IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 5930 of 2003
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LALITABEN TANSUKHLAL SAMEJA
Versus
STATE OF GUJARAT
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Appearance:
1. Special Civil Application No. 5930 of 2003
MR PC KAVINA for Petitioner No. 1
.......... for Respondent No. 1
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CORAM : MR.JUSTICE JAYANT PATEL
Date of Order: 02/05/2003
ORAL ORDER
1.The present petition is preferred by the
petitioner challenging the legality and validity of the
order dated 22.4.2003 passed by the State Government
under provisions of the Urban Land (Ceiling & Regulation)
Act, 1976 [hereinafter referred to as the ULC Act]. The
petitioner has also prayed for declaring the orders
entries or actions taken pursuant to rojkam dated 12.6.97
as illegal. The petitioner has further prayed for a
direction to the respondents to remove the present land
in question from the list of excess land by which the
possession is alleged to have been taken by the
Government.
2.Heard Mr. Kavina, learned advocate for the
petitioner. The contentions raised by Mr. Kavina is
that as such the possession was not taken over in the
year 1987 as referred to in the impugned order [on
internal page 12]. He submitted that there is a
panchnama drawn on 12.6.1997, copy whereof is made
available by him for perusal of the Court. Therefore, he
submitted that when the actual possession of the land in
question was not taken over, the petitioner would be
entitled to the benefit of the repealing Act. He further
submitted that even otherwise also, the so called
panchnama dated 12.6.1997 is a mere paper panchnama, and
the petitioner continued to enjoy the possession even
until the repealing Act was brought about and came into
force. Therefore he submitted that the declaration of
the land as surplus land, which was made by the competent
authority under the U.L.C. Act cannot be allowed to
operate, and in any event, the same cannot be enforced
after the repealing Act. Mr. Kavina also submitted that
the question regarding the factum of the possession was
required to be decided by the authority but in the
decision which is passed by the authority upon the
representation of the petitioner pursuant to the order
dated 5.10.2001 passed by this Court (Coram: H.K.
Rathod, J.) in SCA No. 8894/01, there is no finding to
that effect. Mr. Kavina also submitted that even
otherwise, the land was falling in the agricultural zone,
and therefore, as per the Government Resolution dated
13.8.1999 which has been issued after the repeal of the
ULC Act, such land cannot be processed further for the
purpose of taking possession or otherwise under the then
U.L.C. Act. He also submitted that in any event, the
application of the petitioner under section 20 of the ULC
Act for grant of exemption was pending, and, therefore,
the competent authority could not have proceeded for
declaration of the land as surplus land, and such action
can be said to be illegal. He therefore submitted that
the matter requires consideration, more particularly on
the factum of possession and the factum regarding taking
of the possession by the authority.
3.Having considered the above, I am of the view
that a perusal of the order of April 2003, copy whereof
is produced at Annexure ‘H’, shows that there is a
reference regarding various proceedings under the U.L.C.
Act. The proceedings came to be concluded as back as in
the year 1986-87 which would be about 17 years from even
first petition being Special Civil Application No.
8894/01. Not only that but the land was declared as
surplus land for the first time by the competent
authority as per decision dated 30th November 1985.
Thereafter, the notification under section 10 of the ULC
Act was published and the possession was taken on
12.6.1987. Not only that, but after the State Government
took over the possession of the land, it is disposed of
by the State Government under section 23 of the U.L.C.
Act whereby 575 plots of 25 sq. mtrs each are allotted
for the weaker section as per the order dated 24.1.1992
and the possession is also handed over, and the
possession receipts are also issued. Therefore, in my
view, when the State Government has not only taken over
the possession by drawing a panchnama but also acted upon
the same by further allotting the land, it cannot be said
that the possession is not taken over in the eye of law.
The contention that the petitioner is in actual
possession even on today, in my view, is not only not
inspiring any confidence but even cannot be entertained
because even if the petitioner is in actual possession
after the aforesaid lawful process undertaken by the
State Government, it can reasonably be said that the
petitioner is in unauthorized possession because the
procedure known to law for taking over the possession is
drawing of panchnama, and it has been done in the instant
matter. In any case, when the land was declared as
surplus land as back us in the year 1985, the petitioner
did not challenge the said order and the said order was
not challenged in any case until in the year 1987 when
the Government took over the possession and further until
in the year 1992 when the Government allotted the plot
for weaker section. Therefore, now the petitioner cannot
be allowed to take up a contention that the application
under section 20 of the ULC Act was pending, and
therefore the proceedings for declaration of the land and
the proceedings pursuant thereto are illegal. In my
view, merely because the application under section 20 was
pending, that would not render the proceedings for final
declaration of the land under section 8 as per-se void or
nullity. The Court may examine the challenge if such
questions are raised within reasonable time, and in any
case, before the land is vested in the Government. In
the present case, after a period of about more than 17
years, the challenge is brought to the Court regarding
the declaration of the land as surplus land on the ground
of pendency of the application under section 20, in my
view, cannot be accepted and deserves to be rejected
outright.
4.As regards the contention regarding the land
falling under agricultural zone is concerned, it was for
the petitioner to prefer an appeal or to challenge the
order of the authority at the relevant point of time. On
the contrary, the conduct of the petitioner shows that
the order is not challenged within a reasonable period,
and therefore, it can be said as accepted by the implied
conduct of the petitioner.
5.Once a party having not chosen to challenge the
order at the relevant point of time and more than 15
years time have elapsed, cannot be allowed to take undue
benefit of the repealing of the Act on the ground that
they are in actual possession though the possession may
be unauthorized or unlawful. The other contentions, in
my view, which are raised by Mr. Kavina are covered by a
judgment of this Court in the case of VINODCHANDRA V.
BAVSHI vs STATE OF GUJARAT reported in 2000 (3) GLR 2592
on the question of actual possession and further acting
upon the same. Merely because the authority has not
examined the question regarding subsequent panchnama
dated 12.6.1997, in my view, would not give any
additional right to the petitioner because as such, the
order of this Court dated 5.10.1991 in SCA No. 8894/01
can at the most be read as enabling the petitioner to
make a representation, and, therefore, while deciding the
representation, the State Government is not exercising
the power as a quasi judicial authority where each and
every contentions are to be dealt with. On an overall
reading of the order, in my view, when the State
Government has found that the possession was taken long
back and the petitioner would not be entitled to any
benefit of the repealing Act, it cannot be said that the
order passed by the State Government is arbitrary or
unconstitutional which calls for interference by this
Court in exercise of its extraordinary jurisdiction under
Article 226 of the Constitution.
6.Before parting with, I may also observe that the
present litigation appears to be an ingenious device to
take undue benefit of the repealing Act and I am inclined
to take such a view because for a period of about 18
years, the petitioner has not chosen to challenge the
proceedings under the ULC Act and it is only when the
repealing Act is brought out, the present challenge is
brought to the court, which, in my view, is not at all
inspiring any confidence, nor can it be said that the
petitioner is prosecuting the remedy in accordance with
law. Hence, I find that petitioner would not be entitled
to invoke extraordinary discretionary jurisdiction of
this Court under Article 226 of the Constitution of
India.
7.In view of the aforesaid, I find no substance in
this petition; hence dismissed.
[JAYANT PATEL, J.]
mathew