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Gujarat High Court · body

2014 DIGILAW 460 (GUJ)

Punjiben Ranchhodji v. State of Gujarat

2014-03-31

G.B.SHAH

body2014
ORDER : G.B. Shah, J. Heard learned advocate Mr. N.K. Pahwa for the petitioner and learned AGP Mr.Bharat Vyas for the respondents. 2. It is the case of the petitioner that Form No.6 was submitted by the petitioner under section 6 of the Urban Land (Ceiling & Regulation) Act, 1976 ("the Act" for short) on 14.9.1976 and the land admeasuring 17394 square meters was declared vacant and surplus. It is not under dispute that the final statement under section 9 of the Act was issued on 21.9.1983. Thereafter, notification under section 10(1) of the Act was issued on 19.12.1983 for the land bearing Revenue Survey Nos.1256 and 1335/1 of village Vejalpur, Taluka - City Ahmedabad and it was stated that the land admeasuring 17394 square meters was declared vacant and surplus. The said notification under section 10(1) of the Act was published in the official gazette on 19.1.1984. Thereafter, the notification under section 10(3) of the Act was issued by the competent authority on 17.5.1989 and the notification under section 10(5) of the Act was issued on 17/31.5.1990. It is the fact that possession of excess vacant land was taken by the respondents by drawing panchnama dated 2.7.1990, copy of which is at pages 55 to 57 of the petition and necessary entries in the revenue record were mutated in favour of the respondents. 2.1 Learned advocate for the petitioner has submitted that the respondents can take possession only after issuance of the notice under section 10(6) of the Act, but the prescribed procedure established by law has not been followed and accordingly, the action of the respondents taking possession by merely drawing panchnama is nothing but paper possession, as such, alleged to have been taken by the respondents in violation of Articles 14 and 21 of the Constitution of India. 2.2 It has also been submitted by learned advocate for the petitioner that respondents have made attempt to show that they have acquired the property high-handedly under section 10(6) of the Act, but without issuance of the notice, the respondents herein alleged to have taken possession by drawing the panchnama dated 2.7.1990 and the said action is against the principles of natural justice. It has been submitted by learned advocate for the petitioner that the land is in actual possession of the petitioner and the respondents have, as such, not given any compensation against the alleged land acquired by the Government and as the Act has been repealed by the Urban Land (Ceiling & Regulation) Repeal Act, 1999 ("the Repeal Act" for short), all the proceedings under the Act are abated and, therefore, the petitioner is entitled to hold the said land and hence, the present petition has been filed by the petitioner seeking the following reliefs. "(A) That the Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, quashing and setting aside the impugned action of the respondents in taking paper possession of the disputed land bearing Survey No.1256 and 1335/1 admeasuring 17394 square meters of land of Vejalpur village, Ahmedabad. (B) That the Hon'ble Court may be pleased to hold that the action of the respondents in acquiring the disputed land of the petitioner bearing Survey No.1256 and 1335/1 admeasuring 17394 square meters without following the provisions u/s 10 of the said Act, is illegal, unjust and against the provisions of natural justice and requires to be quashed and set aside; (C) xxxx xxxx xxxx (D) xxxx xxxx xxxx (E) xxxx xxxx xxxx" 3. Learned advocate for the petitioner has mainly submitted that the actual possession of the land is not taken by the respondent authorities and, therefore, under the provisions of section 3 read with section 4 of the Repeal Act, the proceedings would abate. Learned advocate for the petitioner has mainly submitted that the actual possession of the land is not taken by the respondent authorities and, therefore, under the provisions of section 3 read with section 4 of the Repeal Act, the proceedings would abate. Drawing attention of this Court on the panchnama dated 2.7.1990 at pages 55 to 57 of the petition, learned advocate for the petitioner has submitted that referring to the same, it is clear that no forceful possession is ever taken from the land owner and the law contemplates that if the land owner and/or a person in possession does not hand over the possession voluntarily and even after giving the notice under section 10(5) of the Act, the authority is obliged to give notice under section 10(6) of the Act to take forceful possession and thereafter, the authority is obliged to take forceful possession and so far as the present case is concerned, there is no material or evidence forthcoming on record from the respondents to show that the authority has either issued the notice under section 10(6) of the Act or that the authority has acquired forcible actual and physical possession of the land. Drawing further attention on the above referred panchnama dated 2.7.1990, learned advocate for the petitioner has submitted that as mentioned in the said panchnama, it has come on record that while drawing the said panchnama, the concerned authority has found that at least 300 - 350 constructed houses were there on the site and no vacant land is there at the site. He has, then, drawn attention of this Court on the notice issued under section 10(5) of the Act dated 17/31.5.1990 at page 53 and submitted that referring to the same, it is clear that the respondents have issued the notice to the petitioner only and no notice has been issued or served to the persons who are residing in 300 - 350 constructed houses which were as such constructed by the Laxmikrupa Cooperative Housing Society Limited as mentioned in the above referred panchnama dated 2.7.1990. 3.1 Learned advocate for the petitioner has drawn attention of this Court on the provisions of section 10(5) of the Act which provide for notice in writing ordering any person who may be in possession of the vacant land to surrender or deliver possession to the State Government or to any person duly authorised by the State Government within a period of thirty days from service of the notice. The said provisions have also not been followed in its letter and spirit by issuing the notices to the persons who are in possession of 300 to 350 houses constructed by the cooperative housing society by the respondents and accordingly, alleged notice under section 10(5) referred herein above issued by the respondents is also bad in law and accordingly, subsequent action alleged to have taken under section 10(6) of the Act simply by drawing the panchnama dated 2.7.1990 is also nothing, but honest action on the part of the respondents and hence, he has requested to allow the present petition as prayed for. 3.2 In support of his submissions, learned advocate Mr. Pahwa for the petitioner has placed reliance on the decision in the case of State of Uttar Pradesh v. Hari Ram, reported in (2013) 4 SCC 280 : AIR 2013 SC 1793 . Paragraphs 30 to 37 read as under. "30. Vacant land, it may be noted, is not actually acquired but deemed to have been acquired, in that deeming things to be what they are not. Acquisition, therefore, does not take possession unless there is an indication to the contrary. It is trite law that in construing a deeming provision, it is necessary to bear in mind the legislative purpose. The purpose of the Act is to impose ceiling on vacant land, for the acquisition of land in excess of the ceiling limit thereby to regulate construction on such lands, to prevent concentration of urban lands in hands of few persons, so as to bring about equitable distribution. For achieving that object, various procedures have to be followed for acquisition and vesting. When we look at those words in the above setting and the provisions to follow such as sub-sections (5) and (6) of Section 10, the words acquired and vested have different meaning and content. For achieving that object, various procedures have to be followed for acquisition and vesting. When we look at those words in the above setting and the provisions to follow such as sub-sections (5) and (6) of Section 10, the words acquired and vested have different meaning and content. Under Section 10(3), what is vested is de jure possession not de facto, for more reasons than one because we are testing the expression on a statutory hypothesis and such an hypothesis can be carried only to the extent necessary to achieve the legislative intent. Voluntary Surrender 31. The vesting in sub-section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. The court in Maharaj Singh v. State of UP, AIR 1976 SC 2602 , while interpreting Section 117(1) of the U.P. Zamindari Abolition and Land Reform Act, 1950 held that vesting is a word of slippery import and has many meaning and the context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. The court in Rajendra Kumar v. Kalyan, AIR 2000 SC 3335 held as follows: "28. We do find some contentious substance in the contextual facts, since vesting shall have to be a "vesting" certain. To "vest", generally means to give a property in. (Per Brett, L.J. Coverdale v. Charlton. Strouds Judicial Dictionary, 5th edn. Vol. VI.) Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorisation cannot however but be termed to be a contingent event. To vest, cannot be termed to be an executory devise. Be it noted however, that vested does not necessarily and always mean vest in possession but includes vest in interest as well." 32. We are of the view that so far as the present case is concerned, the word "vesting" takes in every interest in the property including de jure possession and, not de facto but it is always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act. 33. We are of the view that so far as the present case is concerned, the word "vesting" takes in every interest in the property including de jure possession and, not de facto but it is always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act. 33. Before we examine sub-section (5) and sub-section (6) of Section 10, let us examine the meaning of sub-section (4) of Section 10 of the Act, which says that during the period commencing on the date of publication under sub-section (1), ending with the day specified in the declaration made under sub-section (3), no person shall transfer by way of sale, mortgage, gift or otherwise, any excess vacant land, specified in the notification and any such transfer made in contravention of the Act shall be deemed to be null and void. Further, it also says that no person shall alter or cause to be altered the use of such excess vacant land. Therefore, from the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made in sub-section (3), there is no question of disturbing the possession of a person, the possession, therefore, continues to be with the holder of the land. Peaceful dispossession 34. Sub-section (5) of Section 10, for the first time, speaks of "possession" which says that where any land is vested in the State Government under sub-section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorised by the State Government. 35. If de facto possession has already passed on to the State Government by the two deeming provisions under subsection (3) of Section 10, there is no necessity of using the expression "where any land is vested" under sub-section (5) of Section 10. Surrendering or transfer of possession under subsection (3) of Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-section (5) of Section 10 to surrender or deliver possession. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-section (5) of Section 10 to surrender or deliver possession. Subsection (5) of Section 10 visualizes a situation of surrendering and delivering possession, peacefully while sub-section (6) of Section 10 contemplates a situation of forceful dispossession. Forceful dispossession 36. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub-section (5) of Section 10. Sub-section (6) of Section 10 again speaks of "possession" which says, if any person refuses or fails to comply with the order made under subsection (5), the competent authority may take possession of the vacant land to be given to the State Government and for that purpose, force as may be necessary can be used. Sub-section (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub-section (5), in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted only in a situation which falls under sub-section (6) and not under sub-section (5) of Section 10. Sub-sections (5) and (6), therefore, take care of both the situations, i.e. taking possession by giving notice that is "peaceful dispossession" and on failure to surrender or give delivery of possession under Section 10(5), than "forceful dispossession" under sub-section (6) of Section 10. 37. Requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory. Though the word "may" has been used therein, the word "may" in both the sub-sections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-section (5) or subsection (6) of Section 10 is that it might result in the land holder being dispossessed without notice, therefore, the word "may" has to be read as "shall"." (Emphasis Supplied). 4. Effect of non-issue of notice under sub-section (5) or subsection (6) of Section 10 is that it might result in the land holder being dispossessed without notice, therefore, the word "may" has to be read as "shall"." (Emphasis Supplied). 4. On the other-hand, learned AGP Mr.Bharat Vyas for the respondents has submitted that de jure ownership of the land vested in the State Government upon due procedure of law adopted under the Act and after issuance of the notification under section 10(3) of the Act in the official gazette and after issuance of the notice under section 10(5) of the Act, de facto possession as envisaged under section 10(6) of the Act was taken by the respondents herein by drawing the panchnama dated 2.7.1990, copy of which is at pages 55 to 57 of the petition i.e. forceful possession was taken by the competent authority and now the petitioner, as such, is estopped from raising the dispute of land vested in the State Government which is free from encumbrances. Learned AGP Mr.Bharat Vyas has put reliance on the decision in the case of Khodabhai Chakubhai Patel and others v. State of Gujarat and others, reported in 2001(3) GLH 52 : 2001 AIHC 2158 (Guj), more particularly, on head-note "C" and submitted that it has been decided by this Court that action of taking over possession by the competent authority by way of paper possession was good possession. The said Head-Note "C" reads as under. "(C) Urband Land (Ceiling and Regulation) Act, 1976 - Ss.10(1), 10(3), 10(5) - S.11 - Affidavit reveals about publication of notification, taking over possession, award of compensation and allotment of excess land to cooperative housing societies - Under these circumstances it cant be believed that action of taking over possession by competent authority was mere paper transaction and no actual possession was taken." 4.1 In support of his submissions, learned AGP Mr.Bharat Vyas also put reliance on the decision in the case of Sita Ram Bhandar Society, New Delhi v. Lieutenant Governor, Government of NCT, Delhi and others) reported in (2009) 10 SCC 501 : AIR 2010 SC 1143 . Paragraphs 28 and 30 read as under. 28. Paragraphs 28 and 30 read as under. 28. A cumulative reading of the aforesaid judgments would reveal that while taking possession, symbolic and notional possession is perhaps not envisaged under the Act but the manner in which possession is taken must of necessity depend upon the facts of each case. Keeping this broad principal in mind, this Court in T.N.Housing Board v. A.Viswam, AIR 1996 SC 3377 after considering the judgment in Narayan Bhagdes case, observed that while taking possession of a large area of land (in this case 339 acres) a pragmatic and realistic approach had to be taken. This Court then examined the context under which the judgment in Narayan Bhagdes case had been rendered and held as under: (Viswam case, SCC p.262, para 9). "9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchanama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not be cooperative in taking possession of the land." 29. xxxx xxxx xxxx 30. It would, thus, be seen from a cumulative reading of the aforesaid judgments, that while taking possession of a large area of land with a large number of owners, it would be impossible for the Collector or the Revenue Official to enter each bigha or biswa and to take possession thereof and that a pragmatic approach has to be adopted by the Court. It is also clear that one of the methods of taking possession and handing it over to the beneficiary department is the recording of a Panchnama which can in itself constitute evidence of the fact that possession had been taken and the land had vested absolutely in the Government." 4.2 Learned AGP Mr.Bharat Vyas for the respondents has, then, submitted that ratio laid down by the Honourable Supreme Court in the case of Hari Ram (supra) on which learned advocate for the petitioner has placed reliance is not applicable to the case on hand because in the case of Hari Ram (supra), the Honourable Supreme Court has decided the question whether deemed vesting of surplus land under section 10(3) of the Act would amount to taking de facto possession depriving the land holder of the benefit of saving clause under section 3 of the Repeal Act. Thus, the question involved in the said case of Hari Ram (supra) before the Honourable Supreme Court whether the notification under section 10(3) of the Act saying deeming vesting of land in the State Government is sufficient before taking actual de facto possession under section 10(5) and under section 10(6) of the Act after Repeal Act came into force. He has, then, submitted that the Repeal Act came into force in State of Gujarat on 30.3.1999 and prior to the Repeal Act, de facto possession as provided under section 10(5) of the Act was taken by issuance of the notice under section 10(5) of the Act dated 17/31.5.1990 and thereafter, under section 10(6) of the Act, by drawing the panchnama dated 2.7.1990, actual and physical possession of excess vacant land was taken by the respondents and so the facts in the case of Hari Ram (supra) are quite different than the facts of the case on hand. As observed in the case of Hari Ram (supra), in State of Uttar Pradesh, the Repeal Act came into force on 18.3.1999 and the notice under section 10(5) of the Act was issued on 19.6.1999 which is subsequent to the date of the Repeal Act and, therefore, de facto possession of the land, as such, was neither taken by the competent authority under section 10(6) of the Act nor the owner has voluntarily surrendered the land under section 10(5) of the Act and, therefore, the Honourable Supreme Court has decided the case on section 10(3) of the Act that mere publication of notification under section 10(3) deemed vesting of land prior to the Repeal Act is not sufficient to say that the land is absolutely vested in the State Government in absence of the procedure prescribed under section 10(5) and 10(6) of the Act. In the case on hand, the order under section 11 of the Act for payment of compensation was already made on 20.8.1990 and thus, excess vacant land was vested in the State Government prior to the Repeal Act came into force on 30.3.1999 as referred herein above. 4.3 Learned AGP Mr.Bharat Vyas for the respondents has, then, submitted that in the case of Hari Ram (supra), it has been observed by the Honourable Supreme Court that notice under section 10(5) and 10(6) of the Act is mandatory and though the word "may" has been used therein in the said both sub-sections, the same is to be understood as "shall", but in section 10(5) of the Act, the word notice is used which has already been issued so far as the case on hand is concerned as referred herein above and under section 10(6) of the Act, the word notice is absent and accordingly, the competent authority has acted as per the provisions of sections 10(5) and 10(6) of the Act and taken actual and physical possession of excess vacant land by operation of existing law at the relevant point of time and thus, ratio laid down in the case of Hari Ram (supra) is not applicable to the case on hands considering the fact that factual matrix is different and the possession of the land in dispute was already taken by operation of section 10(6) of the Act. 5. I have considered the above referred submissions made by learned advocates for the parties. 5. I have considered the above referred submissions made by learned advocates for the parties. Referring to the provisions of section 10(5) of the Act, it is clear that it provides for notice in writing to the person who may be in possession of the vacant land to surrender or deliver the possession to the State Government or to any person duly authorised by the State Government within a period of thirty days from the service of the notice. A bare reading of the said provisions makes it clear that the notice, as such, is required to be issued to a person who is in possession of the said vacant land and it cannot be said that section 10(5) of the Act provides for issuance of the notice to a person who has filled up form under section 6 of the Act as has been canvassed by learned AGP for the respondents. Referring to the notice dated 17/31.5.1990, it is clear that so far as the present case is concerned, notice under section 10(5) of the Act has not been issued to all the persons who are in possession of the constructed houses as has been mentioned in the panchnama drawn by the respondents dated 2.7.1990, copy of which is at pages 55 to 57 of the petition. Thus, prima facie notice issued under section 10(5) of the Act appears to be defective one is the submission made by learned advocate for the petitioner and there appears force and substance in it. 6. It is an admitted position that no notice is issued under section 10(6) of the Act. Referring to the provisions of section 10(6) of the Act, it is clear that in absence of noncompliance of the provisions of section 10(5) of the Act or if any person refuses or fails to comply with an order made under section 10(5), the competent authority may take possession of the vacant land by using force as may be necessary for the said purpose. Thus, it is clear that on refusal or on non-compliance of the provisions of section 10(5) of the Act, if the respondent authority wants to take possession of vacant land by using force also and if one is to dispossess by forceful action, then notice is required to be given to the said person from whom forceful possession is to be obtained under section 10(6) of the Act is the submission made by learned advocate for the petitioner putting reliance on the decision in the case of Hari Ram (supra). In the case on hand, by drawing the panchnama dated 2.7.1990, copy of which is at pages 55 to 57 of the petition, alleged de facto possession has been taken by the respondents, but from bare reading of the said panchnama dated 2.7.1990, it is clear that the Laxmikrupa Cooperative Housing Society Limited is situated on the said land in question on which 300 - 350 constructed houses are there and under the circumstances, it is clear that possession which has been taken by the respondents vide panchnama dated 2.7.1990 is nothing but paper possession and learned AGP Mr.Bharat Vyas has, as such, put reliance on the above referred two decisions showing that paper possession is good possession as has been observed in the said decisions. I have considered the ratio laid down in both the above referred decisions. In the case of Khodabhai Chakubhai Patel (supra), after issuance of the notice under section 10(5) of the Act on 1.12.1987, the possession of the land in question was taken and on 28.3.1988 the land holder was awarded compensation under section 11 of the Act vide order dated 17.3.1989 and thereafter major portion of excess land was allotted to three cooperative housing societies and under the said circumstances, it has been held by this Court that it cannot be said that paper possession was taken as back as on 28.3.1988 and further held that allotment of land to three cooperative housing societies also cannot be said to be collusive action of the respondent and accordingly, it was held that it cannot be believed that action of taking over possession by the competent authority was mere paper transaction. The facts of the said case are not applicable to the case on hand because as discussed herein above, notice under section 10(5) of the Act was not given to the persons who are in possession of constructed houses as referred in the panchnama dated 2.7.1990. Moreover, forceful possession under section 10(6) of the Act from the said persons who are in possession has not been taken and thus it can easily be said that alleged possession which has been taken by the respondents was only paper possession and if at all for the sake of argument if we say that it is a good possession, but then also fact remains that it cannot be said that de facto possession under section 10(6) of the Act was taken by the respondents by drawing panchnama dated 2.7.1990. 7. So far as the ratio laid down in the case of Sita Ram Bhandar Society, New Delhi (supra) is concerned, it was the case under the Land Acquisition Act, 1894 and it was held that while taking possession of large area of land with large number of owners, it would be impossible for the Collector or revenue officials to enter each bigha or biswa and to take possession thereof and a pragmatic approach has to be adopted by the Court and it is further held that it is clear that one of the methods of taking possession and handing it over to the beneficiary Department is the recording of a panchnama which can, in itself constitute, evidence of the fact that possession had been taken and the land had vested absolutely in the Government. For the reasons mentioned herein above, in my view, the above observations are not applicable to the case on hand merely because notice under section 10(6) of the Act for taking forceful possession from the persons who are in possession of the constructed houses had not been given and accordingly, it cannot be said that compliance of section 10(6) of the Act has been made by the respondents and thus, it is clear that an attempt has been made by the respondents vide panchnama dated 2.7.1990 that they have taken de facto possession, but in my view, it is merely paper possession and it cannot be said that de facto possession has been taken by the respondents. 8. 8. Referring to the ratio laid down by the Honourable Supreme Court in the case of Hari Ram (supra), notices under section 10(5) and 10(6) of the Act are held to be mandatory for the authority for taking physical and actual possession. Thus, in the case on hand, physical and actual possession i.e. de facto possession is not taken as referred herein above and the petitioner is entitled to take benefit of the Repeal Act because it is an admitted fact that it is not the case of the petitioner that the notice under section 10(6) of the Act has ever been given. As per the case of the respondents, the compensation for vacant land acquired under the provisions of the Act was decided under section 11 of the Act vide order dated 28.9.1990 / 3.1.1991 and copy of the said order is annexed as Annexure-R-IX at page Nos.58 to 62. Referring to the said document at Annexure-R-IX, more particularly, page No.59, it appears that the typed averments related to Section 10(6) of the Act and also related to the fact, whether possession has been taken or not has been deleted and thus as per the respondents also on 28.9.1990 / 3.1.1991 the de facto possession was not taken and thus the competent authority under section 11 of the Act also acknowledged that no possession was handed over by the land owner and the possession was not taken over by the competent authority. Nothing substantial has been submitted against the above referred factual position by learned AGP. Learned AGP Mr.Bharat Vyas has submitted that so far as the provisions of section 10(6) of the Act are concerned, nothing has been mentioned by the legislature for issuance of notice, but there appears no substance in the said submission, more particularly, because if volunteer compliance of section 10(5) of the Act has not been made and when forceful possession is to be taken by taking help of section 10(6) of the Act, it is but natural that while using said force for taking possession, prior notice to the persons who are in possession of the land is required to be given as has been held by the Honourable Supreme Court in the case of Hari Ram (supra), as referred herein above. 8.1 Learned advocates for the parties have placed reliance on the judgment delivered by the Apex Court in Gajanan Kamlya Patil v. Addl. Collector and Competent Authority and others dated 14.02.2014 in Civil Appeal No. 2069 of 2014, AIR 2014 SC 1843 ). Learned advocate for the petitioner has placed reliance on paragraph Nos.2 to 6 and 10 to 13 of the above referred case. Learned AGP has also read entire above referred judgment in the case of Gajanan Kamlya Patil (supra) and submitted that this case of Gajanan Kamlya Patil (supra) is not applicable to the case on hand because in this petition, actual and physical possession of lands in dispute is already taken by the State Government prior to the date of Repeal Act, 1999 came into force in the State of Gujarat on 30.3.1999. 8.2 Learned AGP for the respondents has then submitted that in the case of Gajanan Kamlya Patil (supra), the ratio of Hari Ram (supra) has not applied so far as Survey No.47/10 is concerned in which the possession of land has already been taken prior to the date of Repeal Act, 1999 came into force in the State of Maharashtra on 1.12.2007. He has then submitted that in the case of Gajanan Kamlya Patil (supra), the Repeal Act came into force on 1.12.2007 and the Possession Receipt for Survey No.54/4 was issued on 2.7.2008 and so the ratio of the case of Hari Ram (supra) was applied by the Apex Court and therefore, now it is clear that the case of Hari Ram (supra) is applicable in absence of Sections 10(5) and 10(6) only and in particular, prior to the date of the Repeal Act came into force and ratio of the case of Hari Ram (supra) is squarely applicable only in a circumstances where the actual and physical possession of the land is not taken i.e. of Survey No.54/4 in which the actual possession is taken subsequently after passing of the Repeal Act. I do not find any merit and substance in the above referred submissions made by learned AGP because in my view, he has not submitted the correct factual position of the case of Gajanan Kamlya Patil (supra) while making the above referred submissions. I do not find any merit and substance in the above referred submissions made by learned AGP because in my view, he has not submitted the correct factual position of the case of Gajanan Kamlya Patil (supra) while making the above referred submissions. 8.3 So far as the factual position of the case of Gajanan Kamlya Patil (supra) is concerned, the appellant has received notice under section 10(5) of the ULC Act for taking possession of the appellants land bearing Survey Nos.47/10 and 54/4 mentioning that the land be handed over and possession be given within 30 days from the date of receipt of the notice and also further intimated that if the appellant had failed to give possession of the land, necessary action would be taken for taking possession by application of necessary force. The appellant filed writ petition No.1669 of 2010 before the Bombay High Court to quash the notice dated 17.2.2005 and also for declaration, inter alia, that the land bearing Survey No.54/4 admeasuring 1870 square meters is in physical possession of the appellant, and also sought a declaration that in view of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, the proposed action of the State for taking possession of the land be declared null and void. After examining the law and taking note of the affidavit filed by the State, the High Court has noticed that so far as Survey No.47/10 is concerned, the possession had not been taken over by MMRDA, however, as far as land bearing Survey No.54/4 was concerned, after noticing that possession had been taken over, the High Court disposed of the petition granting relief to the appellant in respect of Survey No.47/10, but so far as Survey No.54/4 is concerned, the appellant was granted liberty to move the Civil Court for establishing his claim over the property in question. Under the above circumstances, the appellant in the case of Gajanan Kamlya Patil (supra) had challenged the said order of High Court before the Apex Court raising the only question, whether the High Court was justified in relegating the parties to file Civil Suits to recover lands covered by Survey No.54/4 and Survey No.54/3 both admeasuring 1870 square meters, so as to get the benefit of Urban Land (Ceiling and Regulation) Repeal Act, 1999. In the above circumstances, it is clear that before the Apex Court, the question related to land bearing Survey No.47/10 was not there because the High Court has granted relief in the petition filed by the appellant in respect of Survey No.47/10 as the High Court had noticed from the affidavit of the State that so far as Survey No.47/10 is concerned, the possession had not been taken over by Mumbai Metropolitan Region Development Authority (MMRDA). Thus, the question related to survey No.47/10 was not before the Apex Court. Hence, the question of application of ratio of Hari Ram (supra) does not arise at all so far as Survey No.47/10 is concerned and thus, the entire submission of learned AGP referred above appears to be misconceived. 9. As referred above, from the document produced by the respondent, more particularly, panchnama dated 2.7.1990 at pages 55 to 57 of the petition, it appears that constructed houses approximately 300 to 350 in number of Laxmikrupa Cooperative Housing Society Limited were situated on the lands in question. Learned advocate for the petitioner has placed reliance on the decision of the Division Bench of this Court in the case of Competent Authority ULC v. Chaitali Cooperative Housing Society Limited (2003 Jx (Guj) 1730 : 2004 AIHC 792 (Guj) and submitted that as held therein cooperative society which was governed by section 19(1)(v) of the Act was entitled to hold such lands beyond the ceiling limit of exemption from operation of provisions of Chapter III of the Act and limiting the benefit of exemption under section 19(1) only to entities which were in existence on the date of commencement of the Act would defeat very purpose of granting such exemption. There appears merit in the said submission made by learned for the petitioner. 10. Under the circumstances, the petition succeeds and the same is allowed. The notification under section 10(1) of the Act issued by the respondent authority dated 19.12.1983 for the land bearing Survey Nos.1256 and 1335/1 admeasuring 17394 square meters situated at village Vejalpur, Ahmedabad is quashed and set aside. Consequently, the action of the respondents in taking alleged possession of the disputed lands referred above by drawing panchnama dated 2.7.1990 at page Nos.55 to 57 of the petition is also set aside. Rule is made absolute to the aforesaid extent. No order as to costs. Consequently, the action of the respondents in taking alleged possession of the disputed lands referred above by drawing panchnama dated 2.7.1990 at page Nos.55 to 57 of the petition is also set aside. Rule is made absolute to the aforesaid extent. No order as to costs. After pronouncement of this order, learned AGP Mr.Bharat Vyas for the respondents has requested to stay operation of this order. Considering the said request, operation of this order is stayed for the period upto 30.4.2014. Petition allowed.