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2015 DIGILAW 532 (GUJ)

Dilavarsinh Khodubha v. State of Gujarat

2015-05-04

ABDULLAH GULAMAHMED URAIZEE, K.S.JHAVERI

body2015
JUDGMENT K.S. Jhaveri, J. 1. This Letters Patent Appeal, originally, was filed against the judgment and order dated 28.04.1994 passed by the learned single Judge in the captioned writ petition. The coordinate Bench of this Court disposed of this Letters Patent Appeal vide judgment and order dated 17.06.2008 whereby, the judgment and order dated 28.04.1994 passed by the learned single Judge was quashed and set aside and the matter was remitted to the competent authority for appropriate decision on the request of the appellant-petitioner for exemption u/s. 20 of the Urban Land Ceiling Act, 1976 (for short, "the Act"). The State Government preferred Appeals being Civil Appeals No. 3593-3594 of 2012 before the Apex Court. The Apex Court partly allowed both the appeals, vide judgment and order dated 17.04.2012 whereby, for consideration of only one point, which shall be discussed elaborately at a later stage, the matter was remitted to this Court. Hence, this Letters Patent Appeal is taken up for consideration in light of the judgment and order dated 17.04.2012 passed by the Apex Court. 2. The facts in a nutshell are as under; "The original petitioner was holding certain properties within the urban agglomeration of Rajkot as on 17.02.1976. After the Act came into force on 17.02.1976, the original petitioner filled up Form-6 on 13.08.1976. It appears that his holding included the disputed lands. The petitioner appears to have made an application u/s. 20(1) of the Act for grant of exemption with respect to the disputed lands. By order dated 15.12.1983, the application of the petitioner came to be rejected by respondent No. 1. This order was challenged by the petitioner before this Court in Special Civil Application No. 1145 of 1984 whereby, the same was allowed and the matter was remanded to the respondent-authority for decision afresh. Pursuant thereto, the respondent-authority again rejected the application of the petitioner for exemption, vide order dated 23.08.1984." 2.1 After rejection of the application of petitioner, the respondent-authority initiated proceedings arising out of the prescribed Form filled in by the petitioner u/s. 6(1) of the Act. A draft statement in accordance with Section 8 of the Act was served upon the petitioner, to which, the petitioner filed his objections. After hearing the petitioner, by order dated 27.02.1986, the respondent-authority declared the holding of the petitioner to be in excess of the ceiling limit by 54,886.44 sq. metres. A draft statement in accordance with Section 8 of the Act was served upon the petitioner, to which, the petitioner filed his objections. After hearing the petitioner, by order dated 27.02.1986, the respondent-authority declared the holding of the petitioner to be in excess of the ceiling limit by 54,886.44 sq. metres. 2.2 The above order was challenged in appeal before the ULC Tribunal vide Appeal No. 49 of 1986. By order dated 28.12.1988, the ULC Tribunal rejected the appeal of the petitioner. Being aggrieved by and dissatisfied with the above orders, the petitioner preferred the captioned writ petition before this Court. 2.3 During the pendency of writ petition before this Court, it appears that certain developments took place. The Notification u/s. 10(3) of the Act came to be issued on 18.01.1989, which was published in the Gazette on 02.03.1989. Thereafter, Notice u/s. 10(5) of the Act was issued on 21.03.1989, which is reported to have been served upon the petitioner on 01.04.1989. 2.4 It appears that possession of the land covered by the aforesaid Notifications was taken on 27.06.1989. Thereafter, on 26.07.1989 the Deputy Collector, ULC addressed a communication to the original land owner informing that the land is vested in the State Government, by drawing panchnama on 27.06.1989. On 21.08.1989 award u/s. 11 of the Act came to be passed. Pursuant to the award, Revenue Entry No. 107 dated 28.09.1990 was mutated in the revenue records showing the land in question in the name of the State Government. 2.5 It is not in dispute that an area of 10,000 sq. metres of land out of Survey No. 59 came to be allotted in favour of respondent-Society u/s. 23 of the Act, by order dated 05.11.1990, pursuant to which the respondent-Society paid up the specified amount to the Government within the stipulated time-limit. Thereafter, possession of the land was given to the respondent-Society. 2.6 It appears that a criminal complaint was filed by the respondent-Society against the original land-owner for unauthorizedly entering into the premises of the respondent-Society. 2.7 After hearing both the sides and by reasoned order dated 28.04.1994, the learned single Judge dismissed the writ petition. Being aggrieved by the impugned order of the learned single Judge, the appellant, original petitioner, preferred the present Letters Patent Appeal. 2.7 After hearing both the sides and by reasoned order dated 28.04.1994, the learned single Judge dismissed the writ petition. Being aggrieved by the impugned order of the learned single Judge, the appellant, original petitioner, preferred the present Letters Patent Appeal. Initially, this appeal was allowed on 17.06.2008 whereby, the impugned judgment and order of the learned single Judge dated 28.04.1994 was quashed and set aside and the matter was remitted to the competent authority to decide the exemption application in light of the Notification of the State Government dated 06.10.1997. Pursuant to the above order passed by the earlier Bench, the respondents had preferred an application for review, which came to be rejected by order dated 19.12.2008. 2.8 Civil Appeals No. 3593-3594 of 2012 in Special Leave to Appeals No. 16951-16952 of 2009 were preferred by the State Government before the Apex Court against the order dated 17.06.2008 and subsequent order dated 19.12.2008. The Apex Court partly allowed the appeals vide order dated 17.04.2012 and remitted the matters to this Court for deciding the question as to "whether the possession on 27.06.1989 alleged to have been taken over by the State Government tantamounts to actual possession contemplated u/s. 3(1)(a) of the 1999 Repeal Act". Hence, this appeal is now listed for considering the aforesaid limited question raised by the Apex Court. 3. Mr. Shalin Mehta learned Senior Advocate appearing with Mr. Ramnandan Singh for the appellant, original petitioner, submitted that possession was alleged to have been taken over on 27.06.1989, however, the said possession is a paper possession only in view of the fact that panchas are named but they were never traced out nor their addresses were available. In fact, no affidavit of any of the panchas was ever filed before the learned single Judge or in this proceedings or in the proceedings before the Apex Court. It was submitted that the thumb impression of one of the panchas does not show which thumb impression was taken. Neither the Deputy Collector nor the Mamlatdar is shown to be have taken the possession. In fact, it is the In-charge Mamlatdar who has signed the panchnama and he is not authorized to take possession. The panchanama of Vada does not bear the signature of panchas nor even there is signature of the In-charge Mamlatdar on the panchnama of Vada. Neither the Deputy Collector nor the Mamlatdar is shown to be have taken the possession. In fact, it is the In-charge Mamlatdar who has signed the panchnama and he is not authorized to take possession. The panchanama of Vada does not bear the signature of panchas nor even there is signature of the In-charge Mamlatdar on the panchnama of Vada. Panchas from Village Nana Mava are not selected and panchnama of which land was to be done was not known to such panch. Thus, it is clear that the panchnama was prepared in the Mamlatdar's Office and it is paper adjustment only. 3.1 Mr. Mehta learned Senior Advocate submitted that the order of status quo in respect of the land, excluding the land allotted to the respondent-Society, was continued during the pendency of the writ petition. In view of the discrepancies as aforesaid in the preparation of panchanama, the possession cannot be said to be a valid possession. It was further submitted that a complaint was lodged against the original land owner and a chapter case was instituted at the time of taking possession by respondent-Society. If the possession was really taken on 27.06.1989, then chapter case could not have been registered against the appellant. 3.2 Learned Senior Advocate Mr. Mehta contended that by order dated 18.06.1991, status quo was ordered to be maintained in respect of the land which was not allotted to respondent-Society. The said relief was not limited. It was submitted that the petitioner had submitted one application to the Mamlatdar and pursuant to the order of Mamlatdar, the Circle Officer prepared the panchnama regarding actual position of the land as on 28.04.2013. It was established from the said panchnama that possession is with the appellant. The electricity bills for different years and the photographs go to show that the appellant has been cultivating the land in question and that the land is in the absolute possession of the appellant. It was, therefore, prayed that the present appeal deserves to be allowed. 4. In support of this submissions, Mr. Mehta placed reliance upon a decision of the Madras High Court in the case of The Government of Tamil Nadu & Ors v. Aalim Muhammed Salegh Trust, Chennai reported in AIR 2015 Madras 47. It was, therefore, prayed that the present appeal deserves to be allowed. 4. In support of this submissions, Mr. Mehta placed reliance upon a decision of the Madras High Court in the case of The Government of Tamil Nadu & Ors v. Aalim Muhammed Salegh Trust, Chennai reported in AIR 2015 Madras 47. In that case, the land owner neither voluntarily surrendered possession nor the authorities took steps to take physical possession of lands forcibly as per procedures contemplated under the Act and only symbolic or paper possession was taken by the revenue officials. On these facts, the Madras High Court held that symbolic/paper possession is not valid possession and that ceiling proceedings would stand abated in view of the Repealing Act. 5. Mr. Prakash Jani learned Addl. Advocate General appearing on behalf of respondent-State submitted that in pursuance of the order dated 17.04.2012 passed by the Apex Court, the only point to be considered by this Court is whether possession taken by the State Government on 27.06.1989 tantamounts to actual possession contemplated u/s. 3(1)(a) of the Repeal Act. It was submitted that the State Government considered every aspect of the case in detail. The entire proceedings would go to show that actual possession was taken on 27.06.1989. If actual possession had not been taken, then the State Government could not have allotted a part of the land to respondent-Society. Possession was handed over to respondent-Society and the land was also mutated in its favour. The Lay-outs plans were also sanctioned for constructing the housing society. The allotment of land in favour of respondent-Society would not have been possible unless and until the possession of the entire parcel of land is taken by the State. 5.1 Learned Addl. Advocate General drew our attention to the reliefs claimed by the legal heirs of original petitioner-plaintiff, who had filed Civil Suit No. 291 of 2005. In the said suit, the plaintiff sought relief that the order passed by the Addl. Collector in Case No. 1731 of 1976 in ULC proceedings dated 23.02.1986 be declared as legal and declaration be granted. It was so stated because the legal heirs of plaintiff wanted to declare Vada land of Village Nana Mava of Rajkot of their ownership. Therefore, the plaintiff has not disputed that the order passed by the competent authority is legal and proper. In that, a declaration on that count has been sought. It was so stated because the legal heirs of plaintiff wanted to declare Vada land of Village Nana Mava of Rajkot of their ownership. Therefore, the plaintiff has not disputed that the order passed by the competent authority is legal and proper. In that, a declaration on that count has been sought. 5.2 Mr. Jani further submitted that the appellant has raised the contention that they are having possession on the pretext of false electricity bills. The electricity connection was taken subsequent to the date of taking over of possession by the authority. Hence, the retention of possession by the appellant, after vesting of land and actual physical possession by the State, is illegal possession or encroachment by the appellant. It was submitted that possession was taken over in accordance with law and after following due procedure. Therefore, the present appeal deserves to be rejected. 6. In support of his submissions, learned Addl. Advocate General placed reliance upon the following decisions; "(i) Vipinchandra Vadilal Bavishi and another v. State of Gujarat and others reported in 2010 (2) GLH 265 . (ii) Omprakash Verma and others v. State of Andhra Pradesh and others reported in (2010) 13 SCC 158 . (iii) Sulochana Chandrakant Galande v. Pune Municipal Transport reported in (2010) 8 SCC 467 . (iv) State of Assam v. Bhaskar Jyoti Sharma reported in JT 2014 (13) SC 301. (v) Reliance was also placed on an unreported decision of this Court passed in Letters Patent Appeal No. 973 of 2006 decided on 05.09.2014." 7. We have heard learned counsel for both the sides and perused the documents on record. We have also considered the written submissions placed by both the sides. It is a matter of fact that this appeal was earlier directed against the judgment and order dated 28.04.1994 passed in the captioned writ petition as also the order of even date passed in Civil Application No. 878 of 1993. Vide judgment and order dated 17.06.2008, the Division Bench allowed this Letters Patent Appeal by quashing and setting aside the judgment and order dated 28.04.1994 passed by the learned single Judge and remitted the matter to the competent authority for appropriate direction regarding the request of the appellant-petitioner for exemption u/s. 20 of the Act in light of the Notification of the State Government dated 06.10.1997. 8. 8. Against the aforesaid order, respondents No. 1 to 3 had herein preferred review application being Misc. Civil Application No. 2337 of 2008 against the judgment and order dated 17.06.2008, which, however, came to be rejected vide order dated 19.12.2008. Against the above order, the State Government preferred appeals before the Apex Court. The Apex Court disposed of the appeals vide judgment and order dated 17.04.2012 and remitted the matter to the High Court with a specific direction to examine the question as to whether the possession on 27.06.1989 alleged to have been taken over by the respondent-State tantamounts to actual possession contemplated u/s. 3(1)(a) of the 1999 Repeal Act. In above view of the matter, this Letters Patent Appeal is now limited to the question as to whether the possession allegedly taken over on 27.06.1989 tantamounts to actual possession contemplated u/s. 3(1)(a) of the 1999 Repeal Act. 9. Considering different facets of the case, it would be beneficial to travel to the main relief, which the original petitioner had claimed in the captioned writ petition moved in July 1989. The following main relief was claimed; "(A) Your Lordships may graciously be pleased to issue a writ of mandamus or any other appropriate writ, direction or order quashing and setting aside the impugned orders passed by the respondents herein above as per Annexures - A, B, C & D on dated 15.12.1983, 23.08.1984, 27.02.1986 and 28.12.1988 respectively and to declare that the petitioner is exempted under Section 20 of the Act and that the petitioner is not holding any part of his land as surplus or vacant within the meaning of that Act." 9.1 All the above-referred orders pertain to proceedings under the ULC Act. To be more precise, by order dated 15.12.1983, the respondent-authority rejected the application filed by the original petitioner for exemption u/s. 20 of the Act. By order dated 23.08.1984, the respondent-authority again rejected the application filed by the original petitioner for exemption u/s. 20 of the Act in pursuance of the order of remand passed by this Court in Special Civil Application No. 1145 of 1984. By order dated 27.02.1986, the respondent-authority declared the holding of the original petitioner to be in excess of the ceiling limit by 54,886.44 sq. metres; and lastly, by order dated 28.12.1988, the ULC Tribunal rejected the appeal filed by the original petitioner. By order dated 27.02.1986, the respondent-authority declared the holding of the original petitioner to be in excess of the ceiling limit by 54,886.44 sq. metres; and lastly, by order dated 28.12.1988, the ULC Tribunal rejected the appeal filed by the original petitioner. Thus, in the captioned writ petition, originally, the original petitioner had challenged the aforesaid four orders passed by the respondent-authorities. The original petitioner had never challenged the order dated 27.06.1989 by which possession of the land was taken over by the competent authority though the writ petition was moved in July 1989. 10. It appears that subsequently the original petitioner had preferred Civil Application No. 1431 of 1994 seeking certain amendments, which was allowed, vide order dated 23.06.1984. Through the said amendment, the appellant prayed for the following additional relief; "(AA) Your Lordships may further be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, quashing and setting aside the Notification dated 18.01.1989 at Ann.E issued by the competent authority and Deputy Collector, Urban Land Ceiling, Rajkot and published in the Gujarat Govt. Gazette on 02.03.1989 as also the Notice at Ann.F issued u/s. 10(5) of the Act on 21.03.1989 and also the award dated 21.08.1989; and Your Lordships may also be pleased to quash and set aside the allotment of 10,000 sq. metres of land out of Surve No. 59 situated at Nana Mava in favour of the respondent No. 4-Society made by an order dated 05.11.1990." 11. It is pertinent to note that even while seeking the additional reliefs by way of amendment, the original petitioner had not challenged the action of the respondent-State of taking over possession of the land. If the original petitioner was really aggrieved by the action of taking over of possession or for that matter that possession was only on paper and not actual, then he ought to have claimed appropriate relief in that regard at the relevant point of time or even at the time when the application for amendment was filed. There is nothing on record to prove that at the relevant point of time the original petitioner had raised any protest against the action of taking over of possession or has prayed any relief against such action of the respondent-authority. There is nothing on record to prove that at the relevant point of time the original petitioner had raised any protest against the action of taking over of possession or has prayed any relief against such action of the respondent-authority. The original petitioner never made any averment to the effect that possession alleged to have been taken over by the respondent-authority was a mere paper possession and not actual possession or for that matter, the panchnama was not drawn properly. 12. Even in the suit filed by the widow of the original petitioner being Regular Civil Suit No. 291 of 2005, the main relief claimed by the plaintiff was to hold the order dated 23.02.1986 passed by the Addl. Collector in U.L.C. 6(1) Case No. 1731 as legal and proper. The plaintiff also made necessary averment in that regard, which is evident from para-(d) of the plaint. However, even in the suit, which was filed in 2005, no challenge was made by the plaintiff to the action of the authority of taking over of possession, be it actual or on paper. Thus, from the above set of facts, it is evident that neither the original petitioner nor her widow had challenged the action of the respondent-authority of taking over possession of the land on 27.06.1989 at any point of time until 2005. 13. We shall now examine the legality of the action of the respondent-authority of taking over possession of the land on 27.06.1989. It appears from the record that on 18.01.1989 Notice u/s. 10(3) of the Act was issued in respect of the land in question, which was published in the Government Gazette on 02.03.1989. Thereafter, Notice u/s. 10(5) of the Act was issued to the original petitioner on 21.03.1989. The Acknowledgment Receipt dated 01.04.1989, received by the Office of ULC and produced on record at page-134, proves that the land owner received the Notice u/s. 10(5) of the Act. Ultimately, the actual physical possession of the land is taken by the authority on 27.06.1989. 14. As discussed hereinabove, the original petitioner never raised any dispute regarding the action of taking over of possession. Ultimately, the actual physical possession of the land is taken by the authority on 27.06.1989. 14. As discussed hereinabove, the original petitioner never raised any dispute regarding the action of taking over of possession. The fact remains that on the date of filing of the writ petition before this Court the original petitioner was not in legal possession of the land since possession was already taken over by the authority in 1989, which act was even accepted by the appellant, until the present proceedings arose pursuant to the order of remand passed by the Apex Court. 15. What is to be seen is the position prevailing on the date of filing of the captioned writ petition before this Court and not on the date when the order of remand was passed by the Apex Court. Evidently, on the date of filing of the writ petition and even when the amendment was granted, the original petitioner was not in legal possession of the land. In fact, as discussed herein above, the original petitioner had never challenged the action of taking over of possession by the authority. The appellant might be in physical possession of the land through encroachment. But, that does not enure that the petitioner is in possession of the land and at this stage, it does not lie in the mouth of the appellant to say that possession is to be considered on the date when the order of remand was passed by the Apex Court. 16. The appellant has seriously challenged the validity of panchnama drawn by the authority. It is contended that panchas are named in the panchnama but, they were never traced out nor their addresses were sufficient for tracing them out. No affidavit of any of the panchas was ever filed. The appellant has also challenged the alleged taking over of possession by the "In-charge Mamlatdar" who has signed the panchnama. It is contended that the "In-charge Mamlatdar" was not authorized to take possession of the land and that the appropriate authority is the Deputy Collector or the Mamlatdar. It was, therefore, contended that even if it is presumed that possession is taken over but, the same is not valid possession since it has not been done by the authorized person. 17. However, in our opinion, the said contention raised by the appellant is devoid of merits for the reasons enumerated hereinafter. It was, therefore, contended that even if it is presumed that possession is taken over but, the same is not valid possession since it has not been done by the authorized person. 17. However, in our opinion, the said contention raised by the appellant is devoid of merits for the reasons enumerated hereinafter. As per the policy framed by the State Government in 1999, powers of Mamlatdar have been delegated to In-charge Mamlatdar and it was under this delegation of powers that In-charge Mamlatdar undertook the work of taking over of possession of land under the Act on 27.06.1989. The possession was taken in 1989 and after more than two decades, it would naturally be difficult to trace a person, particularly, a resident of some Village. Therefore, the contention raised by the appellant that panchas are not known and are also not traceable can not be said to be a valid submission so strong to challenge the very validity of the panchnama itself. 18. Another notable aspect is that if there would not have been actual physical possession of the land by the State Government, it could not have allotted a part of the land to respondent-Society. The possession was also given to respondent-Society. The land was mutated in the name of respondent-Society. The lay-out plans were also sanctioned for constructing house for the respondent-Society and it is reported that at present 48 houses have been erected. Therefore, it should not be that out of total area of 54,000 sq. metres of land, 10,000 sq. metres of land was given to respondent-Society. It could not have been possible unless and until the entire parcel of land is taken possession of by the authority. 19. In view of the above discussion, we are of the considered opinion that possession of land taken over by the authority on June 27, 1989 tantamounts to actual possession contemplated u/s. 3(1)(a) of the 1999 Repeal Act. Hence, the question posed to by the Apex Court is answered accordingly. For the foregoing reasons, the appeal is dismissed.