IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3042 of 1996 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 -------------------------------------------------------------- CHANDANBEN CHUNILAL PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 3042 of 1996 M/S THAKKAR ASSOC. for Petitioners No. 1-4 Mr. S.P. Sen, AGP for Respondent No. 1 SERVED BY RPAD - (R) for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 23/10/2001 CAV JUDGEMENT Heard learned Sr. Advocate Mr. P.M. Thakkar for the petitioners and Mr. Sen, the learned AGP for the respondent authorities. Initially, notice was issued in this matter and it was made returnable on 8th May, 1996 and by way of ad-interim relief, status quo with respect to the subject matter of the petitioner was ordered to be maintained by both the parties, by order dated 23rd April, 1996. Thereafter, this Court has issued rule on 28th June, 1996 and ad-interim relief granted earlier was made confirmed till the final disposal of the petition. Against this petition, the respondent No.2 Competent Authority and the Deputy Collector Shri S.A. Patel has filed an affidavit in reply on 20th October, 1999 and certain documents have been brought on record. Rejoinder thereto has been filed by the petitioner on 6th December, 1999. Thereafter, the additional affidavit in reply has been filed by the competent authority and the deputy collector respondent No. 2 Shri V.L. Patel on 12th October, 2001 and relevant orders passed by the competent authority as well as the panchanama and other relevant orders were produced on record. Against that, the petitioners have filed further rejoinder dated 16th October, 2001. Brief facts of the present petition are as under: According to the petitioners, one Shri Chunilal Tribhovandas Patel and the petitioner No.1 Chandanben Chunilal Patel submitted Form No.1 under section 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976 before the competent authority on 15th September, 1976 declaring certain lands in the holding of the said persons. These lands were covered by survey no. 337, 386, 387, 339, 394, 395, 407, 246/1, 246/2 and two houses covered by survey No. 16/1. According to the petitioners, the lands covered by survey no. 337, 386, 387, 339 and 394 were exempted under section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 ("the ULC Act, 1976" for short) by the Government. Therefore, the decision of the competent authority was to be made only in respect of the land bearing survey No. 395, 407, 246/1 and 246/2. The competent authority passed the impugned orders on 17.3.1986 and thereby declared total of 29785 square meters of the land as excess land after granting one unit of 1500 square meters in favour of the widow of the deceased. The petitioners have pointed out that even though the subject property was the HUF Property, the competent authority has refused to grant unit in respect of four major sons and two major daughters, who are major admittedly as on the appointed date. Further, the competent authority has ignored the evidences submitted before it showing that the lands covered by all the above four survey numbers are mainly used for the agricultural purpose and, therefore, same are required to be exempted. Being aggrieved by the said order, an appeal preferred by the petitioner under section 33 of the ULC Act, 1976 before the tribunal came to be dismissed by the tribunal on 30.10.1993 and the order passed by the competent authority was upheld by the tribunal which order of the tribunal dated 30.10.1993 was challenged by the petitioner before this court by filing the petition being special civil application no. 3876 of 1994 wherein the matter was remanded back to the tribunal while quashing and setting aside the tribunal's order dated 30.10.1993. Upon remand, the tribunal called upon the petitioners to submit their submissions if any. The petitioners submitted their written submissions before the tribunal and took various contentions including the contention that the property in question was the HUF property and that each one of the major coparceners are entitled to one unit each of 1500 sq. mtrs. Further, they also produced the revenue records in respect of survey no. 395, 407, 246/1 and 246/2 reiterating that these lands are mainly used for agricultural purposes. It was also highlighted by the petitioners that the lands covered by House No. 9/6 and 9/1 cannot be included in the holding of the petitioners in view of the ratio laid down in case of Mira Gupta. On 5.1.1996, the tribunal passed the impugned order and thereby once again confirmed the order passed by the competent authority barring the decision with regard to the house no. 9/6 and 9/1 which the tribunal by following the ratio laid down in case of Mira Gupta, allowed to be excluded from the holding of the petitioners. The tribunal further ignored the revenue records to substantiate the fact that the under referred lands are being used for agricultural purposes. Further, the tribunal also grossly erred in not accepting the contention of the petitioners that the properties were that of HUF and, therefore, each of the coparceners are entitled to one unit each. The petitioners have, therefore, approached this Court by way of this petition and have submitted that in view of the aforesaid facts, the orders passed by the competent authority as also by the tribunal are completely illegal, arbitrary, without application of mind and competence and without jurisdiction and cannot sustain. 2. At the time of filing of the present petitioners, as per paragraph 10(A) of the petition, the petitioners prayed for quashing and setting aside the impugned orders passed by the tribunal dated 5.1.1996, thereby confirming the order passed by the competent authority dated 17.3.1986 as being illegal, arbitrary, without application of mind and competence, jurisdiction besides violative of Art. 14 and 21 of the Constitution of India. As per para 10(B) of the petition, the petitioners have prayed for staying the implementation, operation and execution of the impugned orders dated 5.1.1996 passed by the tribunal as well as the orders passed by the competent authority dated 17.3.1986 and be further pleased to restrain the respondents, their servants from taking the possession of the subject matter pending hearing and final disposal of this petition. 3. In the present petition, the petitioners have mainly contended that the lands in question owned by the petitioners are mainly used for agricultural purposes and, therefore, same are required to be exempted under the ULC Act, 1976 and it was also pointed out that the competent authority has already granted exemption in respect of the land covered by survey No. 337, 386, 387, 339 and 394 under section 20 of the ULC Act, 1976. Reliance has been placed by the petitioners on section 2(o) and section 2(q) of the ULC Act, 1976. The petitioners have also submitted that the lands in question are being used for the purpose of cultivation of Pedi since 1951-52 and in fact, even till the date, said lands are being used for cultivation alone. Second contention raised by the petitioner is to the effect that the properties in question are HUF Properties and in the process, the competent authority has refused to grant unit in respect of four major sons who even according to their own orders, were major on the appointed date and, therefore, the petitioners are entitled for seven units in all, one for widow of the deceased and four for 4 major sons and two for 2 major daughters. The petitioners have submitted that the said lands were purchased from the funds of the HUF and, therefore, each of the coparceners of the said HUF are entitled to have one unit of 1500 sq. mtrs. According to the petitioners, these facts were brought to the notice of the tribunal by the advocate for the petitioners by making clear statement in para 3 of the memo of appeal dated 22.8.1995 and thus, respective age as on 1.4.1976 has been highlighted of all these persons and it has been submitted that the said persons are entitled to have one unit each as per section 4(7) of the ULC Act, 1976. Copy of the memo of petition has been annexed to the present petition by the petitioners. The third contention raised by the petitioner is to the effect that the lands in question were mainly used for cultivation and, therefore, were required to be exempted from the provisions of the ULC Act, 1976 and necessary revenue records to that effect was produced by the petitioners before the tribunal. However, the tribunal has ignored the relevant record and the tribunal has come to the conclusion that the property was self acquired property of the husband of the petitioner no.1. The fourth contention raised by the petitioners is to the effect that the tribunal has passed the order dated 5th January, 1996 in pursuance to the order passed by this Court to pass appropriate fresh orders after considering all these material. However, the said order passed by this court in special civil application no. 7876 of 1994 dated 21st September, 1994 has been ignored by the tribunal. 4. The respondent no.2 competent authority has filed the first affidavit on 20th October, 1999 contending inter alia that Shri Chunilal Tribhovandas Patel and Chandanben Chunilal Patel had submitted Form No.1 under section 6(1) of the ULC Act, 1976 on 15th September, 1976; draft statement under section 8(3) of the ULC Act, 1976 was served upon the petitioners on 19th May, 1982; declarants raised several objections against the statement through their advocate and ultimately by order dated 17th March, 1986, the competent authority has declared 29785 sq. mtrs. of the land as excess vacant land and, thereafter, further proceedings were undertaken by the competent authority and the notification under section 10(1) was issued on 31st July, 1986 and published in the Government Gazette on 11th September, 1986 and, thereafter, notification under section 10(3) of the ULC Act, 1976 was issued on 30.1.1987 and the same was also published in the Government Gazette on 26th February, 1987 and thereafter, notice under section 10(5) of the ULC Act, 1976 was issued on 3rd June, 1987 and ultimately, possession of the land was taken over by the authority on 22nd December, 1987 in the presence of the panchas. The deponent of the said affidavit in reply has contended that the Mamlatdar, Baroda was informed by the competent authority to enter the name of the State Government in respect of the lands in question in the revenue records and, thereafter, notice for determination of the compensation under section 11 of the ULC Act, 1976 was issued on 12th January, 1988. According to the deponent of the said affidavit in reply, appeal was filed by the petitioners under section 33 of the ULC Act, 1976 on 27th January, 1988 and the tribunal decided the said appeal on 30th October, 1993 wherein the said appeal was rejected by the tribunal while confirming the order passed by the competent authority. The respondent No.2 has also submitted that thereafter, 96 plots and 150 plots were allotted to the urban poor under the provisions of section 23 of the ULC Act, 1976 under the Scheme for allotment of plots admeasuring 25 sq. mtrs. out of the aforesaid excess vacant lands, by a committee presided by the District Collector, by orders dated 6th June, 1994. It has also been submitted that 84 of the beneficiaries under the Scheme have also paid the necessary amount towards the allotment of the plots. The deponent has also submitted that being aggrieved by the aforesaid order of the tribunal, a petition was filed by the petitioners before this Court being special civil application no. 7876 of 1994 on 16th June, 1994 which was allowed by judgment and order dated 21.9.1994 by this court while quashing and setting aside the order of the tribunal dated 30.10.1993 and the matter was remanded to the tribunal for its restoration to the file and for its fresh decision according to law in light of the judgment. The deponent has also submitted that by order dated 5.1.1996, the tribunal has partly allowed the appeal and the tribunal has excluded the constructed properties from the holding of the petitioner and thereby has declared 29611 sq. mtrs. of the land as excess vacant land. The deponent has also submitted that in view of the provisions of section 3 and 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 ("ULC Repeal Act, 1999" for short), present proceedings would abate. However, according to the deponent of the said affidavit in reply, in view of the order dated 5th January, 1996 passed by the tribunal, the petitioners would be entitled to restoration of 175 sq. mtrs. of the land out of the lands of which possession is taken over by the Government on 22nd December, 1987. So far as the challenge to the impugned order dated 5th January, 1996 is concerned, it has been submitted by the deponent of the said affidavit in reply that the proceedings before this Court would abate and in view of the aforesaid facts and circumstances, the deponent has submitted that the petition is devoid of any merits or substance and requires to be rejected in limine. Alongwith the said affidavit in reply filed on behalf of the respondent No.2, relevant notification under section 10(1), 10(3) and 10(5) as well as the panchanama and the letter dated 11th January, 1988 have been brought on record by the deponent of the said affidavit in reply. 5. As against the said affidavit in reply filed by the respondent no.2, the petitioners have filed the rejoinder contending inter alia that the petitioners are in possession of the land as on 30th March, 1999 and, therefore, the proceedings of the present petition are required to be abated. The petitioners have denied the statements made in the affidavit in reply by the respondent No. 2 that the possession of the land in question has been taken over by the respondent No.2 from the petitioners on 22nd December, 1987. In light of this denial and the dispute raised by the petitioners in respect of having the possession of the land in question by the Government, dates and events have been enumerated by the deponent in the said rejoinder filed on behalf of the petitioners which are reproduced as under: "17.3.1986 The competent authority passed the order and declared 29785 sq. mtrs. as excess vacant land. 19.7.1986 The petitioners filed an appeal before the Urban Land Tribunal against the order passed by the competent authority dated 17.3.1986 being appeal no. 513/86. 31.7.1986 The respondent authority issued notification under section 10(1) of the Act. 27.1.88 The appeal filed by the petitioners came to be renumbered as appeal no. 27 of 1988. 30.1.1987 The notification under section 10(3) of the Act came to be issued. 3.6.87 The respondent Government issued notice under section 10(5) of the Act. 2.2.1988 The tribunal stayed the operation of the order passed by competent authority dated 17.3.1986. At this stage, it is pertinent to note by the interim order dated 2.2.1988, the tribunal ordered the status quo ante as it was prevailing on 16.2.1976. I beg to annex a copy of the order dated 2.2.1988 at Annexure "I"." 6. In view of the above facts wherein the dates and the events have been specifically given by the petitioners, the petitioners, in their affidavit in rejoinder, have further submitted that having obtained the interim orders from the tribunal, the petitioners had addressed a letter to the office of the competent authority and the Deputy Collector as also to the Talati cum Mantri of village Danteshwar and the talati cum mantri of village Kapurai dated 23rd September, 1988 and by these letters, the petitioners have stated that the tribunal has granted the order of status quo ante on 2nd February, 1988 and, therefore, no further action should be taken by the respondent authorities in respect of the subject land. It was also stated by the petitioners that they are cultivating the said subject land even as on date and that no further proceedings be undertaken pursuant to the orders passed by the competent authority. It was also pointed out by the petitioners in rejoinder that the interim orders passed by the tribunal on 2nd February, 1988, it was made clear that the tribunal has ordered status quo ante as it was prevailing on 16th February, 1976 meaning thereby the possession as on 16th February, 1976 was required to be maintained by the competent authority and it was not in dispute that as on 16th February, 1976, the petitioners were in possession of the subject land and the ULC Act, 1976 itself had come into force on 17th February, 1976. It has also been pointed out by the deponent of the said affidavit in rejoinder filed on behalf of the petitioners that the petitioners are in possession of the subject land and the possession has been protected by more than one interim order/final orders passed by the authorities/court and the appeal filed by the petitioners came to be dismissed on 30th October, 1993 and against that, special civil application no. 3876 of 1994 was filed by the petitioners. The petitioners have pointed out following details in their affidavit in rejoinder : "21.9.94 This Hon'ble Court allowed the special civil application No. 3876 of 1994 and remanded the matter to Urban Land Tribunal at Ahmedabad after quashing and setting aside the order dated 30.10.1993 passed by the tribunal for its fresh decision according to law. 5.1.1996 The Tribunal passed the order on remand afresh after hearing the parties. A bare perusal of the order which is annexed at Annexure "D" to the petition, will go to show that while disposing of the appeal, directed the modification of the order passed by the competent authority and also directed the issuance of the modified final statement. Thus, in view of the order passed by the Tribunal, the order of the competent authority was required to be modified and the competent authority was also directed to issue the modified final statement as per the provisions of section 9 of the Act. I say and submit that it was, therefore, all along accepted by the competent authority that the petitioners are in possession of the subject land and the possession was not taken apropos to the notification under section 10(3) of the Act or notice u/s.10(5) of the Act. I say and submit that the order passed by the Tribunal was challenged before this Hon'ble Court by filing the present Special Civil Application. The challenge was mainly made on the ground that the Tribunal had ignored the revenue record to substantiate the fact that the subject land is being used for Agricultural purpose and therefore, in view of the judgment of the Hon'ble Supreme e Court in the case of Atiya Begum, the petitioners are required to be given protection in respect of the land. I say and submit that this Hon'ble Court upon hearing the learned advocate appearing for the petitioners, was pleased to grant order of status quo by order dtd. 23.4.1996 which is continued till date. " 7. In light of the above facts, the deponent of the said affidavit in rejoinder filed on behalf of the petitioners has further submitted that the protection has been granted by the tribunal as to the possession of the petitioners and, therefore, the petitioners are in possession of the subject land and, therefore, in view of the provisions of section 3 read with section 4 of the ULC Repeal Act, 1999, the proceedings are required to be abated. The petitioners are in possession of the subject land. The petitioners have also disputed the fact that the possession was taken over as alleged on 22.12.1987. According to the petitioners, so called possession being taken over on 22.12.1987 was mainly and merely a paper possession and was done ex parte and according to the petitioners, they are in actual and physical possession of the subject land and, therefore, have denied the averments made in that regard in the affidavit in reply filed by the respondent no.2. The petitioners have also relied upon the revenue record in respect of the subject land to prove that the petitioners are in possession. In the said revenue record, according to the petitioners, the petitioners are shown as the owners of the subject land between 1952 and 1995 and even during the current year 1999 to 2000, they are in possession and, therefore, according to the petitioners, considering the revenue records, the possession of the land in question has not been taken over by the Government as on the date of the ULC Repeal Act, 1999 and, therefore, according to them, the present proceedings will abate in their favour. It is also pointed out by the petitioners that in respect of the subject land, the revenue has also been paid by the petitioners upto 15th September, 1999 and the petitioners are having the possession of the subject land as on today. It has also been pointed out by the petitioners that during the course of the earlier proceedings before the appellate authority as well as before this Court, the competent authority has not disclosed that the possession of the subject land has already been taken over by the Government or by him though the proceedings before the tribunal were held twice and at the time of granting interim relief in the form of status quo ante also, it was not pointed out by the competent authority before the tribunal that the possession of the land in question has already been taken over by him. Not only that, no objections have been filed by the competent authority and before this Court also in the year 1994, while the interim relief was being granted by this Court in favour of the petitioners, the competent authority has not disclosed these facts about taking over of the possession by him and, therefore, the petitioners have submitted that after the remand before the tribunal, the petitioners did not file any objections as to the possession. In any view of the matter, the fact that the tribunal had ordered the status quo ante to be maintained by the respondent authority, which order is continued from time to time by the tribunal/this court, the possession has remained with the petitioners. The deponent of the said affidavit in rejoinder has also submitted that the revenue records also demonstrate this fact which shows that the petitioners are the owners of the subject land. It has also been denied that 96 plots and 150 plots were allotted to the urban poor under section 23 of the ULC Act, 1976 as alleged. It has been submitted that even if any orders are passed, the same are of no consequence as the respondent authorities could not have issued or passed such orders in view of the interim order of the tribunal and this Court. 8. Thereafter, additional affidavit in reply has been filed by the respondent No.2 contending inter alia that 96 plots and 150 plots were allotted to the urban poor by order dated 6.6.1994. It has been submitted that the District Collector had passed an order dated 6.6.1994 but as the matter was subjudiced before this Court, 106 persons were allotted and given possession of the land from the land bearing survey No. 317/2 paiki. It has