SCA/12602/2001 1/42 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12602 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE KSHITIJ R.VYAS ============================================================== 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 ? ============================================================== KAPILABEN AMBALAL PATEL HEIRS OF DECD. AMBALAL P. PATEL & 18 - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ============================================================== Appearance : MR P M Thakkar, Sr.Counsel with PM BHATT for Petitioner(s) : 1 - 19. Mr S N Shelat, A.G. With Mr K L Pandya, Asstt.GOVERNMENT PLEADER for Respondent(s) : 1 - 2. ================================================================== CORAM : HONOURABLE MR.JUSTICE KSHITIJ R.VYAS Date : 21.12.2005 CAV JUDGMENT The petitioners, in this petition under Article 226 and 227 of the Constitution of India have prayed to declare panchnama dated 20.3.1986 SCA/12602/2001 2/42 JUDGMENT Annexure 'D' and the purported action of the respondents to take possession – constructive or actual, of the lands mentioned in para (1) of the petition which is contrary to law and of no legal effect and permanently restrain the respondents from disturbing or taking possession of the petitioners lands admeasuring 12,385 sq.meters or any part thereof mentioned in the panchnama – Annexure 'D' and commanding the respondents to deliver back to them possession of the said lands, if they are held to be in possession de facto and de jure thereof and to restrain the respondents from taking any proceedings in respect of the said lands pursuant to the order dated 1.2.1985 of the competent authority. 2. The facts of the case in brief are as under: Petitioners are the heirs and legal representatives of late Ambalal Purshottamdas Patel, who expired on 30.12.1985. On commencement of the Urban Land (Ceiling and Regulation) Act, 1976 (for short, 'the ULC Act'). Ambalal Purshottamdas jointly with Bhikhabhai Maganbhai, Ramanbhai Purshottamdas, Jayantibhai Babarbhai and Smt. Jadavben Bhailal held agricultural lands of village Manjalpur, the details of which are given below: ---------------------------------------------------------------------------------------------------- Survey no. Areas in sq.mtrs. --------------------------------------------------------------------------------------------------- 362 10,825 378 4,249 592 10,927 SCA/12602/2001 3/42 JUDGMENT 593/1 10,218 593/2 101 594 4,692 -------------------------------------------------------------------------------------------------- Total 41,012 ------------------------------------------------------------------------------------------------- They have also held land bearing survey no.332 of village Tarsalia admeasuring 3136 sq.meters. They filed a statement in form No.VI under section 6 of the ULC Act. The lands were exempted under the ULC Act as agricultural lands under orders dated 6.3.1980 of the Dy.Collector, Vadodara and dated 29.11.1980 of the Dy.Secretary, Revenue Department, Government of Gujarat. The competent authority, vide its order dated 17.6.1981 fixed hearing of the statement in form No.VI on 1.7.1981. Pursuant to that, the land holders have filed their objections stating inter alia that they were filing application for the approval of a scheme under section 21 of the ULC Act. On 7.11.1983, the State Government withdrew the said agricultural exemption. The said land was covered under the Town Planning Scheme No.`19 (Manjalpur) which became final and came into operation dated 17.10.1988. However, the process of making of the T.P. Scheme was in progress when the competent authority passed order dated 1.2.1985, under section 8(4) of the ULC Act held that the holders were entitled to retain 18662.7 sq. meters of land and that land admeasuring 12385.3 sq.meters shown below were excess vacant land held by them: SCA/12602/2001 4/42 JUDGMENT ------------------------------------------------------------------------------------------------------- survey no. Final plot no. Area in sq. metrs. ------------------------------------------------------------------------------------------------------- 362 280 part 2672 378 287 3035 592 108 2747 593/1 115 1546 593/2 116 2385 ------------------------------------------------------------------------------------------------------ It is averred by the petitioners that on this date T.P scheme no.10 had not become final and the final plot numbers mentioned in the order are the plots to be reconstituted under the T.P scheme partly from the original survey numbers held by the said holders and partly out of survey nos belonging to others prior to the coming into force of the TP scheme. Of the 12,385 sq.meters declared as excess vacant lands, only 4486 sq. meters were part of the holding of the joint holders and the remaining 7899 sq.meters belonging to the persons other than the joint holders. On 21.3.1985, notification under section 10(1) of the ULC Act was issued and on 25.7.1985, notification under section 10(3) of the ULC act was issued in terms of the competent authorities, orders dated 1.2.1985 and were published in the Government Gazette. 3. On 22.8.1985, Ambalal Purshottamdas and Tribhuvan Chhotalal have constituted an attorneys of 23 land holders including Ambalal and the petitioner submitted an application for exemption of the lands under section 21 of the ULC act for claiming exemption which was within the SCA/12602/2001 5/42 JUDGMENT time prescribed under rule 11 of the Urban Land (Ceiling & Regulation)Rules, 1976. Pending disposal of the application dated 22.8.1985, Ambalal Purshottamdas Patel expired on 30.12.1985. On 23.1.1986, the competent authority issued notice to Ambalal since deceased, other holders Bhikhabhai Maganbhai, Natverbhai Bhailalbhai, Jayantibhai Babarbhai demanding possession of the excess vacant land. It appears that the notice could not be served on Ambalal and was returned back to the competent authority nor it was served on the other holders. On 20.3.1986, panchnama of taking over possession of the excess vacant land as prescribed in the statement annexed to the competent authority's order dated 1.2.1985 was drawn. On 15.12.1986 the competent authority ordered that the application for exemption under section 21 of the ULC Act be filed. 4. Ramanbhai P Patel and Tribhuvan Chhotabhai Patel has constituted attorneys of all land holders filed an appeal being Appeal No.Vadodara/2 of 1987 before the Urban Lands Tribunal and Secretary, Revenue Department, Ahmedabad (for short, 'the tribunal') against the order dated 15.12.1986 of the competent authority. The tribunal, by its judgment and order dated 28.8.1995 dismissed the said appeal. On 29.4.1998 Devikaben Bhailalbhai Patel, Kirtikaben, Manishaben and Hitesh Chandulal Patel made application to the tribunal for review of its SCA/12602/2001 6/42 JUDGMENT order dated 28.8.1998. On 9.4.1999 Karansinh Atalia, Advocate constituted attorney for Ambalal Purshottamdas Patel and others made an application to the competent authority for cancellation of the Notifications subsequent to the Notifications under section 10(1) of the ULC Act. On 19.9.1998, the tribunal allowed the review application of the petitioners by setting aside the order dated 15.12.1986 of the competent authority and remanded the matter to the competent authority for fresh decision after affording opportunity of being heard. It is an undisputed fact that no fresh decision has been taken by the competent authority on the petitioners' application dated 22.8.1985 under section 21 of the ULC Act. 5. On 11.1.1999, the ULC Repeal Ordinance repealed the Ceiling Act in the first instance in the whole of the States of Haryana and Punjab and all the Union Territories and provided that the ordinance would apply to such other States which adopted the Ordinance by Resolution passed in that behalf under Article 252 (2) of the Constitution of India to adopt in the State of Gujarat the Repeal Act. 5.1. On 22.10.1999, Kamleshbhai Parekh, has constituted attorney of Ambalal Purshottamdas Patel filed a petition being Special Civil Application No. 8402 of 1999 for declaration that the action of the State in taking possession of the land to the tune of 12385 sq. meters is contrary to law. This court (Coram: D C Srivastava, J (as he then was) partly allowed SCA/12602/2001 7/42 JUDGMENT the petition on the following terms: “i. The writ petition is partly allowed with no order as to costs. ii. It is declared that the action of the authorities under the ULC Act upto the state of section 10(3) of the Principal Act are in accordance with law which cannot be disturbed in this writ petition. However, the action at the stage of section 10(5) of the Act is illegal and consequently taking over possession either physical or actual or symbolic or on paper of the excess land has become illegal. iii. The possession of an area of 12385 sq.metrs of land of final plot nos. 115, 116, 108, 287 and 280 of Mangalpur (sic) District Vadodara is ordered to be restored by the respondents to the petitioners within the period of two weeks from today.” 6. On 27.8.2001, the respondents filed Letters Patent Appeal No.460/02 against the judgment and order along with application being C.A. No. 9662 of 2001 for condonation of delay of 238 days caused in filing the LPA. It is the case of the petitioner that after the notice was issued in the Civil Application, the respondents came to know of the death of Ambalal Purshottamdas Patel and on consequent termination of Ambalal's power of attorney in favour of Kamlesh Parekh, the respondent appeared to have taken a stand that in view thereof the Special Civil Application no.8402 of 1999 was not competent and the judgment and order dated SCA/12602/2001 8/42 JUDGMENT 15.12.2000 of Justice D C Srivastava (as he then was) liable to be set aside. The petitioners filed the present petition claiming the same relief as prayed in the earlier petition. 7. During the course of hearing, the respondents in fact produced the order passed by the Division Bench in LPA dated 16.8.2005 allowing the LPA on the ground stated above. Upon the death of Ambalal Purshottamdas Patel, the power of attorney holder did not have the authority to institute the Special Civil Application and, therefore, the Special Civil Application itself was not maintainable. Accordingly, the order of the learned Single Judge shall stand dismissed. The Division Bench however, made it clear that this order was not in any manner influence or affect the adjudication of Special Civil Application No.12602/01 filed by the legal heirs of late Ambalal Purshottamdas Patel i.e. the present petition. 8. I have heard Mr P M Thakkar, learned Sr.Counsel appearing with Mr P M Bhatt, learned Advocate for the petitioners and Mr S N Shelat, learned Advocate General appearing with Mr K L Pandya, learned AGP for the respondent State at length. I have also gone through the averments made in the petition and the various authorities cited by the learned counsels. Mr Thakkar for the petitioners submitted that in view of section 4 of the Repeal Act read with the Resolutions passed by the SCA/12602/2001 9/42 JUDGMENT Gujarat Legislative Assembly adopting the ULC Repeal Act, 1999 (Act No.15 of 1999), it is not competent to the respondents to take any further steps in respect of the lands declared as excess vacant land under the order dated 1.2.1985 of the competent authority. He further submitted that so long as scheme application no.21 is not disposed of, the State has no right to proceed beyond section 10(3) of the ULC Act. It is submitted by Mr Thakkar that on the decision of the review application i.e on 19.9.1998 by the tribunal setting aside the order dated 15.12.1986 of the competent authority remanding the matter to the competent authority has not been proceeded further nor any order is passed thereafter, the proceedings under section 21 of the ULC Act became alive and since no objection challenging the order passed in the review application was preferred by the respondents and on the contrary, immediately thereafter the petitioner filed the petition being Special Civil Application No. 8420/99 and the same was allowed on 5.2.2000 and there is no delay on the part of the petitioners. Under the circumstances, it was submitted that unless scheme application under section 21 is decided, no proceedings beyond section 10(3) of the ULC Act can be initiated and, therefore, the petitioners are entitled to the relief as prayed for in the petition; especially when the interim relief is operative till the date. Mr Thakkar has cited following authorities to substantiate his submissions: SCA/12602/2001 10/42 JUDGMENT (i) Samrathben M Chokshi v. State of Gujarat (1994) 1 GLR 203 (ii) Smt. Darothi Clare Parreira v. State of Maharashtra – AIR 1996 SC 2553 (iii) Savitaben Ramanlal Patel v. State of Gujarat - (1999) 1 GLH 100 (iv) Special Officer and Competent Authority, Urban Land Ceilings, Hyderabad v. P S Rao – JT 2000 (1) SC 393 (v) LPA No.5 of 2002 decided on 25.6.2003 by the Division Bench (Coram K R Vyas & M S Shah, JJ.) 9. Mr S N Shelat, learned Advocate General appearing for the respondent, on the other hand, submitted that the relief claimed in the petition are in the nature of a suit for possession and for permanent injunction. It is submitted by him that it is a civil action for which remedy under the Civil Suit is available to the petitioners and, therefore, this court may not entertain this petition which is in the nature of suit, under Articles 226 and 227 of the Constitution of India, especially when there are disputed questions of facts about the question of possession which can be decided by the Civil Court. He, further submitted that the reliefs claimed are barred by delay, latches and acquiescence. To elaborate his submissions, it was submitted that the possession of the land in question has been taken on 20.3.1986 for which panchnama was executed in the presence of panchas before the competent authority and the Dy.Collector. The present petition is instituted on 27.12.2001. Thus there is gross delay SCA/12602/2001 11/42 JUDGMENT of 15 years. Article 113 of the Limitation Act provides period of limitation of three years. While exercising jurisdiction under Article 226 of the Constitution of India normally the court does not interfere in the matter which is already barred under the Limitation Act. Even the suit for recovery of possession would be barred by the limitation period being 12 years. It was further submitted by the learned Advocate General that the petitioners never challenged the panchnama and the possession taken till the date of filing of the present petition i.e. 27.12.2001. In any proceedings taken out subsequently also there has been no challenge to taking over of the possession even at the stage of application under section 21. The petitioners, therefore, have acquiesced in the proceedings and are seeking to take benefit of the Repeal of the Urban Lands Ceiling Act. It was submitted that the Repeal Act only protects the right acquired under the Act and does not create any right in favour of the petitioners. Mr Shelat submitted that Special Civil Application No.8402 of 1999 was filed on 22.10.1999 by deceased Ambalal through the power of attorney holder of the said deceased. Even the said petition was delayed as it was notified on 22.10.1999 and the court could not have exercised jurisdiction under Article 226 of the Constitution. In the LPA preferred against the judgment passed in Special C.A. No. 8420/99 dated 5.12.2000, it was set at naught declaring that the proceedings could not have been initiated by SCA/12602/2001 12/42 JUDGMENT dead person and, therefore, the appellate court did not examine the merits of the matter. The decision having been declared null and void, the said judgment cannot be cited before this court. 9.1. On the relief claimed by the petitioners that the respondents be restrained from implementing the order dated 1.2.1985 declaring the lands surplus, it was submitted that the petitioners have never challenged the order declaring the surplus land dated 1.2.1985 till the filing of the present petition. The prayer is grossly barred by delay, latches and acquiescence. It was submitted that it is an after-thought after the Repeal of the Act. To substantiate his submissions, the learned Advocate General has cited the following authorities: (i) State Bank of India v. Pralaysaran Chakrabarty – AIR 1999 SC 2281. (ii) The Municipal Council, Ahmednagar v. Shah Hyder Beig & Ors. - JT 1999 (10) SC 336 (iii) State of Maharashtra v. Digambar – JT 1995 (9) SC 310 (iv) State of Orissa vs. Lochan Nayak (dead) by LRS. - 2003 (supple.) (1) JT 622 On the contentions that the proceedings dated 11.4.1986 are null and void and is erroneous in law, it was submitted by the learned A.G, that even if it were void or invalid in law, the petitioners are required to take proceedings to set aside the said invalid order within the time prescribed SCA/12602/2001 13/42 JUDGMENT by law as invalid orders cannot be ignored. Challenging the submissions of the petitioner that the factum of possession under the panchnama is required to be ignored, it was submitted by him that in view of the settled law, the said order for taking over possession after vesting of the lands in Government was required to be challenged by the petitioners within reasonable time. To support his submission, reliance was placed on the following decisions: (i) State of Punjab v. Gurudev Singh – AIR 1992 SC 111 (ii) Velamuri Venkata Sivaprasad (D) by Lrs. v. Kothuri Venkateswarlu (D) by Lrs. - 1999 (9) JT 242 (iii) Sultan Sidik v. Sanjay Roy Subbha - 2004 (1) JT 23 (iv) Jadav Prabhatbhai v. Parmar Karsanbhai -2001 (1) GLR 16 (FB) On the submission that the order of tribunal dated 19.9.1998 in review application remanding the matter back, application under section 21 having been revived, after having invited my attention to the following chronological events, it was submitted that the appeal having been dismissed on 28.8.1995, possession taken cannot be said to be unauthorised. He submitted that possession was taken as required under the law and it was never been sought to be quashed. It was, therefore, submitted that the possession of the State Government was lawful and under the Act: SCA/12602/2001 14/42 JUDGMENT 8.3.1985 10(6) Notification published on 21.3.1985 for acquisition 31.5.1985 Notification under section 10(3) for vesting published on 25.7.1985 17.12.1985 Notice under section 9(1) and 10(5) issued 20.3.1986 Possession taken in presence of the panchas. Panchnama executed before the competent authority 11.4.1986 Intimation to the Mamlatdar and the petitioner about taking over possession. Notice under section 10(5) 6.8.1986 Compensation determined under sec.11 The above events show that the petitioners during the proceedings under section 10(3), 10(4) and 10(5) and 11 have never objected on the ground that his application under section 21 for exemption was pending. 5.1./22.12. Deceased Ambalal Patel filed application for exemption 1985 under section 20 15.12.1986 Application was rejected 28.8.1995 Appeal was dismissed 6.8.1986 Compensation determined under section 11. 9.2. Without prejudice to the above contentions, it was submitted that the application for review was filed by Devikaben and other petitioners No.15,16,17 and 18. The present petitioner Nos. 1 to 14 and 19 had never filed application for review against the order dated 28.8.1995. Under the circumstances, possession that was taken on 20.3.1986 was final qua the SCA/12602/2001 15/42 JUDGMENT petitioners no.1 to 14 and 19 even if the order for review were to be considered. Learned A.G submitted that the order passed by the competent authority dated 1.12.1985 has declared the following lands belonging to the branch of Chandubhai Bhailalbhai as surplus. Petitioners No.15 to 19 who filed review petition are claiming through the branch of Chandulal Bhailalbhai. He invited my attention to page No.278 which shows the following statement: --------------------------------------------------------------------------------------------------------- sr.no. Holder's name Holding Permissible Excess land holding --------------------------------------------------------------------------------------------------------- Chandubhai Bhailalbhai 1546.04 1500 46.04 (i) The Review petition was barred by limitation – period of limitation being 30 days. (ii) The order under review is without jurisdiction. The limitation period is not noticed. (iii) Under O.47 R.1 under which the review application can be instituted provides that any person considering himself aggrieved may apply for review of the judgment to the court which passed the decree or made order. According to the learned A.G., petitioners No.15 to 18 only claimed relief for review. No other person interested has filed a review petition. The benefit of the order for review cannot be claimed by the other petitioners. The decision as regards surplus land is final because exemption application has been rejected in appeal. The finality of the order cannot be disturbed at the instance of the petitioner Nos. 15 to 18. Finally the SCA/12602/2001 16/42 JUDGMENT learned A.G submitted that even the authority has also said that the review is allowed to the limited extent and, therefore, under Article 226 of the Constitution of India, this Court may not grant any relief in favour of the present petitioner against whom the order for rejection of the application under section 21 is final and the compensation is already determined. He has submitted that the provisions of the Act do not contemplate that the possession validly taken would become invalid during the pendency of section 21 of the application. 10. Having considered the submissions advanced on behalf of the parties, at the outset, it may be stated that the petitioner claimed the very relief prayed in the present petition in the first petition viz; Special Civil Application no. 8420 of 1999 and this court allowed the same by granting the reliefs prayed for. It is true that the judgment and order passed in the said petition was set aside in LPA by the Division Bench of this Court. However, the LPA was allowed on the ground that the petition was filed in the name of the dead person. The Division Bench chosen not to enter into the merits of the case. Therefore, the view expressed by the learned Single Judge in the earlier petition is required to be accepted as far as the merits of the case are concerned. It is to be noted that except the contentions raised in this petition by the petitioners on delay, latches and acquiescence which are raised for the first time, the learned single Judge, on other SCA/12602/2001 17/42 JUDGMENT points on the settled principles of law allowed the said petition. With a view to maintain parity and to respect the decision rendered by my brother Judge, unless it is shown that the view expressed by him is contrary to the law, the same cannot be disturbed at the outset easily. Having carefully considered the reasonings and the conclusions reached by the learned single Judge, I am of the view that the judgment delivered in the earlier petition by my learned brother (Justice D C Srivastava) is in consonance with the law laid down by this court as well as the Apex Court. 11. Even keeping aside the said judgment for the time being, after considering the law on the points involved, I am of the opinion that the case of the petitioners is duly covered by a number of decisions. 12. The Full Bench of this court in the case of M/s. Avanti Organisation v. Competent Authority (1989) 1 GLR 586, in para 16 of the judgment observed that if the acquisition process is allowed to be completed before the exemption application under section 20(1) is disposed of and if the lands in respect of which exemption is claimed stand acquired and vest in the State Government, it would cause an anomalous position if the State Government ultimately decides to grant exemption in respect of the said lands. To avoid such situation to happen, it was observed that it would be in the fitness of things that the proceedings should in no case be allowed SCA/12602/2001 18/42 JUDGMENT to proceed beyond the section 10(2) stage if the exemption application has not been disposed of by then. 12.1. The Division Bench, in the case of Savitaben Ramanbhai Patel v. State of Gujarat (1999 (1) GLH 100) held that the State is bound to follow the decision of this court. Under the circumstances, the proceedings initiated in the present two cases in respect of the lands upto the stage of section 10(2) of the Act are for the present left untouched. The prosecution of further processes under the Act after the stage of section 10(2) of the Act will depend upon the decision on the applications under sections