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2011 DIGILAW 86 (GUJ)

DALPATBHAI KARSANBHAI PATEL v. STATE OF GUJARAT

2011-02-10

M.D.SHAH

body2011
JUDGMENT 1. 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'). 2. 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. 3. 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. 4. 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. 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.). 5. 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. Competent Authority & Additional Collector (U.L.C.). 5. 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. 6. 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. 7. 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. 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. 8. 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. 9. 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. 9. 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. 10. 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. 11. 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. 12. 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. 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 eitherinaccurate or fabricated. In case of Larsen & Toubro Ltd. v. State of Gujarat and others reported in (1998) 4 Supreme Court Cases, 387, the Apex Courtobserved 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 therepresentative 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. Possession of the land was taken over along with the trees standing thereon. As noted above, possession was thereafter delivered to therepresentative 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 notconvert 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 ouropinion, 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 theGovernment. 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 someconstruction thereon, that by itself would be sufficient to ensure lapsing of the proceedings under the Repeal Act. 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 someconstruction 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 subsection (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 StateGovernment 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.” 13. 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. 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. 14. 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.