LPA/233/2006 26/ 26 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 233 of 2006 In SPECIAL CIVIL APPLICATION No. 12602 of 2001 For Approval and Signature: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA HONOURABLE MR.JUSTICE ANANT S. DAVE ================================================= 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 - Appellant(s) Versus KAPILABEN AMBALAL PATEL HEIRS OF DECD. AMBALAL P. PATEL & 18 - Respondent(s) ================================================= Appearance : MRS. MANISHA LAVKUMAR SHAH AGP for Appellant(s) : 1 - 2. MR KG VAKHARIA SR COUNSEL WITH MR MK VAKHARIA for Respondent(s) : 1 - 19. ================================================= CORAM: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA HONOURABLE MR.JUSTICE ANANT S. DAVE Date :26/04/2011 CAV JUDGMENT
(Per
: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
This
appeal has been preferred by the State of Gujarat against the
judgment and order dated 21st December 2005 passed by the learned
Single Judge in a writ petition, Special Civil Application No.12602
of 2001. Learned Single Judge held that the action on the part of
appellant-respondent of taking possession of the land in question was
illegal, as the authorities during the pendency of a
scheme/application u/Sec.20 or Sec.21 of the Urban Land (Ceiling and
Regulation) Act, 1976, (hereinafter referred to as `the Act’) could
have gone only upto the stage of Sec.10(3)) of the Act.
2. The
brief case of the respondent-writ petitioner is that the property in
question was originally owned by Parsottambhai Patel, who died on
28th January 1976 before the Act came into force. He had five sons,
i.e. (1) Ambalal Parsottambhai Patel, (2) Maganbhai Parsottambhai
Patel, (3) Babarbhai Parsottambhai Patel, (4) Bhailalbhai
Parsottambhai Patel and (5) Ramanbhai Parsottambhai Patel, of whom
three had pre-deceased, i.e. Maganbhai, Babarbhai and Bhailalbhai.
Ambalal died without heir(s); Maganbhai pre-deceased his father
leaving behind (a) his widow Pashiben and (b) son Bhikhabhai;
Babarbhai pre-deceased his father leaving behind his heirs (a) widow
Kashiben, (b) son Jayantibhai and (c) Jethabhai; and Bhailalbhai
predeceased his father, leaving behind his heirs (a) widow Jadaben,
(b) son Natwarbhai and (c) son Chandubhai.
3. Further
case of the petitioners is that the family filed five statements in
Form V u/Sec.6 of the Act on 13th August 1976 in the name of (i)
Ambalal Parsottambhai Patel, (ii) Bhikhabhai Maganbhai Patel, (iii)
Natvarbhai Bhailalbhai Patel, (iv) Ramanbhai Parsottambhai Patel and
Jayantibhai Babarbhai Patel. On 8th March 1980, State Government
granted exemption u/Sec.20 of the Act. On 8th June 1981, Ambalal and
Ramanbhai had filed objections against the draft statement filed
u/Sec.8(3) of the Act. Pursuant to the application of the landowner,
on 7th November 1983, competent authority withdrew the agriculture
exemption granted earlier.
4. After
considering the objections filed by the landowners, on 1st February
1985, competent authority passed a common order u/Sec.8(4) of the
Act, declaring twelve persons in the family as holders of the land,
and made the computation as under:-
Name
Holding
(
Sq.mt.)
Retainable
Land (Sq.mt.)
Excess
Vacant Land
(Sq.mt.)
Ambalal
Pursottamdas
7329.50
1500
5829.50
Kanu
Ambalal (son)
2637.50
1500
1137.50
Bhikhabhai
Maganbhai
2613.50
1500
1113.50
Pashiben
Maganbhai
2613.50
1500
1113.50
Natvarbhai
Bhailalbhai
1546.40
1500
46.40
Chandubhai
Bhailalbhai
1546.40
1500
46.40
Jadaben
Bhailalbhai
1546.40
1500
46.40
Ramanbhai
Parsottambhai
3518.00
1500
2018.00
Dilipbhai
Ramanbhai (son)
1759.00
1500
259.00
Jayantibhai
Babarbhai
1758.30
1500
258.30
Jethabhai
Babarbhai
1758.30
1500
258.30
Kashiben
Babarbhai
1758.30
1500
258.30
Total
30385.10
18000
12385.00
5. Final
statement u/Sec.9 of the Act was made by the competent authority on
1st February 1985, and declared the above 12 persons as holders of
excess vacant land admeasuring 12385 sq.mts.
6. State
Government published notification u/Sec.10(1) of the Act in the
official gazette on 21st March 1985, including only four names, as
shown hereunder:
Names
Excess
Land (sq.mt.)
Ambalal
Parsottambhai
5829.50
Bhikhabhai
Maganbhai
1113.50
Natvarbhai
Bhailalbhai
0046.40
Jayantibhai
Babarbhai
0258.00
According
to the petitioners, names of other eight land owners were excluded
from the notification. Said notification u/Sec.10(1) was followed by
notification u/Sec.10(3) of the Act published in the official gazette
on 25th July 1985 in the name the above four persons. Ambalal
Parsottambhai and one Tribhovandas Chotabhai Patel submitted a joint
representation u/Sec.21 of the Act on 22nd August 1985. In the said
application, while stating that Secretary, Revenue Department,
cancelled the agriculture exemption on 7th November 1983 in the lands
of their exclusive ownership of mouje Manjalpur, they claimed that
they have right to seek permission u/Sec.21 of the Act in the said
lands from the date of cancellation of agriculture permission for
construction of dwelling units for the accommodation of weaker
sections of the society. Form V was filed under Rule 11 of the Urban
Land (Ceiling and Regulation) Rules, 1976 (hereinafter referred to as
`the Rules’) along with zoning declaration u/Sec.20(1).
7. The
competent authority by communication dated 5th September 1985 called
upon the landowners to supply certain details, which were supplied by
Ambalal Parsottambhai Patel on 1st October 1985. During the
pendency of the said application u/Sec.21, Government issued
notification u/Sec.10(5) of the Act on 17th December 1985.
8. According
to the writ petitioners, Ambalal Parsottambhai subsequently died on
30th December 1985. State Government, therefore, issued notice on
23rd January 1986 u/Sec.10(5) of the Act to only four persons, viz.
Ambalal Purshottambhai, Jayantibhai Babarbhai, Bhikhabhai Maganbhai
and Natvarbhai Bhailalbhai. Further case of the petitioners is that
though in the notice they were asked to remain present for taking
possession at 11.00 a.m. on 1st February 1986, and they remained
present, but nobody turned up, and in fact, notice was not served
either on the legal heirs of Ambalal or the remaining eight persons,
who were holding excess vacant land. On 20th March 1986, State
Government is alleged to have taken possession, and executed the
Panchnama without proper notice. However, the allegation that notice
was not served on the landowners, or possession was not taken on the
date, as notified, has been disputed by the appellant-State.
9. On
15th December 1986, the competent authority rejected the application
filed by Ambalal Parsottambhai along with Tribhovandas Chotabhai
Patel.
10. It
appears that Ramanbhai Parsottambhai Patel and Tribhovandas
Chotabhai, the power of attorney holder of Ambalal Parsottambhai
Patel, preferred appeal u/Sec.33 of the Act against the order of
rejection of application u/Sec.21. The said appeal was preferred on
6th January 1987, registered as Appeal No.Vadodara 2/87, and upon
hearing, the same came to be rejected by the Urban Land Tribunal and
Secretary, Revenue Department, Ahmedabad, by a detailed and reasoned
order dated 28th August 1995. Thereafter, a review application was
filed by one Devikaben, widow of Chandubhai Bhailalbhai and others
u/Sec.33 of the Act on 29th April 1998. The said application was
allowed on 19th September 1998, and the matter was remitted to the
authority competent to take action in accordance with law.
11. Before
any decision is taken after remand of the matter, Urban Land (Ceiling
and Regulation) Repeal Act, 1999 (hereinafter referred to as `the
Repeal Act’) came into force from 31st March 1999. The competent
authority by order dated 19th May 1999 observed that the scheme
u/Sec.29 cannot be considered due to repeal of the Act.
12. Thereafter,
one Kamleshbhai Parekh, who claim to be power of attorney holder of
Ambalal Parsottambhai Patel, filed a writ petition in the name of
Ambalal Parsottambhai Patel in Special Civil Application No.8402 of
1999, challenging the action of the authorities in taking possession
of the lands. A learned Single Judge of this Court by judgment dated
5th December 2000, while declaring that the action of the authorities
under the Act upto the stage of Sec.10(3) of the principal Act is in
accordance with law, declared the action at the stage of Sec.10(5) of
the Act as illegal, and consequently, the taking over possession
either physical or actual or symbolic or on paper of the excess land
was also declared illegal. The possession of the land measuring
12385 sq.mt. of Final Plots Nos.115, 116, 108, 287 and 280 of
Manjalpur, District Vadodara, was ordered to be restored in favour of
the land owners.
13. Against
the said judgment, respondent-State preferred Letters Patent Appeal
No.460 of 2001. In the said appeal, State Government took the plea
that Ambalal Parsottambhai Patel having died on 30th December 1985,
his power of attorney holder had no authority to institute the writ
petition.
14. During
the pendency of the writ petition, i.e. Special Civil Application
No.8402 of 1999, having noticed the aforesaid fact, 5 legal heirs of
Ambalal Parsottambhai Patel along with others preferred a writ
petition in Special Civil Application No.12602 of 2001. In the said
writ petition, for the first time, a declaration was sought that the
panchanama dated 20th March 1986 and the purported action of the
respondents to take possession constructive or actual possession of
the land in question as contrary to law and has no legal effect.
Permanent injunction was also sought for restraining the State
Government (appellant herein) from distributing or taking possession
of the lands admeasuring 12385 sq.mts. or any part thereof mentioned
in the Panchanama dated 20th March 1986, and to command the State and
its authorities to deliver back to the petitioners possession of the
said lands, if they are held to be in possession de facto or de jure
thereof.
15. Initially,
it was ordered that both the Letters Patent Appeal No. 460 of
2001 and the writ petition, Special Civil Application No.12602 of
2001 be heard together. However, Letters Patent Appeal No. 460 of
2001 was taken up on 16th May 2005, and it was allowed by a Division
Bench on the ground that upon the death of Ambalal Purshottambhai
Patel, the power of attorney holder had no authority to institute
writ petition, and, therefore, the said writ petition was not
maintainable. It was made clear that the said order will not
influence the other writ petition, i.e. Special Civil Application
No.12602 of 2001, preferred by the legal heirs of Ambalal
Purshottambhai Patel and others.
16. Learned
Single Judge by the impugned order and judgement dated 21st December
2005 allowed the writ petition, Special Civil Application No.12602 of
2001, against which the present appeal has been preferred by the
State of Gujarat and its authorities.
17. By
the impugned judgment dated 21st December 2005, learned Single Judge
held that after the decision in review application, proceedings
u/Sec.21 of the Act became alive, and therefore, it is within the
right of the petitioners to challenge the action of the respondents
of taking possession from them, which was illegal on the face of it.
Learned
Single Judge agreed with the view expressed by the other Single Judge
in S.C.A. No.8402/1999, which was filed by the power of attorney
holder as regards the action of the State Government taking
possession.
Learned
Single Judge also agreed with the observation as was made earlier by
another learned Single Judge in S.C.A. No. 8402 of 1999 that if an
application u/Sec.20 or 21 of the Act was pending, proceedings upto
the stage of Sec.10(1) only could be maintained, and further
proceeding u/Sec.10(2) would not survive, which will depend upon the
decision of the application u/Sec.20 or 21 of the Act.
18. In
fact, learned Single Judge while passing the impugned judgement dated
21st December 2005 in S.C.A. No.12602 of 2001, practically referred
to the decision rendered in the earlier case, i.e. S.C.A. No. 8402 of
1999, and agreed with all the findings, though the said judgement was
set aside by the Division Bench in Letters Patent Appeal No. 460 of
2001.
19. Learned
counsel for the State while referring the aforesaid fact would
contend that the learned Single Judge erred in referring the earlier
judgment, which has been set aside in Letters Patent Appeal No.460 of
2001.
20. Learned
counsel appearing on behalf of the State assailed the judgment on the
following grounds:
(i) There
was delay, laches and acquiescence. Order u/Sec.8(4) was passed on
1st February 1985, possession was taken on 20th March 1986, but the
petition was preferred on 27th December 2001, i.e. after a long
delay of 15 years. Even a suit for recovery of possession could be
barred by limitation beyond 12 years.
Reliance
was placed on decisions in Shivgonda Anna Patil v. State of
Maharashtra reported in AIR 1990 SC 2281 and The
Municipal Council, Ahmednagar v Shah Hyder Beig reported in JT
1999 (10) SC 336.
(ii) Order
passed by the authorities cannot be struck down simply on the ground
that exemption application u/Sec.21 was not disposed of by the
Government on the date on which possession of the land was taken.
(iii) Pendency
of application u/Sec.21 cannot give a ground to claim back possession
if challenged beyond limitation.
Reliance
was placed on the decision of this Court in Om Prakash B.
Khare v. State of Gujarat reported
in 2004 (3) GLH 385.
(iv) Writ
petition, having been filed after the Repeal Act came into force, was
not maintainable.
(v) Possession
was taken over on 20th March 1986 after following procedure
as per law, notification u/Sec.10(1) was issued on 21st March 1985,
notification u/Sec.10(3) issued on 25th July 1985 and order
taking possession u/Sec.10(5) was passed on 17th December 1989.
Ambalal died thereafter on 30th December 1985, and after following
provisions u/Sec.10(6) on 22nd January 1986, Panchnama was drawn on
20th March 1986. Normal procedure of taking possession is by drawing
panchanama, in support of which, learned A.G.P. relied on this
Court’s decision in Larsen & Toubro Ltd. v. State of
Gujarat reported 1998(3)
GLR 2012.
(vi) Sec.4
of the Repeal Act is not applicable to the present case, but Sec.3
which is applicable.
(vii) After
possession, even if petitioners continued in possession, that is only
in the capacity of an encroacher. Reliance was placed on a Division
Bench decision of this Court in Muliben Bachubhai Bharwad
v. State of Gujarat in Letters
Patent Appeal No.2167 of 2009. In the said case, the Division Bench
observed:
“If
possession of the land has been taken over by the Government before
the Repeal Act, but the declarant re-entering the land, such
unauthorised possession on the date of introduction of the Repeal Act
cannot be the basis to hold that the ULC proceeding have lapsed.”
(viii) Once
notice u/Sec.10(5) is given, landholder is duty bound to handover
possession to Government, otherwise, any time possession can be taken
by the Government.
(ix) Application
u/Sec.21 of the Act is given by Ambalal and Tribhovandas after the
land vested in Government, i.e. after 10(3) notification. Petitioners
have never challenged the order u/Sec.8(4) dated 1st February 1985
and possession was taken on 20th March 1986 before the Tribunal, and
for the first time challenged the same by way of this petition. It
was contended that in the appeal filed by Ramanbhai on behalf of all
the landowners against the order of rejection of application u/Sec.21
dated 15th December 1986, possession was not challenged, nor such
question was raised in the Review Application No. 20 of 1998. In
fact, respondents nos. 1 to 14 had never filed any application for
review.
(x) After
the death of the tenure holder, notice u/Sec.10(5) goes to the person
on whom the holding devolved, and he would be liable to surrender
the surplus land, and the liability attached to the holding of the
deceased would not come to an end on his death. Therefore, the
liability continued with the heirs, who cannot challenge the
possession. Reliance was placed on Supreme Court decision in Bhikoba
Shankar Dhuma v. Mohan Lal Punchand Tathed reported
in (1982) 1 SCC 680
and State of U.P.
v. Civil Judge, Nainital reported
in (1986) 4 SCC
558.
21. Learned
counsel appearing on behalf of the respondents has taken same plea
as was taken before the learned Single Judge. He would contend that
application u/Sec.21 of the Act being pending, proceedings from the
stage of Sec.10(3) of the Act would depend upon the decision on
application u/Sec.21 of the Act, therefore, before taking any
decision u/Sec.21, actions taken u/Sec.10(3) onwards, including
taking possession u/Sec.10(5), are illegal. He placed reliance on a
number of decisions of the Supreme Court and this Court, as discussed
and referred to below:
22. In
the case of Special
Officer and Competent Authority, Urban Land Ceilings, Hyderabad v.
P.S. Rao
reported in AIR
2000 SC 843 Supreme
Court held as follows:
“6. In
our view, it is only after the excess land is actually determined
under Section 10 that a person can know the exact extent of excess
land in his holding and think of asking for exemption. There may, of
course, be some cases where the extent is so large that a claimant
may be able to seek exemption even at the time of filing the
declaration but even in those cases, he cannot be definite about the
actual extent of excess land.
“9. But,
the word “hold” in Section 20(1) (a) or Section 20(1)(b)
cannot, in our opinion, have the same meaning that can be attributed
to it as in Section 2(1). The very definition in Section 2(1) states
that the sub-section applies unless there is anything in the context
which suggests a different meaning to be given. In our view, in the
context of Section 20(l)(a) and Section 20(l)(b), the definition
given in Section 2(1) cannot be applied. The reason is that such a
construction will make section 20 unworkable and otiose. We have
pointed out above that it is not possible to make any meaningful
application for exemption under Section 20(l)(a) or (b) unless the
exact quantum of excess is determined under Section 10 after
following the various provisions of the Act relating to statutory
deductions and mode of computation. If the contention of the State
referred to above is to be accepted, then the peculiar position will
be as follows. As stated by us, before the excess is determined, a
person will not able to seek exemption because he does not know what
is the actual excess land held and once the excess is determined, he
cannot apply because he is not holding the excess land. Thus, the
entire object of Section 20 will be frustrated. That is why we say
that the definition of the words ‘to hold’ in Section 2(1) cannot be
applied in the context of Section 20(l)(a) or Section 20(l)(b).”
23. In
the case of M/s.
Avanti Organisation v. Competent Authority & Additional
Collector, Urban Land Ceiling Act, Rajkot
reported in 1989(1)
GLR 586,
a Full Bench of this Court observed:
“16.
… Section 10(2) states that the competent authority shall consider
claims received in pursuance of the notification and determine the
nature and extent of such claims and pass such orders in that behalf
as deemed fit. After such claims are disposed of, the competent
authority is empowered by Sec.10(3) to issue a further notification
in the Official Gazette declaring that the excess vacant lands set
out in the notification under Sec.10(1) shall, with effect from such
date as is specified in the declaration, be deemed to have been
acquired by the State Government and
thereupon such lands shall be deemed to have vested absolutely in the
State Government free from all encumbrances with effect from the
specified date. Section 11 provides for the payment of compensation
to persons interested in such lands. It
was, therefore, argued, and we think rightly, that if the acquisition
process is allowed to be completed before the exemption application
under Sec.20(1) is disposed of and if the lands in respect of which
exemption is claimed stand acquired and vest in the State Government,
it would cause an anomalous position if the State Government
ultimately decides to grant exemption in respect of the said lands.
We agree with the learned Advocates for the petitioners that such a
situation cannot be allowed and it would, therefore, be in the
fitness of things that the proceedings should in no case be allowed
to proceed beyond the Sec.10(2) stage if the exemption application
has not been disposed of by then.”
24. In
the case of Savitaben Ramanbhai Patel v. State of Gujarat
reported in 1999(1) GLH 100, the Division Bench noticed the
aforesaid Full Bench decision and reiterated that prosecution of
further processes under the Act, after the stage of Section 10(2),
will depend upon the decision on the applications u/Sec.21 of the
Act.
25. Reliance
was also placed by counsel for the respondents on some other
decisions, but all of them being on the same issue, we have not
referred to such large number of decisions, except the relevant one.
26. We
have heard learned counsel for the parties and noticed the relevant
facts and rival contentions.
27. In
the present case, first it is to be determined as to what will be the
effect of application u/Sec.21 stated to have been submitted by
respondents-writ petitioners in Form V before the competent authority
for utilization of vacant land in excess of the ceiling limit for the
construction of dwelling units for accommodation of the weaker
sections of the society.
28. It
is not in dispute that the urban land ceiling proceeding started
prior to August 1976. The respondents-writ petitioners have claimed
that the family filed five statements u/Sec.6 of the Act on 13th
August 1976. Initially exemption u/Sec.20(1) of the Act was granted
on 8th March 1980 and on 29th November 1980.
29. It
is claimed by the respondents-writ petitioners that application
u/Sec.21 in Form V was submitted on 23nd August 1985 as evident from
the application at page 506 onwards of the compilation. They have
taken plea that said application was within the time limit prescribed
under Rule 11 of the Rules.
From
the order dated 15th December 1986 passed by the competent authority
rejecting the application u/Sec.21(1) of the Act, it appears that the
application was filed within one year after the withdrawal of the
agricultural exemption granted earlier. The question arises `whether
the application u/Sec.21(1) in Form V was filed within the period of
limitation’.
30. Sec.21(1)
deals with excess vacant land, which may not be treated as excess in
certain cases, which reads as follows:-
“21.Excess
vacant land not to be treated as excess in certain cases.- (1)
Notwithstanding anything contained in any of the foregoing provisions
of this Chapter, where a person holds any vacant land in excess of
the ceiling limit and such person declares within such time, in such
form and in such manner as may be prescribed before the competent
authority that such land is to be utilized for the construction of
dwelling units (each such dwelling unit having a plinth area not
exceeding eighty square meters) for the accommodation of the weaker
sections of the society, in accordance with any scheme approved by
such authority as the State Government may, by notification in the
Official Gazette, specify in this behalf, then, the competent
authority may, after making such inquiry as it deems fit, declare
such land not to be excess land for the purposes of this Chapter and
permit such person to continue to hold such land for the aforesaid
purpose, subject to such terms and conditions as may be prescribed,
including a condition as to the time limit within which such
buildings are to be constructed.
(2) Where
any person contravenes any of the conditions subject to which the
permission has been granted under sub-section (1), the competent
authority shall, by order, and after giving such person an
opportunity of being heard, declare such land to be excess land and
thereupon all the provisions of this Chapter shall apply
accordingly.”
From
the aforesaid provision, it will be evident that where a person holds
vacant land in excess of the ceiling limit, such person shall declare
the same, within such time and in such form and in such manner as
prescribed, before the competent authority. The time by which such
person requires to declare the land in excess to be utilized for
construction of dwelling units for the weaker sections of the
society, and the form in which it is to be submitted, and the manner
in which it is to be filed before the competent authority, has been
laid down under Rule 11 of the Rules, which reads as follows:-
“11.
The time within which, and form in which, declaration under
sub-section (1) of Sec.21 shall be made. – Every declaration
under sub-section (1) of Sec.21 by a person holding vacant land shall
be made within one thousand, one hundred and thirty nine days from
the commencement of the Act and shall be in Form V:
Provided
that-
(a) where,
on or after the commencement of the Act, any person acquires any
vacant land in the manner provided in sub-section (1) of Sec.15, and
on such acquisition, the extent of the land so acquired together with
the extent of the vacant land, if any, already held by him exceeds in
the aggregate the ceiling limit, then, the time within which such
person may file the declaration referred to under sub-section (1) of
Sec.21 shall be one thousand, one hundred and thirty-nine days from
the date on which he acquires such vacant land in the manner
aforesaid:
(b) where
any vacant land held by any person and exempted by Cl.(iv) of
sub-section (1) of Sec.19 or sub-section (1) of Sec. 20 ceases to be
so exempted and as a consequence thereof the extent of such land,
together with the extent of the vacant land, if any, already held by
him, exceeds in the aggregate the ceiling limit, then the time within
which such person may file the declaration referred to under
sub-section (1) of Sec.21 shall be one thousand, one hundred and
thirty-nine days from the date on which such vacant land ceases to be
so exempted.”
31. From
the aforesaid Rule, it will be evident that the declaration
u/sub-Sec.(1) of Sec.21 of a person holding excess vacant land can be
made only within 1139 days from the commencement of the Act in
Form V.
32. From
the Act, it will be evident that said Act came into force in the
State of Gujarat and some other States on 17th February 1976.
U/Sec.6 a person holding vacant land in excess of the ceiling limit
has to file a statement and the definition of “commencement of
this Act” has been shown in the Explanation below sub-section
(1) of Sec.6, which reads as follows:-
“6.
Persons holding vacant land in excess of ceiling limit to file
statement.- (1) Every person
holding vacant land in excess of the ceiling limit at the
commencement of this Act shall, within such period as may be
prescribed, file a statement before the competent authority having
jurisdiction specifying the location, extent, value and such other
particulars as may be prescribed of all vacant lands and of any other
land on which there is a building, whether or not with a dwelling
unit therein, held by him (including the nature of his right, title
or interest therein) and also specifying the vacant lands within the
ceiling limit which he desires to retain:
Provided
that in relation to any State to which this Act applies in the first
instance, the provisions of this sub-section shall have effect as if
for the words “Every person holding vacant land in excess of the
ceiling limit at the commencement of this Act”, the words,
figures and letters “Every person who held vacant land in excess
of the ceiling limit on or after the 17th day of February, 1975 and
before the commencement of this Act and every person holding vacant
land in excess of the ceiling limit at such commencement” had
been substituted.
Explanation.-In
this section, “commencement of this Act” means, –
(i) the
date on which this Act comes into force in any State;
(ii) where
any land, not being vacant land, situated in a State in which this
Act is in force had become vacant land by any reason whatsoever, the
date on which such land becomes vacant land;
(iii) where
any notification has been issued under Cl.(n) of Sec.2 in respect of
any area in a State in which this Act is in force, the date of
publication of such notification.”
33. For
the purpose of definition of `commencement of this Act’ as mentioned
in Sec.21(1) and for counting the period of limitation in the present
case, the date on which the Act came into force in the State of
Gujarat is to be taken into consideration, i.e. 17th February 1976.
This will be also evident from the stand taken by the
respondents-writ petitioners that the family filed five statements
u/Sec.6 of the Act on 13th August 1976. It is not the case of the
respondents-writ petitioners that the land in question was not
vacant, and had become a vacant land by any reason nor they have
claimed that no notification has been issued subsequently under
clause (n) of clause (2) in respect of the area situated within the
State of Gujarat.
Therefore,
for the purpose of counting the period of limitation u/Sec.21(1) r.w.
Rule 11, it will start from 17th February 1976, and limitation will
come to an end by about 3rd April 1979 (1139 days). In the present
case, admittedly, the application u/Sec.21(1) in Form V was filed on
22nd August 1985, i.e. after more than six years from the date of
expiry of the period of limitation. In absence of any provision for
condonation of delay, the petition u/Sec.21 of the Act being barred
by limitation was not maintainable, and therefore is of no avail.
34. Now
it is settled law that when a petition u/Sec.20(1) or 21 of the Act
is pending consideration before the authorities, the authorities are
not competent to initiate proceedings beyond the stage of Sec.10(2),
and thereafter cannot prepare statement u/Sec.10(3), nor can have
possession u/Sec.10(5) of the Act. However, if petition u/Sec.21(1)
is barred by limitation, then the aforesaid principle will not be
applicable, as in the eye of law, it will be deemed to be no petition
pending u/Sec.21 of the Act. Moreover, after the expiry of the
period of limitation as no application can be entertained, a pending
petition u/Sec.21(1) in Form V for the purpose of utilization of the
land for construction of the dwelling units for accommodation of
weaker sections of the society, will be deemed to be no petition
u/Sec.21.
In
view of such position, the respondents-writ petitioners cannot derive
the advantage of different decisions of this Court or the Supreme
Court, as cited, noticed and reproduced above on the issue of a
pending petition u/Sec.21(1). In none of the cases referred to
above, this Court or the Supreme Court has considered the question of
effect of pendency of a time-barred petition u/Sec.21(1) of the Act.
Sec.10(2)
stipulates that the competent authority shall consider the claim
received in pursuance of the notification, and determine the nature
and extent of such claim, and pass such order in that behalf as
deemed fit. However, if a petition u/Sec.21(1) is time-barred, in
absence of any provision for condonation of delay, competent
authority cannot consider the claim, even if received, nor can pass
any order in a time-barred petition. In that view of the matter, the
person who has filed application u/Sec.21(1) after expiry of the
period of limitation cannot derive the benefit of Sec.10(2) by
claiming right of consideration of claim in a time-barred
application. We, accordingly hold that if a petition u/Sec.21(1) is
barred by limitation, the competent authority cannot decide the
claim, if any, received u/Sec.21(1), and the competent authority will
proceed from the stage of Sec.10(3) and can issue notification in
the Official Gazette declaring the excess vacant land as set out in
the notification u/Sec.10(1), and declare that the land deemed to
have been acquired and vested absolutely in the State Government free
from all encumbrances with effect from the specified date.
Consequentially, it is also open to the competent authority to take
possession of the excess land by following the provisions
u/Secs.10(5) and 10(6) of the Act, and provide compensation to
persons interested in such lands u/Sec.11 of the Act.
35. Learned
Single Judge, in the present case, failed to notice that petition
u/Sec.21(1) filed in Form V for utilization of land for construction
of dwelling units for the accommodation of weaker sections was barred
by limitation. On a mere presumption that such petition u/Sec.21(1)
was maintainable, giving reference to earlier decision dated 5th
October 2000 of another learned Single Judge in Special Civil
Application No. 8402 of 1999, which was annulled by the Division
Bench in Letters Patent Appeal No. 460 of 2001, held that the
competent authority was not competent to go beyond Sec.10(3) of the
Act without deciding the claim u/Sec.21(1) of the Act.
36. The
next question arises is as to whether there is any delay in
challenging the action on the part of the appellant-State in taking
the possession of the excess vacant land in question.
For
deciding the aforesaid issue, it is to be noticed that petition for
exemption u/Sec.21 was filed by Ambalal Purshottambhai Patel in
respect to land of his exclusive ownership. He had not filed any
application on 22nd August 1985 u/Sec.21 of the Act on behalf of the
other co-sharer landholders. In the said application, one
Tribhovandas Chotabhai Patel also put his signature. The application
reads as follows:-
“From:
Patel Ambalal Parsottambhai
C/o.
48, Dahibanagar society
Manjalpurnaka,
Vadodara 11.
Date:
22.8.85
To,
Competent
Authority and Additional Collector,
Urban Land
Ceiling,
“C”
Block, Narmada Bhuvan,
Jail road,
Vadodara.
Subject:-
Regarding giving permission U/s.21.
It is humbly
to state that Secretary, Revenue Department cancelled the
agricultural exemption on dt.7.11.83 in the land of my exclusive
ownership of Mouje Manjalpur the copy of which is produced herewith
therefore as I have right to seek permission under section 21 in the
said land from the date of cancellation of agricultural exemption,
therefore be pleased to permission (sic) me permission in said land.
Yours
faithfully,
1. Sd/-
Ambalal Pursottam
2. Sd/-
Patel Tribhovandas Chotabhai
Enclosure:
1) three
copies of form no. 5
2) Copy of
power of attorney
3) Copy of
order of agricultural exemption.”
37. From
Form V enclosed with the application, it appears that Tribhovandas
Chotabhai Patel claim to be the power of attorney holder of all those
whose names are shown therein, i.e. respondents nos. 1 to 23,
including Ambalal Purshottambhai Patel, relevant portion of which
reads as under:
5(1) We,
Patel Ambalal Parsottambhai
2) Patel
Bhikhabhai Maganbhai
3) Patel
Ramanbhai Parsottambhai
4) Patel
Jayantibhai Babarbhai
5) Patel
Jadiben widow of Bhailalbhai
6) Patel
Natwarbhai Bhailalbhai
7) Patel
Chandubhai Bhailalbhai
8) Patel
Sarojben Bhailalbhai
9) Patel
Jyotsnaben Bhailalbhai
10) Patel
Bhartiben Bhailalbhai
11) Patel
Jethabhai Babarbhai
12) Patel
Taraben Babarbhai
13) Patel
Neeruben Ambabal
14) Patel
Kapilaben Ambalal
15) Patel
Jashodaben Ambalal
16) Patel
Ranjanben Ambalal
17) Patel
Kanubhai Ambalal
18) Patel
Leelaben Ambalal
19) Patel
Dilipbhai Ramanbhai
20) Patel
Naynaben Ramanbhai
21) Patel
Surekhaben Ramanbhai
22) Patel
Bakulaben Ramanbhai
23) Patel
Rajeshbhai Ramanbhai
1. Ambalal
Parsottam Patel, Res. Manjalpur, Vadodara
2. Tribhovan
Chotabhai Patel, Res. Odhav Bhula Falju, at post
Padra, Dist.
Vadodara as power of attorney holders of serial nos. 1 to 23.
do hereby
solemnly declare and affirm that the particulars furnished above are
true to the best of our knowledge and belief.
2) We
certify that the dwelling units are proposed to be constructed in
accordance with a scheme approved by the authority specified by the
Government.
3) We
further agree to abide by the terms and conditions specified in
Schedule IA appended.
4) We
further agree to furnish such other evidence as we may be called upon
to furnish in support of this application.
Place:
Vadodara.
Date:
22.08.1985 1. Sd/- Ambalal Pursottam
2. Sd/-
Patel Tribhovandas Chotabhai”
No
separate application was filed by any of the writ-petitioners herein.
38. On
rejection of the application u/Sec.21, appeal u/Sec.33 was filed by
one Ramanbhai Purshottambhai Patel, being Appeal No.Vadodara 2/87.
Tribhovandas Chotabhai Patel also filed appeal along with him as
power of attorney holder of Ambalal Purshottambhai Patel. This will
be evident from the cause title of the appellate order dated 28th
August 1995, relevant portion of which is quoted hereunder:
“Before
Urban Land Tribunal and Secretary, Revenue Department, Ahmedabad.
Appeal No.
Vadodara 2/87
Ramanbhai
Parsottambhai and Tribhovanbhai
Chotabhai
Patel, power of attorney holder
of Shri
Ambalal Parsottambhai Patel, Res.
Manjalpur,
Vachlu Falju, Vadodara. .. Appellants
Versus
Competent
Authority, Urban Land Ceiling, Vadodara, .. Respondents
An appeal
under section 33 of the Urban Land Ceiling Act, 1976.
=============================================
Order:
====
The
appellants have filed this appeal against the order No.Dwelling
scheme/Dec. form no. V/Vashi/1007/86 Unit-2 dt. 15.12.86 passed by
the Competent Authority and Additional Collector, Urban Land Ceiling
Vadodara. The competent authority vide his suit order has rejected
the scheme produced by land holder.”
From
the aforesaid, it will be evident that other than heirs of Ramanbhai
Parshottambhai Patel and Ambalal Parshottambhai Patel, who were
represented through Tribhovanbhai Chotabhai Patel as a power of
attorney holder, no other respondents-writ petitioners preferred
appeal u/Sec.33 against the order of rejection dated 15th December
1986 against the decision on application filed u/Sec.21 of the Act.
39. The
respondent-writ petitioners claimed and admitted that Ambalal
Parshottambhai Patel died on 30th December 1985. Therefore, appeal
filed by Tribhovandas Chotabhai Patel, a power of attorney holder on
behalf of a dead person (Ambalal Parshottambhai Patel) on 6th January
1987, being Appeal No. Vadodara 2/87, was not maintainable, so far as
heirs of deceased Ramanbhai Parshottambhai Patel are concerned.
Respondents nos. 1 to 5 who claim to be the heirs of deceased Ambalal
Parshottambhai Patel inspite of rejection of application u/Sec.21,
did not choose to prefer any appeal u/Sec.33. Therefore, order dated
15th December 1986 reached finality so far as respondents-writ
petitioners nos. 1 to 5 are concerned. Except Ramanbhai
Parshottambhai Patel, in absence of any appeal filed by the rest of
the petitioners u/Sec.33, order dated 15th December 1986 issued by
the competent authority rejecting the application u/Sec.21 of the Act
also reached finality.
40. The
aforesaid fact was neither considered by the reviewing authority
while allowing the review application on 19th September 1988 nor
noticed or discussed by the learned Single Judge.
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 discussed.
42. 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 with 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
Court.
44. 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 law.
45. In
the present case, we have noticed that possession of the land was
taken on 20th March 1996. The order rejecting the application
u/Sec.21 reached finality on 15th December 1986 against all the
petitioners, except one Ramanbhai Purshottambhai Patel. The writ
petition was preferred against the petitioners only in 2001, i.e.
after delay of about 14 years. 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 delay.
46. Some
other facts have also come to our notice in the present case. The
writ petition, S.C.A. No. 12602 of 2001 has been preferred on behalf
of 19 persons through a constituted attorney, one of them being
Rajeshbhai Ramanbhai Patel. As we have seen that except Ramanbhai
Purshottambhai Patel, no other person filed the appeal u/Sec.33
against the order of rejection passed u/Sec.21. The co-appellant
power of attorney had no right to file such appeal, Ambalal
Purshottambhai Patel having died before filing of such appeal.
47. Though
the writ petition was filed by Rajeshbhai Ramanbhai Patel under his
signature, nowhere in the writ petition he has stated that he has
been given power of attorney by other petitioners nos. 1 to 18 to
file petition on their behalf nor such statement has been made in the
affidavit sworn by him, which reads as follows:-
“I,
Rajesh Ramanbhai Patel, son of Ramanbhai Purshottamdas Patel, the
petitioner no.19 herein residing at Manjalpur, Vadodara solemnly
affirm and state that what is stated in paragraphs 1 part, 2.1 part,
2.5, 2.7, 2.7, 2.8, 5 part, 7 is true to my knowledge and that what
is stated in the remaining paragraphs 1 part, 2.1 part, 2.2, 2.3,
2.4, 2.6, 2.9, 2.10, 2.11, 2.12, 3.1 to 3.5, 4, 5 part, 6 is stated
on information and belief and i believe the same to be true.
Solemnly
affirmed at Ahmedabad on this 27 day of December, 2001.”
48. The
aforesaid facts were not noticed by the learned Single Judge. We
have noticed that since very beginning it is one or the other power
of attorney holder who filed the application u/Sec.21 along with one
of the landowners, or the appeal by power of attorney holder on
behalf of a deceased person, or Letters Patent Appeal by power of
attorney holder on behalf of the deceased person or a person without
power on behalf of the
rest of the petitioners nos. 1 to 18 in the present case. The
aforesaid fact ought to have been noticed and taken into
consideration by the learned Single Judge while exercising powers
under Article 226 of the Constitution of India whereas the learned
Single entertained the petition after a long delay of fourteen years
after taking over possession of the land in question. For the
reasons aforesaid, order passed by the learned Single Judge cannot be
upheld. We, therefore, set aside the order dated 21st December 2005
passed by the learned Single Judge in Special Civil Application
No.12602 of 2001, and declare that the possession of the land has
been rightly taken over by the competent authority of the State on
20th March 1986. The Letters Patent Appeal is allowed with aforesaid
observations, but there shall be no order as to costs.
(S.J.
MUKHOPADHAYA, C.J.)
(ANANT
S. DAVE, J.)
For
the reasons mentioned in the judgement, the oral prayer made by the
learned counsel for the respondents for stay of this judgment is
rejected.
(S.J.
MUKHOPADHAYA, C.J.)
(ANANT
S. DAVE, J.)
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