IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8261 of 2000 with SPECIAL CIVIL APPLICATION NOS. 8271,9228 OF 2000 AND CIVIL APPLICATION NO. 7095 OF 2000 IN SPECIAL CIVIL APPLICATION NO 8261 OF 2000 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- MANIBHAI VASHRAMBHAI THAKKAR & KEYUR MANIBHAI THAKKAR Versus STATE OF GUJARAT THROUGH SECRETARY -------------------------------------------------------------- Appearance: SCA No 8261 of 2000 : MR BHARAT T RAO for Petitioner Ms. Hansa Punani, AGP for Respondent No. 1 MR AJ PATEL for Respondent No. 4 CA No. 7095 of 2000 in SCA No. 8261 of 2000 Mr. AJ Patel for applicant. Mr. BT Rao for respondent-original petitioner. Ms. Hansa Punani,AGP for respondent authorities. SCA Nos. 8271/2000 and 9228/2000: Mr. KK Trivedi for petitioners. -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 4.10.2000 CAV JUDGEMENT In special civil application No. 8261 of 2000, learned advocate Mr. Rao has appeared for the petitioner and Ms. Punani, learned AGP has appeared for the respondent authorities and Mr. Patel has appeared for the other respondents. In Civil Application No. 7095 of 2000, learned advocate Mr. Patel has appeared for the applicant whereas Mr. Rao has appeared for the respondent-original petitioner and Ms. Punani has appeared for the respondent authorities. In remaining two petitions namely special civil application Nos. 8271 of 2000 and 9228 of 2000, learned advocate Mr. KK Trivedi is appearing for the petitioners. This group of three petitions involves identical questions of fact and law and civil application No. 7095 of 2000 is arising out of special civil application NO. 8261 of 2000 and, therefore, they are decided and disposed of by this common judgment. Civil Application NO.7095 of 2000 has been filed by the applicant who is the original respondent No.4 in special civil application no. 8261 of 2000 for vacation of the interim relief granted by this court in the main petition wherein the original petitioner Manibhai Vashrambhai Thakkar has filed the affidavit in reply. In special civil application No. 8261 of 2000, respondent NO.4 has filed affidavit in reply through one Rajendra Gordhanbhai Patel who is the Vice President of respondent No.4 namely the Karamsad Bandhu Samaj which shall, hereinafter, be referred to as "the Samaj" for the sake of brevity. Against the said affidavit in reply filed by the respondent Samaj, the petitioner has also filed affidavit in rejoinder. No affidavit in reply has been filed by the respondent authorities in this petition. In special civil application no. 8261 of 2000, rule has been issued by this court on 27th July, 2000 and while issuing rule thereon, interim relief has also been granted by this court. Special Civil Application Nos. 8271 of 2000 as well as 9228 of 2000 are at admission stage. Today, with the consent of the learned advocates for the parties, all these petitions have been taken up for final disposal. Special civil application No. 8261 of 2000 and special civil application no. 8271 of 2000 has been filed by Manibhai Vashram Thakkar and special civil application no. 9228 of 200 has been filed by Dilipbhai Manibhai Thakkar and Keyur Manibhai Thakkar and Manibhai Vashram Thakkar, two sons and father. In light of the facts that all the three petitions have been filed by the father and sons on the same cause of action and same subject matter. In special civil application No. 8261 of 2000, the petitioner has prayed for quashing and setting aside the order passed by the Government on 17th May, 2000 allotting the land to the private party which is contrary to the Government's own resolution dated 15th April, 1999 and also against the objects of the Repeal Act,1999 and for declaring that the action of the Government is arbitrary. It is also necessary to mention one important aspect of this petition that in para 12 of the petition, the petitioner has made the following averments : "12. The petitioner submits that the petitioner has not filed any other application or petition with regard to the subject matter of this petition on any other court of law, including the Hon'ble Supreme Court of India, except what is stated hereinabove." Though the petitioner has made such a statement in para 12 of the petition quoted hereinabove, the petitioner has not disclosed the fact that the civil suit has been filed by the petitioner before the civil court at Baroda being special civil suit no. 996 of 2000 filed on 24.6.2000. It is also necessary to note at this stage the civil suit filed by respondent No.4 Samaj being special civil suit No. 585 of 2000 dated 30.6.2000 is also known to the petitioner and at the time of filing of the present petition, the petitioner was well aware of the said proceedings before the civil court and yet said facts have not been disclosed by the petitioner in this petition. One important aspect is also required to be noted that in para 9, last line of the said paragraph, the petitioner has made a mention that one special civil application no. 8352 of 2000 has been filed by the petitioner and the same is pending before this court. It is also necessary at this stage to mention that one special civil application no. 8383 of 1988 has been filed by this petitioner Manibhai Vashrambhai Thakkar before this court which came to be dismissed by this court on 15.11.1990. However, this fact has also not been disclosed by the petitioner in this petition. In paragraph 9(B) of special civil application, no. 8271 of 2000, the petitioner has prayed for a declaration that the Urban Land (Ceiling and Regulation) (Repeal) Act, 1999 is ultra vires to the constitution of India. In para 9(C) of the said petition, the petitioner has also prayed for issuing a writ in the nature of mandamus or in the nature of certiorari or any other appropriate writ, order or direction declaring that the Urban Land (Ceiling and Regulation) Act, 1976 is ultra vires to the constitution of India. In para 9(D) of the said petition, the petitioner has prayed for quashing and setting aside the the order passed by the Competent Authority and Dy. Collector (ULC) Vadodara dated 3.5.1983 (Annexure "A") and the order passed by the Urban Land Tribunal dated 19.2.1988 Annexure "B" and the consequential proceedings under is ec.10(1) to 10(6) of the Urban Land (Ceiling and Regulation) Act, 1976. In para 9(E) of the said petition, the petitioner has prayed for directing the respondents to delete the lands bearing revenue survey No. 83 (City S.No. 346 to 352) of village Wadiwadi District Vadodara of the petitioners from the lands on which the possession are taken over. In para 9(F) of the said petition, the petitioner has prayed for directing the respondents to provide alternative land of the same area or to provide compensation to the petitioners according to the Land Acquisition Act,if it is declared by this court that the physical, actual and legal possession is taken over by the respondents under the Act. Said petition has been filed by the petitioners on 4th July, 2000. The question of vires raised in this petition has been examined by the division bench of this court in case of Rameshbhai Shamjibhai Raninga versus State of Gujarat in special civil application no. 6678 of 1999 and other cognate matters on 18.7.2000 and this court has come to the conclusion that sec. 3(1)(a) of the Repealing Act,1999 is constitutional and valid piece of legislation and the challenge made to it by the petitioner fails. The provisions of sec. 4 of the Repealing Act, 1999 are also held to be valid and reasonably construed in the said judgment. The Division Bench has, therefore, directed to place all the petitions before the appropriate Single Bench or Benches for disposal on merits in light of the judgment and observations made by the Division Bench of this court in aforesaid judgment and, therefore, these special civil applications have been placed before this court after deciding the question of vires of the provisions by the division bench of this court on 31.7.2000. In special civil application no. 9228 of 2000 which has been filed by two sons and father as stated above, in para 9(B), the petitioners have prayed for quashing and setting aside the orders passed by the competent authority dated 3.5.1983 and to quash and set aside the order of the tribunal dated 19.2.1988 and to quash and set aside the consequential proceedings under sec. 10(1) to 10(6) of the ULC Act,1976 with a further prayer to direct the respondents to make inquiry as directed by the tribunal in its judgment dated 19.2.1988 for permissible set back and its deduction from the holding of the lands of the petitioner in accordance with law. The petitioners have also prayed for quashing and setting aside the orders dated 17.5.2000 and 27.6.2000 passed by respondents no.2 and 4 granting the lands bearing revenue s.n.83 (city survey no. 346 ( city survey no. 346 to 352) of village Wadiwadi, District Baroda. Then, there is further relief about deleting the lands bearing same survey number and same city survey no. means the lands in question. Last prayer is to provide alternative land or compensation under the provisions of the Land Acquisition Act. Thus, the prayers made in this group of petitions are almost similar and identical in nature and are relating to the same subject matter. The facts of the present petitions, in short, are as under: The petitioner Shri Manibhai Vashrambhai Thakkar is having the land in Baroda Urban Agglomeration in village Wadiwadi which is a part of Baroda, now bearing city S. No. 83 ad measuring 5400 sq. mtrs. which is excess in view of the provisions of the Urban Land (Ceiling and Regulation) Act,1976 ("the ULC Act,1976" for short). Form under sec. 6(1) of the ULC Act, 1976 was filled in by the petitioner. Draft statement under sec.8(3) of the ULC Act,1976 has been is served upon the petitioner. Thereafter, objections were filed by the petitioner against the draft statement stating that there is no excess land. The competent authority has passed the order dated 30.5.1983 declaring that there is excess land to the extent of 2522 sq. mtrs. in s.n.83. The petitioner, then, filed appeal before the tribunal which was partly allowed under order dated 19.2.1988. Thereafter, the competent authority issued notification under sec.10(5) of the ULC Act, 1976 for taking over the possession of the land in question and also issued notice for determination of compensation under section 11 of the ULC Act,1976 but according to the petitioner, said compensation has not been paid to the petitioner. The petitioner has also approached the Government for review of the order passed by the Competent Authority and has also submitted form NO.5 under sec. 21 (1) declaring intention to construct residential unit for weaker section of the society. The petitioner has also relied upon the Repeal Act, 1999 and the Government Reso. dated 15.4.1999. Said orderof the tribunal has also been challenged by the petitioner before this court by filing special civil application no. 8383 of 1988 wherein on 15th November, 1990, following order was passed by this court: "The land has already vested in the Government because of the notification under section 10(3) of the Act and possession has already been taken over. Now, it is too late for the petitioner to raise a contention that his particular portion of land was a vacant land and, therefore, the order of the competent authority in that behalf be treated as improper or illegal. This petition is, therefore, rejected summarily. Notice is discharged with no order as to costs. " The petitioner has contended that the Government has allotted the said land to the respondent Samaj which is a private trust duly registered under the Bombay Public Trusts Act on 17.5.2000 and, therefore, the petitioner has challenged the action of allotment of land to the said respondent Samaj on the ground that the same is contrary to the provisions of the resolution dated 15.4.1999 and is also contrary to the provisions of sec. 23 of the ULC Act, 1976. The petitioner has also challenged the allotment of the land in question to respondent Samaj on the ground that it has been made after the Repealing Act, 1999 and, therefore, same is against the basic object and design of the Principal Act as well as against the Government Resolution dated 15.4.1999. At this juncture, it is necessary to note that the application submitted by the petitioner under sec. 21 (1) in Form 5 of the ULC Act 1976 has been ordered to be filed by the competent authority by order dated 14.4.1983 on the ground that the scheme has not been submitted by the petitioner within the prescribed time limit. However,this fact has not been disclosed by the petitioner in the present proceedings. The petitioner has also not disclosed the fact of filing of special civil application no. 8383 of 1988 and disposal of the said petition by this court on 15.11.1990. Respondent Samaj has filed affidavit in reply to the present petition challenging the averments made by the petitioner. It has been inter alia contended by the respondent Samaj that the petitioner has no locus standi to challenge the Government's decision dated 17.5.2000 wherein the land has been allotted to the respondent Samaj. It has also been contended that after the land was declared surplus and the Government had taken possession of the land in question as per notification under sec.10(5) of the ULC Act, the petitioner is having no locus standi to challenge the action of the Government of disposal of the land in question and the decision of the Government has become final and conclusive. It is also contended that once the land has been disposed of by the Government, the erstwhile owner has nothing to do with the same after the same was disposed of by the Government. Respondent No.4 has also contended that eventhoughthe Government has committed any irregularity in the disposal of the land, then also, the petitioner is having no locus standi to challenge the same. It is also contended that the respondent Samaj has filed special civil suit no. 585 of 2000 on 30.6.2000 wherein interim relief has been granted by the civil court on 1.7.2000 in favour of the respondent Samaj as per paragraph 7(A) of the said suit and the returnable date was 13thJuly, 2000 and notice of interim stay was served to the petitioner on or before 13.7.2000. Respondent Samaj has also made it clear that one civil suit is also filed by the petitioner wherein panchanama was made and that panchanama was misleading the court. Said special civil suit has been filed on 24.6.2000 by the petitioner without impleading respondent Samaj as a party to the said suit. In view of these submissions, respondent Samaj has also submitted that the petitions are required to be dismissed on the ground of suppression of material facts as per the law laid down in AIR 1978 SC 1814; 1998 (3) GCD 1783; 1996 (3) GCD 615; 1996 (1) GLR 741. It is also made clear by respondent no.4 Samaj that the possession of the land in question is with respondent Samaj and the Samaj has constructed compound wall and has also constructed room and spent 1/50 lacs in the development of the land and has submitted that the construction is in progress. In reply to the affidavit in reply filed by the respondent Samaj, the petitioner has filed affidavit in rejoinder wherein the petitioner has submitted that the civil suit has been filed by the petitioner before the civil court on 21.6.2000 and on 24.6.2000 panchanama has been drawn by the Court Commissioner. In the said rejoinder, the petitioner has placed reliance upon certain pronouncements of the apex court wherein the object and reason has been specified while enacting the law by the Parliament. It has also been submitted by the petitioner that the object of section 23 (1) of the ULC Act,1976 has been considered by the apex court in Bhim Singhji v. Union of India reported in AIR 1981 SC 234. The objection of the petitioner is that the allotment of the land in question is not for public purpose and it cannot be considered to be common good. It is also submitted that the allotment to respondent NO.4 Samaj is meant for a particular community in a particular area of Gujarat and that too it has been made under the influence of Shri Dilip Patel, Minister holding important portfolio in the Government of Gujarat and, therefore, it is submitted that it cannot be said that the land is allotted for public purpose. At this stage, it is also necessary to consider the prayer which has been made in civil suit filed by him. In para 9(A), the petitioner has prayed that the land in question is in possession of the petitioner and, therefore, the respondents, their agents, servants etc. be restrained from disturbing the possession of the petitioner. In the civil suit, the petitioner has also prayed for quashing and setting aside the notification under sec.10(1) to 10(6) of the ULC Act,1976 including sec. 11 and has also prayed for declaring that the provisions of the ULC Act,1976 are not applicable to the land in question. The petitioner has also produced letter of the competent authority dated 14.4.1983 in respect of the application submitted by the petitioner under section 21(1) of the ULC Act, 1976 wherein the order has been passed by the competent authority to dispose of the said application without granting any order in favour of the petitioner on 14.4.1983. Said order has not been challenged by the petitioner before any higher forum and that fact has not been disclosed by the petitioner in the petition also. It is necessary to note one aspect that in reply to the averments made by the respondent Samaj in its affidavit in reply, the petitioner has submitted detailed affidavit in rejoinder. However, the petitioner has not given any satisfactory explanation about the suppression of important aspects and material facts. The petition was filed before this Court on 24thJuly, 200 and in the petition, rule has been issued and interim relief has been granted on 27thJuly, 2000. Civil Suit No. 996 of 2000 has been filed on 21.6.2000. On or before 13th July,2000, the petitioner was served with the notice of interim stay granted by the civil court, Baroda in the civil suit filed in the civil court, Baroda which suit was filed by the respondent Samaj. However, filing of these suits and pendency thereof has not been disclosed in the petition and even no explanation for that has been given in the rejoinder. Yet, the petitioner has an audacity to assert in para 12 of the petition that the petitioner has not filed any other application or petition with regard to the subject matter of this petition in any other court of law including the Hon'ble Supreme Court of India, except what is stated in the petition. In petition, nothing has been stated in that regard. It is, therefore, clear that the petitioner is guilty of suppression of material facts. In view of the averments made in para 12 of the petition, and also in view of what is stated above, it is clear that the petitioner has suppressio very and suggestio falsi. Another aspect is that the order of the competent authority has been challenged by the petitioner before this court by filing special civil application no. 8383 of 1988 which has been rejected by this court on 15.11.1990 by order which is quoted hereinabove and yet, in the petition, there is not a single word in that regard, stated by the petitioner. In regard to suppression of these material facts, though specifically pleaded by the respondent No.4 Samaj in its affidavit in reply, the petitioner has not come forward with any explanation in its affidavit in rejoinder. Mere admission of fact without any explanation in that regard is not sufficient for getting rid of the charge of suppression of material facts. Other two petitions namely special civil application Nos. 8271 of 2000 and 9228 of 2000 have been filed by another advocate namely learned advocate Shri K.K.Trivedi wherein one petition is filed by the very same petitioner and other petition is filed by two sons and father. In these two petitions also, challenge is the same order passed by the Government allotting the land on lease in favour of the respondent Samaj. No doubt, in group of these two petitions, in special civil application No. 9228 of 2000, the petitioner has disclosed about filing of special civil application No. 8383 of 1988 which has been disposed of by this court on 15.11.1990. Taking into consideration the of facts of these three petitions, the questions which are required to be examined by this Court are as under: 1) Whether the petitioners are entitled to challenge the order passed by the competent authority in respect of the land in question dated 3.5.1983 , the order of the tribunal dated 19.2.1988 and whether the petitioners have any locus to challenge the order of allotment of the land in question on lease in favour of the respondent Samaj, dated 17.5.2000 in view of the provisions of the Repealing Act, 1999 ? 2) Whether the petitioners are having any locus standi to challenge such action when the possession of the land in question has already been taken over by the State Government and the said order has been finally decided by this Court in special civil application no. 8383 of 1988 ? 3) Whether the petitioner in special civil application NO. 8261 of 2000 has suppressed material facts from this Court as alleged by the respondents in their affidavit in reply and whether the said petitioner is guilty of suppression of material facts? 4) Whether the petitioner Shri Manibhai V. Thakkar is entitled to challenge the order passed by the competent authority and tribunal in respect of the land in question which order has become final by the decision of this Court, after the period of about 12 years on the ground that they are entitled to be heard and they are entitled to have interest in the land in question ? 5) In view of the pendency of the civil suits referred to hereinabove, whether the present petitions are maintainable or not and and in such a situation, whether the petitioners are entitled to get any relief/s from this Court in this petition? I have heard learned advocate Mr. B.T. Rao as well as learned advocate Mr. K.K.Trivedi for the petitioners herein.I have also heard Mr. A.J.Patel,learned advocate for the respondent Samaj. I have also heard the learned AGP Ms.Hansa Punani who has appeared for the respondent authorities in these petitions. Learned advocate Mr. Rao has submitted that the petitioners have not been paid the compensation in respect of the land in question and, therefore, the petitioners are entitled to challenge the orders passed by the competent authority as well as the tribunal and as such, are also entitled to challenge the notification under sec.10 of the ULC Act, 1976. He has further submitted that the non payment of compensation would also entitle the petitioners to challenge the orders of allotment of the land in question in favour of the respondent Samaj dated 17.5.2000. He has also submitted that the allotment of the