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Gujarat High Court · body

2020 DIGILAW 930 (GUJ)

State Of Gujarat v. Hairs Of Mahajibhai D Solanki

2020-11-25

VIKRAM NATH

body2020
JUDGMENT : 1. This petition has been preferred by the State of Gujarat assailing the correctness of the order dated 31.03.1995 passed by the Appellate Authority (Secretary, Revenue Department) under Section 33 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “the 1976 Act”). By the impugned order, the Secretary, Revenue Department set aside the order passed by the Competent Authority dated 12.07.1984 and further held that the land holders would be entitled to retain 6,000 sq. mtrs. of land and the remaining 6,224 sq. meters of land held by the land holders would stand declared as excess vacant land. The Competent Authority vide order dated 12.07.1984 had declared 10,807 sq.mtrs. land as surplus vacant land at the hands of the land holders. 2. Initially, when the petition was filed, this Court had granted an interim order in January, 1996 whereby the effect, operation and implementation of the order dated 31.03.1995 passed by the State Government was stayed. Later on, vide order dated 22.12.1998, this Court disposed of the Civil Application No.11969 of 1998 and Civil Application No.11970 of 1998 and further directed both the parties to maintain status-quo with regard to the subject matter of the main petition till final disposal of the main petition. 3. The Urban land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as “the 1999 Repeal Act”) was promulgated with effect from 30.03.1999. Under Sections 3 and 4 of the 1999 Repeal Act, all pending proceedings under the 1976 Act were to abate. The said provisions are reproduced below: “3. Saving.— (1) The repeal of the principal Act shall not affect— (a) the vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; (b) the validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary; (c) any payment made to the State Government as a condition for granting exemption under sub-section (1) of Section 20. (2) Where— (a) any land is deemed to have vested in the State Government under sub-section (3) of Section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and (b) any amount has been paid by the State Government with respect to such land then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government. 4. Abatement of legal proceedings.—All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate: Provided that this section shall not apply to the proceedings relating to sections 11, 12, 13 and 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.” 4. The present petition was pending on the date of the 1999 Repeal Act. This Court vide order dated 15.06.1999 disposed of the petition as it no longer survived in view of the 1999 Repeal Act and further vacated the interim order and the rule was discharged. Subsequently, it appears that the State of Gujarat moved a review petition which was allowed by this Court vide order dated 11.10.2005 by condoning the delay caused in filing the review application and recalled the order dated 15.06.1999 and thus restored the Special Civil Application to its original number to be heard again. 5. Civil Application No.3 of 2018 was filed by one Dineshbhai Chhotabhai Patel through learned advocate, Mr.S.P.Majmudar seeking impleadment as party respondent in the Special Civil Application. 6. I have heard Mr. J.K.Shah, learned Assistant Government Pleader for the State writ petitioners and Mr. S.P.Majmudar, learned counsel appearing for the applicant in Civil Application No.3 of 2018. Despite notices having been issued, the party respondents to the writ petition have not responded apparently for the reason that they have transferred the land some time in 2000 in favour of Shri Dineshbhai Chhotabhai Patel, the party seeking impleadment to the present proceedings. S.P.Majmudar, learned counsel appearing for the applicant in Civil Application No.3 of 2018. Despite notices having been issued, the party respondents to the writ petition have not responded apparently for the reason that they have transferred the land some time in 2000 in favour of Shri Dineshbhai Chhotabhai Patel, the party seeking impleadment to the present proceedings. Looking to the facts and circumstances of the case and the fact that he being a purchaser is a necessary party, Civil Application No.3 of 2018 is allowed and rule is made absolute. Shri Dineshbhai Chhotabhai Patel is accordingly impleaded as a party respondent in Special Civil Application No.100 of 1996. 7. Both the sides have submitted their brief notes along with the case law relied upon by them. The main submissions advanced by Mr. J.K.Shah, learned Assistant Government Pleader are as follows:- (i) The State in 1992 took possession of the surplus land declared as excess vacant land by the Competent Authority on 12.07.1984 for an area admeasuring 10,807 sq. mtrs. After having taken the proceedings upto the stage of Section 10(6) of the 1976 Act, the land stood completely vested in the State and there was no question of abatement of the said proceedings and as such, the 1999 Repeal Act would have no application to the proceedings. (ii) The finding recorded by this Court in its order dated 11.10.2005 clearly reflects that the land stood vested in the State and its possession was also with the State. The State had proceeded under Section 23 of the 1976 Act and had allotted the same to 15 persons and as such, nothing further survives to be decided by this Court. The writ petition deserves to be allowed in view of the findings recorded in the order dated 11.10.2005. (iii) The land holders had withheld relevant information before the Appellate Authority and, therefore, would not be entitled to any relief in the appeal. The Appellate Authority while deciding the appeal under section 33 of the 1976 Act did not afford adequate opportunity to the State, thus, vitiating its order passed under section 33 of the 1976 Act. The Appellate Authority exceeded beyond its scope in deciding the appeal by interfering with the order of the Competent Authority. 8. Mr. The Appellate Authority while deciding the appeal under section 33 of the 1976 Act did not afford adequate opportunity to the State, thus, vitiating its order passed under section 33 of the 1976 Act. The Appellate Authority exceeded beyond its scope in deciding the appeal by interfering with the order of the Competent Authority. 8. Mr. Shah has placed reliance upon the following three judgments in support of his submissions:- (i) (2016) 12 SCC page 497 in the case of State of Uttar Pradesh Vs. Surendra Pratap, (ii) 2012 (3) GCD page 2221 in the case of Hitesh Shashikant Doshi Vs. State of Gujarat, and (iii) (2017) 5 SCC page 57 in the case of State of Gujarat Vs. Maliben Nathubhai. 9. On the other hand, Mr. S.P. Majmudar, learned counsel appearing for the newly added party submitted that the order passed by the State Government under section 33 of the 1976 Act was just and valid and does not suffer from any infirmity. Any possession taken in 1992 would stand nullified in view of the order dated 31.3.1995 as the Appellate Authority had declared that the land holders were entitled to retain 6,000 sq.mtrs. of land and thus only 6,224 sq.mtrs. of land were declared as surplus vacant land. 10. Shri Majmudar further submitted that on the date of the enforcement of the 1999 Repeal Act, the petition was pending before this Court. The petition had been filed by the State of Gujarat which was aggrieved by an order passed by the State Government under Section 33 of the 1976 Act. According to him, the only consequence of this petition was abatement along with all pending proceedings. Even if the writ petition was allowed, the State could not proceed any further under the 1976 Act, as the same stood repealed with effect from 30.03.1999 in view of the 1999 Repeal Act. 11. Shri Majmudar has relied upon the following judgments : (i) 2016 (4) SCC 531 in the case of Vipinchandra Vadilal Bavishi Vs. State of Gujarat, (ii) 2016 (0) AIJEL-HC 236998 in the case of Mamataben D/o Narottam Chandulal Zaveri Vs. Urban Land Tribunal and Ex-Officio Secretary, (iii) 2018 (0) AIJEL-HC 239015 in the case of State of Gujarat Through Competent Authority Vs. Ramilaben A. Lakdawala Since Decd, (iv) Letters Patent Appeal No. 1457 of 2016 in the case of Chandraprabha Nathalal Damani & Ors. Vs. Urban Land Tribunal and Ex-Officio Secretary, (iii) 2018 (0) AIJEL-HC 239015 in the case of State of Gujarat Through Competent Authority Vs. Ramilaben A. Lakdawala Since Decd, (iv) Letters Patent Appeal No. 1457 of 2016 in the case of Chandraprabha Nathalal Damani & Ors. Vs. The State of Gujarat & Ors., (v) Letters Patent Appeal No. 2206 of 2007 in the case of Bhikhiben, Wd/o Devjibhai Patel (Since Deceased) Thro. Vs. State of Gujarat Thro.The Principal Secretary & 1, (vi) 2007 (3) GLR 2231 in the case of Laxmanbhai K. Chokshi Vs. Competent Authority and Additional Collector (ULC) and (vii) (2013) Supreme Court Cases 280 in the case of State of Uttar Pradesh Vs. Hari Ram. 12. Having heard the learned counsel for the parties and having perused the material on record, the following facts emerge: (i) The Competent Authority declared 10,807 sq.mtrs. of land at the hands of the land holders as surplus vacant land under the 1976 Act, vide order dated 12.07.1984. (ii) The State of Gujarat claims to have taken possession of 10,807 sq.mtrs. of land consequent to the orders of the Competent Authority dated 12.07.1984. (iii) On 31.03.1995, the Appellate Authority under Section 33 of the 1976 Act set aside the order of the Competent Authority dated 12.07.1984. It declared 6,224 sq.mtrs. of land only as surplus vacant land and allowed the land holders to retain 6,000 sq.mtrs. of land. (iv) Pursuant to this order of the Appellate Authority, the State did not take any steps regarding possession of the defined 6,224 sq.mtrs. of land but it preferred Special Civil Application No.100 of 1996 before the High Court. This petition on the coming of the 1999 Repeal Act was dismissed as abated vide order dated 15.06.1999. (v) However, the order dated 15.06.1999 was set aside and recalled by this Court upon review/ recall application filed by the State, vide order dated 11.10.2005. Thus, the effect of the said order was that the writ petition was restored to its original number. 13. Now, it is this petition which has come up for hearing. It would be worthwhile to note here that the order dated 11.10.2005 has been affirmed in appeal as also by the Supreme Court. Today the Special Civil Application prays for quashing and setting aside the order dated 31.03.1995, passed under Section 33 of the 1976 Act by the Appellate Authority. 14. It would be worthwhile to note here that the order dated 11.10.2005 has been affirmed in appeal as also by the Supreme Court. Today the Special Civil Application prays for quashing and setting aside the order dated 31.03.1995, passed under Section 33 of the 1976 Act by the Appellate Authority. 14. Before proceeding further, the effect of the 1999 Repeal Act is required to be examined. According to Section 4 of the 1999 Repeal Act, all pending proceedings are to abate. Further, under section 2 of the 1999 Repeal Act, the 1976 Act has been repealed. Once an Act has been repealed, no proceedings can be undertaken under any provisions of that Act unless and until any saving clause is specifically provided by the Repeal Act. Under the 1999 Repeal Act, the only saving clause is given in Section 3(1). 15. In the present case, the Appellate Authority vide order dated 31.03.1995, exercising power under section 33 of the 1976 Act, had set aside the order of the Competent Authority dated 12.07.1984. The Competent Authority vide order under section 8(4) of the 1976 Act had declared 10,807 sq.mtrs. of land as surplus vacant land at the hands of the landholders. According to the State, it had taken possession of the aforesaid surplus vacant land declared by the Competent Authority, some time in the year 1992 by taking recourse to the provisions under section 10(5) or 10(6) of the 1976 Act. The factum of possession is vehemently disputed by the respondents. According to the respondents, the surplus vacant land declared by the Competent Authority was never taken over by the State and it throughout remained with the landholders. It may also be noted that after the order dated 31.03.1995 whereby the order of the Competent Authority was set aside, any possession taken pursuant to the order of the Competent Authority would also stand nullified. The State would be required to proceed afresh in accordance with the order dated 31-3-1995 passed by the Appellate Authority, whereby a different area, rather lesser area admeasuring 6,224 sq.mtrs., was declared as surplus in place of 10,807 sq.mtrs. There could be a different choice of plots given by the landholders for 6,224 sq.mtrs. as against 10,807 sq.mtrs. The question would be whether the State after 1999 i.e. to be more specific 30.03.1999 could take possession. The answer would be in the negative. There could be a different choice of plots given by the landholders for 6,224 sq.mtrs. as against 10,807 sq.mtrs. The question would be whether the State after 1999 i.e. to be more specific 30.03.1999 could take possession. The answer would be in the negative. The law is by now well settled right from the Supreme Court judgment in the case of Hari Ram till recent judgment of this Court as also judgments of other High Courts and also number of decisions of the Supreme Court following Hari Ram. 16. As the original landholders have not come forward claiming entire area of 10,807 sq.mtrs which they could have claimed by filing a petition challenging the order dated 31.03.1995, without commenting on the same i.e. the rights of the landholder for the 6,224 sq.mtrs declared as surplus, the contesting respondent i.e. the newly added respondent having claimed only right, title and possession over the 6,000 sq.mtrs of land exempted by the Appellate Authority and left to be retained by the landholders, there is no reason why the contesting respondent would not be entitled to retain the same. The specific case of the newly added respondent is that under the registered sale deed dated 20.12.2000, he had purchased only 6,000 sq.mtrs. of land which was left with the landholders by the Appellate Authority. This sale deed had been executed at a time after this petition was dismissed as abated on 15.06.1999 and before this petition was restored on 11.10.2005. No claim has been made before this Court by any of the respondents with regard to 6,224 sq.mtrs of land declared as surplus. 17. In the present case, the issue is as to the abatement of the proceedings said to be pending on the date of the Repeal Act coming into force. Although the writ petition was dismissed as abated on 15.06.1999, but it was restored back by a subsequent order dated 11.10.2005. Therefore, the petition would be deemed to be pending on the date of the enforcement of the Repeal Act. The writ petition would not have any other fate except to be dismissed under Section 4 of the Repeal Act, 1999. 18. Shri J.K. Shah, the learned AGP has placed reliance on three judgments. None of the three judgments have any applicability in the present case. They are neither applicable on facts nor on law. The writ petition would not have any other fate except to be dismissed under Section 4 of the Repeal Act, 1999. 18. Shri J.K. Shah, the learned AGP has placed reliance on three judgments. None of the three judgments have any applicability in the present case. They are neither applicable on facts nor on law. As such, they are of no help to the State. On the other hand, the judgments relied upon by Shri Majmudar, the learned counsel for the newly added respondent as also other judgments referred to above relating to interpretation of the Repeal Act have full application. 19. The case of Maliben Nathubhai (supra) relied upon by Shri J.K.Shah, learned AGP, does not deal with the effect of the 1999 Repeal Act. The issue before the Supreme Court was not related to the effect of the 1999 Repeal Act, as such, the same would not have application to the present case. 20. The judgment of the learned Single Judge of this Court dated 18.08.2010 passed in Special Civil Application No.4991 of 2019 was affirmed in appeal by the Division Bench vide judgment reported in 2012(3) GCD page 2221. The judgment of the Division Bench also does not deal with the effect of the 1999 Repeal Act and the applicability of Section 4 thereof. The learned Single Judge and the Division Bench were apparently of the view that the Tribunal had entertained an appeal after 17 years on 26.03.1999 and had allowed it on the same day after condoning the delay. However, the issue as to whether the 1999 Repeal Act would have any applicability or not was not considered. Therefore, the above judgment also would not be of any help to the State. 21. In the case of State of Uttar Pradesh Vs. Surendra Pratap (supra), the Supreme Court was considering a matter whether third party purchaser had purchased the land after notification under Section 10(3) i.e. the land which had been declared as surplus and, therefore, the Supreme Court declined to extend them any benefit. In the present case, the purchase by the third party (newly added respondent) was made at the time when the order of the Appellate Authority was operative and no stay order against the order of the Appellate Authority was operating as the writ petition filed by the State was lying dismissed. In the present case, the purchase by the third party (newly added respondent) was made at the time when the order of the Appellate Authority was operative and no stay order against the order of the Appellate Authority was operating as the writ petition filed by the State was lying dismissed. However, the purchase was made by the newly added respondent of only the land not declared as surplus by the Appellate Authority. There was no purchase of land declared as surplus by the Appellate Authority. Thus, the above case also is of no help to the State. 22. In view of the above, the writ petition of the State has no fate except to be dismissed as having been abated. It is accordingly dismissed. Rule discharged. Interim relief, if any, stands vacated. In view of the dismissal of the main petition, pending applications, if any, stand disposed of.