IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 5900 of 2003
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YAKUB ABUBAKAR
Versus
COMPETENT AUTHORITY AND DY.COLLECTOR
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Appearance:
1. Special Civil Application No. 5900 of 2003
MR PRABHAV A MEHTA for Petitioner No. 1-3
.......... for Respondent No. 1-2
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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
petitioners for challenging the notification dated
15-8-1985, the order dated 11-12-1985 and the order dated
16-6-1986 issued by the ULC authorities.
2.Heard Mr.Mehta, learned Counsel for the
petitioners. The contention raised on behalf of the
petitioners is that though the orders were passed but the
possession is taken by the paper panchnama on 21-3-1986
and it has been submitted that as such actual possession
is not taken and the petitioners are in possession of the
land even today. Mr.Mehta relied upon the Village Form
No.7 and 12 to contend that there is cultivation by the
petitioners and, therefore, he submitted that the actual
possession is of the petitioners and he submitted that
after the Repealing Act if the possession of the land is
not taken, the ULC authorities cannot retain the land and
it must be given to the petitioners only. Therefore, the
petitioners have also prayed for appropriate writ to
direct the respondents to hand-over the possession of the
land admeasuring 5481 sq. mtrs. bearing Survey No.123
at Village Bhaili, District Baroda and, therefore, he
submitted that the matter requires consideration.
Mr.Mehta further submitted that the compensation as
required to be paid under Section 11 is still not paid to
the petitioners and, therefore, he submitted that it can
be said that the ULC proceedings are not concluded.
3.Having considered the above, it is pertinent to
note that the notification and the orders passed by the
ULC authorities are as back as in the year 1984-5-6 and
are challenged in this petition in the year 2003. It is
an admitted position that the petitioners have not
resorted to any proceedings for challenging the action of
the ULC authorities either by preferring appeal which was
statutory remedy, or by petition before this Court during
the period when ULC Act was in operation and, therefore,
in my view, the petitioners cannot be allowed to
challenge the orders of the ULC authorities after a
period of about more than 17 years.
4.The aforesaid is coupled with the fact that the
petitioners themselves have prayed for directing the
respondents to hand-over the possession which means that
the petitioners are fully aware that the possession is
taken over. The contention that it is only a paper
panchnama and no actual possession is taken, in my view,
is ill-founded. The reliance placed upon the judgement
in the case of “Ambalal Parsottambhai Patel v. State of
Gujarat & Ors.” reported in 2001(4) GLR, 3319 is also
ill-founded in as much as the aforesaid decision is
considered by me in the case of “Vipinchandra Vadilal
Bavishi & Anr. v. State of Gujarat & Ors.” reported in
2002(3) GLR, 2592, where the view taken is that the
procedure under the law for taking over the possession is
drawing of panchnama and in the said judgement I have
relied upon the judgement of the Apex Court on such
points. Once the Government has taken possession, merely
because subsequently the petitioners have unauthorisedly
cultivated the land would not give any right to the
petitioners to take benefit of the Repealing Act.
5.As such even otherwise also I find that the
present petition is nothing but only an ingenuine device
to take benefit of the Repealing Act by challenging the
proceedings under ULC Act which came to be concluded more
than 17 years back. The present petition, in my view, is
not inspiring any confidence and the proceedings are not
initiated with bonafide purpose to pursue the right but
they are preferred only with a view to take undue benefit
of the Repealing Act which is otherwise not permissible
under the law. Hence I am of the opinion that it is not
a fit case to exercise extra ordinary discretionary
jurisdiction of this Court under Article 226 of the
Constitution of India.
6.In view of the aforesaid, I find no substance in
this petition and hence this petition is dismissed.
2-5-2003(Jayant Patel, J.)
vinod