LPA/643/2007 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 643 of 2007 In SPECIAL CIVIL APPLICATION No. 4093 of 1990 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================= = 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 ? ========================================= = V ENGINEERING AND SONS Versus COMPETENT AUTHORITY AND DEPUTYCOLLECTOR AND ANOTHER ========================================= =Appearance : MR RS SANJANWALA for the Appellant MR MAULIK NANAVATI, ASSTT GOVERNMENT PLEADER for the Respondents ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 30/07/2008 ORAL JUDGMENT LPA/643/2007 2/4 JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The learned counsel for the appellant principally urged in this Appeal that under subsection (5) of Section 10 of the Urban Land (Ceiling and Regulation) Act, 1976 ('the Act' for short), notice was not properly served and given to the appellant by the competent authority. This averment is not specifically taken in the main petition filed before the learned Single Judge. Therefore, we decline to permit the learned counsel for the appellant to urge. 2. We find that the notice under subsection (5) of Section 10 of the Act was, in fact, given, which finds place in the paper-book, at page 36-A. This notice is also an order incorporated in it. Against such order to vacate the land, it was open for the appellant herein to challenge the same under Section 33 of the Act. However, no appeal was preferred within the provided time period. The appellant happily suffered notice/ order under subsection (5) of Section 10 of the Act. Having suffered it and having not challenged in the special civil application before the learned Single Judge, some efforts have been made by the learned counsel for the appellant to impugn the notice in the rejoinder. Since in the principal case, this plea is not set up in the pleadings, it cannot be made basis of challenge and altogether a new case cannot be set up in rejoinder. Therefore, the case of the appellant that appropriate notice under subsection (5) of Section 10 of the Act was not there is negatived. It is also done in the light of the fact that the learned Single Judge was not addressed on the point that the notice under Section 10(5) of the Act was invalid. 3. Second question is raised that, thereafter, the possession was taken by the respondents under subsection (6) of Section 10 of the Act, by unauthorised persons. We are not persuaded because it was the notice recites in itself about the authorised person and in the notification, the State Government has authorised the authority LPA/643/2007 3/4 JUDGMENT to take possession. 4. It has been submitted by Mr. Maulik Nanavati, learned Assistant Government Pleader for the respondent, that notice under Section 10(5) of the Act was given by the competent authority and, thereafter, as the appellant had failed to deliver the possession of the excess vacant land, the authorised officer had taken possession of the land by drawing proper panchnama. He has further submitted that the normal mode of taking possession under the provision of the Urban Land Ceiling Act is recognized by the Hon'ble Supreme Court and this Court is by drawing panchnma. In support of this submission, reliance is placed on the following decisions: 1. Vipinchandra V. Bavishi Vs. State of Gujarat reported in 2002(3) GLR 2592, 2. Larsen & Tubro Ltd. Vs. State of Gujarat (SC) reported in 1998 (3) GLR 2012 (SC) paras 15 and 16, 3. Indequip Engineering Ltd. Vs. U.L. Tribunal reported in 2006(1) GLR 215, 4. Tamil Nadu Housing Board Vs. Viswam, reported in 1996(8) SCC 259. 5. In any case, the obligation of the appellant after the service of the notice under subsection (5) of Section 10 of the Act was to deliver the possession and having failed to remain present and deliver the possession, he has not obeyed the law as was required by the law. He has not discharged his obligation. If the State authorities under subsection (6) of Section 10 of the Act had taken the possession, that too in his absence and after the notice, it can be deemed that the petitioner was negligent of his rights. Once the possession is taken over, then argument of the learned counsel that the repealed Act of 1999 which makes the provisions, that if the possession of land has not been taken, then it LPA/643/2007 4/4 JUDGMENT should be restored to the holder of the land, would not come to his rescue. It may also be mentioned here that the possession was taken on 26th April, 1990. The learned Single Judge has taken note of the fact that the petitioner after 16 years of dispossession and 10 years of declaration has chosen to say that he was informed in 2004. 6. In this view of the matter, the findings of the learned Judge are approved. We find no merits in the appeal and consequently, the appeal is dismissed. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar