Vipinchandra Vadilal Bavishi (D) By Lrs ... vs State Of Gujarat & Ors

2. The factual matrix of the case is that the appellants were the owners and land holders of vacant lands situated in different places in the State of Gujarat. When the Urban Land (Ceiling and Regulation) Act, 1976 (in short, “Act of 1976”) came into force in August, 1976, the appellants filed the return as required under Section 6 of the Act of 1976 and in the said form the appellants declared their lands situated in village Rajkot, Kothariya and Nana Mauva in the district of Rajkot, Gujarat. The return in the specified form shows that the appellants owned land in survey nos. 1, 2, 7 to 18 and 44 in Village Rajkot and plot nos. 36 to 43 in village Nana Mauva in the district of Rajkot. The wife of the appellant Bipin Chandra Babhishi (appellant No.2) also filed separate return.

3. The draft statement was prepared by the authority and final statement under Section 9 was issued showing plot nos. 1 to 16 as excess land held by the appellants beyond ceiling limit.

5. Thereafter, corrigendum dated 26-6-1989 allegedly issued for correcting the mistake occurred in the description of plot numbers and areas of the land in question and as per the said order, it was mentioned that the plot numbers are to be correctly read as 16 to 23 and 36 to 43. It is the case of the respondent authorities that on 26-6-1989, the possession of the land in question bearing Plot Nos. 16 to 23 and Plot Nos. 36 to 43 was taken over and the panchnama was also drawn to that effect. In the panchnama dated 26-6-1989, it has also been mentioned that over the land in question Plot Nos. 16, 17, 23 and 24, the construction of houses are made. In October 1989, the appellant preferred Spl.C.A. No. 3456 of 1989 before the High Court against the order dated 27-2-1986 passed by the Urban Land Authority and order dated 28-12-1988 passed by the Urban Land Tribunal. In the said Spl. Civil Application, High Court passed an order of issuing notice and directed the parties to maintain the status quo as on that day. The said petition was heard and dismissed by the High Court on 19-7-1993. Being aggrieved, the appellant had preferred appeal before this Court under Article 136 of the Constitution, which stood dismissed.

8. After hearing both sides, the Division Bench of the High Court dismissed the appeal preferred by the appellants and allowed the appeal filed by the Society. The Division Bench confirmed the order of learned Single Judge in Special Civil Application so far as it related to the appellant, and set aside the findings so far it related to the Co-operative Society, holding thus:

45. In view of the above, the petition filed by the petitioners before learned Single Judge is dismissed. Since we have dismissed Special Civil Application filed by the petitioners, the findings in relation to the Co- operative Society are also set aside. In that view of the matter, the appeal of the Co-operative Society stands allowed.”

However, there will be no order as to costs.”

27. The submission of the learned counsel appearing for the respondent- State that the writ petition is barred by res judicata is also not sustainable in law. In our considered view, question as to whether the appellants landholders were dispossessed from the land in question and the effect of the Repeal Act on this was not the issue in the earlier writ petition and, therefore, it cannot be held that the instant writ petition is barred by res judicata or constructive res judicata.

28. For the aforesaid reasons this appeal is allowed and the impugned judgment passed by the High Court is set aside. Consequently, it is held that the appellants landholders are entitled to retain possession of the land comprised within Plot Nos. 36-43, Survey No.71 in village Nana Mauva in the District of Rajkot, Gujarat, as the same is not vested in the State.

29. So far the contention made by respondent no.3 - Cooperative Society is concerned, we have examined their case and found that the Division Bench rightly set aside the finding of the learned Single Judge so far it related to the Co-operative Society.