Case: KAPILABEN AMBALAL PATEL &amp; ORS Vs. THE STATE OF GUJARAT &amp; ANR

2. The backdrop in which the writ petition was filed can be stated thus3. The appellants claim to be legal representatives of the original owner of the land in question, namely, Parsottambhai Patel, who died on 28.1.1976 before the commencement of the Urban Land (Ceiling and Regulation) Act, 1976 (For short, the 1976 Act) in the State of Gujarat i.e., with effect from 17 th February, 1976. He had five sons, namely, (i) Ambalal Parsottambhai Patel, (ii) Maganbhai Parsottambhai Patel, (iii) Babarbhai Parsottambhai Patel, (iv) Bhailalbhai Parsottambhai Patel and (v) Ramanbhai Parsottambhai Patel. Family of the said Parsottambhai Patel filed statements under Section 6 of the 1976 Act on 13.8.1976 in the name(s) of (i) Ambalal Parsottambhai Patel, (ii) Bhikhabhai Maganbhai Patel, son of deceased Maganbhai Parsottambhai Patel, (iii) Jayantibhai Babarbhai Patel and Jethabhai Babarbhai Patel, sons of deceased Babarbhai Parsottambhai Patel, (iv) Natvarbhai Bhailalbhai Patel, son of deceased Bhailalbhai Parsottambhai Patel and (v) Ramanbhai Parsottambhai Patel as owners of land admeasuring 30385.10 square meters bearing Survey Nos. 362, 378, 592, 593/1, 593/2 (Final Plot numbers 280, 287, 108, 115 and 116) of Village Manjalpur, District Vadodara in the State of Gujarat. The statements disclosed that other persons were also interested in the stated land. Later, an application came to be filed on behalf of the five brothers for exemption under Section 20(1)(a) of the 1976 Act. That was granted vide order dated 6.3.1980/29.11.1980 by the Deputy Collector and Under Secretary, Revenue Department, Government of Gujarat. On 8.6.1981, in response to the draft statements, objections were filed in the name of Ambalal Parsottambhai Patel through Power of Attorney holder - Ramanbhai Parsottambhai Patel. Pursuant to request made by the land owners to cancel the agriculture exemption, an order was passed by the office of competent authority and Additional Collector (ULC), Vadodara on 7.11.1983. The competent authority, pursuant to the statements submitted by the land owners and considering the objections to the draft statement, issued final statement under Section 9 of the 1976 Act, declaring 12 persons as holders of surplus/excess land to the tune of 12385 square meters, particulars whereof have been noted in the order dated 1.2.1985, as follows: -The land owners were duly informed that the surplus/excess land referred to in the final statement will be acquired as and when required by the Government and till then, the holders may continue to remain in possession thereof. Thereafter, on 8.3.1985/21.3.1985, a notification under Section 10(1) of the 1976 Act was issued proposing acquisition of surplus/excess land. The said notification included only four (4) names being Ambalal Parsottambhai Patel, Bhikhabhai Maganbhai Patel, Natvarbhai Bhailalbhai Patel and Jayantibhai Babarbhai Patel and excluded the names of eight (8) other joint owners, as referred to in the order dated 1.2.1985, who were also the legal representatives of the original owner and members of family of deceased Parsottambhai Patel. A follow up notification (dated 31.5.1985) under Section 10(3) of the 1976 Act was published in the Gazette on 25.7.1985. Only after the issuance of notification under Section 10(3) of the 1976 Act, whereby, the surplus/excess land came to be vested in the State Government, an application for exemption under Section 21 of the 1976 Act was filed by Ambalal Parsottambhai Patel and Tribhovandas Chotabhai Patel on 22.8.1985. While the said application under Section 21 was pending consideration, notification under Section10(5) of the 1976 Act came to be issued on 17.12.1985 to handover possession of the vacant land. The same was duly served upon Ambalal Parsottambhai Patel on 26.12.1985 as per the endorsement shown in Annexure A-11 and on Jayantibhai Babarbhai Patel on the same date as per endorsement in Annexure A-12. After service of notification/notice under Section 10(5) of the 1976 Act, Ambalal Parsottambhai Patel expired on 31.12.1985. Despite that, another notice came to be issued on 23.1.1986 under Section 10(5) of the 1976 Act mentioning the names of Ambalal Parsottambhai Patel, Bhikhabhai Maganbhai Patel, Natvarbhai Bhailalbhai Patel and Jayantibhai Babarbhai Patel. In the said notice, it was mentioned that the date of handing over possession was fixed on 1.2.1986 at 11.00 hrs. and the addressees were called upon to remain present at the site for handing over possession. According to the appellants, this notice was issued only to Ambalal Parsottambhai Patel and not to other land owners. The respondent-State has, however, countered this factual narrative of the appellants and have relied on acknowledgments produced alongwith Written Submissions in Annexure R-2. However, it is not disputed by the respondent- State that the notice sent to Ambalal Parsottambhai Patel was returned on 2.2.1986 with endorsement said owner has expired. The possession of the surplus/excess land was taken over under a Panchanama dated 20.3.1986 signed by two independent witnesses. On 11.4.1986, the Mamlatdar, Baroda City was requested to enter the name of the State Government in the Revenue record concerning the stated lands. Thereafter, notice dated 17.5.1986 under Section 11 of the 1976 Act was issued to Bhikhabhai Maganbhai Patel being heir of the deceased Ambalal Parsottambhai Patel to appear on 27.5.1986 for determination of compensation amount. The competent authority determined the compensation amount on 6.8.1986. The application filed by the land owners under Section 21 of the 1976 Act came to be rejected on 15.12.19864. The above decision was challenged by the land owners through their Power of Attorney holders Ramanbhai Parsottambhai Patel and Tribhovandas Chotabhai Patel by way of appeal under Section 33 of the 1976 Act. In this appeal, the competent authority had filed reply on 4.4.1988, stating that the application under Section 21 was not maintainable, as the land had already vested in the State Government, as a consequence of notification under Section 10(3) of the 1976 Act. The aforesaid appeal was rejected by the appellate authority on 28.8.1995. However, one Devikaben Chandubhai Bhailalbhai (daughter of Chandubhai Bhailalbhai Patel, who in turn was son of Bhailalbhai Parsottambhai Patel) alongwith her three siblings filed review application against the order passed by the appellate authority dated 28.8.1995 after lapse of over two years i.e. on 29.4.1998. That review application was allowed on 19.9.1998 and the proceedings came to be remanded to the competent authority for consideration afresh on merits5. During the pendency of the remanded proceedings (arising from application under Section 21), the repeal Act, namely, the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (For short, the repeal Act) came into force from 30.3.1999. The land owners then filed an application dated 30.4.1999 before the competent authority to give No Objection Certificate to the effect that vide order dated 19.9.1998 passed by the Urban Land Tribunal/Ex-Officio Additional Chief Secretary, Revenue Department, Gujarat, all the earlier orders or notifications stood quashed and set aside and the land no longer vested in the Government in any manner. Pursuant to the said application, the competent authority vide order dated 19.5.1999, held that such No Objection Certificate cannot be given to the land owners, as the land had already been declared surplus and steps have been taken under Sections 10(1), 10(3), 10(5) and 10(6) of the 1976 Act, which have attained finality6. After this decision, one Kamleshbhai Parekh, Power of Attorney holder of Ambalal Parsottambhai Patel was advised to file writ petition being Special Civil Application (SCA) No. 8402/1999, challenging the Possession Panchnama dated 20.3.1986. The learned single Judge, partly allowed the said writ petition vide judgment and order dated 5.12.2000. Feeling aggrieved by that decision, the State Government carried the matter in appeal by way of LPA No. 460/2002 before the Division Bench of the High Court on the ground, amongst others, that Kamleshbhai Parekh had no subsisting right or locus to file the writ petition on account of the death of Ambalal Parsottambhai Patel on 31.12.1985, as a result of which the authority to file such a petition had come to an end. When the said appeal was pending, the appellants herein were advised to file an independent writ petition for the same relief(s), being SCA No. 12602/2001. The reliefs in this writ petition have been reproduced in paragraph 1 above7. Finally, the appeal filed by the State Government being LPA No. 460/2002 came to be allowed by the Division Bench of the High Court on 16.8.2005, accepting the objection regarding maintainability of the writ petition by the Power of Attorney holder of the deceased Ambalal Parsottambhai Patel. However, all other questions were left open8. Be that as it may, the writ petition filed by the appellants herein being SCA No. 12602/2001 was allowed by the learned single Judge of the High Court vide judgment and order dated 21.12.2005 for reasons noted therein. That decision was assailed by the State Government by way of LPA No. 233/2006 before the Division Bench of the High Court, which came to be allowed vide impugned judgment and order dated 26.4.20119. The Division Bench first proceeded to hold that the application filed by the land owners under Section 21 of the 1976 Act was barred by limitation having been filed after 1139 days from the date of commencement of the 1976 Act. It ought to have been filed before 3.4.1979, whereas, it was filed on 22.8.1985 and there was no power bestowed on the competent authority to entertain such delayed application. Having said that, it went on to hold that all the land owners had not challenged the decision of the competent authority. The appeal under Section 33, however, was preferred only by Ramanbhai Parsottambhai Patel and Tribhovandas Chotabhai Patel, the Power of Attorney holders of Ambalal Parsottambhai Patel. No other appellant had preferred the said appeal and thus they allowed the order dated 15.12.1986 rejecting the application under Section 21 to attain finality. The Division Bench then proceeded to consider the objection taken by the State regarding delay in filing the subject writ petition by these appellants, to question the Possession Panchnama dated 20.3.1986 after lapse of 14 years, in 2001. While considering this objection, the Division Bench noted thus: -41. The appellant-State has taken specific plea that the order taking possession was never challenged before the appellate authority or the reviewing authority. It was only challenged in the writ petition after a long delay. Though the aforesaid stand was taken before the learned Single Judge, it was not properly discussed42. The appellant-State has taken specific plea that the order taking possession was never challenged before the appellate authority or the reviewing authority. It was only challenged in the writ petition after long delay. Though the aforesaid stand was taken, but not properly discussed by the learned Single Judge.43. In the case of Shivgonda Anna Patil v. State of Maharashtra reported in AIR 1990 SC 2281   the Supreme Court while dealing Sec. 10 of the Act held that the writ petition under Article 226 for reopening the proceeding on the ground that the competent authority had not taken into consideration certain fact, filed after ten years, after the excess land was vested in the State Government was rightly summarily dismissed by the High Court44. While deciding the question of delay and laches in preferring the petition under Article 226, Supreme Court in the case of The Municipal Council, Ahmednagar v. Shah Hyder Beig reported in JT 1999 (10) SC 336   held that the equitable doctrine, namely, delay defects equity has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-bye to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law45. In the present case, we have noticed that possession of the land was taken on 20 th March 1986. The order rejecting the application u/Sec. 21 reached finality on 15 th December 1986 against all the petitioners, except one Ramanbhai Purshottambhai Patel. The writ petition was preferred against the petitioners being not vigilant in exercise of their rights, learned Single Judge ought not to have entertained the petition against the order taking possession after such a long delayThe Division Bench accordingly allowed the appeal preferred by the State and dismissed the writ petition filed by the appellants herein by setting aside the judgment and order of the learned single Judge and declaring that the possession of the land has been rightly taken over by the competent authority of the State on 20.3.198610. Feeling aggrieved, the land owners have approached this Court.

Reasoning:
15. After cogitating over the rival submissions and the relevant record, it is manifest that the appellants have resorted to all possible pleas. First, the application for exemption under Section 20 of the 1976 Act was moved, which was allowed by the competent authority on 6.3.1980, but the appellants chose to withdraw the same. That request was eventually granted by the competent authority on 1.2.1985. The appellants then waited till the notification under Section 10(3) of the 1976 Act was issued on 25.7.1985 and opted for remedy of exemption under Section 21 by filing an application on 22.8.1985. That came to be rejected on 15.12.1986 against which decision a review application was filed only by Devikaben Chandubhai Bhailalbhai alongwith her three siblings, after lapse of two years. Nevertheless, the same was entertained by the authority concerned and after quashing the entire order in appeal, a remand order came to be passed on 19.9.1998. Even in review proceedings, the fact of State authorities having taken forcible possession of the surplus/excess land on 20.3.1986 vide Possession Panchnama, was reiterated, as can be discerned from the order dated 19.9.1998. It is not clear as to why the appellants did not take clue at least from such unambiguous stand taken by the respondent and forthwith proceed to assail the stated stand of the State (of having taken over forcible possession on 20.3.1986). Besides taking possession, the respondent had determined the compensation for which notice under Section 11 was issued to the appellants on 17.5.1986. It is not the case of the appellants that they were unaware even about that development until 2001. No such plea is taken by the appellants in the writ petition filed in the year 2001. It is only after the competent authority declined to issue No Objection Certificate vide order dated 19.5.1999, they thought of changing the track by taking advantage of the repeal Act having come into force on 30.3.1999. However, they chose to file the writ petition only in the name of Kamleshbhai Parekh in the capacity of Power of Attorney holder of late Ambalal Parsottambhai Patel, being SCA No. 8402/1999, little realizing that the authority given by Ambalal Parsottambhai Patel had come to an end after his demise on 31.12.1985 itself. No doubt the learned single Judge was persuaded to quash the entire proceedings which had culminated with taking forcible possession of the surplus/excess land vide Possession Panchnama dated 20.3.1986, being vitiated and/or abated. However, it is only after the other appellants realised that the decision of the learned single Judge in SCA No. 8402/1999 was flawed and has been justly assailed by the State Government on that count by way of LPA No. 460/2002, they chose to file the present writ petition (SCA No. 12602/2001). In the said writ petition, however, no disclosure has been made as to why these appellants did not assail the Possession Panchnama dated 20.3.1986 in earlier point of time including when the existence of this document was specifically pleaded by the respondent-State, in particular, in the review applicationThe earlier part of the writ petition deals with the factual background and assertion that the appellants still continue to be in physical possession of the stated land and was using it for agricultural purpose, as can be noticed from the Revenue record. Indeed, the Revenue record may have presumptive value, but that can be rebutted, which in this case has been done by the respondent-State by relying on the Possession Panchnama and the subsequent proceedings including the application submitted to the Mamlatdar, Baroda City in right earnest for entering the name of the State Government in the Revenue records, dated 11.4.1986, and pursuant to which entries had been effected on 26.9.1989 and 15.2.2000 respectively16. Obviously, therefore, the appellants thought of the last attempt to assail the Possession Panchnama dated 20.3.1986 itself without seeking any further relief of declaration regarding the earlier proceedings which had attained finality17. The Division Bench, in our opinion, therefore, was right in concluding that the writ petition filed by the appellants after lapse of 14 years was hopelessly barred by delay and suffered from laches. We are in agreement with the said view taken by the High Court in the peculiar facts of the present case18. Strikingly, in this appeal by special leave, a vague ground has been raised to challenge the said conclusion of the Division Bench. Further, no substantial question of law has been formulated in the appeal by special leave in that regard. Furthermore, in the grounds all that is asserted is that the High Court erred in holding that there was delay of 14 years in filing of writ petition and in not appreciating that the notice under Section 10(5) of the 1976 Act, dated 23.1.1986, was not served upon Ambalal Parsottambhai Patel as he had already expired on 31.12.1985 and the notice sent to him was returned back on 2.2.1986 unserved with remark said owner has expired. Further, the legal heirs of Ambalal Parsottambhai Patel ought to have been served with the said notice. From the factual matrix already stated hitherto, these grounds, in our opinion, are of no avail to the appellants. It is manifest from the acknowledgement produced by the respondent-State that the first notice under Section 10(5) issued to Ambalal Parsottambhai Patel was duly served on 26.12.1985. By the time second notice under Section 10(5) was issued on 23.1.1986, Ambalal Parsottambhai Patel had died (on 31.12.1985). The second notice was also issued to others, namely, Bhikhabhai Maganbhai Patel, Natvarbhai Bhailalbhai Patel and Jayantibhai Babarbhai Patel. Be that as it may, we are not inclined to reverse the conclusion recorded by the Division Bench of the High Court that the writ petition filed by the appellants was hopelessly delayed and suffered from laches. That is a possible view in the facts of the present caseHowever, it is not necessary for us to dilate on these aspects having agreed with the conclusion recorded by the Division Bench of the High Court that the writ petition filed in the year 2001 by the appellants with limited relief of questioning the Possession Panchnama dated 20.3.1986, suffered from laches. The Division Bench of the High Court noted that the learned single Judge completely glossed over this crucial aspect of the matter, and we find no reason to depart from that conclusion20. In view of the above, it is not necessary for us to dilate on other contentions raised by the appellants or by the respondent- State on merits.