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Dalpatbhai vs State on 10 February, 2011

Gujarat High Court
Dalpatbhai vs State on 10 February, 2011
Author: Md Shah,&Nbsp;
   Gujarat High Court Case Information System 

  
  
    

 
 
    	      
         
	    
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SCA/4483/1999	 11/ 11	JUDGMENT 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

 


 

SPECIAL
CIVIL APPLICATION No. 4483 of 1999
 

 


 

 
For
Approval and Signature:  
 
HONOURABLE
MR.JUSTICE MD SHAH  
 


 

=========================================================

 
	  
	 
	  
		 
			 

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?
		
	

 

=========================================================

 

DALPATBHAI
KARSANBHAI PATEL & 2 - Petitioner(s)
 

Versus
 

STATE
OF GUJARAT & 2 - Respondent(s)
 

=========================================================
 
Appearance
: 
MR
AJ PATEL FOR MR TATTVAM K PATEL
for
Petitioner(s) : 1 - 2.                                         
         MR YN RAVANI for Petitioner(s) : 3, 
MR LR PUJARI, AGP for
Respondent(s) : 1 - 2. 
RULE SERVED for Respondent(s) :
3, 
=========================================================


 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE MD SHAH
		
	

 

Date
: 10/02/2011 

 

ORAL
JUDGMENT

By
this petition, the petitioners have challenged order dated 20-3-1991
passed by the Competent Authority and Deputy Collector, ULC Nanpura,
Surat, order dated 1-10-1997 passed by the Deputy Secretary, Revenue
Department, Sachivalaya, Gandhinagar, as well as Gazette
Notification dated 30-4-1992 declaring agricultural lands of the
petitioners as excess vacant lands under Section 10(5) of the Urban
Land (Ceiling and Regulation) Act, 1976 (hereinafter for the sake of
brevity referred to as ‘the Act’).

Facts
in short as contended in the petition are that agricultural lands
bearing Survey Nos.58/3 and 59/2 situated at Village Jahangipura,
Taluka Choryasi, District Surat, were purchased by the petitioners
by a registered sale deed on 13-4-1978 and entries were mutated in
the revenue records. According to the petitioners, as the said lands
were being used for agricultural purposes and as they fell within
the Agricultural Zone under ULC Master Plan in 1976, said lands were
not vacant lands under the Act and, therefore, the petitioners did
not file form as required under Sec.6 of the Act. Father of
respondent No.3 filed Form No.1 on 15-9-1976. Competent Authority
vide order dated 20-3-1991 declared the lands of the petitioners as
excess vacant lands. Notification in this regard was published in
the Government Gazette on 30-4-1992. Deputy Secretary, Revenue
Department, Sachivalaya, Gandhinagar, vide order dated 1-10-1997
confirmed the order of Competent Authority. On coming to know of
their agricultural lands having declared as excess vacant lands by
the Government, this petition has been filed by the petitioners
challenging the aforesaid orders of Competent Authority and Revenue
Authority of State Government and also publication of notification
in the Government Gazette.

Heard
learned Senior Advocate, Mr.A.J.Patel for Mr.T.K.Patel for the
petitioners and learned AGP, Mr.L.R.Pujari, for the respondent Nos.1
and 2.

It
is submitted by learned counsel, Mr.A.J.Patel that in light of
judgment dated 4-10-2001 delivered by this Court (Coram: A.R.Dave &
D.P.Buch,JJ.) in Letters Patent Appeal Nos.498 and 699 of 1995 in
Special Civil Application Nos.6194 of 1984 and 5508 of 1988, notice
under Sec.10(5) of the Act ought to have been issued to the present
petitioners as they were in possession of the disputed lands.
According to him, in the present case, it is an admitted fact that
no notice was issued to the petitioners under Sec.10(5) of the Act
and hence, orders and notification are required to be quashed and
set aside. It is further submitted that lands of the petitioners
were being used for agricultural purpose and, therefore, they fell
within the agricultural zone under ULC Master Plan prevailing in
1976 being non-vacant lands and hence, under bona fide belief, they
did not file form as required under Sec.6 of the Act. It is further
submitted that as per
the law laid down
by the Apex Court reported in AIR
1993 Supreme Court p.2465 in
the case of Smt.Atia
Mohammadi Begum Vs. State of U.P and others, declaration
is not required to be filed by the present petitioners.
This aspect has not been considered by the
Competent Authority as well as the Revenue authority. It is further
submitted that though sufficient documentary evidences including
sale deed executed qua the lands in question were produced for
establishing the possession of the disputed lands by the
petitioners, both the authorities did not consider the same and came
to the wrong conclusion that the petitioners were never in
possession of the suit lands and, hence, since impugned orders are
illegal and perverse, they are required to be quashed and set aside.
He relied on the following decisions:

i)
(2003)7 Supreme Court Cases p.336 in the case of State of
Maharashtra and Another Vs. B.E.Billimoria and Others;

ii)
2009(3) GCD 2543 (Guj) (DB) in the case of Niranjan Maganlal Mehta
Vs. Competent Authority & Addl. Collector & Ors.;

iii)
2006(3) G.L.H. p. 487 in the case of Indrajitsing P.Geel Vs.
Competent Authority & Deputy Collector and another; and

iv)
2007(3) G.L.R. p. 2231 in the case of Laxmanbhai K.Chokshi Vs.
Competent Authority & Additional Collector (U.L.C.).

It
is submitted by learned AGP, Mr.L.R.Pujari, for the respondent Nos.1
and 2, that the present petition has been filed after long lapse of
time and, therefore, on the ground of delay and laches, it is
required to be dismissed. It is further submitted that at the time
of filing form under Sec.6, the original landholder Makanbhai
Ranchhodbhai did not disclose the fact of selling the lands in
question to the present petitioners and, therefore, no notice as
provided under Sec.10(5) of the Act was required to be issued to the
petitioners. It is further submitted that even before taking over
possession, all procedures as provided under the Act have been
followed and notification in this regard was also published in the
Official Gazette inviting objections and, hence, there was no need
for giving individual notice. It is further submitted that when
objections were invited, original landholder submitted his reply
through his advocate before the Competent Authority but did not
disclose the fact that the lands were sold to the petitioners
thereby the petitioners were put in possession of the disputed lands
and, therefore also, notice under Sec.10(5) was not required to be
issued to the petitioners. It is further submitted that possession
of the lands has been taken over by the Competent Authority by
drawing panchnama. According to him, sufficient documentary evidence
is there on record to show that lands in question were vested with
the Government and, hence, with ulterior motive and in collusion
with the original landlord, present petition has been filed. It is,
therefore, urged that the present petition be dismissed.

This
Court under Article 226 of the Constitution of India has only
limited power to go through the facts of the case when both the
authorities below, after considering the documentary as well as
material evidences placed on record, passed the orders.

As
per the petitioners, they purchased the disputed lands from
respondent No.3 on 13-4-1978 by registered sale deed after obtaining
no objection from competent authority on 29-12-1977. However, copy
of the sale deed purported to have been executed on 13-4-1978
entitling them to become owners of the lands has not been produced
either on record or before this Court for perusal. Therefore, a
presumption under Sec.144 and 114(g) of Indian Evidence Act can be
drawn that said document is neither in existence or withheld as
being not in their favour. Had copy of this document been produced
on record, it would have been helpful to the Competent Authority as
well as this Court to decide the matter. However, as they did not
produce the same, it cannot be believed that the petitioners have
been in possession of the lands through the said sale deed. The
petitioners are only relying upon abstract of Form Nos.7 and 12 as
well as revenue records in this regard. However, by revenue
records, title of the lands cannot be decided. Since this is a
disputed question of fact, this cannot be agitated in a petition
filed under Article 226 of the Constitution.

It
is to be noted that the original landlord was called several times
by the authority but he did not disclose the aspect of selling the
lands to the petitioners and after drawing panchnama, which was
never objected to by the original landlord, entry has been mutated
and Government has been shown to be in possession of the lands in
the revenue records and, therefore, the petitioners could by no
stretch of imagination be said to be in possession of the suit
lands. It is pertinent to note that once public notice was issued in
the Official Gazette, it was the bounden duty of the present
petitioners to have disclosed the aspect of sale deed having
executed in their favour by the original landholder before the
Competent Authority. However, they refrained from doing so and,
after a long lapse of nine years, preferred the present petition.

It
is apparent from Sec.3 of the Act that no person shall hold any
vacant land in excess of ceiling limit in the territories to which
the Act applies under Sec.1(2). Section 15 of the Act stipulates for
ceiling limit on future acquisition and a statement to be filed
before the competent authority within three months of acquisition.
As the area of the land purchased by the petitioners as per their
own contentions is more than the ceiling limit as provided under
Sec.4 of the Act, filing of statement is a necessity. They failed to
do so and after repeal of the Act, they approached the Court with an
oblique motive. Moreover, the pre-requisite condition of notice
under Sec.26 before transfer of vacant land is also not fulfilled by
the petitioners.

In
view of the above, no notice under Sec.10(5) of the Act was required
to be issued to the petitioners as they were not the occupants of
the said disputed lands. The Competent Authority, therefore, after
following provisions of Sec.10(6) of the Act, rightly decided the
matter which has been confirmed by the Revenue Authority of the
State Government and notification has been published in the
Official Gazette and, therefore, no interference is called for in
the said findings arrived at by both the authorities.

As
far as the judgments relied on by the learned Senior Advocate for
the petitioners are concerned, there cannot be any dispute regarding
the principles laid down therein. However, facts of those cases are
totally different from facts of the present case and hence,
petitioners would not be entitled to any benefit out of those
judgments.

Reliance
is placed on the decision of a Division Bench of this Court (Coram:
S.J.Mukhopadhaya, CJ & Akil Kureshi,J.) rendered in Letters
Paten Appeal No.1151
of 2009 in Special Civil Application No.8257 of 1991 with Civil
Application No.6008 of 2009 in Letters Patent Appeal No.1151 of 2009
wherein it has been held in paras 10, 11, 12 and 13 as under:

“10.

From the materials on record, as already noted, as per the official
records, after declaration of 602 sq. mtrs. of land of the
petitioner as excess vacant land by the competent authority as well
as the Urban Land Tribunal, steps were taken to take possession
thereof after formally declaring that said land is vested in the
Government. After issuing notice under Section 10(5) of the Ceiling
Act, in presence of Panch witnesses, possession of 602 sq. mtrs. of
land was taken over on 10.2.1992 and the Panchnama was also produced
which is part of record of these proceedings. Except for the bare
words of the appellant, there is nothing on record to suggest that
official records do not reflect the true and correct position. We
have nothing to go by to hold that the said record is either
inaccurate or fabricated. In case of Larsen & Toubro Ltd. v.
State of Gujarat and others reported in (1998) 4 Supreme Court
Cases, 387, the Apex Court observed as under :

“13. The High
Court held that actual physical possession of the land subject
matter of the acquisition proceeding was not handed over to the
appellant while it was the contention of the appellant as well as
the State Government that possession of the land was handed over
to L&T Ltd. on July 5, 1989. At the time the possession was
taken over a Panchanama was prepared duly witnessed by two farmers
of the Village Magdalla and singed by the Circle Officer evidencing
handing over of possession and also by M.H.Adhikari an officer of
the L&T Ltd. for taking over possession. The possession
receipt of the same date duly signed by the Circle Officer and
the officer of the L&T Ltd. was given. L&T Ltd. thus took
possession of the land in presence of the panchas. Panchanama
recites that both the witnesses (Panchas) had been intimated
in advance by Mamlatdar Choryasi and that possession of the
concerned land that day taken over in their presence by the Circle
Officer and that the land was an open spot and there was no
construction or crops grown therein. Possession of the land was
taken over along with the trees standing thereon. As noted
above, possession was thereafter delivered to the representative of
the L&T Ltd. at that time itself. In the High Court it was
contended that no actual physical possession of the land had been
taken. The petitioners filed affidavits of the Panchas who had
signed the Panchanama. In these affidavits they stated that they
were called to the office of the Panchayat and that their signatures
were obtained on blank papers and that they had not gone to the
sita and that neither the landlord was present not the actual
possession was delivered to the acquiring body. Ready with these
affidavits High Court noticed from the recitation in the Panchanama
that it was nowhere mentioned that the panchas had gone to the site
from the office of the panchayat. It was not disputed that in the
revenue records it was L&T Ltd. who was shown in possession of
the land. Affidavits of the Panchas filed in the High Court which
contained statements contrary to what was recorded in the
Panchanama and against the revenue entries are quite meaningless
and in our opinion High Court unnecessarily put undue reliance on
the same. High Court could not convert itself into a revenue court
and hold that in spite of the Panchanama and the revenue records
actual physical possession of the acquired land had not been handed
over to the acquiring body. High Court, in our opinion, has not
correctly analysed the two judgments of this Court in Balmokand
Khatri Educational and Industrial Trust, Amritsar vs. State of
Punjab [1996] 4 SCC 212 and Balwant Narayan Bhagde vs. M.D. Bhagwat
and Ors.
[1976] 1 SCC 700 to come to the conclusion that actual
physical possession of the land was not taken over by the State.”

11.
Under the circumstances, we have no hesitation in approving the
conclusion of the Learned Single Judge that at the relevant point of
time as the record reflects, possession of the excess vacant land
was taken over by the Government.

12.
The subsidiary question is whether after the possession was once
taken over if the appellant-petitioner reentered the land and may
also have put up some construction thereon, that by itself would be
sufficient to ensure lapsing of the proceedings under the Repeal
Act. A similar question came up before the Division Bench wherein
following observations were made :

“In view of the
above position of the record, we do not find any case to hold that
the possession of the land was not taken over on 10th
October, 1991, contrary to affidavits and the records of the State.
The contention of the counsel for the appellants that subsequent
record suggests actual possession of the appellants is neither here
nor there. If the possession was taken over at the relevant time but
some time thereafter if the appellants reentered into land, such
possession would not be relevant for the purpose of deciding the
position of the repeal of the Act. In the Repeal Act, under Section
3 it is provided as under:-

“Sec.3 Saving.–

(1) The repeal of the principal Act shall not affect —

(a) the vesting of any
vacant land under sub-section (3) of Section 10, possession of which
has been taken over the State Government or any person duly
authorised by the State Government in this behalf or by the competent
authority;

(b) the validity of any
order granting exemption under sub-section (1) of Section 20 or any
action taken thereunder, notwithstanding any judgment of any court to
the contrary;

(c) any payment made to
the State Government as a condition for granting exemption under
sub-section (1) of Section 20.

(2) Where —

(a) any land is deemed to
have vested in the State Government under sub-section (3) of Section
10 of the principal Act but possession of which has not been taken
over by the State Government or any person duly authorised by the
State Government in this behalf or by the competent authority; and

(b) any amount has been
paid by the State Government with respect to such land

then such land shall not
be restored unless the amount paid, if any, has been refunded to the
State Government.”

From the language used in
sub-Section (1) of Section 3 of the Repeal Act, it is clear that the
Repeal Act would not apply in a case where the vacant land has vested
in the Government under sub-section (3) of Section 10 of the ULC Act
and possession of which has been taken over by the State Government
or by an authorized person or by the Competent Authority. Sub-Section
(2) of Section 3 of the Repeal Act further provides that if any land
has vested in the State Government but possession of which has not
been taken over by the Government or the authorized officers of the
Competent Authority, then such land shall not be vested unless
compensation if any paid is refunded.

Thus, for the purpose of
applicability of the Repeal Act, crucial question is if the
Government by taking over possession of the vacant land before the
Repeal Act was introduced. If possession of the land has been taken
over by the Government before the Repeal Act but the declarant
re-enters the land, such unauthorized possession on the date of
introduction of the Repeal Act cannot be the basis to hold that the
ULC proceedings have lapsed.”

13.
In view of the above discussion, we find that Learned Single Judge
committed no error in holding that possession of the excess vacant
land was taken over by the Government long before the introduction
of the Repeal Act. Existence of few shops thereon would in our
opinion not change the position.”

In
the present case, as stated in para 5.2 of the affidavit-in-reply,
after following all necessary procedures as provided under the Act,
a declaration was given in the Official Gazette on 30-4-1992 as per
Sec.10(3) of the Act that the land in question was vested absolutely
in the Government free from all encumberances. Ultimately,
possession thereof was taken over under Sec.10(6) after giving
notice as provided under Sec.10(5) of the Act, in presence of
panchas on 16-3-1993. Once notification is issued in the Official
Gazette and notice to persons whose names are mentioned in form No.1
has already been given as provided under the Act, there is no
question of giving individual notice to the petitioners.

In
view of the aforesaid, I am not inclined to interfere with the
orders passed by both the authorities and the present petition is
required to be dismissed and is hereby dismissed. Rule is
discharged. Status-quo granted earlier stands vacated.

(M.D.SHAH,J.)

radhan

   

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