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2017 DIGILAW 677 (GUJ)

Arvindbhai Manibhai Patel v. State of Gujarat

2017-03-24

K.M.THAKER

body2017
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Majmudar, learned advocate for the petitioner and Mr. Patel, learned AGP. 2. In present petition the petitioner has prayed, inter alia, that:- "16(A) YOUR LORDSHIPS may be pleased issue a writ of mandamus or a writ in the nature of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 2.8.2007 passed by the Competent Officer & Additional Collector, Vadodara (At Annexure-F) (B) YOUR LORDSHIPS may be pleased issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents herein to release the land bearing Revenue Survey No. 538, situated at mouje Village Jambuva, Dist. Vadodara in favour of the present petitioner and further be pleased to direct the respondents herein to give NOC with regard to the said land in question to the present petitioner." 3. So far as factual backdrop involved in and giving rise to present petition is concerned the petitioner has averred and alleged that :- "(5) It is respectfully stated and submitted that in spite of the aforesaid declaration dated 9.2.1996 with regard to the aforesaid land in question by the competent officer under the Urban Ceiling Act, the possession of the land was never taken over by the State Government or the competent authority. It is further submitted that the petitioner continued to be in the possession of the excess vacant land even on 30.3.1999, i.e. the day on which the Act of 1976 is repealed in the State of Gujarat by the Urban land (Ceiling & Regulation) Repeal Act, 1999 (the Repeal Act). Therefore, in view of the provisions of law, the respondents herein are bound to give NOC with regard to the aforesaid land in question after removing the entry with regard to the possession of the government. It is further respectfully stated and submitted that the respondent authorities have also not complied with the mandatory provision of Section 10(4) of the ULC Act while so-called taking over of the possession of the land in question. It is submitted that the notice as required is not given to all the possessors of the land in question and the owner of the land in question as contemplated under the Act. It is submitted that the notice as required is not given to all the possessors of the land in question and the owner of the land in question as contemplated under the Act. (6) It is respectfully stated and submitted that the petitioner had made a representation dated 3.2.2007 to given NOC to the petitioner with regard to the land in question and to delete the entry mutated in the revenue records showing the name of the government with regard to possession of the land in question.... Also, along with the said representation the petitioner had given the necessary extract of the revenue records with regard to the aforesaid land in question being 7/12 and the Entry No. 1337 in Form No. 6 of the revenue records..... (7) It is respectfully stated and submitted that vide communication dated 8.6.2007, issued by the respondent No. 3 herein, the petitioner was asked to remain present on 21.6.2007 along with the necessary revenue records with regard to the aforesaid land in question, pursuant to his aforesaid representation for obtaining NOC...... However, the said communication was received by the petitioner on 21.6.2007 at 4:00 p.m. and, therefore, the petitioner could not remain present on the said date. Thereafter, the petitioner made another representation on 22.6.2007 to intimate him regarding any other suitable date so that he can remain present before the concerned officer and he may be given an effective hearing. (8) It is respectfully stated and submitted that the petitioner also provided all the necessary revenue records with regard to the aforesaid land in question along with his letter dated 26.6.2007...... Thereafter, to the utter shock and surprise of the petitioner, the petitioner learnt that vide order dated 2.8.2007, the representation of the petitioner dated 3.2.2007 is rejected on the ground that the possession of the aforesaid land in question is taken over by the State Government on 22.4.1987......" 4. From the details mentioned in the petition it becomes clear that even according to the petitioner the competent authority declared that the land admeasuring 3453 sq. mtr. out of petitioner's total holding, was surplus. The order declaring said land as excess holding was given effect on 22.4.1987, by taking over possession of the excess land. The entry recording that possession of the land in question is taken over was also mutated in the record. 5. mtr. out of petitioner's total holding, was surplus. The order declaring said land as excess holding was given effect on 22.4.1987, by taking over possession of the excess land. The entry recording that possession of the land in question is taken over was also mutated in the record. 5. About 20 years thereafter the petitioner submitted application dated 3.2.2007 in connection with same land (i.e. the land which came to be declared surplus by the competent authority) with the request that the entry mutated in the register declaring land in question as excess/surplus and its vesting in the government may be cancelled and also with request that no Objection Certificate may be granted. 5.1 The said application was considered by the competent authority and the authority rejected the request vide order dated 2.8.2007. The petitioner is aggrieved by the said order. Hence, present petition. 6. The respondents have opposed the petition. The competent authority i.e. Additional Collector, Vadodara has filed affidavit dated 4.8.2008 and asserted inter alia, that:- "5. I respectfully say and submit that the petitioner had challenged the order dated 2.8.2007 passed by Competent Authority and Additional Collector, Vadodara, on the ground that the said authority had not given the N.O.C.. I further say and submit that the competent authority rejected the application of the petitioner on the ground that the possession of the land in question had been taken over by the government on dated 22.4.1987. Therefore, N.O.C. cannot be granted to the petitioner, therefore, application has been rejected by the competent authority. 6. I respectfully say and submit that the total area of the survey No. 538 was 4755 sq. mtr. out of which 3453 sq. mtr. land was declared as surplus land and by due process of law the possession of the said land was taken on dtd. 22.4.1987 thereafter, by entry No. 1337 was mutated in the village form No. 6 in the name of the government dated 4.5.1996. I further say and submit that the village form No. 7-12 which is annexed as Annexure - R-I is clearly states that the entry No. 1337 is mutated in the name of the government and the government had taken over the possession on 22.4.1987, so far as the land in question which had been declared as surplus in the name of the Government from 1987..... 7. 7. I respectfully say and submit that if the government has taken over the possession dated 22.4.1987 therefore, the land in question is in the name of the government if petitioner shows the possession of the land to him, it can be said to be the encroachment of the land of the government by the petitioner. 8. I respectfully say and submit that the petitioner had made application for cancellation of the revenue entry in survey No. 538 of the revenue record and he asked for the N.O.C. for the same dated 3.2.2007, thereafter, the petitioner was asked to remain present before the authority with the relevant documents and records by letter dated 8.6.2007. 9. I respectfully say and submit that as per entry No. 1337 the authority had denied to give the N.O.C. and rejected application of the petitioner dated 2.8.2007." 7. Mr. Majumdar, learned advocate for the petitioner submitted that the ground on which present petition is filed is that the petitioner continued to occupy the land in question. However, Mr. Majmudar, learned advocate for the petitioner could not dispute the assertion by the learned APP that the possession of the land in question has been taken over since April 1987 and that therefore the petitioner's challenge against the impugned order is not tenable and it is unjustified and without locus. 8. Mr. Patel, learned AGP submitted that even if the allegation of the petitioner that he continued in possession of the land in question is assumed to be correct then also such possession would amount to trespass and therefore also the claim by the petitioner is unjustified. 8.1 Mr. Patel, learned AGP further submitted that the proceedings under the Act have attained finality. He submitted that after the land in question was declared surplus the competent authority took over the possession of the land on 22.4.1987. He also submitted that even the entry recording the fact that the entry No. 1055 recording that the land in question was declared surplus was mutated on 12.8.1988 (pg. 48) and the entry recording the fact that the land vest in government and the possession is taken over by the competent authority is also mutated in the revenue record on 4.5.1996 at No. 1337 (pg. No. 43 of petition) whereas the petitioner approached authority with his application on 2.8.2007 and that therefore the authority rejected the application. 48) and the entry recording the fact that the land vest in government and the possession is taken over by the competent authority is also mutated in the revenue record on 4.5.1996 at No. 1337 (pg. No. 43 of petition) whereas the petitioner approached authority with his application on 2.8.2007 and that therefore the authority rejected the application. According to learned AGP order cannot be said to be unjust or arbitrary. He submitted that the order does not suffer from any infirmity and the petition may be dismissed. 9. I have considered rival submissions and the material available on record. 9.1 As mentioned earlier the fact that the land in question admeasuring 3453 sq. mtr came to be acquired as excess/surplus is not in dispute. 9.2 From the material on record it has also emerged that the possession of the land in question was taken over in 1987. It has also emerged from the record that the entry recording the fact that the land in question is declared surplus holding was mutated at 1055 on 12.8.1988 and the entry recording the fact that land vests in government and that the possession was taken over by the competent authority came to be mutated at entry No. 1337 on 4.5.1996 and then after delay of almost 20 years the petitioner submitted the application dated 3.2.2007 with the request that the entry may be cancelled and no Objection Certificate may be granted. The said request came to be rejected vide order dated 2.8.2007. 9.3 At this stage it would be appropriate to take into account the observations by Hon'ble Apex Court in the decision in case of State of Assam vs. Bhaskar Jyoti Sarma (2015) 5 SCC 321 wherein the Hon'ble Apex Court observed, inter alia, that:- "15. The High Court has held that the alleged dispossession was not preceded by any notice under Section 10 of the Act. Assuming that to be the case all that it would mean is that on 7th December, 1991 when the erstwhile owner was dispossessed from the land in question, he could have made a grievance based on Section 10(5) and even sought restoration of possession to him no matter he would upon such restoration once again be liable to be evicted under Sections 10(5) and 10(6) of the Act upon his failure to deliver or surrender such possession. In reality therefore unless there was something that was inherently wrong so as to affect the very process of taking over such as the identity of the land or the boundaries thereof or any other circumstance of a similar nature going to the root of the matter hence requiring an adjudication, a person who had lost his land by reason of the same being declared surplus under Section 10(3) would not consider it worthwhile to agitate the violation of Section 10(5) for he can well understand that even when the Court may uphold his contention that the procedure ought to be followed as prescribed, it may still be not enough for him to retain the land for the authorities could the very next day dispossess him from the same by simply serving a notice under Section 10(5). It would, in that view, be an academic exercise for any owner or person in possession to find fault with his dispossession on the ground that no notice under Section 10(5) had been served upon him. 16. The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile land owner on 7th December, 1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure." 9.4 With reference to the petitioner's claim that despite such facts he continue to be in possession, it is relevant and appropriate to take into account the decision by this Court in case of Dip Co-op. Housing Society Ltd. vs. State of Gujarat, 2008 (2) GLR 1382 wherein this Court observed, inter alia, that:- 8. The contention that the action of the State Government in taking over possession of the subject lands was without the authority of law and is non-est requires to be rejected. Mr. Patel has submitted that notice as envisaged by Section 10[5] of the Act of 1976 was issued upon the aforesaid Harshvadan Shah and Mohanlal Tripathi, both of them had died pending the proceeding before the competent authority. Obviously, the said persons were not in possession of the subject lands. Admittedly, no notice under Section 10 of the Act of 1976 was issued to the persons then in possession of the subject lands. It is also submitted that the State Government has not proved that the person who allegedly took over possession of the subject lands on 23rd June, 1992 was authorized by the State Government to do so. Notice to hand over possession, issued under Section 10[5] of the Act of 1976, appears to have been issued upon the Society through its office bearers? the above referred Harshvadan Shah and Mohanlal Tripathi. Thus, notice to hand over possession was issued to the Society and not to the individual persons viz., Harshvadan Shah and Mohanlal Tripathi. If the said persons; the alleged promoters of the Society, had died pending the proceeding before the competent authority and the Society had elected other office bearers, it was the duty of the Society to notify the same to the competent authority. It further appears that not only this fact was not brought to the notice of the competent authority, the said fact was not disclosed in Appeal before the Tribunal nor before this Court in the writ petition. It is not open to the Society to allege that due notice to hand over possession of the subject lands under Section 10[5] of the Act of 1976 was not given to it. I am of the view that the notice to hand over possession as envisaged by Section 10[5] of the Act of 1976 was duly served upon Dip Cooperative Housing Society which claims to be in possession of the subject lands. It further appears that the possession of the subject lands was taken over by the Maintenance Surveyor & Deputy Mamlatdar in presence of panch, under the instruction issued by the competent authority. It further appears that the possession of the subject lands was taken over by the Maintenance Surveyor & Deputy Mamlatdar in presence of panch, under the instruction issued by the competent authority. In absence of a specific challenge that the Maintenance Surveyor was not authorized to take over possession under Section 10[6] of the Act of 1976, it must be believed that the Maintenance Surveyor was authorized to take over possession of the subject lands under Section 10[6] of the Act of 1976. The action of the Maintenance Surveyor in entering upon the subject lands and taking over possession of the same in presence of panch cannot now be questioned. In above view of the matter, I hold that the subject lands have vested in the State Government and the possession has been taken over on 23rd June, 1992 lawfully. If the Society claims that it has continued to hold possession of the subject lands pending the present petition and till the date, the possession of the Society is illegal and amounts to trespass. The reliance placed on the report of the Court Commissioner in a Civil suit or panchnama is of no consequence. Neither the competent authority nor the State Government was party to the said civil suit. As to the proceedings under the Tenancy Act, the finding of the Society being in possession of the subject lands also is of no consequence. Reliance is placed on Village Forms 7 & 12 which too do not seem to be trustworthy. Copies in respect of subject land Survey No. 314/1 produced on the record of the petition show possession of Gandabhai Mangalbhai and others? the vendors of the subject lands, is shown under their cultivation right from the year 1971-72 till 1994-95. In respect of the subject land Survey No. 314/2, the vendor Gandabhai Mangalbhai and others are shown to be in possession and cultivating the said land since the year 1971-72 to 1984-85. Thus, if the revenue record were to be believed, the vendors Gandabhai Mangalbhai and others after selling the subject lands in December, 1975 continued to hold the possession of the subject lands and to cultivate the same till the year 1984-85. Even after 1984-85, the said vendors continued to hold the subject land Survey No. 314/1 and to cultivate the same for another ten years till 1994-95. Even after 1984-85, the said vendors continued to hold the subject land Survey No. 314/1 and to cultivate the same for another ten years till 1994-95. It is not even the case of the Society that the purchasers of the land? the aforesaid Harshvadan Shah and Mohanlal Tripathi - did not take over possession of the subject lands, or that the Society was not in possession of the subject lands till the year 1985 or 1995. In above view of the matter, the contention that inspite of the order of the competent authority and the appellate tribunal, the Society has continued to hold possession of the subject land; that it was the Society which held the possession of the subject lands on 30th March, 1999? the date on which the Act of 1976 was repealed by the Act of 1999 and even thereafter, is rejected." 10. In present case the petitioner has failed to establish any breach of any provision under the Act including section 10(5) of the Act. It has emerged from the record that after following the procedure prescribed by law the land in question came to be declared surplus and thereafter the authority followed further procedure as prescribed under the law and took over possession as back as in 1987 and the petitioner woke up after more than 20 years and approached the authority with the request to cancel the entry from the revenue record. From above quoted observations it becomes clear that even if it is assumed that after the land was declared surplus and after its vesting in government, if the petitioner entered into the possession (after the government took possession in 1987 after following the procedure) then such possession would amount to trespass and unauthorized possession. 11. In this background the petitioner's request came to be rejected. By any standard the order dated 2.8.2007 passed in respect of petitioner's application dated 3.2.2007 cannot be said to be arbitrary or unreasonable. When the said order is examined in light of above quoted observations by Apex Court it becomes clear that the order does not suffer from any infirmity. The petition, therefore, fails and does not deserve to be entertained. Accordingly the petition is rejected. Rule is discharged. Ad-interim/interim relief if any, stands vacated forthwith. Orders accordingly. Petition Dismissed