Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 476 (GUJ)

State of Gujarat v. Ramanbhai Vithalbhai Patel

2016-02-26

M.R.SHAH

body2016
JUDGMENT : M.R. Shah, J. 1. Present application has been preferred by the applicants herein - original respondents of Special Civil Application No. 7892 of 1988 requesting to recall and review order passed by this Court in Special Civil Application No. 7892 of 1988 by which, this Court disposed of the aforesaid Special Civil Application preferred by the respondents herein - original owners as having been abated in view of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as "the Repeal Act" for short), however, reserving liberty in favour of the applicants herein - State to move appropriate application for review and recall the said order, in case it is found by the appropriate authority that the possession of the land in question was already taken over by the State Government prior to 1999, 2. At the outset, it is required to be noted that main Special Civil Application No. 7892 of 1988 was preferred by the original land owners namely Jayantibhai Ramanbhai Patel and others whose land were declared as excess vacant land under the provisions of the Gujarat Land Ceiling Act. 2.1. That the aforesaid Special Civil Application was preferred by the original land owners challenging the order passed by the State Government withdrawing the permission granted under section 21 of the Urban Land Ceiling Act. That the aforesaid Special Civil Application came up for hearing before this Court and this Court disposed of the aforesaid Special Civil Application as having been abated and passed the following order on 22/9/2005 : "1. In this petition under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the order passed by the Competent Authority and Additional Collector (ULC), Ahmedabad dated 29.4.1988 in canceling the scheme sanctioned under Section 21 of the Urban Land (Ceiling and Regulation) Act, 1976 confirmed by the Urban Land Tribunal by its order dated 10.10.1988 passed in Appeal No. 249/86. 2. While admitting the present Special Civil Application on 23.1.1989, this Court has stayed the orders in question and the order passed by this Court remained continued and in force subsequently. Therefore, it appears that the further proceedings are not initiated and the possession of the land in question is not taken over by the State Government. 2. While admitting the present Special Civil Application on 23.1.1989, this Court has stayed the orders in question and the order passed by this Court remained continued and in force subsequently. Therefore, it appears that the further proceedings are not initiated and the possession of the land in question is not taken over by the State Government. Under the circumstances, considering the provisions of Urban Land (Ceiling and Regulations) Repeal Act, 1999 (Act No. 15 of 1999), present proceedings stand abated. 3. Consequently, the present Special Civil Application is disposed of as having abated in view of the provisions of the Urban Land (Ceiling and Regulations) Repeal Act, 1999 (Act No. 15 of 1999). 4. Rule is made absolute to the aforesaid extent, however, there will be no order as to costs. It is however, made clear that if ultimately it is found by the Appropriate Authority that possession was already taken over by the State Government prior to 1999. It will be open for the respondents to move an appropriate application for reviewing and/or recalling this order." 2.2. That thereafter and considering the liberty reserved by this Court while disposing the main Special Civil Application and having found that prior to 1999 and in fact, much prior the interim order passed in the main Special Civil Application served upon the original respondents - State, possession of the disputed land in question which has been declared as excess vacant land under the provisions of the Gujarat Urban Land Ceiling Act, has been taken over by the State Government after following due procedure as required under the Act and the Rules. Therefore, the State has preferred the present application to recall and review order passed in the main Special Civil Application and restore main Special Civil Application to file. 2.3. Number of documentary evidences have been produced on record by the State in support of their case that the possession of the disputed land in question, which was already declared as excess vacant land under the Gujarat Urban Land Ceiling Act was taken over by the State after following due procedure as required under the Act and the Rules. 2.3. Number of documentary evidences have been produced on record by the State in support of their case that the possession of the disputed land in question, which was already declared as excess vacant land under the Gujarat Urban Land Ceiling Act was taken over by the State after following due procedure as required under the Act and the Rules. Therefore, it is the case on behalf of the applicants - State that the order passed by this Court disposing of the main Special Civil Application having been abated in view of the Repeal Act, 1999 is required to be recalled and reviewed and the main Special Civil Application is required to be restored to file. 2.4. Ms. Manisha Lavkumar, learned Government Pleader appearing on behalf of the State has also submitted that fact the possession of the disputed land in question was already taken by the State Government, has been noted by the learned Single Judge while disposing Special Civil Application No. 7492 of 1988 which was preferred by one Vithhalnagar Cooperative Housing Society Limited and in the said Special Civil Application No. 7492 of 1988 also the said society challenged the order of the State Government withdrawing permission under section 21 of the Act and the learned Single Judge dismissed the aforesaid Special Civil Application by observing that in view of the Repeal Act, 1999 no relief can be granted to consider the application under section 21 of the Urban Land Ceiling Act. It is submitted that while dismissing the aforesaid Special Civil Application, the learned Single Judge also noted that the possession of the land in question has already been taken over by the State Government. It is submitted that even thereafter the said society preferred review application being Misc.Civil Application No. 2802 of 2010, which also came to be dismissed by the learned Single Judge. It is the case on behalf of the State that the possession of the land in question was already taken over prior to interim order served upon the respondents - State authorities. It is submitted that, therefore, and in view of the aforesaid facts and circumstances of the case, the order passed by this Court in the aforesaid Special Civil Application No. 7892 of 1988 is required to be recalled and reviewed and the main Special Civil Application No. 7892 of 1988 is required to be restored. 3. It is submitted that, therefore, and in view of the aforesaid facts and circumstances of the case, the order passed by this Court in the aforesaid Special Civil Application No. 7892 of 1988 is required to be recalled and reviewed and the main Special Civil Application No. 7892 of 1988 is required to be restored. 3. Present application is vehemently opposed by Mr. D.K. Puj, learned advocate appearing on behalf of the original petitioners - original land owners. It is vehemently submitted that while disposing of the main Special Civil Application as having been abated, this Court has specifically observed that the interim order granted in the main Special Civil Application has been continued and thereby possession of the disputed land in question has not been taken over and therefore, in view of the provisions of Repeal Act, 1999, proceedings stand abated. It is submitted that, as such, the actual possession of the disputed land in question was never taken over by the State Government and that too after following due procedure as required under the Act and the Rules and it seems that only paper possession was taken over. It is submitted that, therefore, in light of the above, the order passed by this Court in the main Special Civil Application is not required to be recalled and reviewed. By making above submissions it is requested to dismiss the present application. 4. Heard the learned advocates appearing on behalf of the respective parties at length. 4.1. At the outset, it is required to be noted that the main Special Civil Application came to be dismissed by this Court as having been abated in view of provisions of Repeal Act, 1999 observing that the interim order passed in the main Special Civil Application has been continued and therefore the possession of the land has not been taken over by the State Government. However, while disposing of the main Special Civil Application as having been abated, this Court reserved liberty in favour of the State authorities to move appropriate application for review in case it is found by the appropriate authority that the possession of the land in question was taken over prior to 1999. However, while disposing of the main Special Civil Application as having been abated, this Court reserved liberty in favour of the State authorities to move appropriate application for review in case it is found by the appropriate authority that the possession of the land in question was taken over prior to 1999. Considering the aforesaid liberty reserved, now the applicant - State authorities have preferred the present application to recall and review order passed in the main Special Civil Application contending inter-alia that the possession of the disputed land in question was already taken over by the State Government/appropriate authority after following due procedure as required under the provisions of the Act and the Rules much prior to the interim order served upon the original respondents - State authorities. 4.2. It is the case on behalf of the original petitioners -land owners that the possession take over was only paper possession and actual possession was not taken over by the State authorities and that no procedure as required to be followed under the provisions of the Act and the Rules was followed. However, considering the documentary evidences on record produced along with the present application, it appears that there are serious disputes with respect to taking over possession of the disputed land in question which was already declared as excess vacant land and there are serious disputes as to when the possession was taken and how the possession was taken over. 4.3. It is the case on behalf of the State that much prior to service of the interim order passed by this Court, possession of the disputed land in question which has been declared as excess vacant land under the provisions of the Gujarat Urban Land Ceiling Act, has been taken over after following due procedure as required under the Act and the Rules. Under the circumstances and considering the liberty reserved by this Court while disposing of the aforesaid Special Civil Application, order passed by this Court disposing the main Special Civil Application is required to be recalled. Under the circumstances and considering the liberty reserved by this Court while disposing of the aforesaid Special Civil Application, order passed by this Court disposing the main Special Civil Application is required to be recalled. At this stage, it is required to be noted that with respect to the very land in question, one Vithhalnagar Cooperative Housing Society Limited also filed one Special Civil Application No. 7492 of 1988, claiming to be in possession of the disputed land in question and for an appropriate order to consider the application under section 21 of the Urban Land Ceiling Act and the said Special Civil Application came to be dismissed by the learned Single Judge vide order dated 14/10/2010 by observing as under : "1. When present petition came up for hearing on 03rd September 2010, this Court passed the following order: "At the request of Mr. Desai, ld.Counsel for the petitioner to enable him to take necessary instructions. S.O. to 24.09.2010. The record of MCA will be treated as reply of the State Government. If the petitioners are desirous to file reply to the said MCA, it will be open for the petitioner to file the reply. Mr. Rindani, ld. AGP shall comply with the aforesaid order." 2. Thereafter, on 24th September 2010 the matter was adjourned to 01st October 2010 and in turn, adjourned to today i.e. 14th October 2010. 3. In view of the peculiar facts and circumstances of the case and when the Urban Land Ceiling (Repeal) Act, 1999 is come into force since March, 1999, present petition is required to be dismissed since there is no question of granting any permission under Section21 of the Urban Land (Ceiling and Regulation) Act, 1976. It is required to be noted that in the present case the possession of the land in question was also taken over by the respondent-State. 4. For the foregoing reasons, present petition fails and is, accordingly, dismissed. Rule is discharged with no order as to costs. Interim relief, if any, stands vacated." 4.4. It is also required to be noted that in the aforesaid Special Civil Application - original petitioner - Vithhalnagar Cooperative Housing Society Limited also preferred Misc.Civil Application No. 2802 of 2010 for review which also came to be dismissed by the learned Single Judge. Rule is discharged with no order as to costs. Interim relief, if any, stands vacated." 4.4. It is also required to be noted that in the aforesaid Special Civil Application - original petitioner - Vithhalnagar Cooperative Housing Society Limited also preferred Misc.Civil Application No. 2802 of 2010 for review which also came to be dismissed by the learned Single Judge. In the aforesaid Special Civil Application as well as Misc.Civil Application, the learned Single Judge specifically observed that the possession of the land in question has been taken over by the State Government. It is required to be noted that both the aforesaid orders have attained finality. 5. In view of the aforesaid facts and circumstances of the case, present application is allowed and the order passed by this Court disposing of the main Special Civil Application No. 7892 of 1988 as having been abated in view of the provisions of the Repeal Act, 1999 dated 22/5/2005 is hereby recalled and the main Special Civil Application No. 7892 of 1988 is hereby ordered to be restored to file. Now the Registry is directed to place the main Special Civil Application No. 7892 of 1988 before appropriate court taking up such matters. However, it is observed that all the contentions which may be available to the respective parties are kept open to be considered by the learned Single Judge at the time of final hearing of the main Special Civil Application No. 7892 of 1988. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs.