SCA/29145/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 29145 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 ? ========================================================= VIPUL NATWARLAL - Petitioner(s) Versus THE STATE OF GUJARAT & 4 - Respondent(s) ========================================================= Appearance : MR AJ PATEL for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3,1.2.4 MR JK SHAH ASST GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 3. GIRISH PATEL ASSOC for Respondent(s) : 4 - 5. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 07/08/2008 ORAL JUDGMENT Heard learned advocates appearing on behalf of the parties. 2. The petition is filed claiming following reliefs. SCA/29145/2007 2/7 JUDGMENT “(A) Be pleased to issue an appropriate writ, order or direction, directing the respondent authorities to issue no objection certificate as per the circular of the Government dated 15.04.1999. (B) Be pleased to declare that the order passed on 30.10.1982 (Annexure-A) was non-executable, vague and therefore, implementation of the order was not possible and hence, has not been implemented. (C) Be pleased to hold that no mandatory provisions as contemplated under Section 10 of the Act has been followed, with a result, Section 4 of the Repeal Act would apply and the proceedings would abate. (D) Be pleased to issue an appropriate writ, order or direction, directing the respondents not to treat the land in question to have been taken in possession of and therefore, the land be treated as freehold land not owned or possessed by the respondents. (E) Be pleased to issue appropriate directions for the purpose of slum up-gradation of a portion of the land as contemplated under the provisions of GDCR, indicated hereinabove. (F) Be pleased to direct the respondents to produce the record pertaining to the demarcation of retainable land and land having been vested in the State Government as on the date of taking over of the possession and further be pleased to direct the respondents to cancel the entry in respect of the possession. (G) Pending hearing and final disposal of the present petition, be pleased to direct the respondents not to treat the land as their own of which they have not taken possession of. (H) Be pleased to grant any other and further relief/s in the interest of justice. ” SCA/29145/2007 3/7 JUDGMENT 3. It is not in dispute that by order dated 30.10.1982 passed by the competent authority under the Urban Land (Ceiling and Regulations) Act, 1976 (“the Act” for short), out of total land holding of the petitioners, permitted the petitioners to retain 1000 sq.mtrs of urban land and total 19,915 sq.mtrs of land was declared surplus. In the order itself, it is noted that part of the land is occupied unauthorisedly by the hutment dwellers. 4. Admittedly, the said order of the competent authority was never challenged by the petitioners before the Tribunal or before any other Court or authority. The order of the competent authority thus attained finality. 5. From the affidavits filed on behalf of the State Government, it can be seen that pursuant to the said order of the competent authority, steps under Section 10 of the ULC Act were undertaken and by drawing panchnama, possession of the excess vacant land was taken by the Government. It has also come on record that after the land vested in the Government, occupation of the hutment dwellers was also regularised. At this stage, by filing the present petition in the year 2007, the petitioners have claimed the above reliefs. 6. Learned advocate Mr.A.J.Patel for the petitioners mainly contended that in the order that was passed by the competent authority declaring 19,915 sq.mtrs of land of the petitioners as excess land, there was no demarcation of which area of the land was to be acquired by the Government and which portion of 1000 sq.mtrs of land the petitioners were allowed to retain. He submitted that on account of this lacuna, the order of the competent authority was not executable. Possession of the SCA/29145/2007 4/7 JUDGMENT excess land, therefore, could not have been taken over by the Government pursuant to the said order. He, therefore, submitted that the entire procedure stated to have been undertaken pursuant to the said order, should be treated as vitiated. 7. On the other hand, learned AGP Mr.J.K.Shah appearing for the Government while opposing the petition submitted that the Government followed all the necessary steps before actually taking over possession of the excess land. The petitioners took no steps to challenge the order of the competent authority for nearly 25 years. His petition should, therefore, be dismissed on the ground of delay and laches alone. He relied on the decision in the case Shivgonda Anna Patil and others vs. State of Maharashtra and Others reported in (1999) 3 SCC 5 in support of his above arguments. He also contended that the petitioners at no stage indicated the portion of the land they wanted to retain despite sufficient notices and the Government, therefore, unilaterally went ahead to demarcate the area and taken over possession of the excess vacant land from the total holding of the petitioners. 8. Learned Sr.Advocate Mr.Girish Patel appearing for the newly added respondents opposed the petition along the similar line and submitted that after the encroachments were regularised, the hutment dwellers have also put up pakka construction and any interference in this petition at this stage would adversely affect their rights. 9. Having, thus, heard learned advocates for the parties, I find that certain salient facts arising in this petition are not seriously in dispute. The order was passed by the competent authority on 30.10.1982 declaring certain portion of the lands of the petitioners as excess vacant land. This order was never challenged by the petitioners. Pursuant to the SCA/29145/2007 5/7 JUDGMENT said order, the Government after issuing necessary notices took steps as envisaged under Section 10 of the Act. At no stage, the petitioners raised any grievance about no demarcation of the excess vacant land in the order passed by the competent authority. 10. From the affidavit dated 14.12.2007 filed on behalf of the State Government, it clearly emerges that notification under Section 10(1) of the Act was issued on 13.01.1983. Notice under Section 10(2) of the Act was issued on 25.09.1984. Notice under Section 10(5) of the Act was issued on 28.04.1986. Notice was despatched through Registered Post AD and the same was duly served on the petitioners. Notice under Section 10(6) of the Act was also issued on 0.10.1986 which was also duly served. Despite such notices, since the petitioner did not hand over possession of the excess vacant land, possession thereof was taken by the Government on 18.10.1986 by drawing Panchnama. 11. In an affidavit dated 04.12.2007 filed by the respondent No.3, it is further stated that in the year 1993, occupation of 433 persons who were occupying the said land was regularised by the Government. Some more occupations were also regularised subsequently. 12. Further affidavit dated 04.02.2008 also came to be filed by the Deputy Collector, ULC, in which, it is stated interalia that all the steps under Section 10 of the Act had been followed and ultimately, possession of the land was taken over. It is stated that after giving sufficient opportunity to the petitioners, the order of the competent authority was fully implemented way back in the year 1986. 13. Though, affidavit-in-rejoinder has been filed by the petitioners, no serious dispute with respect to the procedure followed by the SCA/29145/2007 6/7 JUDGMENT Government as indicated in the above mentioned affidavits has been raised. Though, it is sought to be suggested that actual possession of the excess vacant land was not taken over in the year 1986 and same was only paper possession, nothing has been produced on record to substantiate these averments. 14. From the material on record, it can thus be seen that the petitioners have sought to raise stale and belated claim. Way back in the year 1982 the competent authority passed the order against the petitioners. Whatever defects therein, the same was never challenged before the higher authority or any court. Subsequently, the order was acted upon and after issuance of the notifications and service of notices to the petitioners, the land was ordered to vest in Government and possession thereof was also taken over. In pursuance thereof, the Government also undertook further steps of regularisation of unauthorised occupation of hutment dwellers. At this point of time, it is simply not possible to put the clock back. Whatever the grievance of the petitioners, the same cannot be entertained or examined in this petition at this stage. Even otherwise, I do not find that the Government had committed any illegality in implementing the order passed by the competent authority. The order had attained finality. The said order was required to be acted upon in accordance with law. The petitioners never raised any grievance regarding particular portion of their land being acquired by the Government as excess vacant land. At various stages under Section 10 of the Act, the petitioners had opportunity to alert the Government about portion they wanted to retain. No such attempt was made. 15. Under the circumstances, I find no illegality in the actions of the respondents. The petition is, therefore, dismissed. SCA/29145/2007 7/7 JUDGMENT Notice stands discharged. Interim relief, if any, stands vacated. ( Akil Kureshi, J. ) kailash