[1.0] Present Letters Patent Appeal under clause 15 of the Letters Patent has been preferred by the appellant herein Smt. Laliltaben Tansukhlal Sameja through her Power of Attorney original petitioner original declarant challenging the impugned order dated 02.05.2003 passed by the learned single Judge in Special Civil Application No.5930 of 2003, by which the learned single Judge has dismissed the said Special Civil Application. [2.0] Facts leading to the present Letters Patent Appeal in nutshell are as under:
[2.1] That the original declarant Smt. Laliltaben Tansukhlal Sameja filled in the form/submitted the declaration before the competent Authority, ULC, Rajkot, under the provisions of the Gujarat Urban Land (Ceiling and Regulations) Act (hereinafter referred to as "ULC Act"), declaring 26990.18 sq. meter of land in her holding. It appears that by order dated 11.02.1987, the competent Officer and Deputy Collector, Rajkot disposed of the said declaration/form declaring 26990.18 sq. meter of land as excess land from the holding of the original land owner. That the said order came to be served upon the original land owner who did not challenge the order passed by the competent Authority and ULC, Rajkot declaring 21330.31 sq. meter land as excess land and thus the said order attained finality. That thereafter proceedings under the ULC Act proceeded further more particularly under Section 10 of the ULC Act and even the same reached upto proceedings under Section 10(6) of the ULC Act. A notice under Section 10(5) of the ULC Act also was issued upon the original declarant and thereafter the possession of the excess vacant land came to be taken over by the Government / Authority by drawing the panchnama on 12.06.1987. It appears that thereafter after the possession of the excess vacant land was taken over by the Government and the land absolutely vested in the State Government free from all encumbrances, a further order came to be passed by the Authority under Section 23 of the ULC Act by subplotting the excess vacant land into plots of 25 sq. meter and passed an order dated 24.01.1992 to allot the said plots to 575 plot holders and even the possession receipts also came to be issued by the beneficiaries i.e.
persons belonging to weaker section of the Society. It appears that the ULC Act came to be repealed by Urban Land (Ceiling and Regulation) Repeal Act, 1999 on and with effect from 31.03.1999 and the land in question was mutated in the register maintained by the State Government with respect to the surplus/excess lands of which the possession has been taken over by the State Government and even the mutation entry was made in the revenue record showing that the possession of the land has been taken over by the State Government/Authority as far as back in the year 1987. That thereafter according to the petitioner she made a representation dated 23.05.2001 requesting to set aside the entry in the revenue record showing that the possession of the excess land in question has been taken over by the State Government by submitting that the possession of the excess vacant land admeasuring 21330.31 sq. meter has been taken over by the Authority ex parte and illegally and it is a paper possession and that she is still in possession of the excess vacant land and the agricultural activities are going on. Therefore, it was submitted that as the ULC Act is repealed and she is in possession of the excess vacant land, it was requested to cancel the entry. That thereafter the petitioner preferred Special Civil Application No.8894 of 2004 before this Court for an appropriate order to declare that the rojkam dated 12.06.1997 (Annexure A to the said petition, which should be 12.06.1987 and it appears that by mistake in the typed copy at Annexure A to the said petition, the date is wrongly mentioned as 12.06.1997) being void and not binding upon the petitioner. It was also further prayed to declare that any orders, entry or action taken pursuant to the said rojkam are void and not binding upon the petitioner. That the said Special Civil Application came up before the learned single Judge. It was submitted that the representation made by the petitioner has not been decided by the competent Authority and was awaiting decision. The learned single Judge by order dated 05.10.2001 disposed of the said Special Civil Application as withdrawn and the learned single Judge directed the State Government to examine the representation already made and the additional representation that may be made by the petitioner, if so desired, and pass appropriate orders in accordance with law. That thereafter by communication dated 22.04.2003 by a speaking and reasoned order, the State Government has rejected the representation submitted by the petitioner by observing that the possession of the excess vacant land in question has been taken over by the State Government as far as back in the month of June 1987 after drawing the panchnama and after following due procedure as required inclusive of notice under Section 10(5) of the ULC Act and by further observing that thereafter the excess vacant land has been subplotted in 575 plots and the same are allotted to the persons belonging to weaker section of the society by order dated 24.01.1992 under Section 23 of the ULC Act. Therefore, it was observed that when the possession of the excess vacant land has been taken over as far as back in the month of June 1987 after following due procedure as required, the prayer of the petitioner to return the land and/or to cancel the entry in the register maintained by the State Government with respect to the excess vacant land cannot be granted.
[2.2] Feeling aggrieved and dissatisfied with the said communication/order dated 22.04.2003, the petitioner through her Power of Attorney preferred Special Civil Application No.5930 of 2003 to quash and set aside the said order dated 22.04.2003 passed by the State Government and to declare that any orders, entries, actions taken pursuant to the rojkam dated 12.06.1997 (it should be 12.06.1987) are void and not binding upon the petitioner. It was also prayed for an appropriate order directing the respondent to remove the survey No.119 of Mota Mauva, Taluka and District Rajkot from the list of excess lands, of which possession is alleged to have been taken by the Government. Before the learned single Judge it was submitted that the possession of the excess vacant land in question has not been taken over by the State Government after following due procedure as required and that too by the competent Authority and it was only the paper possession by drawing the panchnama/rojkam dated 12.06.1987 and that the petitioner is still in actual possession of the excess vacant land of which the possession is alleged to have been taken over by the State Government on 12.06.1987. It was also further submitted that even the said land could not be excess/surplus land as it was in the agricultural zone.
[2.3] That by impugned order the learned single Judge dismissed the aforesaid Special Civil Application by holding that as the possession of the excess vacant land in question is taken over as far back as on June 1987 and that thereafter the land has been subplotted in 575 plots and the same are allotted to the persons belonging to the weaker section of the society under Section 23 of the ULC Act, the contention on behalf of the petitioner that the possession of the excess vacant land has not been taken over, is nothing but an afterthought and it is belated. The learned single Judge also observed that it is not open for the petitioner to contend that the excess vacant land could not have been declared as excess at it was in agricultural zone as the original order passed by the competent Authority passed in the year 1987 has not been challenged and the same has attained finality.
[2.4] Feeling aggrieved and dissatisfied with the impugned order passed by the learned single Judge in dismissing the aforesaid Special Civil Applications, the appellant herein – original petitioner through her Power of Attorney has preferred the present Letters Patent Appeal. It appears that during the pendency of the Letters Patent Appeal, the original appellant Smt. Laliltaben Tansukhlal Sameja has expired and therefore, her heirs are permitted to be brought on record who are now prosecuting the present Appeal.
[3.0] Shri Shalin Mehta, learned Senior Advocate appearing on behalf of the appellant has vehemently submitted that the learned single Judge has materially erred in dismissing the Special Civil Application and in not granting the relief as prayed for. It is submitted that the learned single Judge has materially erred in not properly appreciating the fact that as such the actual possession of the excess vacant land was never taken over by the State Government and/or any Authority authorized under the Act and only a paper possession was taken over by drawing the panchnama/rojkam on 12.06.1987. It is submitted that therefore, as such when the actual possession of the excess vacant land of which the possession was alleged to have been taken over on 12.06.1987 was still with the petitioner and was cultivating the land, the petitioner is entitled to benefit of the Urban Land Ceiling Repeal Act. It is submitted that therefore, as such the learned single Judge ought to have granted the relief directing the respondent State to delete the land bearing survey No.119 of Mota Mauva, Taluka and District Rajkot from the register of excess vacant lands maintained by the State Government.
[3.1] It is further submitted that the learned single Judge has materially erred in not considering the fact that it was the specific case on behalf of the petitioner that while taking the possession in the year 1987, no notice as contemplated under Section 10(5) of the ULC Act was served upon the original declarant. It is further submitted that even the learned single Judge has materially erred in not considering the submissions on behalf of the appellant that as such the land in question could not have been declared as surplus land as it was in agricultural zone. It is submitted that the learned single Judge has materially erred in dismissing the petition on the ground of delay. It is submitted that once the learned single Judge earlier by passing the order in Special Civil Application No.8894 of 2001 directed the Authority/State Government to consider the representation, thereafter it was not open for the learned single Judge to dismiss the petition on the ground of delay. It is submitted that while disposing of the aforesaid Special Civil Application No.8894 of 2001, the learned single Judge could have dismissed the petition on the ground of delay. It is submitted that once the learned single Judge disposed of the aforesaid Special Civil Application by directing the State Government to decide the representation on merits. Thereafter, it was not open for the learned single Judge to dismiss the present Special Civil Application on the ground of delay.
[3.2] Relying upon the decisions of the Hon’ble Supreme Court in the case of Prahlad Singh & Ors. vs. Union of India & Ors. reported in 2011(2) GLH 312 and Raghbir Singh Sehrawat vs. State of Haryana & Ors. reported in 2012(1) GLH 339, it is submitted that as the possession in question was not taken over by the competent Authority under the ULC Act and the actual possession has not been taken over, the appellant herein – original petitioner is entitled to benefit of the Urban Land Ceiling Repeal Act.
[3.3] It is further submitted by Shri Mehta, learned Senior Advocate appearing on behalf of the appellant that as right to property is held to be a human right by the Hon’ble Supreme Court in the recent decisions, the appellant cannot be deprived of their legitimate right to hold the property considering the Urban Land Ceiling Repeal Act and considering the fact that the actual possession of the excess land in question is with the appellant.
Making above submissions, it is requested to allow the present Letters Patent Appeal.
[4.0] Present Letters Patent Appeal is opposed by Ms. Nisha Thakore, learned Assistant Government Pleader appearing on behalf of the State. It is submitted that as such the competent Authority has declared 21330.31 sq. meter of land as excess vacant land from the holding of the original declarant as far as back in 1987 and thereafter the original declarant has not challenged the same and therefore, as rightly held by the learned single Judge thereafter, it was not open for the appellant to challenge the same in the Special Civil Application filed in the year 2003 on the ground that the excess vacant land could not have been declared as excess vacant land. It is submitted that therefore, the learned single Judge has rightly dismissed the Special Civil Application on the ground of delay and acquiescence. It is submitted that as such the Authority/State Government took the possession of the excess vacant land in the month of June 1987 after following due procedure as required more particularly Section 10 of the ULC Act and by drawing the panchnama/rojkam dated 12.06.1987. It is submitted that thereafter even the further order came to be passed under Section 23 of the ULC Act after the excess vacant land of which the possession was taken over i.e. 21330.31 sq. meter of land was subplotted in 575 plots and the same came to be allotted to the persons belonging to weaker section of the society by order dated 24.01.1992 and even the possession receipts were also issued. It is submitted that therefore it was not open for the appellant – original petitioner to challenge the same for the first time in the year 2001. It is submitted that as such even in earlier petition and in the present petition the appellant herein – original petitioner challenged the entry in the register of the excess vacant land maintained by the State Government and the mutation entry and even did not challenge the original order passed by the competent Authority dated 11.02.1987 declaring 21330.31 sq. meter of land as excess vacant land . It is submitted that even in the present petition also, the appellant has not challenged the order declaring 21330.31 sq. meter of land as excess vacant land and therefore, as such it is not open for the appellant – original petitioner to contend that 21330.31 sq. meter of land could not have been declared as excess vacant land.
[4.1] Relying upon the decision of the Hon’ble Supreme Court in the case of Larsen & Toubro Limited vs. State of Gujarat & Ors. reported in (1998)4 SCC 387; decisions of the Division Bench of this Court in the case of Vipinchandra Vadilal Bavishi & Anr. vs. State of Gujarat & Ors. reported in 2010(2) GLR 1760 as well as the decision of the Division Bench of this Court in Letters Patent Appeal No.1151 of 2009 decided on 03.05.2010, it is submitted that as held by the Hon’ble Supreme Court as well as this Court in the aforesaid decisions, taking over the possession of the excess vacant land by drawing the panchnama/rojkam is permissible.
[4.2] It is further submitted by Ms. Nisha Thakore, learned AGP relying upon the averments in the power of attorney executed by the original appellant that as such even according to the appellant herein – original petitioner – original declarant the possession of the excess vacant land has already been taken over by the Authority and the power is give to the power of attorney to initiate the proceedings to get the possession of the excess vacant land back. Therefore, it is submitted that in view of the above clear admission by the appellant – original declarant, it is not open for the appellant to contend that the possession is still with her and/or the State Government has not taken over the possession of the excess vacant land at all. It is submitted that as rightly observed by the learned single Judge, the contention on behalf of the appellant that she is in possession and/or the Government has not taken over the possession of the excess vacant land is nothing but an afterthought with a view to get the benefit of the provisions of the Urban Land (Ceiling and Regulation) Repeal Act. It is further submitted that even otherwise except the bare averments in the petition that she is in possession of the excess vacant land of which the possession is already taken over and that she is cultivating the land, no documentary evidence has been produced at all.
[4.3] Now, so far as the contention on behalf of the appellant that in view of the order passed by the learned single Judge in Special Civil Judge No.5930 of 2003 directing the Authority to decide and dispose of the representation, the learned single Judge could not have dismissed the Special Civil Application on the ground of delay is concerned, it is submitted that as such by passing the order in Special Civil Application No.87 of 2001, the learned single Judge has not stated that despite the delay of 15 years the representation must be decided on merits and/or the delay aspect is not required to be considered at all. It is submitted that as such the learned single Judge has directed the State to decide the representation in accordance with law which includes the question of delay. It is submitted that even before the learned single Judge also the order passed by the competent Authority declaring 21330.31 sq. meter of land as excess vacant land was not under challenge and what was challenged was entry made in the year 2001 in the register of excess vacant land maintained by the State Government and to that the learned single Judge directed the State to consider the representation. It is submitted that therefore the learned single Judge has not committed any error in dismissing the Special Civil Application.
Making above submissions, it is requested to dismiss the present Letters Patent Appeal with costs.
[5.0] Heard learned advocates appearing on behalf of respective parties at length and perused the impugned order passed by the learned single Judge dismissing the main Special Civil Application as well as the documents on record.
[5.1] At the outset it is required to be noted that as such the Gujarat Urban Land (Ceiling and Regulations) Act has been repealed by the Act of 1999 on and from 31.03.1999. It is also required to be noted that thereafter the State Government prepared a register with respect to the lands declared surplus under the ULC Act and the possession of which have been taken over by the State Government and even the necessary entries were also mutated in the revenue records with respect to such lands of which the possession have been taken over to show that the possession of concerned respective excess vacant land have been taken over. That in the present case as the possession of the excess vacant land in question was already taken over by the State Government as far as back in the year 1987 after following due procedure as required under Section 10(5) of the ULC Act and even thereafter also the excess vacant land admeasuring 21330.31 sq. meter was plotted into 575 plots of 25 sq. meter and even the said subplots were allotted to the persons belonging to the weaker section of the society under Section 23 of the ULC Act and after the entry was mutated in the revenue record with respect to the possession and a entry was made in the register maintained by the State Government with respect to excess vacant land, the petitioner for the first time made a representation to the Principal Chief Secretary, Revenue Department (purported to be in the year 2001) submitting that only the paper possession has been taken over and that too ex parte and that she is in possession of the excess vacant land and therefore, it was requested to cancel the mutation entry No.949 dated 04.06.1999. As the said representation was not decided, the present petitioner preferred Special Civil Application No.8894 of 2004 before this Court and prayed to declare that the rojkam dated 12.06.1997 (AnnexureA to the said petition) being void is not binding upon the petitioner. It was also prayed to declare that any orders, entry or action pursuant to the said rojkam are void and not binding upon the petitioner. That the learned single Judge disposed of the aforesaid Special Civil Application by directing the concerned authority to dispose of the representation submitted by the petitioner, in accordance with law. It is to be noted that while disposing the aforesaid Special Civil Application, learned single Judge had not observed that irrespective of delay the said representation should be considered. It is also required to be noted that as such in the said Special Civil Application, the date of rojkam by which the possession of the excess vacant land was taken over was mentioned as 12.06.1997, however, the correct date is 12.06.1987. Therefore, even the correct date was also not mentioned with respect to the rojkam. Therefore, merely because the learned single Judge directed the concerned authority to decide and dispose of the representation in accordance with law, it cannot be said that the petitioner can be permitted to challenge the rojkam of 1987 after a period of 16 to 17 years. Therefore, as such there is an inordinate delay in challenging the rojkam and the action of the respondents in taking over the possession of the excess vacant land which was taken over on 28.06.1987.
[5.2] Even otherwise it is required to be noted that the petitioner has never challenged the original order passed by the competent Authority and Deputy Collector, Rajkot declaring 21330.13 sq. meter of land as excess vacant land and as such the said order has attained the finality. It is also required to be noted that after the order passed by the competent Authority declaring 21330.13 sq. meter of land as excess vacant land, proceedings under the ULC Act reached upto Section 10(6) of the ULC Act and even the possession of the excess vacant land has been taken over as far as back on 12.06.1987 by drawing panchnama, which is permissible as held by the Hon’ble Supreme Court in the case of Larsen & Toubro Limited (Supra) as well as decisions of Division Bench of this Court in the case of Vipinchandra Vadilal Bavishi & Anr. (Supra) and Letters Patent Appeal No.1151 of 2009. In Letters Patent Appeal No.1151 of 2009, the Division Bench of this Court considered para 13 of the decision of the Hon’ble Supreme Court in the case of Larsen & Toubro (Supra) which reads as under:
“13. The High Court held that actual physical possession of the land subject matter of the acquisition proceeding was not handed over to the appellant while it was the contention of the appellant as well as the State Government that possession of the land was handed over to L&T Ltd. on July 5, 1989. At the time the possession was taken over a Panchanama was prepared duly witnessed by two farmers of the Village Magdalla and singed by the Circle Officer evidencing handing over of possession and also by M.H.Adhikari an officer of the L&T Ltd. for taking over possession. The possession receipt of the same date duly signed by the Circle Officer and the officer of the L&T Ltd. was given. L&T Ltd. thus took possession of the land in presence of the panchas. Panchanama recites that both the witnesses (Panchas) had been intimated in advance by Mamlatdar Choryasi and that possession of the concerned land that day taken over in their presence by the Circle Officer and that the land was an open spot and there was no construction or crops grown therein. Possession of the land was taken over along with the trees standing thereon. As noted above, possession was thereafter delivered to the representative of the L&T Ltd. at that time itself. In the High Court it was contended that no actual physical possession of the land had been taken. The petitioners filed affidavits of the Panchas who had signed the Panchanama. In these affidavits they stated that they were called to the office of the Panchayat and that their signatures were obtained on blank papers and that they had not gone to the sita and that neither the landlord was present not the actual possession was delivered to the acquiring body. Ready with these affidavits High Court noticed from the recitation in the Panchanama that it was nowhere mentioned that the panchas had gone to the site from the office of the panchayat. It was not disputed that in the revenue records it was L&T Ltd. who was shown in possession of the land. Affidavits of the Panchas filed in the High Court which contained statements contrary to what was recorded in the Panchanama and against the revenue entries are quite meaningless and in our opinion High Court unnecessarily put undue reliance on the same. High Court could not convert itself into a revenue court and hold that in spite of the Panchanama and the revenue records actual physical possession of the acquired land had not been handed over to the acquiring body. High Court, in our opinion, has not correctly analysed the two judgments of this Court in Balmokand Khatri Educational and Industrial Trust, Amritsar vs. State of Punjab [1996] 4 SCC 212 and Balwant Narayan Bhagde vs. M.D. Bhagwat and Ors. [1976] 1 SCC 700 to come to the conclusion that actual physical possession of the land was not taken over by the State.”
[5.3] Not only that even thereafter also and after the excess vacant land vested absolutely in the State Government free from all encumbrances, the same came to be subplotted in 575 plots and the same came to be allotted to the persons belonging to weaker section of the society by order dated 24.01.1992 under Section 23 of the ULC Act and even the possession receipts were also issued.
[5.4] In view of the above, the appellant herein – original petitioner cannot be permitted to thereafter contend and that too for the first time in the year 2001 that only a paper possession has been taken over and/or actual possession has not been taken over. It is required to be noted that as such nothing has been produced on record to show and/or suggest that the petitioner is in possession of the excess vacant land and that she is carrying on agricultural activity as alleged. It is also required to be noted at this stage that in the power of attorney given by the petitioner in favour of one Shri Shirish Hiralal Aahiya who had preferred the main Special Civil Application as well as the present Letters Patent Appeal, it has been specifically and unequivocally mentioned that possession of the excess vacant land admeasuring 21330.13 sq. meter has been taken over by the State Government and the power of attorney has been given to initiate an appropriate proceedings to get back the possession of the excess vacant land. That the said power of attorney is notarized which is dated 11.07.2001. Therefore, thereafter, it is not open for the petitioner to contend contrary to what is stated by her in the power of attorney. Learned counsel appearing on behalf of the appellant when was confronted with the above, as such he is not in a position to dispute the above. However, it is submitted that merely because the petitioner has stated in the power of attorney the same cannot be believed. The aforesaid cannot be accepted. Once it is specifically mentioned in the power of attorney which is notarized, thereafter it is not open for the appellant herein – original petitioner to submit contrary. The aforesaid is required to be considered in light of the fact that as such no evidence has been produced to show that she is in actual possession of the excess vacant land and that she is carrying on agricultural activity as alleged.
[5.5] In view of the aforesaid facts and circumstances, the decisions relied upon by the learned Counsel appearing on behalf of the appellant referred to hereinabove would not be any assistance to the appellant.
[6.0] Considering the aforesaid facts and circumstances when the learned single Judge has dismissed the Special Civil Application by observing that the present litigation appears to be an ingenious device to take undue benefit of the Repealing Act, we see no reason to interfere with the impugned order passed by the learned single Judge dismissing the main Special Civil Application. Under the circumstances, present Letters Patent Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed with cost which is quantified at Rs.15,000/, which the appellant shall deposit with the Registry within a period of three months and on such deposit, Registry is directed to transmit the same to Gujarat High Court Legal Aid Committee. So far as the interim relief during the pendency of the Letters Patent Appeal is concerned, it is required to be required to be noted that as such by a speaking reasoned order dated 01.07.2003, interim relief of status quo has been vacated and as such there is no interim relief in operation since then.
Sd/ (M.R.SHAH, J.) Ajay Sd/ (S.H.VORA, J.)