MADHUSUDAN BHANUPRASAD PANDYA versus STATE OF GUJARAT & ORS. on 1 August 2019

1. Leave granted[1].

2. The appeal arises from a judgment and order dated 24 January2013 of a Division Bench of the High Court of Gujarat, affirming thedismissal of a Writ Petition by the Single Judge. On 7 July 2005, theSingle Judge dismissed a Writ Petition filed by the appellant seeking toset aside an order of the State Government rejecting an application forexemption under Section 20 of the Urban Land (Ceiling and Regulation)Act 1976[2].

3. The appellant claims to be engaged in the business ofmanufacturing cement pipes through M/s General Cement Pipe CompanyLimited[3] on land bearing Survey No 288/4 admeasuring 5160 sq m situatedat village Chandlodia, Taluka City District, Ahmedabad. The appellantclaims leasehold rights in the land under a rent note dated 27 March1975. Upon the enactment of the Act of 1976 on 12 September 1976,Form I under Section 6(1) was submitted on behalf of the Company,declaring that the land was leased from the original owners. Villageform No 7/12 contained an entry for the years 1979-80 and 1980-81 to 1 SLP(C) No 24021 of 2013

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Athe effect that the land had been put to non-agricultural use withoutpermission. As a result, by virtue of the provisions of Section 2(q), theland upon which construction had been put up was liable to be consideredas vacant land. On 26 November 1982, a draft statement under Section8(1) was issued. On 26 August 1985, the competent authority underSection 8(4) declared land admeasuring 4160 sq m as excess vacantBland. On 17 September 1985, a final statement was issued under Section9. A notification under Section 10(1) was published on 31 January 1986.This was followed by a notification under Section 10(3) on 6 December1986. A notice under Section 10(5) was issued on 6 March 1987. On 6July 1990, the competent authority issued a notice under Section 10(6)Cintimating that possession of the excess land would be taken over.4. At this stage, on 19 July 1990, the appellant filed an applicationfor exemption under Section 20.

5. According to the appellant, on 23 July 1990, the Companyinstituted a suit[4] before the Civil Judge, Senior Division, Ahmedabad inDwhich an order of status quo was granted on the same day. The caseof the appellant is that on 24 July 1990, possession of the excess landwas purported to be taken over under a valid panchnama, inspite of theorder of the Civil Court. On 20 July 1990, the order of the competentauthority dated 26 August 1985 declaring the land as excess vacant landEwas challenged in an appeal under Section 33 before the Urban LandTribunal[5]. On 31 December 1990, the Tribunal dismissed the appeal onthe ground that the delay of over four years had not been satisfactorilyexplained. On 1 September 1992, an order was passed under Section 11in the matter of compensation.

F6. On 3 March 1998, Special Civil Application[6] No 1584 of 1998was filed by the appellant under Article 226 of the Constitution beforethe High Court of Gujarat seeking the following reliefs:

“(A) This Hon’ble Court may be pleased to issue a writ ofmandamus or a writ in the nature of mandamus or any otherGappropriate writ, order or direction directing the respondentauthorities to grant appropriate land (at least 3000 sq. mtrs.) orany other appropriate measurement of land which this Hon’bleCourt deem fit and proper, to the petitioner firm so that the 4 Regular Civil Suit No 469 of 1990

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manufacturing activities may be carried on properly, on meritsand in accordance with the provisions of the said Act.

(B) The respondent authorities may be restrained from takingpossession of the land bearing Survey No. 288/4 admeasuring5160 sq. mtrs. situated at village Chandlodiya, Taluka City DistrictAhmedabad till pending hearing and final disposal of the applicationunder Section 20 of the Act, pending before the Revenue Secretaryor the status-quo with regard to the possession of the said landmay be maintained by the respondent authorities, till the admission,hearing and final disposal of this petition.”

7. By an order dated 3 July 1998, the High Court disposed of theabove SCA with a direction to the State Government to expeditiouslydecide the appellant’s application under Section 20. On 5 October 1998,the application under Section 20 was rejected in view of the fact that theland had vested in the State. Thereupon, the appellant filed another WritPetition being SCA No 9057 of 1998 challenging the rejection of theapplication under Section 20. The reliefs that were sought before theHigh Court were in the following terms:

“(A) This Hon’ble Court would be pleased to issue a writ ofmandamus or a writ in the nature of mandamus or any otherappropriate writ, order or direction and be pleased to quash andset aside the order passed by the State Government, dated 5[th]October, 1998 (Annexure “G”) and further be pleased to directthe respondents, their agents and servants to grant the applicationpreferred by the petitioner under Section 20 of the Urban Land(Ceiling & Regulation) Act, 1976 as prayed for.”

8. By an order dated 16 July 1999, a Single Judge allowed theabove SCA. However, in a Letters Patent Appeal filed by the State, theDivision Bench, by an order dated 3 August 2004, set aside the orderdated 16 July 1999 and remitted the writ proceedings back to the SingleJudge for fresh disposal. Upon remand, a Single Judge of the High Courtdismissed the SCA by a judgment dated 7 July 2005. Insofar as is materialto the controversy in the present case, the Single Judge held thus:

“From the materials on record it is clear that the petitioner himselfhas averred in the petition that the orders passed by the authoritiesunder the said Act declaring 4160 sq. mtrs. of land of the petitioner,is excess vacant land, had become final and the petitioner had not

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challenged the same before any authority or Court. In para 10 ofthe petition, the petitioner has in fact stated that after declaringthe excess land, further procedure was also initiated by therespondent no.2 authority and ultimately the land is vested in theState Government under the provisions of the said Act. This is aclear admission on the part of the petitioner. Nowhere in the petitionor in the rejoinder the petitioner has stated that no notice wasreceived by the petitioner from the Government regarding takingthe possession of the land in question. Despite a clear avermentin the affidavit in reply on behalf of respondent no. 2, in the rejoinderaffidavit the petitioner has not controverted this important aspectof the matter. It is thus clear that entire procedure of vesting theland in Government and taking the possession thereof under Section10 of the said Act was completed way back in the year 1990. Thelearned advocate for the petitioner could not state whether thesefacts were brought to the notice of this Court in Special CivilApplication No.1584/1998 which came to be disposed of by orderdated 03.07.1998. In that view of the matter and in view of thefact that the question of the possession of the petitioner was notdirectly at issue in the said litigation, I am unable to ignore theoverwhelming material on record in the present petition to theeffect that indisputably, the possession of the land in question wastaken by the Government and after passing through several stages,land had vested in the Government. In that view of the matter, it isnot possible to accept the contentions on behalf of the petitionerthat upon repeal of the said Act, the proceedings should abate.The impugned order passed by the Government rejecting theapplication of the petitioner under Section 20 of the said Act alsocannot be interfered with. The learned A.G.P. Shri P.R.Abichandani relies on the decision of the Learned Single Judge ofthis Court in the case of Vipinchandra Vadilal Bavishi & anr. V/s.State of Gujarat & ors. reported in 2002 (3) GLR page-2592,wherein the Learned Judge had relied on the Panchnama of takingover of the possession supported by the affidavit filed by thecompetent authority as sufficient proof that possession has beentaken over. The learned A.G.P. Shri Abichandani pointed out thatthe said decision of the Learned Single Judge is based on thedecision of the Hon’ble Supreme Court in the case of M/s. Larsenand Toubro Ltd. etc. v/s State of Gujarat and ors. reported in AIR

1998 SC 1608 wherein the Hon’ble Supreme Court has upheldthe validity of Panchnama of taking possession even when thepanchas had subsequently filed an affidavit, with their signaturesobtained on blank papers and they had not gone to the site.” (Sic)

9. Aggrieved by the order of the Single Judge, the appellantpreferred a Letters Patent Appeal before the Division Bench, which hasended in the impugned order dated 24 January 2013. The submission insupport of the appeal is that possession could not have been taken overin breach of the order of injunction passed by the Civil Court and was infact not taken over. Hence, ceiling proceedings have lapsed upon repealof the Act of 1976.

10. At this stage, it would also be necessary to note that a companionSpecial Leave Petition[7] has been filed by the original owners, the landlordfrom whom the appellant in the main appeal claims his interest under arent note. The owners got themselves impleaded before the DivisionBench in the Letters Patent Appeal. It was urged on their behalf that inview of the order which was passed in the appeal under Section 33preferred by the land owners, there was no occasion for them to adoptany proceedings of their own under Article 226 of the Constitution and itwas only upon the judgment of the Division Bench that it has becomenecessary for the land owners to assert their grievance before this Court.The land owners have submitted that in the absence of actual takingover of possession, the proceedings under the Act of 1976 would standabated by the repeal of the legislation. Moreover, it was urged that thepossession was purportedly taken over even before the order underSection 10(2) was passed.

11. In dealing with the rival submissions, it is necessary to analysethe correctness of the grievance that possession was purported to havebeen taken over on 24 July 1990 in spite of a restraining order of statusquo passed by the Civil Court on 23 July 1990. It was urged thatirrespective of the maintainability of the suit, so long as the order ofstatus quo held the field, the authorities were duty bound to comply withit. In dealing with this submission, it is necessary to note that the orderdated 23 July 1990 specifically adverts to the fact that while the first tothird defendants had appeared, the fourth defendant had neither appearednor filed a reply. The defendants who appeared before the Court were

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Athe land owners themselves. The fourth defendant was the DeputyCollector and the competent authority under the Act of 1976.

12. Mr Preetesh Kapur, learned Senior Counsel appearing onbehalf of the State of Gujarat, submitted that the suit which was institutedbefore the Civil Court besides being not maintainable, appeared to beBclearly collusive. Quite apart from this submission of the State, there isnothing to indicate that a copy of the order of status quo was served onthe competent authority before possession was taken over on 24 July1990. In this context, it is necessary to advert to the pleadings of theappellant in SCA No 9057 of 1998 with reference to the suit and passingof the order of status quo. In paragraph 9 of the SCA before the HighCCourt, it was stated on behalf of the appellant that:

“Petitioner submits that the petitioner firm has filed one RegularCivil Suit No.469 of 1990 in the Court of the learned Civil Judge(S.D.), Ahmedabad, at Mirzapur, praying inter alia, injunctionrestraining the landlords and the respondent no.2 from takingDpossession of the suit land from the petitioner’s firm. The learnedJudge was pleased to grant interim injunction as prayedfor against the landlords and not against defendant No.4,i.e. the Competent Officer and Deputy Collector,Ahmedabad. However, due to extra care and caution, theEpetitioner has submitted one purshis dated 3-3-1998 beforethe learned Judge, declaring that the present respondentNo.2, i.e. the Competent Officer and Deputy Collector,(U.L.C.) Ahmedabad, be deleted as defendant No.4 fromthe said suit No.469 of 1990.”

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13. Hence, the averment of the appellant before the High Courtwas that an interim injunction was sought in the suit against the landlordsand notagainst the competent authority under the Act of 1976. Moreover,as is stated in the above extract, on 3 March 1998 the competent authorityGwas deleted from the array of parties to the suit. From this course ofevents, there can be no manner of doubt that the institution of the suitwas, as learned Senior Counsel for the State has urged, a collusive attemptto thwart the State from taking possession on the next day. In any event,there is nothing on record to indicate that the order of status quo was H

ever served on the competent authority under the Act of 1976. An attempthas been made to suggest that the panchnama dated 24 July 1990 showsthat possession could not be taken. The Division Bench of the HighCourt has analysed the panchnama and has rejected the claim that a‘tick mark’ has been placed on one of the three options in the panchnamato indicate that due to the presence of structures on the land, possessioncould not be taken over. In view of the provisions of Section 2(q), it wasurged on behalf of the State that the land was liable to be treated asvacant land since the structures on the land were not authorised, in theabsence of required permission for non-agricultural use. We see no reasonto take a view at variance with what has been held by the DivisionBench of the High Court since it is evident from the record that possessionof the land was taken over on 24 July 1990. The Single Judge of theHigh Court has also dealt with this aspect of the matter. Above all, thepleadings of the appellant in SCA No 9057 of 1998 leave no manner ofdoubt that possession was taken over on behalf of the State. The SingleJudge observed that despite a clear averment in the affidavit in reply, therejoinder which was filed on behalf of the appellant had not controvertedthis important aspect of the matter. Thus, for the above reasons, we areunable to accept the submission which has been urged on behalf of theappellant.

14. Significantly, the relief that was sought before the High Courtin the first SCA (SCA No 1584 of 1998) was for the grant of “appropriateland” to the appellant and an order of injunction restraining the Statefrom taking over possession until the application under Section 20 wasdisposed of. The Division Bench, in the course of its judgment, has dwelton the clear suppression in the above SCA, of the fact that possessionhad already been taken over. That apart, it has been correctly urged onbehalf of the State that upon the repeal of the Act of 1976 by the RepealingAct of 1999[8], proceedings under Section 20 would not survive. Moreover,in the absence of a challenge to the order of vesting, to the consequencethat followed under Sections 10(5) and 10(6) and in the absence of thequestion of possession being squarely placed in issue, it was not open tothe appellant to canvass that aspect.

15. Section 3(1) which contains the saving provision in theRepealing Act provides as follows:

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A“3. Saving.—

(1) The repeal of the principal Act shall not affect—

(a) the vesting of any vacant land under sub-section (3) of Section10, possession of which has been taken over by the StateGovernment or any person duly authorised by the StateBGovernment 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, notwithstandingany judgment of any court to the contrary; C(c) any payment made to the State Government as a condition forgranting exemption under sub-section (1) of Section 20.”

16. In State of Gujarat v Gyanaba Dilavarsinh Jadega[9], a twojudge Bench of this Court held that on the repeal of the Act of 1976 bythe Repealing Act, which came into force on 31 March 1999, the onlyDactions which are saved are the ones set out in Sections 3(1)(a), (b) and(c) of the Repealing Act. It has been held that a claim of acquiring aright is not an enforcement of an accrued right.

17. Section 3(1)(b) of the Repealing Act provides that the repealwill not affect the validity of an order grantingexemption under Section20(1) or any action taken thereunder, notwithstanding any judgment ofEany Court to the contrary. What is saved by Section 3(1)(b) is the validityof an order under which an exemption under Section 20(1) has beengranted. In the present case, there was no order for the grant of anexemption under Section 20 on the date on which the repeal was broughtinto force.F

18. The appellant has not placed in issue either the order of vestingor the consequences which followed under the terms of the Act of 1976.Once we have come to the conclusion that possession was taken overprior to the date of repeal i.e. 31 March 1999, we find no reason tointerfere with the judgment of the High Court. The appeal is accordinglyGdismissed. There shall be no order as to costs.

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19. Though the petitioner in this Special Leave Petition was not aparty to the proceedings before the Single Judge, it did not question the H9 (2013) 11 SCC 486

correctness of the order of the Single Judge and merely got itselfimpleaded as a respondent to the Letters Patent Appeal. We have alreadydealt with the merits of the challenge and have found no substance therein.

20. For the above reasons, we see no merit in the Special LeavePetition. The Special Leave Petition is accordingly dismissed. No costs.

Devika Gujral

Petition dismissed.

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