JUDGMENT : (PER : HONOURABLE MR. JUSTICE PRANAV TRIVEDI) [1] The present Letters Patent Appeal under Clause 15 of the Letters Patent is preferred by the appellants – original respondents assailing the correctness and validity of the judgment and order dated 21.12.2023 passed by the learned Single Judge in Special Civil Application No.23506 of 2006. [2] The writ petition preferred by respondents - original writ petitioners prayed to quash and set aside the order dated 08.10.1984 passed by the competent authority as well as to declare that the land bearing original Revenue Survey No. 187 situated in the sim of Village Chandlodia. Taluka : City, District: Ahmedabad admeaasuring 14569 sq.mtrs. which were given three final plots. Nos. 78 admeasuring 3186 sq.mtrs. of Draft T.P. Scheme No. 28 and Final Plots No. 65 admeasuring 3428 sq.mtrs. and 91 admeasurina 2570 sq.mtrs. of Draft Town Planning Scheme No. 18 out of which 8600 sq.mtrs. does not vest in the State Government. [3] The learned Single Judge after considering the contentions raised by both the parties was pleased to allow the writ petition granting the prayers as prayed for by the original writ petitioners. Being aggrieved, the State has assailed the judgment and order dated 21.12.2023 passed by the learned Single Judge in the present Letters Patent Appeal. [4] The factual matrix leading to filing of the writ petition is that the respondents - original writ petitioners were legal representatives of deceased Kantilal Narandas Patel, deceased Vidhyaben Kantilal Patel and deceased Rajnikant Kantilal Patel. Land bearing Survey No.187 situated in the sim of Village Chandlodia. Taluka : City, District: Ahmedabad admeaasuring 14569 sq.mtrs., which were given three final plots. Nos. 78 admeasuring 3186 sq.mtrs. of Draft T.P. Scheme No. 28 and Final Plots No. 65 admeasuring 3428 sq.mtrs. and 91 admeasuring 2570 sq.mtrs. in the Draft Town Planning Scheme No. 18, out of which 8600 sq.mtrs. (hereinafter referred as to "the disputed land") was purchased jointly by Kantilal Narandas Patel and Vidhyaben Kantilal Patel vide registered sale deed dated 30.06.1971. Mutation entry came to entered in the revenue records being Entry No.1020 dated 22.07.1975, which was duly certified. [4.1] It is the case of the original writ petitioners that the Urban Land Ceiling and Regulation Act, 1976 (hereinafter referred to as "the Ceiling Act") came into force on 17.02.1976. Mutation entry came to entered in the revenue records being Entry No.1020 dated 22.07.1975, which was duly certified. [4.1] It is the case of the original writ petitioners that the Urban Land Ceiling and Regulation Act, 1976 (hereinafter referred to as "the Ceiling Act") came into force on 17.02.1976. Pursuant to the provisions enunciated under the Ceiling Act, deceased Kantilal Narandas Patel filed Form No.1 under Section 6 of the Ceiling Act on 13.08.1976. Subsequent to filling of the form, Kantilal Narandas Patel had expired on 09.11.1976. Pursuant to death of Kantilal Narandas Patel, mutation Entry No.1181 dated 29.08.1977 was made bringing the legal heirs of Kantilal Narandas Patel on record. The legal heirs of Kantilal Narandas Patel, namely, Vidhyaben Kantilal Patel and Rajnikant Kantilal Patel filed an application under Section 21(1) of the Ceiling Act for the development of Scheme for the Weaker Section of the Society on the disputed land. The form was filled up on 30.03.1979. The competent authority by order dated 29.11.1980 sanctioned the scheme under Section 21 of the Ceiling Act. As per the order passed by the competent authority, the scheme was required to be completed within a period of five years. The permission was also sought from the Ahmedabad Urban Development Authority for the purpose of construction of residential units for people belonging to Weaker section of the society. The Ahmedabad Urban Development Authority (AUDA) granted the permission on 15.05.1982. The N.A. permission from the District Panchayat was also taken. The Raja Chiththi and the permission to construct and N.A. order from the District Panchayat was also obtained. [4.2] However, during the pendency of the proceeding under Section 21 of the Ceiling Act, the competent authority had initiated proceedings under Section 6 of the Ceiling Act for the purpose of deciding whether the disputed land was surplus land. The notice dated 22.07.1982 was issued by the competent authority in the name of Kantilal Narandas Patel under Section 8(1) of the Ceiling Act read with Rule 6 of the Urban Land Ceiling Rules framed thereunder, even though deceased Kantilal Narandas Patel was not alive and a statement was already sent giving the correct fact with regard to the disputed land. [4.3] It is the case of the original writ petitioners that the copies of the draft statement with the notice under Section 8(1) was sent in the name of deceased Kantilal Narandas Patel and the heirs were not issued such notice and, therefore, they were not aware about the proceedings. The entire inquiry under the Ceiling Act was, thus, made behind the back of the petitioners, the legal heirs of the deceased owner. It is also the case of the original writ petitioners that the competent authority passed an absolutely illegal order on 08.10.1984 in the name of only one person, i.e., Rajnikant Kantilal Patel, the name of other coowner, namely, Vidhyaben Kantilal Patel was not reflected therein, and declared land admeasuring 13642 sq. mtrs. of the disputed land as surplus land only 1000 sq. mtrs. of land has, thus, been left with the original petitioner. It is the case of the original writ petitioners that such an order having been issued in the name of dead person, i.e., Kantilal Narandas Patel, without giving opportunity of hearing to the legal heirs, is absolutely illegal. [4.4] It was the case of the original writ petitioners before the writ court that during the pendency of such proceedings, even the heir of the original owner, namely, Rajnikant Kantilal Patel had also expired. On one hand, the competent authority issued an order dated 08.10.1984 declaring 13642 sq. mtrs. of disputed land as surplus land and on the other hand, the competent authority issued notice to deceased Rajnikant Kantilal Patel on 29.01.1986 to show-cause as to why they have not completed construction over the land upto 28.11.1985 pursuant to the permission granted under Section 21 of the Ceiling Act. Pursuant to the show-cause notice, by way of an ex-parte order dated 11.04.1986, the competent authority had cancelled the order dated 29.11.1980 of granting permission under Section 21 of the Ceiling Act. Further proceedings under Chapter-3 of the Ceiling Act came to be initiated, and the competent authority proceeded further with the purpose of declaration of the land as surplus land. [4.5] The original writ petitioners being aggrieved by the order dated 08.10.1984, preferred an appeal under the Ceiling Act being ULC Appeal No.287 of 1987 under Section 23 of the Ceiling Act. The appellant authority by the order dated 26.12.1988 dismissed the appeal. [4.5] The original writ petitioners being aggrieved by the order dated 08.10.1984, preferred an appeal under the Ceiling Act being ULC Appeal No.287 of 1987 under Section 23 of the Ceiling Act. The appellant authority by the order dated 26.12.1988 dismissed the appeal. The petitioners had preferred a writ petition before this Court which came to be numbered as Special Civil Application No.2446 of 1993 challenging the appellate order dated 26.12.1988. This Court vide order dated 17.03.1994 was pleased to dismiss the writ petition. It is the case of the original writ petitioners that even subsequent to the dismissal of the writ petitions, the steps for taking possession of the surplus land were not taken by the authorities. The Ceiling Act came to be repealed by way of the Urban Land Ceiling Repeal Act, 1999 with effect from 31.03.1999. The power of attorney of the petitioners, namely, Hirabhai Shah addressed an application dated 20.05.1999 to the competent authority stating that the surplus land is in possession of the petitioners. Pursuant to the communication made by Hirabhai Shah, the competent authority by its communication dated 07.06.1999 informed to one of the petitioners, i.e., Vidhyaben Kantilal Patel that in view of the Repeal Act, no permission was required to be given to the petitioners and the land has not been vested in the State Government. [4.6] It was the case of the original writ petitioners that such communication has not been withdrawn by the State Government. However, on 21.03.2006, the power of attorney holder of the petitioners received a reply from the office of the competent authority to the effect that there was an order dated 08.10.1984 declaring the disputed land as surplus land and that after the publication of the notification, the possession of the land had been taken over by the State Government on 29.10.1987. In wake of the aforesaid communication and after obtaining the necessary documents of the petitioners, a communication dated 28.06.2006 was addressed to the respondent authorities to delete the disputed land from the list of excess land. As the authorities did not take necessary steps, the writ petitioners were constrained to prefer the writ petition out of which the instant appeal has arisen. [5] We have heard Mr. Mitesh Amin, learned Additional Advocate General Assisted by Mr. K. M. Antani, learned Assistant Government Pleader for the State - appellants, Mr. As the authorities did not take necessary steps, the writ petitioners were constrained to prefer the writ petition out of which the instant appeal has arisen. [5] We have heard Mr. Mitesh Amin, learned Additional Advocate General Assisted by Mr. K. M. Antani, learned Assistant Government Pleader for the State - appellants, Mr. R. R. Marshal, learned senior advocate with Mr. Mrugen Purohit, learned advocate for the respondent Nos.1.1.1, 1.1.2, 1.3 & 1.4 Ms. Trusha Patel, learned senior advocate with Mr. Tatvam Patel, learned advocate for the respondent No.2. [6] Mr. Mitesh Amin, learned Additional Advocate General assisted by Mr. K. M. Antani, learned Assistant Government Pleader for the State - appellants has primarily raised two-fold contentions. The first contention is that the order impugned in the writ petition, filed in the second round, was passed under the provisions of Section 8(4) of the Ceiling Act in the year 1984, the challenge to the said order at such a belated stage after 22 years cannot be entertained. The learned Single Judge ought to have considered the said aspect and dismiss the petition on the ground of delay itself. The second contention raised by Mr. Amin, learned Additional Advocate General is that the original writ petitioners were very much aware about the proceedings under the Ceiling Act and further that the possession of the land in question had been taken over by the State Government much prior to the repeal. The land is already vested with the State Government, and there is no question of deletion of its name from the revenue records. [6.1] The statement under Section 9 was issued on 12.10.1984. The notification under Section 10(1) was issued on 31.03.1986 and the same was published on 26.06.1986 in the Official gazette and the notification under Section 10(3) was issued on 06.09.1986 and published on 23.10.1986 in the official gazette. When the notifications under Sections 10(1) and 10(3) of the Ceiling Act were published, the order under Section 21 was already revoked on 11.01.1986. Further, the notice under Section 10(5) was served upon the heirs of the declarant (deceased owner) on 08.10.1987 and the possession of the disputed land was taken over on 29.10.1987. The entry with regard to the name of the State Government was mutated in village Form No.6 on 06.11.1987. Further, the notice under Section 10(5) was served upon the heirs of the declarant (deceased owner) on 08.10.1987 and the possession of the disputed land was taken over on 29.10.1987. The entry with regard to the name of the State Government was mutated in village Form No.6 on 06.11.1987. The mutation entry was made after following the procedure as envisaged under Section 135(D) of the Gujarat Land Revenue Code. As a matter of fact, the certification of mutation entry was also objected by the heirs of the declarant. After considering such objection, the revenue authority had certified the mutation entry No.1819 on 16.11.1987 showing possession of the State Government. That being the factual aspect, it was crystal clear that the heirs of the declarant were very much aware of the order under Section 8(4) and also with regard to the possession of the disputed land. The writ petition ought to have been dismissed on this ground only. [7] Per contra, Mr. R. R. Marshal, learned senior advocate with Mr. Mrugen Purohit, learned advocate for the respondent Nos.1.1.1, 1.1.2, 1.3 & 1.4 has submitted that the order dated 08.10.1984 was passed without any authority or jurisdiction. The order under Section 21 of the Ceiling Act was passed on 29.11.1980 which was in force for five years. Therefore, on 08.10.1984, the order passed under Section 8(1) of the Ceiling Act cannot be given effect to. That being the case, the competent authority lacked jurisdiction or authority to initiate proceeding for the purpose of declaring the land as surplus land. The order dated 08.10.1984 suffers from inherent lack of jurisdiction on the part of the competent authority, accordingly. [7.1] Mr. Marshal, learned senior advocate further contended that the form filled-up under Section 6 of the Ceiling Act was duly conveyed that there were two owners of the said land, i.e., Kantilal Narandas Patel and Vidhyaben Kantilal Patel. Vidhyaben Kantilal Patel was alive till the year 2000. There being co-owners in the property, it was incumbent upon the competent authority to issue notice to Vidhyaben Kantilal Patel as well. No notice had been issued in the name of Vidhyaben Kantilal Patel, and therefore, there is a clear breach of the principles of natural justice. [7.2] Mr. Marshal, learned senior advocate further contended that the notification under Sections 10(1), 10(3) and 10(5) were served only to Rajnikant Kantilal Patel. No notice had been issued in the name of Vidhyaben Kantilal Patel, and therefore, there is a clear breach of the principles of natural justice. [7.2] Mr. Marshal, learned senior advocate further contended that the notification under Sections 10(1), 10(3) and 10(5) were served only to Rajnikant Kantilal Patel. No other person including deceased Vidhyaben Kantilal Patel was served with any notice or notification. It was further submitted that the show-cause notice dated 08.10.1987 asking Rajnikant Kantilal Patel to handover the possession, is also not legal and valid notice. All the legal heirs of two co-owners, namely, Kantilal Narandas Patel and Vidhyaben Kantilal Patel ought to have been served with the notices, the State authority, therefore, cannot be said to have taken possession of the disputed land in accordance with law. It was further submitted that if the land had been vested with the State Government, the Town Planning Authority while preparing the Town Planning Scheme would not have allotted the final plots to the petitioners. As a matter of fact, the final plots have been allotted in the name of the petitioners, and this shows that the land was never vested with the State Government and the State Government has not taken over the possession. [7.3] It was further submitted that the Ceiling Act was repealed with effect from 31.03.1999 and at that time, the other coowner, namely, Vidhyaben Kantilal Patel was alive. She had addressed a letter dated 20.05.1999 for the purpose of getting No Objection Certificate in view of the Repeal Act and the competent authority vide letter dated 07.06.1999 had informed her that the land in question had not vested with the State Government. The said communication dated 07.06.1999 has not been withdrawn till date. It is, thus, clearly established that the State Government has not taken possession and the petitioners are in the possession of the land and that the land in question has not been vested with the State Government. [8] Ms. Trusha Patel, learned senior counsel assisted by Mr. The said communication dated 07.06.1999 has not been withdrawn till date. It is, thus, clearly established that the State Government has not taken possession and the petitioners are in the possession of the land and that the land in question has not been vested with the State Government. [8] Ms. Trusha Patel, learned senior counsel assisted by Mr. Tattvam Patel, learned advocate for the respondent No.2, would further submit that pursuant to the Repeal Act, once the intimation was provided by the authorities to respondent No.1, i.e. original writ petitioners to the effect that the possession of the land has not been taken by the State Government, the sale deed dated 29.10.1999 was executed in favour of respondent No.2, who are in continuous possession of the land in question, and a huge colony has come up on the land in question. The society, i.e. respondent No.2 is in possession of the land and there exists a residential locality developed on the disputed land. The State authorities are not justified to submit that the land is still in possession of the State Government. Such argument is dehors the provisions of the established law. On other issues, she has adopted the arguments canvassed by the learned senior counsel appearing for respondent No. 1. [9] Having heard learned advocates for the parties and having perused the material on record, we may note the first and foremost issue which is with regard to the possession taken by the State Government. Whether the possession was a dejure possession or de-facto possession, would be the corner stone of the controversy in question. Therefore, the panchnama taking possession is required to be perused. The panchnama, which is appended at Page 197' of the paper-book reveals that it was prepared in October, 1987 and the document categorically records that the procedure under Section 10(3) was followed and the notice was published vide State Government notification dated 23.10.1986. The map was prepared. The most important and striking feature is that the panchnama clearly reveals that it was prepared in absence of the land owner. Therefore, the provisions of Section 10(5) were followed and panchnama was prepared which shows that the possession was taken in the absence of the land owners and it was merely signed by two panchas. The map was prepared. The most important and striking feature is that the panchnama clearly reveals that it was prepared in absence of the land owner. Therefore, the provisions of Section 10(5) were followed and panchnama was prepared which shows that the possession was taken in the absence of the land owners and it was merely signed by two panchas. The question, therefore, would arise with regard to the factual aspect that whether this panchnama would justify or indicate that the petitioners were actually dispossessed from the disputed land. Therefore, a closer scrutiny of the provisions of Sections 10(5) and 10(6) of the Ceiling Act is required. [10] The requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory. Though the word ‘may’ has been used in both the sub-sections, but it has to be understood as ‘shall’, as it intends to follow the failure to implement what is required. Even otherwise, non-issuance of show-cause notice under sub-sections (5) or (6) of Section 10 would result in the land holder being dispossessed without notice. The word ‘may’ in both the sub-sections, therefore, has to be read ‘shall’. Subsection (5) contemplates about voluntary dis-possession within 30 days from the service of notice under Section 10(3). However, sub-section (6) of Section 10 forcible prescribes for dis-possession of a land owner if the land owner refuses to comply with the notice under sub-section (5) to deliver possession voluntarily. The competent authority, thus, will be at liberty to take possession of the vacant land and for that such dis-possession use force, as may be necessary. Sub-section (6) of Section 10, thus, contemplates a situation where the land owner refuses to comply with the notice under sub-section (5) of Section 10. In that event, the competent authority would have to take the possession of the surplus declared land by use of force. The forceful dis-possession is resorted only in a situation which falls under sub-section (6) of Section 10 and not under subsection (5) of Section 10. A failure to give peaceful delivery or a peaceful possession under sub-section (5) of Section 10 would culminate into a ‘forceful dis-possession’ under sub-section (6) of Section 10. [11] For both the eventualities, issuance of notices are necessary. A failure to give peaceful delivery or a peaceful possession under sub-section (5) of Section 10 would culminate into a ‘forceful dis-possession’ under sub-section (6) of Section 10. [11] For both the eventualities, issuance of notices are necessary. When the land owner refuses to part with peaceful possession under sub-section (5), then the authority can definitely take forceful possession ‘under sub-section (6)’ in their presence. The panchnama, in the instant case, shows only a paper possession and clearly reveals that the panchnama was prepared in the absence of the land owners, which would be indicative of the fact of that forceful dis-possession as contemplated under sub-section (6) of Section 10, has not taken place. [12] Another important aspect is that there is a categorical averment in the writ petitioner, particularly in Para 23' of the writ petition, that the notice under Sections 10(5) and 10(6) have not been supplied. There is also a categorical averment in the writ petition that the panchnama was prepared in the office of the competent authority. These contention made by the petitioners categorically on record have gone uncontroverted. In the reply filed by the authorities, the averments in the writ petition have not been controverted. The non-issuance of notice under sub-sections (5) or (6) of Section 10, which were mandatory, would result in breach of the mandatory provisions of Sections 10(5) and 10(6) of the Ceiling Act and makes the whole process illegal. It has also to be concluded that the panchnama prepared by the authorities, which was in the absence of the land owners, was only a paper possession. There is nothing on record that the panchnama was drawn in the presence of the landowners after giving them due notice of the date fixed for forcible dispossession. Once it has been derived that the competent authority has not taken the possession of the disputed land, in accordance with law, the benefit of the provisions of Section 4 of the Urban Land Ceiling (Repeal) Act, 1999 has to be given to the petitioners. [13] The other aspect of the controversy is with regard to the declaration of the disputed land being surplus land by way of order dated 8.10.1984. The contention raised by the authorities is that the disputed land was declared as surplus land by way of order dated 8.10.1984. [13] The other aspect of the controversy is with regard to the declaration of the disputed land being surplus land by way of order dated 8.10.1984. The contention raised by the authorities is that the disputed land was declared as surplus land by way of order dated 8.10.1984. Such an order impugned in the writ petition filed in the year 2006, i.e. after 22 years, the challenge to order dated 8.10.1984 under Section 8(4) of the Ceiling Act cannot be countenanced. This argument of the State – appellant is fallacious due to variety of reasons. The first and foremost being that the order dated 8.10.1984 declaring the disputed land as surplus land was issued at the time when the order of granting permission under Section 21 of the Ceiling Act was already into existence. Therefore, the disputed land could not and ought not to have been declared surplus land when the permission to develop the land under Section 21 of the Act was already in existence. The second aspect would be that the issuance of such an order was in the name of a dead person, i.e. Kantibhai Narandas Patel. Shri Kantibhai Narandas Patel had filled up the form under Section 6 of the Ceiling Act, but he passed away subsequently in November, 1976 before any proceeding under the Ceiling Act was initiated. The mutation was entered into the record which discloses the names of legal heirs of late landowner Kantibhai Narandas Patel. The order dated 8.10.1984 declaring the disputed land as surplus land could not even issued in the name of Kantibhai Narandas Patel who had died by that time. [14] In defence of such an action, the only argument canvassed by Mr. Mitesh Amin, learned Additional Advocate General is that the mutation entry consequent to the order passed under Section 8(4) of the Ceiling Act was made and the legal heirs of Kantibhai Narandas Patel and in particular Ramanbhai Kantibhai Patel had contested the mutation entry in the revenue proceedings. That being the case, the legal heirs were aware about the order dated 8.10.1984 declaring the disputed land as surplus land. This argument of Mr. Amin cannot be countenanced for the simple reason that it is a trite in law that the order passed in favour of a dead person is a nullity. That being the case, the legal heirs were aware about the order dated 8.10.1984 declaring the disputed land as surplus land. This argument of Mr. Amin cannot be countenanced for the simple reason that it is a trite in law that the order passed in favour of a dead person is a nullity. Further, apart from Ramanbhai Kantibhai Patel, the other legal heirs of Kantibhai Narandas Patel were not intimated about the order dated 08.10.1984 and notice thereof. Therefore, all the eventualities put together, i.e. (a) the order dated 8.10.1984 having been passed in the name of a dead person (b) the legal heirs of the dead person, i.e. Kantibhai Narandas Patel who were already on record, were not intimated about the order dated 08.10.1984 and (c) the order passed under Section 21 of the Ceiling Act, on an application made by legal heirs of Kantibhai Narandas Patel in the year 1980 for construction of dwelling units for weaker section of the society on the disputed land, was in existent for a term of 5 years till 1985. The competent authority could not have passed order dated 8.10.1984 during the operation of the order under Section 21 of the Ceiling Act, show illegality in the action of the respondent. Further, all the three eventualities put together would also justify the averments made by the petitioners that they came to know about the order passed under Section 8(4), only in the year 2005 when attempt was made to take forcible possession of the disputed land and an RTI application was preferred by the petitioners. Therefore, the challenge made by the writ petitioner in the year 2006 to the order dated 08.10.1984 in the writ petition has to be considered on the basis of the above mentioned eventualities and is required to be accepted. In wake of such findings, the contention raised by Mr. Mitesh Amin, learned Additional Advocate General, on the delay in filing the writ petition cannot be accepted. [15] The third and last important aspect going to the root of the controversy is the letter dated 7.6.1999 addressed by the competent authority to the land owner at the relevant point of time, i.e. Smt. Vidhyaben Kantilal Patel. Mitesh Amin, learned Additional Advocate General, on the delay in filing the writ petition cannot be accepted. [15] The third and last important aspect going to the root of the controversy is the letter dated 7.6.1999 addressed by the competent authority to the land owner at the relevant point of time, i.e. Smt. Vidhyaben Kantilal Patel. The communication dated 07.6.1999 sent by the competent authority is appended at Page 102' of the paper-book, which clearly shows admission of the competent authority that the disputed land has not been vested with the State Government. For a moment, it is assumed that such acceptance by the competent authority in the year 1999 was not justified, then the State Government ought to have clearly disclosed in its reply in the writ petition the manner in which possession of the disputed land was taken. There is no such response of the State Government to attribute any mala fide to the contents of the aforesaid communication. There is no justifiable reason for the State appellant to plead that the possession of the disputed land was taken in accordance with law. Once the competent authority admits of the disputed land not having been vested in the State Government by way of the communication dated 7.6.1999, they cannot be permitted to argue that the benefit of Section 4 of Urban Land Ceiling (Repeal) Act, 1999 cannot be given to the original writ petitioners. [16] In view of the above discussion, no infirmity can be attached to the reasoning given by the learned Single Judge in allowing the prayers made in the writ petition. We, therefore, see no reason to dislodge the findings given by the learned Single Judge. [17] In view of the said, the present Letters Patent Appeal is meritless and is, therefore, rejected with no order costs. [18] In view of the order passed in the main matter, connected Civil Application stands disposed of.