SCA/16131/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 16131 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= RAMESHBHAI RAVJIBHAI PATEL & 2 - Petitioner(s) Versus STATE OF GUJARAT & 5 - Respondent(s) ========================================================= Appearance : MR NILESH A PANDYA for Petitioner(s) : 1 - 3. MR JK SHAH ASST GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 6. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 01/08/2008 ORAL JUDGMENT Heard learned advocates appearing for the parties. The petitioners have filed this petition claiming following reliefs. SCA/16131/2007 2/8 JUDGMENT “(A) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction and be pleased to direct the respondent Nos.1 to 4, their agents and servants to cancel the lien over the petitioners' land situated in Revenue Survey No.312, 313, 316/1 and 331 of village Gorva, Taluka-District Vadodara. (B) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside the letter written by the respondent No.1 to the petitioners, dated January, 2007, whereby the possession of the land situated in Survey Nos.314 and 331 of village Gorva, Taluka-District Vadodara is shown with the Government, taken under the provisions of Urban Land Ceiling (Repeal) Act on the basis of order of the competent authority dated 13.05.1986. (C) Pending admission, hearing and till final disposal of this petition, this Hon'ble Court may be pleased to direct the respondents Nos.1 to 4, their agents and servants not restrain the petitioners from developing the lands situated in Survey Nos.312, 313, 316/1 and 331 of village Gorva, Taluka-District Vadodara, and further be pleased to direct them not take the actual physical possession of the land situated in the above survey numbers. (D) Pending admission, hearing and till final disposal of this petition, this Hon'ble Court may be pleased to direct the respondents Nos.1 to 4 to permit the petitioner to develop the land in question as per his wishes. (E) Cost of this petition may be awarded. (F) Be pleased to grant any other and further relief, as deemed just and proper in the interest of justice.” Briefly stated, the case of the petitioners is that for certain lands bearing Survey No.312, 314, 316/1 and 331 of village Gorva, their SCA/16131/2007 3/8 JUDGMENT uncle Manubhai Motibhai had filed declaration before the competent authority under the Urban Land (Ceiling and Regulations) Act, 1976 (“ULC Act” for short). It is case of the of the petitioners that their uncle wrongly disclosed before the authority that the land is self acquired property whereas, in fact, the property was joint family property in which the petitioners had also right, title and interest. Eventually, the competent authority declared that Manubhai Motibhai and his other family members were entitled to four units of land and consequently, declared 6502 sq.mtrs of land as excess vacant land. This order was carried in appeal by Manubhai Motibhai. Against the siad order passed by the competent authority in case of Manubhai Motibhai, the petitioners preferred appeal before the Appellate Tribunal, contending interalia that they also have share in the said property and should set 03 additional units of lands. This appeal was dismissed by th Tribunal by an order dated 30.10.1990. This order was challenged by the petitionres by filing Special Civil Application No.3721 of 1998. They also prayed that the authority should give three units to the petitioners out of the said lands. In particular in Para-15(d), the following prayers were made. “This Hon'ble Court would be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and be pleased to direct the respondents, their agents and servants to restore the possession of the petitioners over the land situated in Survey Nos.312, 314, 316/1 and 331 of Gorva village, Vadodara.” On 05.08.1998, the learned Single Judge of this Court passed the following interim order in Special Civil Application No.3721 of 1998. “ Mr.Pandya, learned counsel for the petitioners states that if the petitioners have not already filed a civil suit for assertion of their rights in respect of the lands SCA/16131/2007 4/8 JUDGMENT which are subject matter of this petition, the petitioners shall file such a suit within one month from today. 2. It appears that all the petitioners were not major on the date of coming into force of the ULC Act, paper book, Rameshbhai – petitioner No.1 was major on the date of coming into force of the aforesaid Act. Even though Vasantbhai and Harshadbhai were minor, all the heirs of Ravjibhai, other than the major heirs would also be entitled to get a unit if it is ultimately held that Ravjibhai or his heirs have a share in the land in question. Hence, Rule, Ad-interim relief granted earlier shall continue till disposal of this petition. ” Eventually, the petition came to be disposed of by the order dated 28.07.1999 in the following terms. “1. Heard the learned counsel for the respective parties. 2. This petition arises from orders passed under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976. 3. It is common ground on both sides that the State of Gujarat adopted the Urban Land (Ceiling & Regulation) Repeal Act, 1999 on 30th March, 1999. 4. It is also common ground on both side that by virtue of Section 4 of the Repeal Act, all proceedings pending on the said date shall abate. 5. It is so found and accordingly held, and the present petition is disposed off accordingly. 6. Learned AGP states on instructions that the State of Gujarat will abide by the circular issued by the State Government in the Revenue Department No.ULC/1099- 602/V1 dated 15th April, 1999. SCA/16131/2007 5/8 JUDGMENT 7. Rule is accordingly discharged with no order as to costs. Interim relief, if any, stands vacated. 8. On the facts of the case, I merely note that as per the interim order passed earlier in this petition dated 5th August, 1998, the petitioners were to file a suit for assertion of their rights in respect of the lands which are the subject matter of the present petition. I am told by learned counsel for the petitioner such a suit has already been filed. It goes without saying that if the petitioners succeed in the suit, the Civil Court would then grant appropriate relief which would be justified on the facts and circumstances established before that Court. Therefore, I see no reason why the impugned order should come in the way of the petitioners if they succeed in proving their right before the Civil Court, as asserted in the present petition. ” After the said order, the petitioners once again approached the authorities and the Government under the communication dated 07.02.2007 produced at Annexure-J to the petition conveyed to the petitioners that the possession of the land in question was taken over by the Government on 25.11.1986 and therefore, request of the petitioners for deleting the land from the list of excess land on account of repeal of the ULC Act, cannot be accepted. At that stage, the petitioners approached this Court again by filing the present petition. As noted, though the petitioners' claim of right, title and interest over the above mentioned lands, admittedly at no point of time, they had filed any declaration before the ULC authority regarding their holding or their title and interest in such lands. Admittedly, it was only uncle of the petitioners viz. Manubhai Motibhai who filed Form No.6 under the ULC SCA/16131/2007 6/8 JUDGMENT Act. Form of Manubhai Motibhai was processed and land to the extent he and his family members were entitled to retain was assessed and excess land was so declared by the competent authority. The appeal filed by the declarant Manubhai Motibhai came to be dismissed by the ULC Tribunal. From the averments made by the petitioners in the earlier petition, it emerges that Manubhai Motibhai also approached this Court but his petition was also dismissed. The petitioners though tried to establish their right in the property and approached the Tribunal, their appeal as noted earlier came to be dismissed by order dated 30.10.1990. Petitioners took no steps thereafter till filing of the petition in the year 1998. Special Civil Application No.3721 of 1998 came to be closed as noted. From the affidavit-in-reply filed by the Government, it can be seen that pursuant to ULC proceedings arising out of declaration of Manubhai Motibhai, possession of the land was taken over in the year 1986. The Government has also produced Panchnama of the possession having been taken over after the entire proceedings having gone through different stages under Section 10 of the ULC Act. Learned advocate for the petitioners, however, vehemently submitted that the Panchnama does not disclose the correct position and possession was never taken over from the petitioners. I am unable to accept the contention. Primarily, in the petition filed by the petitioners themselves viz. Special Civil Application No.3721 of 1998 the petitioners had made specific prayer for restoration of the possession which has been reproduced above. This prayer would fly in the face of the petitioners' contention that possession was not taken over by the Government. Secondly, the order that was passed by this Court on SCA/16131/2007 7/8 JUDGMENT 28.07.1999, the learned Single Judge did not hold as a matter of fact that possession was not taken over by the Government and therefore, the proceedings under the ULC Act would lapse. Thirdly, the proceedings under the ULC Act, were not pending on the date of introduction of the ULC (Repeal) Act. I say so because the ULC proceedings were initiated upon Manubhai Motibhai's filing declaration under Form No.6 under the ULC Act and the proceedings got culminated upon competent authority, Urban Land Tribunal and High Court deciding the issues. Thus, at the time when the Repeal Act was made effective, proceedings arising out of the declaration made by Manubhai Motibhai had been terminated. The petitioners have never initiated any independent proceeding under ULC Act. If they had any right, title or interest in the land, they were required to file their declaration before the authority. They have never done so. At this distance point of time, they cannot seek to assert their right over the land which the Government had found in excess of the permissible ceiling limit and with respect to which ULC proceedings came to an end long before the Repeal of the Act. Learned AGP Mr.J.K.Shah for the respondent has relied on the decision of the Apex Court in the case of Government of A.P. And others v. M. Krishnaveni and others reported in (2006) 7 SCC 365 wherein the Hon'ble Apex Court has observed that the land owner who had not filed declaration under Section 6 of the Act, cannot contend after long lapse of time that the competent authority failed to hold an inquiry under Section 8 of the ULC Act and that there was absence of opportunity and therefore, vestment of surplus land in Government, was illegal. In the result, the petition fails and the same is dismissed. SCA/16131/2007 8/8 JUDGMENT Notice stands discharged. Interim relief, if any, stands vacated. ( Akil Kureshi, J. ) kailash