LPA/33/2005 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 33 of 2005 In SPECIAL CIVIL APPLICATION No. 9331 of 2000 With CIVIL APPLICATION No. 177 of 2005 In LETTERS PATENT APPEAL No. 33 of 2005 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 ? ========================================================= STATE OF GUJARAT & 1 - Appellants Versus KANTABEN WD/O PADHIYAR KANUBHAI - Respondent ========================================================= Appearance : GMR MG NANAVATI ASST GOVERNMENT PLEADER for Appellants : 1 - 2. MR PR THAKKAR for Respondents : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT LPA/33/2005 2/9 JUDGMENT Date : 25/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) Heard learned counsel for the parties. 2. The appellant, State of Gujarat, by way of this Letters Patent Appeal has assailed the judgment and order dated 28.11.2003 passed by the learned Single Judge in Special Civil Application No. 9331 of 2000. 3. Mr. Maulik Nanavati, learned AGP for the appellant has submitted that the learned Single Judge has erred in recording a finding that (i) application made by the original land owner under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Act' for short) was not decided by the authority and therefore, all subsequent actions taken without disposal of the said application are bad in law, (ii) the fact that possession was taken by the competent authority of the excess vacant land does not inspire confidence for the reason that the revenue entries show the name of the original owner all throughout upto 1999. He has submitted that both these findings are contrary to the record of the case. He has invited our attention to the additional LPA/33/2005 3/9 JUDGMENT affidavit dated 12th August, 2008 filed by Mr. C.J. Patel, Competent Authority (ULC), Vadodara, wherein it has been categorically averred that the application moved by Lt. Shri Ranchhodbhai seeking exemption from applicability of provisions of Chapter IV of the Act was rejected by the authority. A copy of the office communication dated 4.2.1980 intimating the rejection to Laxmiben, mother of present respondents has been annexed to the said affidavit. He has also drawn our attention to the memo of Appeal preferred by Bai Laxmi, widow of the original landholder under Section 33 of the Act before the Urban Land Tribunal challenging the order dated 22.7.1982 passed by the Competent Authority under Section 8(4) of the Act. In the said memo of Appeal, the appellant herein has raised a grounds, which is reproduced hereinbelow : “11 : That that learned competent authority ought to have held that growing of grass is also an agriculture and as such the appellant who is entitled for exemption U/s. 20 of the Act”. Mr. Nanavati has further submitted that even in the order dated 22.7.1982 a reference has been made by the Competent Authority in Para 7(1) that application under Section 20 moved by the landholder has been rejected. As regards taking of possession, Mr.Nanavati has taken us through the notifications under Section 10(1) and 10(3) LPA/33/2005 4/9 JUDGMENT of the Act published in the official gazette and has stated that the landholder did not handover possession of the excess vacant land in response to notice under Section 10(5) of the Act, the concerned competent officer took possession of the excess vacant land on 11.7.1984 under a Panchnama. Relying on decision rendered by this Court in 2002 (3) GLR p.2592 and other judgments, Mr. Nanavati has submitted that normal mode of taking possession is by drawing Panchnama and the same has been done in the present case. He has also submitted that an entry has been mutated in the revenue registers at the relevant time depicting the fact that possession was taken. A certified copy of mutation entry No. 1818 dated 26.8.1987, duly certified on 6.2.1988 has also been placed on record. Mr. Nanavati has lastly submitted that the learned Single Judge, not having been informed about these correct facts, has erroneously proceeded on factually incorrect premise and dismissed the petition of the appellant – State of Gujarat. 4. On the other hand, Mr. P.R. Thakkar, learned advocate appearing for the respondent has submitted that no order has been passed by the authority on Section 20 application submitted by their father. He has today tendered an affidavit-in-reply to the additional affidavit filed on behalf of the State and has requested LPA/33/2005 5/9 JUDGMENT the Court to take the same on the record. The request is accepted and the reply is directed to be taken on record of the case. He has submitted that Ranchhodbhai, the original owner died on 3.4.1978 and thereafter, neither their mother, i.e. widow of Ranchhodbhai or they were ever served with the notice regarding pendency of proceedings under Section 20 of the Act nor they have been ever heard for deciding the said application nor at any point of time they have been served with the decision. He has also submitted that the authority has not produced the original order regarding rejection of Section 20 application and simply by relying upon some averments made by their mother in the memo of Appeal, it cannot be contended by the State that application under Section 20 was rejected and such rejection was communicated to them or was within the knowledge. He has also stated that the contention of the State that possession has been taken over is wrong and that his clients are presently in possession of the said land. As regards mutation entry No. 1818 relied upon by the State, he has submitted that no notice as required under Section 135 of the Bombay Land Revenue Code was ever served upon them and therefore, the said entry is bad in law. He has further submitted that the learned Single Judge was right in rejecting the petition of the State and upholding the order of the Tribunal remanding the matter back to the LPA/33/2005 6/9 JUDGMENT competent authority for deciding the form filed under Section 6(1) of the Act as the competent authority has failed to consider that Lt. Shri Ranchhodbhai had two adult sons, whose names were also mentioned in the form, and they too were entitled to a separate unit. He has lastly submitted that no error has been committed by the learned Single Judge which calls for interference by this Hon'ble Court. 5. The contention that application under Section 20 of the Act was not decided by the authority does not appear to be correct. A perusal of the record reveals that the said application was in fact decided and rejection of the application was communicated to Bai Laxmi, mother of the present respondents. Assuming that the said order is erroneous inasmuch as it was passed without giving notice to the present respondents or without giving them an opportunity of hearing, it is not in dispute that the said order has remained unchallenged till date. It is settled position of law that an order passed by the competent authority, even if it is wrong or erroneous or even illegal, is still an order having the force of law and binds the parties and successor-in-interest till such time it is set aside by higher authority. In the present case, the record shows that application under Section 20 was rejected by the authority. The said order, whether right or wrong, has not been LPA/33/2005 7/9 JUDGMENT challenged either by Bai Laxmi or the present respondents. Absence of knowledge of such order to some members of family by itself would not make the order non-est as it was in the knowledge of an elder. Also once an order has been passed to the knowledge of an elder member of the family, the other members of the family, who have interest in the land in question or derive such interest on death of the elder member, the said order is to be taken to be known to all concerned with the said property. In that view of the matter, the finding of the learned Single Judge that the application under Section 20 of the Act had not been decided cannot be sustained. Application under Section 20 was decided within the knowledge of some member of the family. Thus, the family member i.e mother was on record and she was supposed to prosecute the litigation. 6. The other aspect argued on behalf of the State is that the authorities have taken steps under Section 10(1) and 10(3) of the Act and thereafter, taken possession of the excess vacant land by preparing panchnama. It is now well settled that taking over possession by drawing a panchnama and subsequent reflection of such fact in the revenue record, is an accepted mode of taking possession. Here, not only panchnama has been drawn but the contemporaneous revenue record establish the fact that LPA/33/2005 8/9 JUDGMENT possession was taken. Even the learned Single Judge has noticed in para-5 of the impugned judgment that pursuant to the order of the competent authority, proceedings under Sections 10(1), 10(3) and 10(5) of the Act were initiated and ultimately, the possession of the said land was taken over on 11.07.1984 by the Government by making panchnama in presence of Panchas. But as noticed hereinabove, the reason given by the learned Single Judge for doubting the correctness of this fact is wrong and contrary to the record. 7. Once these two findings of the learned Single Judge are found to be contrary to the record and therefore erroneous, the entire order deserves to be set aside as it appears from the tenor of the impugned judgment that both these factors weighted heavily to the learned Single Judge. We are of the opinion that possession of the land was taken by the authority in accordance with law and this fact is duly supported by contemporaneous revenue records. 8. In view of the aforesaid facts and circumstances of the case and observations made hereinabove, the impugned judgment and order passed by learned Single Judge deserves to be quashed and set aside and is consequently set aside. The matter is remanded back to the learned Single Judge to decide the petition of the State LPA/33/2005 9/9 JUDGMENT challenging the order of the Tribunal entertaining an appeal filed after almost delay of 14 years, afresh in light of the law prevailing and findings recorded hereinabove. 9. In view of the order passed in Letters Patent Appeal, no order in Civil Application No. 177 of 2005. [BHAGWATI PRASAD, J.] [S.R.BRAHMBHATT, J.] pallav