LPA/11/2008 of PRABHATBHAI DEVABHAI Vs STATE OF GUJARAT on 30 December 2008

IN THE HIGH COURT OF GUJARAT AT AHMEDABADLETTERS PATENT APPEAL No. 11 of 2008In SPECIAL CIVIL APPLICATION No. 24882 of 2007With CIVIL APPLICATION No. 110 of 2008In LETTERS PATENT APPEAL No. 11 of 2008

For Approval and Signature:

HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNANHONOURABLE MR.JUSTICE AKIL KURESHI

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1 [Whether Reporters of Local Papers may be allowed to see the ]judgment ?judgment ?

2To be referred to the Reporter or not ?

3 [Whether their Lordships wish to see the fair copy of the ]

judgment ?

Whether this case involves a substantial question of law as to 4the interpretation of the constitution of India, 1950 or any order made thereunder ?order made thereunder ?

5 Whether it is to be circulated to the civil judge ?

PRABHATBHAI DEVABHAI & 12 - Appellant(s)

Versus

STATE OF GUJARAT & 4 - Respondent(s)

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Appearance :

MR PERCY KAVINA SR ADVOCATE WITH MR SP MAJMUDAR for Appellant(s) : 1 - 13.MR MANISHA LAVKUMAR ASST GOVERNMENT PLEADER for Respondent(s) : 1,NOTICE SERVED BY DS for Respondent(s) : 2 - 3, 5,MR MG NAGARKAR for Respondent(s) : 4,=============================================

CORAM :HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN

and

HONOURABLE MR.JUSTICE AKIL KURESHI

CAV JUDGMENT

(Per : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN)

Heard learned counsel for the parties.

The question that has come up for consideration in this case is whether the Competent Authority has taken possession of the surplus land admeasuring 2440 sq.mtr vested in the State Government under Section 10(3) of the Urban Land (Ceiling and Regulations) Act, 1976 (for short `ULC Act') in due compliance with Section 10(6) of the Act.

Petitioners have approached this Court seeking a writ of mandamus directing the respondents to release land admeasuring 2440.20 sq.mtr situated at Revenue Survey No.1, village Vejalpur-II, Ahmedabad which was taken possession by the respondents under the ULC Act on the plea that land in question still is in their actual possession.

Learned Single Judge found no merits in the contentions raised and dismissed writ petition, against which, this appeal has been preferred.

The Urban Land (Ceiling & Regulation) Act, 1976 (Act No.33 of 1976) was enacted to impose ceiling on vacant land in urban agglomerations and for the acquisition of such land in excess of the ceiling limit to regulate the construction of buildings on such land and for matters connected therewith, with a view to prevent the concentration of urban land in the hands of a few persons and speculations and profiteering therein and with a view to bring about an equitable distribution of land in urban agglomerations to subserve the common good in furtherance to directive principles of State policy laid down in the Constitution. As per Section 6 of the ULC Act, every person holding vacant land in excess of the ceiling limit at the commencement of the Act, had to file a statement before the competent authority specifying the location, extent, value and such other particulars as may be prescribed of all vacant lands and of any other land on which there is a building, whether or not with a dwelling unit therein, held by him including the nature of his right, title or interest therein.

Land holders Shri Hirabhai Meghabhai Desai and ten others had filed Form No.1 declaring their properties on 15.09.1977 wherein along with other properties, land situated at Mauje Vejalpur, Taluka City Survey No.1 admeasuring 19020 sq.mtr were shown. Whereupon, vide order No.U.L.C./U.4/509/800/ 375/162/164/414/508/374/156/882/ 161/K.61/38/202/546/207/72/204/550/546/799/2120 dated 12.5.87, total land of 1725 sq.mtr of village Vejalpur bearing Survey No.1 of Final Plot No.1 was declared surplus and the final statement was sent on 28.05.1987. Government, however, initiated suo motu revision under Section 34 of the ULC Act and ultimately, it was declared that land to an extent of 2440.20 sq.mt as surplus vide order No.ULC/3487/5838/1550/ V.3 dated 18.02.1988.

Later, Competent Authority vide its order dated 24.03.1998 modified final statement which was issued under Section 9 of the Act. Land owners were informed to exercise their options. Land owners therefore submitted their application on 24.03.1988 submitting demarcation plan of the surplus land of 2440.20 sq.mtr. Demarcation plan was sanctioned on 25.03.1988 after inspecting property. Notification under Section 10(1) was issued on 30.07.1988 and notification under Section 10(3) of the Act was also issued on 29.11.1988. Consequently, land admeasuring 2440.20 sq.mtr was deemed to have been vested in the State Government absolutely free from all encumbrance from 29.11.1988. Later, in compliance with Section 10(5) of the Act, notices were sent to the land holders/owners through Circle Inspector, Saherkotda. Later, Circle Inspector submitted a report on 08.07.1992 stating that notices were refused to be accepted and the same was returned. Consequently, Competent Authority instructed the Maintenance Surveyor to affix notices on the site on 21.07.1992 and Panchnama was made to that effect, thereby taking over possession of 2440.20 sq.mtr which was declared as surplus. The Panchnama specifically stated that land in question was open and possession was taken over free from all encumbrance. Though orders for compensation were passed on 25.09.1992, nobody claimed the amount.

The Competent Authority later noticed that due to mistake, in the Jantri, only land admeasuring 1252.80 sq.mt declared as surplus alone was included in the list of the surplus land but lands of other six persons admeasuring 1188.00 was omitted to be included in the Jantri when the mistake came to the knowledge of the authorities, a communication dated 10.02.2004 was sent to the Talati-cum-Mantri of village Vejalpur to rectify mistake and pursuant to the said communication, Talati-cum-Mantri made entry on 22.12.2004 by which remaining land admeasuring 1188 sq.mt was entered in the name of the Government in the revenue record.

It may be noticed that the Urban Land (Ceiling and Regulations) Act, 1976 was repealed by Urban Land (Ceiling and Regulation) Repeal Act, 1999 which came into effect from 22.03.1999. Statement of the Repeal Act provides any land would not vest in the State Government under sub-Section (3) of Section 10 of the ULC Act of which possession had not been taken over the State Government or any person duly authorized by the State Government.

Petitioners through their Advocate submitted a letter/notice on 01.06.2003 requesting land to be released to the owners since possession was not taken over and also prayed for giving benefit of the Repeal Act. Notice was replied by authority by their communication dated 16.06.2004 stating that possession was already taken on 11.08.1992 well before coming into force Repeal Act. Under such circumstances, petitioners approached this Court seeking restoration of land.

Learned Sr.Counsel Mr.Percy Kavina with Mr.S.P.Majmudar submitted that though land in question was declared as surplus land, same was never taken possession by the State Government, therefore, petitioners are entitled to get benefit of the Repeal Act. Learned counsel submitted that no sanctity would be attached to the Panchnama produced by the State Government at Annexure-H and plan produced along with Panchnama. Learned counsel referred to the maps which were placed on record and submitted that they are self contradictory. Learned counsel submitted that the burden is on the State to establish that land was in fact taken possession on 11.08.1992 which the State has not discharged.

We may indicate that few facts are undisputed. The fact that 2440.20 sq.mt land was declared as surplus as per ULC Act, 1976 is not disputed. The only dispute is whether land which was vested under Section 10(3) of the Act with the Government was in fact taken possession by the Government in accordance with Section 10(6) of the Act. Facts clearly indicate that procedure under Section 10(5) of the Act was complied with by the competent authority. Land owners had not surrendered and delivered possession of land in question to the State Government as per Section 10(5) of the Act, therefore, only choice for State was to follow procedure under Section 10(6) of the Act. Specific stand of the State is that there was refusal on the part of the petitioners to surrender land in question and consequently, the authority had to follow procedure under Section 10(6) of the Act. Section 10(6) since relevant, we extract relevant portion for easy reference which reads as under.

“(6)If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorized by such State Government in this behalf and may for that purpose use such force as may be necessary.”

No specific mode of taking possession has been provided under the Rules. Procedure which was followed by competent authority was to take possession of the land in the presence of two witnesses on preparing Panchnama. Said Panchnama clearly suggests that land was open land and possession of the land in question was taken over free from all encumbrances. Panchnama was certified by two witnesses and they affixed their signature also. Since there was failure on the part of the petitioners to surrender or deliver possession of land in question to the competent authority, they followed procedure laid down under Section 10(6) of the Act. Panchnama produced by State clearly indicates that as on 11.08.1992 there was no construction in the area in question and land was open and possession was taken over free from all encumbrance. If the land was not open and constructions were existing on the land, the

same would have been indicated in the Panchnama. In our view, the burden on the petitioners to show there was building existing on the land in question constructed prior to 1992. No such evidence was adduced by the petitioners to show the constructions were effected prior to 1992 on the area in question. Under such circumstances, we find no reason to discard Panchnama produced by the respondents dated 11.08.1992 signed by two witnesses which in view is due compliance of Section 10(6). Petitioners, therefore, would not get the benefit of the Repeal Act which came into effect only on 22.03.1999.

Further, it may be relevant to note that some mistake was crept in in Jantri prepared which was duly corrected. Revenue entry is normally made for fiscal purpose and, as such, the same cannot decide ownership, especially, when there is no dispute that land was vested to the State Government under Section 10(3) of the Act. The question as to whether the land was taken possession in accordance with Section 10(6) of the Act, is also a purely a question of fact. On facts, the respondents have demonstrated land was taken possession following Section 10(6) of the Act by preparing Panchnama on 11.08.1992.

In view of above discussion, we find that the appeal lacks merits, hence, the appeal is dismissed.

Consequently, Civil Application for stay also stands dismissed.

(K.S. RADHAKRISHNAN, C.J.)

(AKIL KURESHI, J.)