{"id":202878,"date":"2011-04-26T00:00:00","date_gmt":"2011-04-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-kapilaben-on-26-april-2011"},"modified":"2018-02-07T12:37:39","modified_gmt":"2018-02-07T07:07:39","slug":"state-vs-kapilaben-on-26-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-kapilaben-on-26-april-2011","title":{"rendered":"State vs Kapilaben on 26 April, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
State vs Kapilaben on 26 April, 2011<\/div>\n
Bench: Mr. S.J.Mukhopadhaya Dave, Anant S. Dave<\/div>\n
  \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n \n \n\n\n\t \n\nLPA\/233\/2006\t 26\/ 26\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nLETTERS\nPATENT APPEAL NO. 233 of 2006\n \n\nIn\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 12602 of 2001\n \n\n \nFor\nApproval and Signature:  \nHONOURABLE\nTHE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA  \nHONOURABLE\nMR.JUSTICE ANANT S. DAVE\n \n=================================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=================================================\n \n\nSTATE\nOF GUJARAT & 1 - Appellant(s)\n \n\nVersus\n \n\nKAPILABEN\nAMBALAL PATEL HEIRS OF DECD. AMBALAL P. PATEL & 18 -\nRespondent(s)\n \n\n================================================= \nAppearance\n: \nMRS. MANISHA\nLAVKUMAR SHAH AGP for\nAppellant(s) : 1 - 2. \nMR KG VAKHARIA SR COUNSEL WITH MR MK\nVAKHARIA for Respondent(s) : 1 -\n19. \n=================================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM:\n\t\t\t\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tTHE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE ANANT S. DAVE\n\t\t\n\t\n\n \n\nDate\n:26\/04\/2011 \n\n \n\nCAV\nJUDGMENT \n<\/pre>\n
(Per
\n: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)<\/p>\n
\tThis
\nappeal has been preferred by the State of Gujarat against the
\njudgment and order dated 21st December 2005 passed by the learned
\nSingle Judge in a writ petition, Special Civil Application No.12602
\nof 2001.  Learned Single Judge held that the action on the part of
\nappellant-respondent of taking possession of the land in question was
\nillegal, as the authorities during the pendency of a
\nscheme\/application u\/Sec.20 or Sec.21 of the Urban Land (Ceiling and
\nRegulation) Act, 1976, (hereinafter referred to as `the Act’) could
\nhave gone only upto the stage of Sec.10(3)) of the Act.\n<\/p>\n
2.\tThe
\nbrief case of the respondent-writ petitioner is that the property  in
\nquestion was originally owned by Parsottambhai  Patel, who died on
\n28th January 1976 before the Act came into force.  He had five sons,
\ni.e. (1) Ambalal Parsottambhai  Patel, (2) Maganbhai Parsottambhai
\nPatel, (3) Babarbhai Parsottambhai  Patel, (4) Bhailalbhai
\nParsottambhai  Patel and (5) Ramanbhai Parsottambhai  Patel, of whom
\nthree had pre-deceased, i.e. Maganbhai, Babarbhai and Bhailalbhai.
\nAmbalal died without heir(s); Maganbhai pre-deceased his father
\nleaving behind (a) his widow Pashiben and (b) son Bhikhabhai;
\nBabarbhai pre-deceased his father leaving behind his heirs (a) widow
\nKashiben, (b) son Jayantibhai and (c) Jethabhai; and Bhailalbhai
\npredeceased his father, leaving behind his heirs (a) widow Jadaben,\n<\/p>\n
(b) son Natwarbhai and (c) son Chandubhai.\n<\/p>\n
3.\tFurther
\ncase of the petitioners is that the family filed five statements in
\nForm V u\/Sec.6 of the Act on 13th August 1976 in the name of (i)
\nAmbalal Parsottambhai  Patel, (ii) Bhikhabhai Maganbhai Patel, (iii)
\nNatvarbhai Bhailalbhai Patel, (iv) Ramanbhai Parsottambhai  Patel and
\nJayantibhai Babarbhai Patel.  On 8th March 1980, State Government
\ngranted exemption u\/Sec.20 of the Act.  On 8th June 1981, Ambalal and
\nRamanbhai had filed objections against the draft statement filed
\nu\/Sec.8(3) of the Act.  Pursuant to the application of the landowner,
\non 7th November 1983, competent authority withdrew the agriculture
\nexemption granted earlier.\n<\/p>\n
4.\tAfter
\nconsidering the objections filed by the landowners, on 1st February
\n1985, competent authority passed a common order u\/Sec.8(4) of the
\nAct, declaring twelve persons in the family as holders of the land,
\nand made the computation as under:-\n<\/p>\n
Name<\/p>\n
Holding<\/p>\n
(
\n\t\t\tSq.mt.)<\/p>\n
Retainable
\n\t\t\tLand (Sq.mt.)<\/p>\n
Excess
\n\t\t\tVacant Land<\/p>\n
(Sq.mt.)<\/p>\n
Ambalal
\n\t\t\tPursottamdas<\/p>\n
7329.50<\/p>\n
1500<\/span><\/p>\n
5829.50<\/p>\n
Kanu
\n\t\t\tAmbalal (son)<\/p>\n
2637.50<\/p>\n
1500<\/span><\/p>\n
1137.50<\/p>\n
Bhikhabhai
\n\t\t\tMaganbhai<\/p>\n
2613.50<\/p>\n
1500<\/span><\/p>\n
1113.50<\/p>\n
Pashiben
\n\t\t\tMaganbhai<\/p>\n
2613.50<\/p>\n
1500<\/span><\/p>\n
1113.50<\/p>\n
Natvarbhai
\n\t\t\tBhailalbhai <\/p>\n
1546.40<\/p>\n
1500<\/span><\/p>\n
46.40<\/p>\n
Chandubhai
\n\t\t\tBhailalbhai<\/p>\n
1546.40<\/p>\n
1500<\/span><\/p>\n
46.40<\/p>\n
Jadaben
\n\t\t\tBhailalbhai<\/p>\n
1546.40<\/p>\n
1500<\/span><\/p>\n
46.40<\/p>\n
Ramanbhai
\n\t\t\tParsottambhai <\/p>\n
3518.00<\/p>\n
1500<\/span><\/p>\n
2018.00<\/p>\n
Dilipbhai
\n\t\t\tRamanbhai (son)<\/p>\n
1759.00<\/p>\n
1500<\/span><\/p>\n
259.00<\/p>\n
Jayantibhai
\n\t\t\tBabarbhai<\/p>\n
1758.30<\/p>\n
1500<\/span><\/p>\n
258.30<\/p>\n
Jethabhai
\n\t\t\tBabarbhai<\/p>\n
1758.30<\/p>\n
1500<\/span><\/p>\n
258.30<\/p>\n
Kashiben
\n\t\t\tBabarbhai<\/p>\n
1758.30<\/p>\n
1500<\/span><\/p>\n
258.30<\/p>\n
Total<\/p>\n
30385.10<\/p>\n
18000<\/p>\n
12385.00<\/p>\n
5.\tFinal
\nstatement u\/Sec.9 of the Act  was made by the competent authority on
\n1st February 1985, and declared the above 12 persons as holders of
\nexcess vacant land admeasuring 12385 sq.mts.\n<\/p>\n
6.\tState
\nGovernment published notification u\/Sec.10(1) of the Act in the
\nofficial gazette on 21st March 1985, including only four names, as
\nshown hereunder:\n<\/p>\n
Names<\/p>\n
Excess
\n\t\t\tLand (sq.mt.)<\/p>\n
Ambalal
\n\t\t\tParsottambhai <\/p>\n
5829.50<\/p>\n
Bhikhabhai
\n\t\t\tMaganbhai<\/p>\n
1113.50<\/p>\n
Natvarbhai
\n\t\t\tBhailalbhai<\/p>\n
0046.40<\/p>\n
Jayantibhai
\n\t\t\tBabarbhai<\/p>\n
0258.00<\/p>\n
\tAccording
\nto the petitioners, names of other eight land owners were excluded
\nfrom the notification.  Said notification u\/Sec.10(1) was followed by
\nnotification u\/Sec.10(3) of the Act published in the official gazette
\non 25th July 1985 in the name the above four persons.  Ambalal
\nParsottambhai  and one Tribhovandas Chotabhai Patel submitted a joint
\nrepresentation u\/Sec.21 of the Act on 22nd August 1985.  In the said
\napplication, while stating  that Secretary, Revenue Department,
\ncancelled the agriculture exemption on 7th November 1983 in the lands
\nof their exclusive ownership of mouje Manjalpur, they claimed that
\nthey have right to seek permission u\/Sec.21 of the Act in the said
\nlands from the date of cancellation of agriculture permission for
\nconstruction of dwelling units for the accommodation of weaker
\nsections of the society.  Form V was filed under Rule 11 of the Urban
\nLand (Ceiling and Regulation) Rules, 1976 (hereinafter referred to as
\n`the Rules’) along with zoning declaration u\/Sec.20(1).\n<\/p>\n
7.\tThe
\ncompetent authority by communication dated 5th September 1985 called
\nupon the landowners to supply certain details, which were supplied by
\nAmbalal Parsottambhai  Patel on 1st October 1985.  During the
\npendency of the said application u\/Sec.21, Government issued
\nnotification u\/Sec.10(5) of the Act on 17th December 1985.\n<\/p>\n
8.\tAccording
\nto the writ petitioners, Ambalal Parsottambhai  subsequently died on
\n30th December 1985.  State Government, therefore, issued notice on
\n23rd January 1986 u\/Sec.10(5) of the Act to only four persons, viz.
\nAmbalal Purshottambhai, Jayantibhai Babarbhai, Bhikhabhai Maganbhai
\nand Natvarbhai Bhailalbhai.  Further case of the petitioners is that
\nthough in the notice they were asked to remain present for taking
\npossession at 11.00 a.m. on 1st February 1986, and they remained
\npresent, but nobody turned up, and in fact, notice was not served
\neither on the legal heirs of Ambalal or the remaining eight persons,
\nwho were holding excess vacant land.  On 20th March 1986, State
\nGovernment is alleged to have taken possession, and executed the
\nPanchnama without proper notice.  However, the allegation that notice
\nwas not served on the landowners, or possession was not taken on the
\ndate, as notified, has been disputed by the appellant-State.\n<\/p>\n
9.\tOn
\n15th December 1986, the competent authority rejected the application
\nfiled by Ambalal Parsottambhai along with Tribhovandas Chotabhai
\nPatel.\n<\/p>\n
10.\tIt
\nappears that Ramanbhai Parsottambhai  Patel and Tribhovandas
\nChotabhai, the power of attorney holder of Ambalal Parsottambhai
\nPatel, preferred appeal u\/Sec.33 of the Act against the order of
\nrejection of application u\/Sec.21.  The said appeal was preferred on
\n6th January 1987, registered as Appeal No.Vadodara 2\/87, and upon
\nhearing, the same came to be rejected by the Urban Land Tribunal and
\nSecretary, Revenue Department, Ahmedabad, by a detailed and reasoned
\norder dated 28th August 1995.  Thereafter, a review application was
\nfiled by one Devikaben, widow of Chandubhai Bhailalbhai and others
\nu\/Sec.33 of the Act on 29th April 1998.  The said application was
\nallowed on 19th September 1998, and the matter was remitted to the
\nauthority competent to take action in accordance with law.\n<\/p>\n
11.\tBefore
\nany decision is taken after remand of the matter, Urban Land (Ceiling
\nand Regulation) Repeal Act, 1999 (hereinafter referred to as `the
\nRepeal Act’) came into force from 31st March 1999.  The competent
\nauthority by order dated 19th May 1999 observed that the scheme
\nu\/Sec.29 cannot be considered due to repeal of the Act.\n<\/p>\n
12.\tThereafter,
\none Kamleshbhai Parekh, who claim to be power of attorney holder of
\nAmbalal Parsottambhai  Patel, filed a writ petition in the name of
\nAmbalal Parsottambhai Patel in Special Civil Application No.8402 of
\n1999, challenging the action of the authorities in taking possession
\nof the lands.  A learned Single Judge of this Court by judgment dated
\n5th December 2000, while declaring that the action of the authorities
\nunder the Act upto the stage of Sec.10(3) of the principal Act is in
\naccordance with law, declared the action at the stage of Sec.10(5) of
\nthe Act as illegal, and consequently, the taking over possession
\neither physical or actual or symbolic or on paper of the excess land
\nwas also declared illegal.  The possession of the land measuring
\n12385 sq.mt. of Final Plots Nos.115, 116, 108, 287 and 280 of
\nManjalpur, District Vadodara, was ordered to be restored in favour of
\nthe land owners.\n<\/p>\n
13.\tAgainst
\nthe said judgment, respondent-State preferred Letters Patent Appeal
\nNo.460 of 2001.  In the said appeal, State Government took the plea
\nthat Ambalal Parsottambhai Patel having died on 30th December 1985,
\nhis power of attorney holder had no authority to institute the writ
\npetition.\n<\/p>\n
14.\tDuring
\nthe pendency of the writ petition, i.e. Special Civil Application
\nNo.8402 of 1999, having noticed the aforesaid fact, 5 legal heirs of
\nAmbalal Parsottambhai Patel along with others preferred a writ
\npetition in Special Civil Application No.12602 of 2001.  In the said
\nwrit petition, for the first time, a declaration was sought that the
\npanchanama dated 20th March 1986 and the purported action of the
\nrespondents to take possession constructive or actual possession of
\nthe land in question as contrary to law and has no legal effect.
\nPermanent injunction was also sought for restraining the State
\nGovernment (appellant herein) from distributing or taking possession
\nof the lands admeasuring 12385 sq.mts. or any part thereof mentioned
\nin the Panchanama dated 20th March 1986, and to command the State and
\nits authorities to deliver back to the petitioners possession of the
\nsaid lands, if they are held to be in possession de facto or de jure
\nthereof.\n<\/p>\n
15.\tInitially,
\nit was ordered that both the Letters Patent Appeal        No. 460 of
\n2001 and the writ petition, Special Civil Application No.12602 of
\n2001 be heard together.  However, Letters Patent Appeal No. 460 of
\n2001 was taken up on 16th May 2005, and it was allowed by a Division
\nBench on the ground that upon the death of Ambalal Purshottambhai
\nPatel, the power of attorney holder had no authority to institute
\nwrit petition, and, therefore, the said writ petition was not
\nmaintainable.  It was made clear that the said order will not
\ninfluence the other writ petition, i.e. Special Civil Application
\nNo.12602 of 2001, preferred by the legal heirs of Ambalal
\nPurshottambhai Patel and others.\n<\/p>\n
16.\tLearned
\nSingle Judge by the impugned order and judgement dated 21st December
\n2005 allowed the writ petition, Special Civil Application No.12602 of
\n2001, against which the present appeal has been preferred by the
\nState of Gujarat and its authorities.\n<\/p>\n
17.\tBy
\nthe impugned judgment dated 21st December 2005, learned Single Judge
\nheld that after the decision in review application, proceedings
\nu\/Sec.21 of the Act became alive, and therefore, it is within the
\nright of the petitioners to challenge the action of the respondents
\nof taking possession from them, which was illegal on the face of it.\n<\/p>\n
\tLearned
\nSingle Judge agreed with the view expressed by the other Single Judge
\nin S.C.A. No.8402\/1999, which was filed by the power of attorney
\nholder as regards the action of the State Government taking
\npossession.\n<\/p>\n
\tLearned
\nSingle Judge also agreed with the observation as was made earlier by
\nanother learned Single Judge in S.C.A. No. 8402 of 1999 that if an
\napplication u\/Sec.20 or 21 of the Act was pending, proceedings upto
\nthe stage of Sec.10(1) only could be maintained, and further
\nproceeding u\/Sec.10(2) would not survive, which will depend upon the
\ndecision of the application u\/Sec.20 or 21 of the Act.\n<\/p>\n
18.\tIn
\nfact, learned Single Judge while passing the impugned judgement dated
\n21st December 2005 in S.C.A. No.12602 of 2001, practically referred
\nto the decision rendered in the earlier case, i.e. S.C.A. No. 8402 of
\n1999, and agreed with all the findings, though the said judgement was
\nset aside by the Division Bench in Letters Patent Appeal No. 460 of
\n2001.\n<\/p>\n
19.\tLearned
\ncounsel for the State while referring the aforesaid fact would
\ncontend that the learned Single Judge erred in referring the earlier
\njudgment, which has been set aside in Letters Patent Appeal No.460 of
\n2001.\n<\/p>\n
20.\tLearned
\ncounsel appearing on behalf of the State assailed the judgment on the
\nfollowing grounds:\n<\/p>\n
(i)\tThere
\nwas delay, laches and acquiescence.  Order u\/Sec.8(4) was passed on
\n1st February 1985, possession was taken on 20th March 1986, but the
\npetition was preferred on 27th December 2001, i.e. after  a long
\ndelay of 15 years.  Even a suit for recovery of possession could be
\nbarred by limitation beyond 12 years.\n<\/p>\n
\tReliance
\nwas placed on decisions in Shivgonda Anna Patil v. State of
\nMaharashtra<\/a> reported in AIR 1990 SC 2281 and The
\nMunicipal Council, Ahmednagar v Shah Hyder Beig reported in JT
\n1999 (10) SC 336.\n<\/p>\n
(ii)\tOrder
\npassed by the authorities cannot be struck down simply on the ground
\nthat exemption application u\/Sec.21 was not disposed of by the
\nGovernment on the date on which possession of the land was taken.\n<\/p>\n
(iii)\tPendency
\nof application u\/Sec.21 cannot give a ground to claim back possession
\nif challenged beyond limitation.\n<\/p>\n
\tReliance
\nwas placed on the decision of this Court in Om Prakash B.
\nKhare v. State of Gujarat<\/a> reported
\nin 2004 (3) GLH 385.\n<\/p>\n
(iv)\tWrit
\npetition, having been filed after the Repeal Act came into force, was
\nnot maintainable.\n<\/p>\n
(v)\tPossession
\nwas taken over on 20th March 1986 after following procedure
\nas per law, notification u\/Sec.10(1) was issued on 21st March 1985,
\nnotification u\/Sec.10(3) issued on 25th July 1985 and order
\ntaking possession u\/Sec.10(5) was passed on 17th December 1989.
\nAmbalal died thereafter on 30th December 1985, and after following
\nprovisions u\/Sec.10(6) on 22nd January 1986, Panchnama was drawn on
\n20th March 1986.  Normal procedure of taking possession is by drawing
\npanchanama, in support of which, learned A.G.P. relied on this
\nCourt’s decision in Larsen & Toubro Ltd. v. State of
\nGujarat<\/a> reported 1998(3)
\nGLR 2012.\n<\/p>\n
(vi)\tSec.4
\nof the Repeal Act is not applicable to the present case, but  Sec.3
\nwhich is applicable.\n<\/p>\n
(vii)\tAfter
\npossession, even if petitioners continued in possession, that is only
\nin the capacity of an encroacher.  Reliance was placed on a Division
\nBench decision of this Court in Muliben Bachubhai Bharwad
\nv. State of Gujarat in Letters
\nPatent Appeal No.2167 of 2009.  In the said case, the Division Bench
\nobserved:\n<\/p>\n
“If
\npossession of the land has been taken over by the Government before
\nthe Repeal Act, but the declarant re-entering the land, such
\nunauthorised possession on the date of introduction of the Repeal Act
\ncannot be the basis to hold that the ULC proceeding have lapsed.”\n<\/p>\n
(viii)\tOnce
\nnotice u\/Sec.10(5) is given, landholder is duty bound to handover
\npossession to Government, otherwise, any time possession can be taken
\nby the Government.\n<\/p>\n
(ix)\tApplication
\nu\/Sec.21 of the Act is given by Ambalal and Tribhovandas after the
\nland vested in Government, i.e. after 10(3) notification. Petitioners
\nhave never challenged the order u\/Sec.8(4) dated 1st February 1985
\nand possession was taken on 20th March 1986 before the Tribunal, and
\nfor the first time challenged the same by way of this petition.  It
\nwas contended that in the appeal filed by Ramanbhai on behalf of all
\nthe landowners against the order of rejection of application u\/Sec.21
\ndated 15th December 1986, possession was not challenged, nor such
\nquestion was raised in the Review Application No. 20 of 1998.  In
\nfact, respondents nos. 1 to 14 had never filed any application for
\nreview.\n<\/p>\n
(x)\tAfter
\nthe death of the tenure holder, notice u\/Sec.10(5) goes to the person
\non whom the holding devolved, and he  would be liable to surrender
\nthe surplus land, and the liability attached to the holding of the
\ndeceased would not come to an end on his death.  Therefore, the
\nliability continued with the heirs, who cannot challenge the
\npossession. Reliance was placed on Supreme Court decision in Bhikoba
\nShankar Dhuma v. Mohan Lal Punchand Tathed<\/a> reported
\nin (1982) 1 SCC 680
\nand State of U.P.\n<\/p>\n
v. Civil Judge, Nainital reported
\nin (1986) 4 SCC\n<\/p>\n
558.<\/p>\n
21.\tLearned
\ncounsel appearing on behalf of the respondents has taken  same plea
\nas was taken before the learned Single Judge.  He would contend that
\napplication u\/Sec.21 of the Act being pending, proceedings from the
\nstage of Sec.10(3) of the Act would depend upon the decision on
\napplication u\/Sec.21 of the Act, therefore, before taking any
\ndecision u\/Sec.21, actions taken u\/Sec.10(3) onwards, including
\ntaking possession u\/Sec.10(5), are illegal.  He placed reliance on a
\nnumber of decisions of the Supreme Court and this Court, as discussed
\nand referred to below:\n<\/p>\n
22.\tIn
\nthe case of Special
\nOfficer and Competent Authority, Urban Land Ceilings, Hyderabad v.
\nP.S. Rao<\/a>
\nreported in AIR
\n2000 SC 843 Supreme
\nCourt held as follows:\u00ad<\/p>\n
“6.\tIn
\nour view, it is only after the excess land is actually determined
\nunder Section 10 that a person can know the exact extent of excess
\nland in his holding and think of asking for exemption. There may, of
\ncourse, be some cases where the extent is so large that a claimant
\nmay be able to seek exemption even at the time of filing the
\ndeclaration but even in those cases, he cannot be definite about the
\nactual extent of excess land.\n<\/p>\n
“9.\tBut,
\nthe word “hold” in Section 20(1) (a) or Section 20(1)(b)
\ncannot, in our opinion, have the same meaning that can be attributed
\nto it as in Section 2(1). The very definition in Section 2(1) states
\nthat the sub-section applies unless there is anything in the context
\nwhich suggests a different meaning to be given.  In our view, in the
\ncontext of Section  20(l)(a) and Section 20(l)(b), the definition
\ngiven in Section 2(1) cannot be applied. The reason is that such a
\nconstruction will make section 20 unworkable and otiose. We have
\npointed out above that it is not possible to make any meaningful
\napplication for exemption under Section 20(l)(a) or (b) unless the
\nexact quantum of excess is determined under Section 10 after
\nfollowing the various provisions of the Act relating to statutory
\ndeductions and mode of computation. If the contention of the State
\nreferred to above is to be accepted, then the peculiar position will
\nbe as follows. As stated by us, before the excess is determined, a
\nperson will not able to seek exemption because he does not know what
\nis the actual excess land held and once the excess is determined, he
\ncannot apply because he is not holding the excess land. Thus, the
\nentire object of Section 20 will be frustrated. That is why we say
\nthat the definition of the words ‘to hold’ in Section 2(1) cannot be
\napplied in the context of Section 20(l)(a) or Section 20(l)(b).”\n<\/p>\n
23.\tIn
\nthe case of M\/s.\n<\/p>\n
Avanti Organisation v. Competent Authority & Additional
\nCollector, Urban Land Ceiling Act, Rajkot
\nreported in 1989(1)
\nGLR 586,
\na Full Bench of this Court observed:\n<\/p>\n
“16.\n<\/p>\n
… Section 10(2) states that the competent authority shall consider
\nclaims received in pursuance of the notification and determine the
\nnature and extent of such claims and pass such orders in that behalf
\nas deemed fit.  After such claims are disposed of, the competent
\nauthority is empowered by Sec.10(3) to issue a further notification
\nin the Official Gazette declaring that the excess vacant lands set
\nout in the notification under Sec.10(1) shall, with effect from such
\ndate as is specified in the declaration, be deemed to have been
\nacquired by the State Government and
\nthereupon such lands shall be deemed to have vested absolutely in the
\nState Government free from all encumbrances with effect from the
\nspecified date.  Section 11 provides for the payment of compensation
\nto persons interested in such lands.  It
\nwas, therefore, argued, and we think rightly, that if the acquisition
\nprocess is allowed to be completed before the exemption application
\nunder Sec.20(1) is disposed of and if the lands in respect of which
\nexemption is claimed stand acquired and vest in the State Government,
\nit would cause an anomalous position if the State Government
\nultimately decides to grant exemption in respect of the said lands.
\nWe agree with the learned Advocates for the petitioners that such a
\nsituation cannot be allowed and it would, therefore, be in the
\nfitness of things that the proceedings should in no case be allowed
\nto proceed beyond the Sec.10(2) stage if the exemption application
\nhas not been disposed of by then.”\n<\/p>\n
24.\tIn
\nthe case of Savitaben Ramanbhai Patel v. State of Gujarat<\/a>
\nreported in 1999(1) GLH 100, the Division Bench noticed the
\naforesaid Full Bench decision and reiterated that prosecution of
\nfurther processes under the Act, after the stage of Section 10(2),
\nwill depend upon the decision on the applications u\/Sec.21 of the
\nAct.\n<\/p>\n
25.\tReliance
\nwas also placed by counsel for the respondents on some other
\ndecisions, but all of them being on the same issue, we have not
\nreferred to such large number of decisions, except the relevant one.\n<\/p>\n
26.\tWe
\nhave heard learned counsel for the parties and noticed the relevant
\nfacts and rival contentions.\n<\/p>\n
27.\tIn
\nthe present case, first it is to be determined as to what will be the
\neffect of application u\/Sec.21 stated to have been submitted by
\nrespondents-writ petitioners in Form V before the competent authority
\nfor utilization of vacant land in excess of the ceiling limit for the
\nconstruction of dwelling units for accommodation of the weaker
\nsections of the society.\n<\/p>\n
28.\tIt
\nis not in dispute that the urban land ceiling proceeding started
\nprior to August 1976.  The respondents-writ petitioners have claimed
\nthat the family filed five statements u\/Sec.6 of the Act on 13th
\nAugust 1976.  Initially exemption u\/Sec.20(1) of the Act was granted
\non 8th March 1980 and on 29th November 1980.\n<\/p>\n
29.\tIt
\nis claimed by the respondents-writ petitioners that application
\nu\/Sec.21 in Form V was submitted on 23nd August 1985 as evident from
\nthe application at page 506 onwards of the compilation.  They have
\ntaken plea that said application was within the time limit prescribed
\nunder Rule 11 of the Rules.\n<\/p>\n
\tFrom
\nthe order dated 15th December 1986 passed by the competent authority
\nrejecting the application u\/Sec.21(1) of the Act, it appears that the
\napplication was filed within one year after the withdrawal of the
\nagricultural exemption granted earlier.  The question arises `whether
\nthe application u\/Sec.21(1) in Form V was filed within the period of
\nlimitation’.\n<\/p>\n
30.\tSec.21(1)
\ndeals with excess vacant land, which may not be treated as excess in
\ncertain cases, which reads as follows:-\n<\/p>\n
“21.Excess
\nvacant land not to be treated as excess in certain cases.- (1)
\nNotwithstanding anything contained in any of the foregoing provisions
\nof this Chapter, where a person holds any vacant land in excess of
\nthe ceiling limit and such person declares within such time, in such
\nform and in such manner as may be prescribed before the competent
\nauthority that such land is to be utilized for the construction of
\ndwelling units (each such dwelling unit having a plinth area not
\nexceeding eighty square meters) for the accommodation of the weaker
\nsections of the society, in accordance with any scheme approved by
\nsuch authority as the State Government may, by notification in the
\nOfficial Gazette, specify in this behalf, then, the competent
\nauthority may, after making such inquiry as it deems fit, declare
\nsuch land not to be excess land for the purposes of this Chapter and
\npermit such person to continue to hold such land for the aforesaid
\npurpose, subject to such terms and conditions as may be prescribed,
\nincluding a condition as to the time limit within which such
\nbuildings are to be constructed.\n<\/p>\n
(2) Where
\nany person contravenes any of the conditions subject to which the
\npermission has been granted under sub-section (1), the competent
\nauthority shall, by order, and after giving such person an
\nopportunity of being heard, declare such land to be excess land and
\nthereupon all the provisions of this Chapter shall apply
\naccordingly.”\n<\/p>\n
\tFrom
\nthe aforesaid provision, it will be evident that where a person holds
\nvacant land in excess of the ceiling limit, such person shall declare
\nthe same, within such time and in such form and in such manner as
\nprescribed, before the competent authority.  The time by which such
\nperson requires to declare the land in excess to be utilized for
\nconstruction of dwelling units for the weaker sections of the
\nsociety, and the form in which it is to be submitted, and the manner
\nin which it is to be filed before the competent authority, has been
\nlaid down under Rule 11 of the Rules, which reads as follows:-\n<\/p>\n
“11.\n<\/p>\n
The time within which, and form in which, declaration under
\nsub-section (1) of Sec.21 shall be made. – Every declaration
\nunder sub-section (1) of Sec.21 by a person holding vacant land shall
\nbe made within one thousand, one hundred and thirty nine days from
\nthe commencement of the Act and shall be in Form V:\n<\/p>\n
Provided
\nthat-\n<\/p>\n
\t(a) where,
\non or after the commencement of the Act, any person acquires any
\nvacant land in the manner provided in sub-section (1) of Sec.15, and
\non such acquisition, the extent of the land so acquired together with
\nthe extent of the vacant land, if any, already held by him exceeds in
\nthe aggregate the ceiling limit, then, the time within which such
\nperson may file the declaration referred to under sub-section (1) of
\nSec.21 shall be one thousand, one hundred and thirty-nine days from
\nthe date on which he acquires such vacant land in the manner
\naforesaid:\n<\/p>\n
\t(b) where
\nany vacant land held by any person and exempted by Cl.(iv) of
\nsub-section (1) of Sec.19 or sub-section (1) of Sec. 20 ceases to be
\nso exempted and as a consequence thereof the extent of such land,
\ntogether with the extent of the vacant land, if any, already held by
\nhim, exceeds in the aggregate the ceiling limit, then the time within
\nwhich such person may file the declaration referred to under
\nsub-section (1) of Sec.21 shall be one thousand, one hundred and
\nthirty-nine days from the date on which such vacant land ceases to be
\nso exempted.”\n<\/p>\n
31.\tFrom
\nthe aforesaid Rule, it will be evident that the declaration
\nu\/sub-Sec.(1) of Sec.21 of a person holding excess vacant land can be
\nmade only within 1139 days from the commencement of the Act in
\nForm V.\n<\/p>\n
32.\tFrom
\nthe Act, it will be evident that said Act came into force in the
\nState of Gujarat and some other States on 17th February 1976.
\nU\/Sec.6 a person holding vacant land in excess of the ceiling limit
\nhas to file a statement and the definition of “commencement of
\nthis Act” has been shown in the Explanation below sub-section
\n(1) of Sec.6, which reads as follows:-\n<\/p>\n
“6.\n<\/p>\n
Persons holding vacant land in excess of ceiling limit to file
\nstatement.- (1) Every person
\nholding vacant land in excess of the ceiling limit at the
\ncommencement of this Act shall, within such period as may be
\nprescribed, file a statement before the competent authority having
\njurisdiction specifying the location, extent, value and such other
\nparticulars as may be prescribed of all vacant lands and of any other
\nland on which there is a building, whether or not with a dwelling
\nunit therein, held by him (including the nature of his right, title
\nor interest therein) and also specifying the vacant lands within the
\nceiling limit which he desires to retain:\n<\/p>\n
\tProvided
\nthat in relation to any State to which this Act applies in the first
\ninstance, the provisions of this sub-section shall have effect as if
\nfor the words “Every person holding vacant land in excess of the
\nceiling limit at the commencement of this Act”, the words,
\nfigures and letters “Every person who held vacant land in excess
\nof the ceiling limit on or after the 17th day of February, 1975 and
\nbefore the commencement of this Act and every person holding vacant
\nland in excess of the ceiling limit at such commencement” had
\nbeen substituted.\n<\/p>\n
          Explanation.-In
\nthis section, “commencement of this Act” means, –\n<\/p>\n
\t(i) the
\ndate on which this Act comes into force in any State;\n<\/p>\n
\t(ii) where
\nany land, not being vacant land, situated in a State in which this
\nAct is in force had become vacant land by any reason whatsoever, the
\ndate on which such land becomes vacant land;\n<\/p>\n
\t(iii) where
\nany notification has been issued under Cl.(n) of Sec.2 in respect of
\nany area in a State in which this Act is in force, the date of
\npublication of such notification.”\n<\/p>\n
33.\tFor
\nthe purpose of definition of `commencement of this Act’ as mentioned
\nin Sec.21(1) and for counting the period of limitation in the present
\ncase, the date on which the Act came into force in the State of
\nGujarat is to be taken into consideration, i.e. 17th February 1976.
\nThis will be also evident from the stand taken by the
\nrespondents-writ petitioners that the family filed five statements
\nu\/Sec.6 of the Act on 13th August 1976.  It is not the case of the
\nrespondents-writ petitioners that the land in question was not
\nvacant, and had become a vacant land by any reason nor they have
\nclaimed that no notification has been issued subsequently under
\nclause (n) of clause (2) in respect of the area situated within the
\nState of Gujarat.\n<\/p>\n
\tTherefore,
\nfor the purpose of counting the period of limitation u\/Sec.21(1) r.w.
\nRule 11, it will start from 17th February 1976, and limitation will
\ncome to an end by about 3rd April 1979 (1139 days).  In the present
\ncase, admittedly, the application u\/Sec.21(1) in Form V was filed on
\n22nd August 1985, i.e. after more than six years from the date of
\nexpiry of the period of limitation.  In absence of any provision for
\ncondonation of delay, the petition u\/Sec.21 of the Act being barred
\nby limitation was not maintainable, and therefore is of no avail.\n<\/p>\n
34.\tNow
\nit is settled law that when a petition u\/Sec.20(1) or 21 of the Act
\nis pending consideration before the authorities, the authorities are
\nnot competent to initiate proceedings beyond the stage of Sec.10(2),
\nand thereafter cannot prepare statement u\/Sec.10(3), nor can have
\npossession u\/Sec.10(5) of the Act.  However, if petition u\/Sec.21(1)
\nis barred by limitation, then the aforesaid principle will not be
\napplicable, as in the eye of law, it will be deemed to be no petition
\npending u\/Sec.21 of the Act.  Moreover, after the expiry of the
\nperiod of limitation as no application can be entertained, a pending
\npetition u\/Sec.21(1) in Form V for the purpose of utilization of the
\nland for construction of the dwelling units for accommodation of
\nweaker sections of the society, will be deemed to be no petition
\nu\/Sec.21.\n<\/p>\n
\tIn
\nview of such position, the respondents-writ petitioners cannot derive
\nthe advantage of different decisions of this Court or the Supreme
\nCourt, as cited, noticed and reproduced above on the issue of a
\npending petition u\/Sec.21(1).  In none of the cases referred to
\nabove, this Court or the Supreme Court has considered the question of
\neffect of pendency of a time-barred petition u\/Sec.21(1) of the Act.\n<\/p>\n
\tSec.10(2)
\nstipulates that the competent authority shall consider the claim
\nreceived in pursuance of the notification, and determine the nature
\nand extent of such claim, and pass such order in that behalf as
\ndeemed fit.  However, if a petition u\/Sec.21(1) is time-barred, in
\nabsence of any provision for condonation of delay, competent
\nauthority cannot consider the claim, even if received, nor can pass
\nany order in a time-barred petition.  In that view of the matter, the
\nperson who has filed application u\/Sec.21(1) after expiry of the
\nperiod of limitation cannot derive the benefit of Sec.10(2) by
\nclaiming right of consideration of  claim in a time-barred
\napplication.  We, accordingly hold that if a petition u\/Sec.21(1) is
\nbarred by limitation, the competent authority cannot decide the
\nclaim, if any, received u\/Sec.21(1), and the competent authority will
\nproceed from the stage of Sec.10(3) and can issue  notification in
\nthe Official Gazette declaring the excess vacant land as set out in
\nthe notification u\/Sec.10(1), and declare that the land deemed to
\nhave been acquired and vested absolutely in the State Government free
\nfrom all encumbrances with effect from the specified date.
\nConsequentially, it is also open to the competent authority to take
\npossession of the excess land by following the provisions
\nu\/Secs.10(5) and 10(6) of the Act, and provide compensation to
\npersons interested in such lands u\/Sec.11 of the Act.\n<\/p>\n
35.\tLearned
\nSingle Judge, in the present case, failed to notice that petition
\nu\/Sec.21(1) filed in Form V for utilization of land for construction
\nof dwelling units for the accommodation of weaker sections was barred
\nby limitation.  On a mere presumption that such petition u\/Sec.21(1)
\nwas maintainable, giving reference to earlier decision dated 5th
\nOctober 2000 of another learned Single Judge in Special Civil
\nApplication No. 8402 of 1999, which was annulled by the Division
\nBench in Letters Patent Appeal No. 460 of 2001, held that the
\ncompetent authority was not competent to go beyond Sec.10(3) of the
\nAct without deciding the claim u\/Sec.21(1) of the Act.\n<\/p>\n
36.\tThe
\nnext question arises is as to whether there is any delay in
\nchallenging the action on the part of the appellant-State in taking
\nthe possession of the excess vacant land in question.\n<\/p>\n
\tFor
\ndeciding the aforesaid issue, it is to be noticed that petition for
\nexemption u\/Sec.21 was filed by Ambalal Purshottambhai Patel in
\nrespect to land of his exclusive ownership.  He had not filed any
\napplication on 22nd August 1985 u\/Sec.21 of the Act on behalf of the
\nother co-sharer landholders.  In the said application, one
\nTribhovandas Chotabhai Patel also put his signature.  The application
\nreads as follows:-\n<\/p>\n
\t\t\t\t“From:\n<\/p>\n
Patel Ambalal Parsottambhai<\/p>\n
\t\t\t\t\tC\/o.\n<\/p>\n
48, Dahibanagar society<\/p>\n
\t\t\t\t\tManjalpurnaka,
\nVadodara 11.\n<\/p>\n
\t\t\t\t\tDate:\n<\/p>\n
22.8.85<\/p>\n
To,<\/p>\n
Competent
\nAuthority and Additional Collector,<\/p>\n
Urban Land
\nCeiling,<\/p>\n
“C”\n<\/p>\n
Block, Narmada Bhuvan,<\/p>\n
Jail road,
\nVadodara.\n<\/p>\n
\tSubject:-\n<\/p>\n
Regarding giving permission U\/s.21.\n<\/p>\n
It is humbly
\nto state that Secretary, Revenue Department cancelled the
\nagricultural exemption on dt.7.11.83 in the land of my exclusive
\nownership of Mouje Manjalpur the copy of which is produced herewith
\ntherefore as I have right to seek permission under section 21 in the
\nsaid land from the date of cancellation of agricultural exemption,
\ntherefore be pleased to permission (sic) me permission in said land.\n<\/p>\n
Yours
\nfaithfully,<\/p>\n
1. Sd\/-\n<\/p>\n
Ambalal Pursottam<\/p>\n
2. Sd\/-\n<\/p>\n
Patel Tribhovandas Chotabhai<\/p>\n
Enclosure:\n<\/p>\n
1) three
\ncopies of form no. 5<\/p>\n
2) Copy of
\npower of attorney<\/p>\n
3) Copy of
\norder of agricultural exemption.”\n<\/p>\n
37.\tFrom
\nForm V enclosed with the application, it appears that Tribhovandas
\nChotabhai Patel claim to be the power of attorney holder of all those
\nwhose names are shown therein, i.e. respondents nos. 1 to 23,
\nincluding Ambalal Purshottambhai Patel, relevant portion of which
\nreads as under:\n<\/p>\n
5(1) \tWe,
\nPatel Ambalal Parsottambhai<\/p>\n
2)\tPatel
\nBhikhabhai Maganbhai<\/p>\n
3)\tPatel
\nRamanbhai Parsottambhai<\/p>\n
4) \tPatel
\nJayantibhai Babarbhai<\/p>\n
5)\tPatel
\nJadiben widow of Bhailalbhai<\/p>\n
6)\tPatel
\nNatwarbhai Bhailalbhai<\/p>\n
7)\tPatel
\nChandubhai Bhailalbhai<\/p>\n
8)\tPatel
\nSarojben Bhailalbhai<\/p>\n
9)\tPatel
\nJyotsnaben Bhailalbhai<\/p>\n
10)\tPatel
\nBhartiben Bhailalbhai<\/p>\n
11)\tPatel
\nJethabhai Babarbhai<\/p>\n
12)\tPatel
\nTaraben Babarbhai<\/p>\n
13)\tPatel
\nNeeruben Ambabal<\/p>\n
14)\tPatel
\nKapilaben Ambalal<\/p>\n
15)\tPatel
\nJashodaben Ambalal<\/p>\n
16)\tPatel
\nRanjanben Ambalal<\/p>\n
17)\tPatel
\nKanubhai Ambalal<\/p>\n
18) \tPatel
\nLeelaben Ambalal<\/p>\n
19)\tPatel
\nDilipbhai Ramanbhai<\/p>\n
20)\tPatel
\nNaynaben Ramanbhai<\/p>\n
21)\tPatel
\nSurekhaben Ramanbhai<\/p>\n
22)\tPatel
\nBakulaben Ramanbhai<\/p>\n
23)\tPatel
\nRajeshbhai Ramanbhai<\/p>\n
1.\tAmbalal
\nParsottam Patel, Res. Manjalpur, Vadodara<\/p>\n
2.\tTribhovan
\nChotabhai Patel, Res. Odhav Bhula Falju, at post <\/p>\n
Padra, Dist.\n<\/p>\n
Vadodara as power of attorney holders of serial nos. 1 to 23.\n<\/p>\n
do hereby
\nsolemnly declare and affirm that the particulars furnished above are
\ntrue to the best of our knowledge and belief.\n<\/p>\n
2)\tWe
\ncertify that the dwelling units are proposed to be constructed in
\naccordance with a scheme approved by the authority specified by the
\nGovernment.\n<\/p>\n
3)\tWe
\nfurther agree to abide by the terms and conditions specified in
\nSchedule IA appended.\n<\/p>\n
4)\tWe
\nfurther agree to furnish such other evidence as we may be called upon
\nto furnish in support of this application.\n<\/p>\n
Place:\n<\/p>\n
Vadodara.\n<\/p>\n
Date:\n<\/p>\n
22.08.1985\t\t1.\tSd\/- Ambalal Pursottam<\/p>\n
\t\t\t\t2.\tSd\/-\n<\/p>\n
Patel Tribhovandas Chotabhai”\n<\/p>\n
\tNo
\nseparate application was filed by any of the writ-petitioners herein.\n<\/p>\n
38.\tOn
\nrejection of the application u\/Sec.21, appeal u\/Sec.33 was filed by
\none Ramanbhai Purshottambhai Patel, being Appeal No.Vadodara 2\/87.
\nTribhovandas Chotabhai Patel also filed appeal along with him as
\npower of attorney holder of Ambalal Purshottambhai Patel.  This will
\nbe evident from the cause title of the appellate order dated 28th
\nAugust 1995, relevant portion of which is quoted hereunder:\n<\/p>\n
“Before
\nUrban Land Tribunal and Secretary, Revenue Department, Ahmedabad.\n<\/p>\n
Appeal No.
\nVadodara 2\/87<\/p>\n
Ramanbhai
\nParsottambhai and Tribhovanbhai <\/p>\n
Chotabhai
\nPatel, power of attorney holder<\/p>\n
of Shri
\nAmbalal Parsottambhai Patel, Res.\n<\/p>\n
Manjalpur,
\nVachlu Falju, Vadodara. \t.. \tAppellants<\/p>\n
\tVersus<\/p>\n
Competent
\nAuthority, Urban Land Ceiling, Vadodara, ..\tRespondents<\/p>\n
\tAn appeal
\nunder section 33 of the Urban Land Ceiling Act, 1976.\n<\/p>\n
=============================================<\/p>\n
Order:\n<\/p>\n
====<\/p>\n
\tThe
\nappellants have filed this appeal against the order No.Dwelling
\nscheme\/Dec. form no. V\/Vashi\/1007\/86 Unit-2 dt. 15.12.86 passed by
\nthe Competent Authority and Additional Collector, Urban Land Ceiling
\nVadodara.  The competent authority vide his suit order has rejected
\nthe scheme produced by land holder.”\n<\/p>\n
\tFrom
\nthe aforesaid, it will be evident that other than heirs of Ramanbhai
\nParshottambhai Patel and Ambalal Parshottambhai Patel, who were
\nrepresented through Tribhovanbhai Chotabhai Patel as a power of
\nattorney holder, no other respondents-writ petitioners preferred
\nappeal u\/Sec.33 against the order of rejection dated 15th December
\n1986 against the decision on application filed u\/Sec.21 of the Act.\n<\/p>\n
39.\tThe
\nrespondent-writ petitioners claimed and admitted that Ambalal
\nParshottambhai Patel died on 30th December 1985.  Therefore, appeal
\nfiled by Tribhovandas Chotabhai Patel, a power of attorney holder on
\nbehalf of a dead person (Ambalal Parshottambhai Patel) on 6th January
\n1987, being Appeal No. Vadodara 2\/87, was not maintainable, so far as
\nheirs of deceased Ramanbhai Parshottambhai Patel are concerned.
\nRespondents nos. 1 to 5 who claim to be the heirs of deceased Ambalal
\nParshottambhai Patel inspite of rejection of application u\/Sec.21,
\ndid not choose to prefer any appeal u\/Sec.33.  Therefore, order dated
\n15th December 1986 reached finality so far as respondents-writ
\npetitioners nos. 1 to 5 are concerned.  Except Ramanbhai
\nParshottambhai Patel, in absence of any appeal filed by the rest of
\nthe petitioners u\/Sec.33, order dated 15th December 1986 issued by
\nthe competent authority rejecting the application u\/Sec.21 of the Act
\nalso reached finality.\n<\/p>\n
40.\tThe
\naforesaid fact was neither considered by the reviewing authority
\nwhile allowing the review application on 19th September 1988 nor
\nnoticed or discussed by the learned Single Judge.\n<\/p>\n
41.\tThe
\nappellant-State has taken specific plea that the order taking
\npossession was never challenged before the appellate authority or the
\nreviewing authority.  It was only challenged in the writ petition
\nafter a long delay.  Though the aforesaid stand was taken before the
\nlearned Single Judge, it was not properly discussed.\n<\/p>\n
42.\tThe
\nappellant-State has taken specific plea that the order taking
\npossession was never challenged before the appellate authority or the
\nreviewing authority.  It was only challenged in the writ petition
\nafter long delay.  Though the aforesaid stand was taken, but not
\nproperly discussed by the learned Single Judge.\n<\/p>\n
43.\tIn
\nthe case of Shivgonda Anna Patil v. State of Maharashtra<\/a>
\nreported in AIR 1990 SC 2281
\nthe Supreme Court while dealing with Sec.10 of the Act held that the
\nwrit petition under Article 226 for reopening the proceeding on the
\nground that the competent authority had not taken into consideration
\ncertain fact, filed after ten years, after the excess land was vested
\nin the State Government, was rightly summarily dismissed by the High
\nCourt.\n<\/p>\n
44.\tWhile
\ndeciding the question of delay and laches in preferring the petition
\nunder Article 226, Supreme Court in the case of The
\nMunicipal Council, Ahmednagar v Shah Hyder Beig
\nreported in JT 1999 (10) SC 336
\nheld that the equitable doctrine, namely, `delay defects equity’ has
\nits fullest application in the matter of grant of relief under
\nArticle 226 of the Constitution. The discretionary relief can be had
\nprovided one has not by his act or conduct given a go-bye to his
\nrights. Equity favours a vigilant rather than an indolent litigant
\nand this being the basic tenet of law.\n<\/p>\n
45.\tIn
\nthe present case, we have noticed that possession of the land was
\ntaken on 20th March 1996.  The order rejecting the application
\nu\/Sec.21 reached finality on 15th December 1986 against all the
\npetitioners, except one Ramanbhai Purshottambhai Patel.  The writ
\npetition was preferred against the petitioners only in 2001, i.e.
\nafter delay of about 14 years.  The petitioners being not vigilant in
\nexercise of their rights, learned Single Judge ought not to have
\nentertained the petition against the order taking possession after
\nsuch a long delay.\n<\/p>\n
46.\tSome
\nother facts have also come to our notice in the present case.  The
\nwrit petition, S.C.A. No. 12602 of 2001 has been preferred on behalf
\nof 19 persons through a constituted attorney, one of them being
\nRajeshbhai Ramanbhai Patel.  As we have seen that except Ramanbhai
\nPurshottambhai Patel, no other person filed the appeal u\/Sec.33
\nagainst the order of rejection passed u\/Sec.21.  The co-appellant
\npower of attorney had no right to file such appeal, Ambalal
\nPurshottambhai Patel having died before filing of such appeal.\n<\/p>\n
47.\tThough
\nthe writ petition was filed by Rajeshbhai Ramanbhai Patel under his
\nsignature, nowhere in the writ petition he has stated that he has
\nbeen given power of attorney by other petitioners nos. 1 to 18 to
\nfile petition on their behalf nor such statement has been made in the
\naffidavit sworn by him, which reads as follows:-\n<\/p>\n
“I,
\nRajesh Ramanbhai Patel, son of Ramanbhai Purshottamdas Patel, the
\npetitioner no.19 herein residing at Manjalpur, Vadodara solemnly
\naffirm and state that what is stated in paragraphs 1 part, 2.1 part,
\n2.5, 2.7, 2.7, 2.8, 5 part, 7 is true to my knowledge and that what
\nis stated in the remaining paragraphs 1 part, 2.1 part, 2.2, 2.3,
\n2.4, 2.6, 2.9, 2.10, 2.11, 2.12, 3.1 to 3.5, 4, 5 part, 6 is stated
\non information and belief and i believe the same to be true.\n<\/p>\n
\tSolemnly
\naffirmed at Ahmedabad on this 27 day of December, 2001.”\n<\/p>\n
48.\tThe
\naforesaid facts were not noticed by the learned Single Judge.  We
\nhave noticed that since very beginning it is one or the other power
\nof attorney holder who filed the application u\/Sec.21 along with one
\nof the landowners, or the appeal by power of attorney holder on
\nbehalf of a deceased person, or Letters Patent Appeal by power of
\nattorney holder on behalf of the deceased person or a person without
\npower on behalf of the
\nrest of the petitioners nos. 1 to 18 in the present case.  The
\naforesaid fact ought to have been noticed and taken into
\nconsideration by the learned Single Judge while exercising powers
\nunder Article 226 of the Constitution of India whereas the learned
\nSingle entertained the petition after a long delay of fourteen years
\nafter taking over possession of the land in question.  For the
\nreasons aforesaid, order passed by the learned Single Judge cannot be
\nupheld.  We, therefore, set aside the order dated 21st December 2005
\npassed by the learned Single Judge in Special Civil Application
\nNo.12602 of 2001, and declare that the possession of the land has
\nbeen rightly taken over by the competent authority of the State on
\n20th March 1986.  The Letters Patent Appeal is allowed with aforesaid
\nobservations, but there shall be no order as to costs.\n<\/p>\n
(S.J.\n<\/p>\n
MUKHOPADHAYA, C.J.)<\/p>\n
(ANANT
\nS. DAVE, J.)<\/p>\n
\tFor
\nthe reasons mentioned in the judgement, the oral prayer made by the
\nlearned counsel for the respondents for stay of this judgment is
\nrejected.\n<\/p>\n
(S.J.\n<\/p>\n
MUKHOPADHAYA, C.J.)<\/p>\n
(ANANT
\nS. DAVE, J.)<\/p>\n
[sn
\ndevu] pps<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court State vs Kapilaben on 26 April, 2011 Bench: Mr. S.J.Mukhopadhaya Dave, Anant S. Dave 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-202878","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nState vs Kapilaben on 26 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-vs-kapilaben-on-26-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs Kapilaben on 26 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/state-vs-kapilaben-on-26-april-2011\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2011-04-25T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2018-02-07T07:07:39+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"35 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-vs-kapilaben-on-26-april-2011#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-vs-kapilaben-on-26-april-2011\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"State vs Kapilaben on 26 April, 2011\",\"datePublished\":\"2011-04-25T18:30:00+00:00\",\"dateModified\":\"2018-02-07T07:07:39+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-vs-kapilaben-on-26-april-2011\"},\"wordCount\":6905,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Gujarat High Court\",\"High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-vs-kapilaben-on-26-april-2011#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-vs-kapilaben-on-26-april-2011\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-vs-kapilaben-on-26-april-2011\",\"name\":\"State vs Kapilaben on 26 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\"},\"datePublished\":\"2011-04-25T18:30:00+00:00\",\"dateModified\":\"2018-02-07T07:07:39+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-vs-kapilaben-on-26-april-2011#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-vs-kapilaben-on-26-april-2011\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-vs-kapilaben-on-26-april-2011#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"State vs Kapilaben on 26 April, 2011\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"contentUrl\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\"},\"sameAs\":[\"https:\\\/\\\/www.facebook.com\\\/LegalindiaCom\\\/\",\"https:\\\/\\\/x.com\\\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"url\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\\\/\\\/www.legalindia.com\",\"https:\\\/\\\/x.com\\\/legaliadmin\"],\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/author\\\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"State vs Kapilaben on 26 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/state-vs-kapilaben-on-26-april-2011","og_locale":"en_US","og_type":"article","og_title":"State vs Kapilaben on 26 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/state-vs-kapilaben-on-26-april-2011","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"2011-04-25T18:30:00+00:00","article_modified_time":"2018-02-07T07:07:39+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"35 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/state-vs-kapilaben-on-26-april-2011#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/state-vs-kapilaben-on-26-april-2011"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"State vs Kapilaben on 26 April, 2011","datePublished":"2011-04-25T18:30:00+00:00","dateModified":"2018-02-07T07:07:39+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/state-vs-kapilaben-on-26-april-2011"},"wordCount":6905,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["Gujarat High Court","High Court"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/state-vs-kapilaben-on-26-april-2011#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/state-vs-kapilaben-on-26-april-2011","url":"https:\/\/www.legalindia.com\/judgments\/state-vs-kapilaben-on-26-april-2011","name":"State vs Kapilaben on 26 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"2011-04-25T18:30:00+00:00","dateModified":"2018-02-07T07:07:39+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/state-vs-kapilaben-on-26-april-2011#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/state-vs-kapilaben-on-26-april-2011"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/state-vs-kapilaben-on-26-april-2011#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"State vs Kapilaben on 26 April, 2011"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/202878","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=202878"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/202878\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=202878"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=202878"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=202878"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}