribunal and learned Single Judge in the present case are otherwise, and the possession is found to have been duly taken over. Therefore, those decisions also do not apply. Similar was the proposition laid in Maninagar Vaishalipart (supra), and therefore, that would also not apply in the facts of the present case.
6.3 In Indrajitsing (supra) which was relied on, it was held that if possession of vacant land had been taken over on behalf of the Sate Government before coming into force of the Repeal Act, the repeal of the principal Act would not affect the vesting of such land under sub-section (3) of section 10 of the Act. In that case the court found that the possession was not duly taken over. On facts, that decision does not apply to the present case. On the contrary, the proposition laid down therein squarely applies, i.e., if the possession was taken over, the provisions of Repeal Act would not affect the vesting of such land under section 10(3) of the Act. Similarly, the decision in Pt. Madan Swaroop Shrotiya did not help the appellants as in that case the possession of land declared surplus was not taken over by the State and in view of section 4 of the Repeal Act, appeal against an order declaring surplus land was held to have been abated. The other two decisions in Kashiben (supra) and Mangalsen (supra) also do not apply. The decision of the Apex Court in Civil Appeal No.2763 of 2012 decided on 12.03.2012 was relied on by the learned advocate for the appellant in which on facts of that case, the Supreme Court found that the record did not establish the factum of taking over of the possession. The facts of the present case, being opposite, it is of no avail to the appellants.
7. In Darothi Clare Parreira (supra), the facts before the Supreme Court were that application under section 20 was filed and was not disclosed to the High Court. Application under section 21 of the Act was filed by the applicants long after the notification under section 10(3) of the Act. It was held that date of vesting and publication of notification under section 10(3) is not contingent upon filing of applications for disposal under section 20 or 21 and the validity of notification under section 10(3) came to be upheld. The following observations of the Apex Court in that decision apply to dislodge the case and contentions of the appellants:
“5. .... The question then is: whether the competent authority had to await the decision under section 20 and 21 before declaring and publishing the excess and under section 10(3) by a notification in the Gazette. The scheme of the Act does indicate that until the date of the publication in the Gazette prescribing a date on an from which the excess land stands vested in the State, the owner continues to be the owner of the excess land and entitled to remain in possession thereof. On publication of the notification under section 10(3) and after putting a date from which the land stands vested in the State and after publication of the notification in the Gazette and on the from the date mentioned therein, the excess vacant land stands vested in the State free from all encumbrances, subject to the decision in appeal, if any, filed according to law.
“6. .... It is difficult to accept the contention of the learned counsel for the appellants that the competent authority has no power to have the notification under section 10(3) published in the Gazette until the application either under section 20 or 21 is disposed of. The very language of sections 20 and 21 and the exercise of the power thereunder would arise only when the land stands vested in the Government. The power of examination and exemption would arise only when the Government becomes the owner and the erstwhile owner seeks to obviate the hardships under section 20 or to subserve the housing scheme for weaker sections under section 21 as envisaged thereunder ”
7.1 Above proposition of law supports the view being taken by this court.
In the facts placed before the Supreme Court, section 21 application was filed after the date of vesting and publication of notification under section 10(3) of the Act, whereas in this case, section 21 application was rejected in 1989 and the rejection had become final. This being the distinction, it did not make any difference in principle, for the dictum of law to apply.
7.2 Learned Assistant Government Pleader strengthening her submissions on the basis of decision in M/s. Larsen and Toubro Ltd. (supra) submitted that the recognized mode in law and proof of taking possession of acquired land was drawing a panchnama in presence of panchas, and therefore, in the instant case, the possession was taken over in accordance with law. With reference to decision in Kalpeshkumar (supra) it was submitted that the Tribunal could not have entertained the appeal under section 33 of the Act after inordinate delay and the decision of the Tribunal was proper and legal from that angle also.
7.3 The decision in Dip Co.op. Housing Soc. (supra) was relied on for the proposition that when the possession was in the nature of trespass, it would not attract section 4 of the Repeal Act. In that case, notice under section 10(5) of the Act was issued to the society through its office bearers who were dead and it was held that it was for the society to notify to competent authority about the change in its office bearers. The decision in Indequip Eng. Ltd. (supra) was pressed into service for the State to canvas that pendency of incomplete application under section 20 would not preclude the State Government from issuing notification under section 10(3) of the Act and section 20 comes into play after land vests in the Government. The next decision was in Ravjibhai Chhotabhai Patel (supra ) on the basis of which learned A.G.P. submitted that where the proceeding under the principal Act had culminated in issuance of section 10(3) notification vesting the land in the Government and the record showed that the possession of the land was taken by the Government, the provisions of the Repeal Act would have no application.
8. The appellants have not made out any ground to interfere with the judgement and order of learned Single Judge. Possession of the appellants' lands having been taken over by the State Government and the lands having been vested under the provisions of section 10 of the Act in the Government, provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 are of no benefit to the appellants. Applications under section 21 of the Act made by the appellants or their transferees were rendered inconsequential. As the conditions of section 10 read with the provisions of the Repeal Act were satisfied, all proceedings under the Act abated.
9. The appeal is therefore dismissed, and as the appeal is dismissed, Civil Application No. 6383 of 2007 would not survive and it stands accordingly disposed of. No order as to costs.
Upon the above judgement being pronounced today, learned advocate Mr. G.M. Patel appearing with learned advocate Mr. A.J. Patel requested for stay of the judgment and order. There being no reason to grant it, the request is rejected.
(D.H. WAGHELA, J.) (N.V. ANJARIA, J.) [SN DEVU]