KAPILABEN AMBALAL PATEL & ORS. versus STATE OF GUJARAT & ANR. on 6 May 2020

KAPILABEN AMBALAL PATEL & ORS.

v.

STATE OF GUJARAT & ANR.

(Civil Appeal No. 6380 of 2012)

MAY 06, 2020

[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]

Urban Land (Ceiling and Regulation) Act, 1976 – ss.6, 9,10(1), 10(3), 10(5), 10(6), 11, 20(1)(a), 21, 33 – Appellants/landowners are legal representatives of the original owner of the landin question – Possession of the surplus/excess land was taken overunder a Possession Panchanama dated.20.03.1986 – Eventually,Power of Attorney holder of one of the land owner filed writ petitionchallenging the Panchnama – Partly allowed by Single Judge –Appeal filed by State Government – Meanwhile, the appellants filedan independent writ petition in 2001 for the same relief – Appealfiled by the State Government was allowed by Division Bench –Writ petition filed by the appellants was allowed by Single Judge –Order set aside by Division Bench – On appeal, held: Appellantsresorted to all possible pleas – Further, they chose to file the writpetition only in the name of one of the land owner in the capacity ofhis Power of Attorney holder, little realizing that the authority givenby him came to an end after his demise – It was only after the otherappellants realised that the decision of the Single Judge was flawedand was justly assailed by State Government on that count, theyfiled the present writ petition – Appellants thought of the last attemptto assail the Possession Panchnama itself without seeking anyfurther relief of declaration regarding the earlier proceedings whichhad attained finality – Writ petition filed by the appellants afterlapse of 14 years was hopelessly barred by delay and suffered fromlaches – Impugned order upheld – Urban Land (Ceiling andRegulation) Repeal Act, 1999.

Dismissing the appeal, the Court

1.1 The appellants have resorted to all possible pleas. First,the application for exemption under Section 20 of the Urban Land(Ceiling and Regulation) Act, 1976 was moved, which was allowed

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Aby the competent authority on 6.3.1980, but the appellants choseto withdraw the same. That request was eventually granted bythe competent authority on 1.2.1985. The appellants then waitedtill the notification under Section 10(3) of the 1976 Act was issuedon 25.7.1985 and opted for remedy of exemption under Section21 by filing an application on 22.8.1985. That came to be rejectedBon 15.12.1986 against which decision a review application wasfiled only by Devikaben Chandubhai Bhailalbhai (daughter ofChandubhai Bhailalbhai Patel, who in turn was son of BhailalbhaiParsottambhai Patel- one of the five sons of original owner of theland in question, Parsottambhai Patel. The other four sons were-C(i) Ambalal Parsottambhai Patel, (ii) Maganbhai ParsottambhaiPatel, (iii) Babarbhai Parsottambhai Patel, and (iv) RamanbhaiParsottambhai Patel) alongwith her three siblings, after lapse oftwo years. Nevertheless, the same was entertained by theauthority concerned and after quashing the entire order in appeal,a remand order came to be passed on 19.9.1998. Even in reviewDproceedings, the fact of State authorities having taken forciblepossession of the surplus/excess land on 20.3.1986 videPossession Panchnama, was reiterated, as can be discerned fromthe order dated 19.9.1998. It is not clear as to why the appellantsdid not take clue at least from such unambiguous stand taken byEthe respondent and forthwith proceed to assail the stated standof the State (of having taken over forcible possession on20.3.1986). Besides taking possession, the respondent haddetermined the compensation for which notice under Section 11was issued to the appellants on 17.5.1986. It is not the case ofthe appellants that they were unaware even about thatFdevelopment until 2001. No such plea is taken by the appellantsin the writ petition filed in the year 2001. It is only after thecompetent authority declined to issue No Objection Certificatevide order dated 19.5.1999, they thought of changing the trackby taking advantage of the repeal Act having come into force onG30.3.1999. However, they chose to file the writ petition only inthe name of Kamleshbhai Parekh in the capacity of Power ofAttorney holder of late Ambalal Parsottambhai Patel, being SCANo. 8402/1999, little realizing that the authority given by AmbalalParsottambhai Patel had come to an end after his demise on31.12.1985 itself. No doubt the Single Judge was persuaded toH

quash the entire proceedings which had culminated with takingforcible possession of the surplus/excess land vide PossessionPanchnama dated 20.3.1986, being vitiated and/or abated.However, it is only after the other appellants realised that thedecision of the Single Judge in SCA No. 8402/1999 was flawedand has been justly assailed by the State Government on thatcount by way of LPA No. 460/2002, they chose to file the presentwrit petition (SCA No. 12602/2001). In the said writ petition,however, no disclosure has been made as to why these appellantsdid not assail the Possession Panchnama dated 20.3.1986 in earlierpoint of time including when the existence of this document wasspecifically pleaded by the respondent-State, in particular, in thereview application. [Paras 3, 15][1123-C; 1133-F-H; 1134-A-F]

1.2 The earlier part of the writ petition deals with the factualbackground and assertion that the appellants still continue to bein physical possession of the stated land and was using it foragricultural purpose, as can be noticed from the Revenue record.Indeed, the Revenue record may have presumptive value, butthat can be rebutted, which in this case has been done by therespondent-State by relying on the Possession Panchnama andthe subsequent proceedings including the application submittedto the Mamlatdar, Baroda City in right earnest for entering thename of the State Government in the Revenue records, dated11.4.1986, and pursuant to which entries had been effected on26.9.1989 and 15.2.2000 respectively. Obviously, therefore, theappellants thought of the last attempt to assail the PossessionPanchnama dated 20.3.1986 itself without seeking any furtherrelief of declaration regarding the earlier proceedings which hadattained finality. The Division Bench therefore, was right inconcluding that the writ petition filed by the appellants after lapseof 14 years was hopelessly barred by delay and suffered fromlaches. The Court is in agreement with the said view taken bythe High Court in the peculiar facts of the present case. Further,it is manifest from the acknowledgement produced by therespondent-State that the first notice under Section 10(5) issuedto Ambalal Parsottambhai Patel was duly served on 26.12.1985.By the time second notice under Section 10(5) was issued on23.1.1986, Ambalal Parsottambhai Patel had died (on 31.12.1985).

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AThe second notice was also issued to others, namely, BhikhabhaiMaganbhai Patel, son of deceased Maganbhai ParsottambhaiPatel, Natvarbhai Bhailalbhai Patel, son of deceased BhailalbhaiParsottambhai Patel and Jayantibhai Babarbhai Patel, son ofdeceased Babarbhai Parsottambhai Patel. [Paras 3, 15-18][1135-F-H; 1136-A-E]B

Vinayak Kashinath Shilkar v. Deputy Collector andCompetent Authority & Ors. (2012) 4 SCC 718 : [2012]2 SCR 219; State of Uttar Pradesh v. Hari Ram (2013)4 SCC 280 : [2013] 2 SCR 301; Gajanan Kamlya Patilv. Additional Collector and Competent Authority(ULC)& Ors. (2014) 12 SCC 523 : [2014] 1 SCR 1032;Mangalsen v. State of Uttar Pradesh & Anr. (2014) 15SCC 332; M/s. Avanti Organisation v. CompetentAuthority & Additional Collector, Urban Land CeilingAct, Rajkot & Anr. AIR 1989 Guj 129; SamrathbenManilal Chokshi & Anr. v. State of Gujarat & Anr.(1994) 35 (1) GLR 203; Savitaben Ramanbhai Patelvs. State of Gujarat & Ors. (1999) 40(1) GLR 860;Darothi Clare Parreira (Smt.) & Ors. v. State ofMaharashtra & Ors. (1996) 9 SCC 633 : [1996] 4Suppl. SCR 46; SouthIndia Corporation (P) Ltd. v.Secretary, Board of Trivandrum & Anr. AIR 1964 SC207 : [1964] SCR 280; Special Officer & CompetentAuthority, Urban Land Ceilings, Hyderabad & Anr. v.P.S. Rao (2000) 2 SCC 451 : [2000] 1 SCR 257;Ramanlal Bhailal Patel & Ors. v. State of Gujarat (2008)5 SCC 449 : [2008] 2 SCR 468; Har Pyari (Smt.) v.IInd Additional Judge, Moradabad & Ors. (2001) 10SCC 525; State of Assam v. Bhaskar Jyoti Sarma &Ors. (2015) 5 SCC 321 : [2014] 14 SCR 1451; Larsen& Toubro Ltd. v. State of Gujarat & Ors. (1998) 4 SCC387 : [1998] 2 SCR 339; State of Gujarat & Anr. v.Gyanaba Dilavarsinh Jadega (2013) 11 SCC 486;Madhusudan Bhanuprasad Pandya v. State of Gujarat& Ors. (2019) SCC Online SC 1050; Balwant NarayanBhagde v. M.D. Bhagwat & Ors. (1976) 1 SCC 700;Balmokand Khatri Educational and Industrial Trust v.

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KAPILABEN AMBALAL PATEL & ORS. v. STATE OFGUJARAT & ANR.

State of Punjab (1996) 4 SCC 212; Tamil Nadu HousingBoard v. A. Viswam (Dead) by Lrs. (1996) 8 SCC 259 –referred to.

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6380of 2012.

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From the Judgment and Order dated 26.04.2011 of the High Courtof Gujarat at Ahmedabad in Letters Patent Appeal No. 233 of 2006.

Shyam Divan, Sr. Adv., Santhosh Krishnan (For GauravAgrawal), Advs. for the Appellants.

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Ms. Deepanwita Priyanka (For Aniruddha P. Mayee),Ms. Hemantika Wahi, Advs. for the Respondents.

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AThe Judgment of the Court was delivered by

A. M. KHANWILKAR, J.

1. This appeal takes exception to the judgment and order dated26.4.2011 passed by the Division Bench of the High Court of Gujarat atAhmedabad[1] in Letters Patent Appeal (LPA) No. 233/2006, whereby,Bthe writ petition being Special Civil Application No. 12602/2001 filed bythe appellants came to be dismissed whilst setting aside the judgmentand order dated 21.12.2005 passed by the learned single Judge of theHigh Court in the said writ petition. By the said writ petition, the appellantshad sought following reliefs: -C

“8. The petitioners pray that this Hon’ble Court be pleased toissue a writ of mandamus or a writ in the nature of mandamus orany other appropriate writ, direction and/or order and be pleased:

(A) to declare that the Panchnama dated 20.03.1986, (AnnexureD) and the purported action of the respondents to take possession,Dpurported constructive or actual of the lands mentioned in para

(c) hereinabove is contrary to law and of no legal effect.

(B) to permanently restrain the respondents from disturbing ortaking possession of the petitioners lands admeasuring 12,385 sq.mts. or any part thereof mentioned in Panchnama dated 20.03.1986E(Annexure D).

(C) commanding the respondents to deliver back to the petitionerspossession of the said lands, if they are held to be in possession defacto or dejure thereof.

(D) to restrain the respondents from taking any proceedings inFrespect of the said lands pursuant to the order dated 01.02.85 ofthe Competent Authority.

(E) to restrain pending the hearing and final disposal of this Petitionthe respondents from in any manner disturbing or interfering withthe possession of the said lands which are in joint possession ofGthe petitioners and other joint holders.

(F) to grant such other and further reliefs as this Honourable Courtin the facts and circumstances of the case deems fit and proper.

H1 For short, “the High Court”

(G) to provide for the costs of this petition.”

2. The backdrop in which the writ petition was filed can be stated thus.

3. The appellants claim to be legal representatives of the originalowner of the land in question, namely, Parsottambhai Patel, who died on28.1.1976 before the commencement of the Urban Land (Ceiling andRegulation) Act, 1976[2] in the State of Gujarat i.e., with effect from 17[th]February, 1976. He had five sons, namely, (i) Ambalal ParsottambhaiPatel, (ii) Maganbhai Parsottambhai Patel, (iii) Babarbhai ParsottambhaiPatel, (iv) Bhailalbhai Parsottambhai Patel and (v) RamanbhaiParsottambhai Patel. Family of the said Parsottambhai Patel filedstatements under Section 6 of the 1976 Act on 13.8.1976 in the name(s)of (i) Ambalal Parsottambhai Patel, (ii) Bhikhabhai Maganbhai Patel,son of deceased Maganbhai Parsottambhai Patel, (iii) JayantibhaiBabarbhai Patel and Jethabhai Babarbhai Patel, sons of deceasedBabarbhai Parsottambhai Patel, (iv) Natvarbhai Bhailalbhai Patel, sonof deceased Bhailalbhai Parsottambhai Patel and (v) RamanbhaiParsottambhai Patel as owners of land admeasuring 30385.10 squaremeters bearing Survey Nos. 362, 378, 592, 593/1, 593/2 (Final Plotnumbers 280, 287, 108, 115 and 116) of Village Manjalpur, DistrictVadodara in the State of Gujarat. The statements disclosed that otherpersons were also interested in the stated land. Later, an applicationcame to be filed on behalf of the five brothers for exemption underSection 20(1)(a) of the 1976 Act. That was granted vide order dated6.3.1980/29.11.1980 by the Deputy Collector and Under Secretary,Revenue Department, Government of Gujarat. On 8.6.1981, in responseto the draft statements, objections were filed in the name of AmbalalParsottambhai Patel through Power of Attorney holder - RamanbhaiParsottambhai Patel. Pursuant to request made by the land owners tocancel the agriculture exemption, an order was passed by the office ofcompetent authority and Additional Collector (ULC), Vadodara on7.11.1983. The competent authority, pursuant to the statements submittedby the land owners and considering the objections to the draft statement,issued final statement under Section 9 of the 1976 Act, declaring 12persons as holders of surplus/excess land to the tune of 12385 squaremeters, particulars whereof have been noted in the order dated 1.2.1985,as follows: - 2 For short, “the 1976 Act”

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[2020] 8 S.C.R.

A“Particulars of surplus land.

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12385 Square metres”

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The land owners were duly informed that the surplus/excess landreferred to in the final statement will be acquired as and when requiredby the Government and till then, the holders may continue to remain inpossession thereof. Thereafter, on 8.3.1985/21.3.1985, a notification underSection 10(1) of the 1976 Act was issued proposing acquisition of surplus/Eexcess land. The said notification included only four (4) names beingAmbalal Parsottambhai Patel, Bhikhabhai Maganbhai Patel, NatvarbhaiBhailalbhai Patel and Jayantibhai Babarbhai Patel and excluded the namesof eight (8) other joint owners, as referred to in the order dated 1.2.1985,who were also the legal representatives of the original owner and membersFof family of deceased Parsottambhai Patel. A follow up notification (dated31.5.1985) under Section 10(3) of the 1976 Act was published in theGazette on 25.7.1985. Only after the issuance of notification underSection 10(3) of the 1976 Act, whereby, the surplus/excess land cameto be vested in the State Government, an application for exemption underSection 21 of the 1976 Act was filed by Ambalal Parsottambhai PatelGand Tribhovandas Chotabhai Patel on 22.8.1985. While the saidapplication under Section 21 was pending consideration, notification underSection10(5) of the 1976 Act came to be issued on 17.12.1985 to handoverpossession of the vacant land. The same was duly served upon AmbalalParsottambhai Patel on 26.12.1985 as per the endorsement shown inHAnnexure A-11 and on Jayantibhai Babarbhai Patel on the same date as per endorsement in Annexure A-12. After service of notification/noticeunder Section 10(5) of the 1976 Act, Ambalal Parsottambhai Patel expiredon 31.12.1985. Despite that, another notice came to be issued on 23.1.1986under Section 10(5) of the 1976 Act mentioning the names of AmbalalParsottambhai Patel, Bhikhabhai Maganbhai Patel, Natvarbhai BhailalbhaiPatel and Jayantibhai Babarbhai Patel. In the said notice, it was mentionedthat the date of handing over possession was fixed on 1.2.1986 at 11.00hrs. and the addressees were called upon to remain present at the sitefor handing over possession. According to the appellants, this noticewas issued only to Ambalal Parsottambhai Patel and not to other landowners. The respondent-State has, however, countered this factualnarrative of the appellants and have relied on acknowledgments producedalongwith Written Submissions in Annexure R-2. However, it is notdisputed by the respondent-State that the notice sent to AmbalalParsottambhai Patel was returned on 2.2.1986 with endorsement “saidowner has expired”. The possession of the surplus/excess land wastaken over under a Panchanama dated 20.3.1986 signed by twoindependent witnesses. On 11.4.1986, the Mamlatdar, Baroda City wasrequested to enter the name of the State Government in the Revenuerecord concerning the stated lands. Thereafter, notice dated 17.5.1986under Section 11 of the 1976 Act was issued to Bhikhabhai MaganbhaiPatel being heir of the deceased Ambalal Parsottambhai Patel to appearon 27.5.1986 for determination of compensation amount. The competentauthority determined the compensation amount on 6.8.1986. Theapplication filed by the land owners under Section 21 of the 1976 Actcame to be rejected on 15.12.1986.

4. The above decision was challenged by the land owners throughtheir Power of Attorney holders Ramanbhai Parsottambhai Patel andTribhovandas Chotabhai Patel by way of appeal under Section 33 of the1976 Act. In this appeal, the competent authority had filed reply on4.4.1988, stating that the application under Section 21 was notmaintainable, as the land had already vested in the State Government, asa consequence of notification under Section 10(3) of the 1976 Act. Theaforesaid appeal was rejected by the appellate authority on 28.8.1995.However, one Devikaben Chandubhai Bhailalbhai (daughter ofChandubhai Bhailalbhai Patel, who in turn was son of BhailalbhaiParsottambhai Patel) alongwith her three siblings filed review applicationagainst the order passed by the appellate authority dated 28.8.1995 afterlapse of over two years i.e. on 29.4.1998. That review application was A

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Aallowed on 19.9.1998 and the proceedings came to be remanded to thecompetent authority for consideration afresh on merits.

5. During the pendency of the remanded proceedings (arising fromapplication under Section 21), the repeal Act, namely, the Urban Land(Ceiling and Regulation) Repeal Act, 1999[3] came into force fromB30.3.1999. The land owners then filed an application dated 30.4.1999before the competent authority to give No Objection Certificate to theeffect that vide order dated 19.9.1998 passed by the Urban Land Tribunal/Ex-Officio Additional Chief Secretary, Revenue Department, Gujarat,all the earlier orders or notifications stood quashed and set aside and theland no longer vested in the Government in any manner. Pursuant to theCsaid application, the competent authority vide order dated 19.5.1999,held that such No Objection Certificate cannot be given to the landowners, as the land had already been declared surplus and steps havebeen taken under Sections 10(1), 10(3), 10(5) and 10(6) of the 1976 Act,which have attained finality.D6. After this decision, one Kamleshbhai Parekh, Power of Attorneyholder of Ambalal Parsottambhai Patel was advised to file writ petitionbeing Special Civil Application (SCA) No. 8402/1999, challenging thePossession Panchnama dated 20.3.1986. The learned single Judge, partlyallowed the said writ petition vide judgment and order dated 5.12.2000.EFeeling aggrieved by that decision, the State Government carried thematter in appeal by way of LPA No. 460/2002 before the Division Benchof the High Court on the ground, amongst others, that KamleshbhaiParekh had no subsisting right or locus to file the writ petition on accountof the death of Ambalal Parsottambhai Patel on 31.12.1985, as a resultof which the authority to file such a petition had come to an end. WhenFthe said appeal was pending, the appellants herein were advised to filean independent writ petition for the same relief(s), being SCA No. 12602/2001. The reliefs in this writ petition have been reproduced in paragraph1 above.

7. Finally, the appeal filed by the State Government being LPAGNo. 460/2002 came to be allowed by the Division Bench of the HighCourt on 16.8.2005, accepting the objection regarding maintainability ofthe writ petition by the Power of Attorney holder of the deceased AmbalalParsottambhai Patel. However, all other questions were left open.

H3 For short, “the repeal Act”

8. Be that as it may, the writ petition filed by the appellants hereinbeing SCA No. 12602/2001 was allowed by the learned single Judge ofthe High Court vide judgment and order dated 21.12.2005 for reasonsnoted therein. That decision was assailed by the State Government byway of LPA No. 233/2006 before the Division Bench of the High Court,which came to be allowed vide impugned judgment and order dated26.4.2011.

9. The Division Bench first proceeded to hold that the applicationfiled by the land owners under Section 21 of the 1976 Act was barred bylimitation having been filed after 1139 days from the date ofcommencement of the 1976 Act. It ought to have been filed before3.4.1979, whereas, it was filed on 22.8.1985 and there was no powerbestowed on the competent authority to entertain such delayed application.Having said that, it went on to hold that all the land owners had notchallenged the decision of the competent authority. The appeal underSection 33, however, was preferred only by Ramanbhai ParsottambhaiPatel and Tribhovandas Chotabhai Patel, the Power of Attorney holdersof Ambalal Parsottambhai Patel. No other appellant had preferred thesaid appeal and thus they allowed the order dated 15.12.1986 rejectingthe application under Section 21 to attain finality. The Division Benchthen proceeded to consider the objection taken by the State regardingdelay in filing the subject writ petition by these appellants, to question thePossession Panchnama dated 20.3.1986 after lapse of 14 years, in 2001.While considering this objection, the Division Bench noted thus: - “41. The appellant-State has taken specific plea that the ordertaking possession was never challenged before the appellateauthority or the reviewing authority. It was only challenged in thewrit petition after a long delay. Though the aforesaid standwas taken before the learned Single Judge, it was notproperly discussed.

42. The appellant-State has taken specific plea that the order takingpossession was never challenged before the appellate authorityor the reviewing authority. It was only challenged in the writpetition after long delay. Though the aforesaid stand was taken,but not properly discussed by the learned Single Judge.

43. In the case of Shivgonda Anna Patil v. State of Maharashtrareported in AIR 1990 SC 2281 the Supreme Court while dealing AB

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ASec. 10 of the Act held that the writ petition under Article 226 forreopening the proceeding on the ground that the competentauthority had not taken into consideration certain fact, filed afterten years, after the excess land was vested in the StateGovernment was rightly summarily dismissed by the High Court.

B44. While deciding the question of delay and laches in preferringthe petition under Article 226, Supreme Court in the case of TheMunicipal Council, Ahmednagar v. Shah Hyder Beig reported inJT 1999 (10) SC 336 held that the equitable doctrine, namely,‘delay defects equity’ has its fullest application in the matter ofgrant of relief under Article 226 of the Constitution. TheCdiscretionary relief can be had provided one has not by his act orconduct given a go-bye to his rights. Equity favours a vigilantrather than an indolent litigant and this being the basic tenet oflaw.

45. In the present case, we have noticed that possession ofDthe land was taken on 20[th] March 1986. The order rejectingthe application u/Sec. 21 reached finality on 15[th] December1986 against all the petitioners, except one RamanbhaiPurshottambhai Patel. The writ petition was preferredagainst the petitioners being not vigilant in exercise of theirErights, learned Single Judge ought not to have entertainedthe petition against the order taking possession after sucha long delay.”

The Division Bench accordingly allowed the appeal preferred byFthe State and dismissed the writ petition filed by the appellants herein bysetting aside the judgment and order of the learned single Judge anddeclaring that the possession of the land has been rightly taken over bythe competent authority of the State on 20.3.1986.

10. Feeling aggrieved, the land owners have approached this Court.GIt is urged that there is no tittle of evidence to substantiate the factasserted by the respondent-State that physical possession of the land inquestion has been taken over on 20.3.1986. It was merely a paper-possession in the form of Possession Panchnama. According to theappellants, de facto possession of the subject land as on the date of therepeal Act is crucial and entail in abatement of all the actions of theH

State authorities under the 1976 Act. Mere issuance of notification underSection 10(3) of the 1976 Act regarding deemed vesting of the land inthe State is not enough for the purposes of the repeal Act. Reliance hasbeen placed on Vinayak Kashinath Shilkar vs. Deputy Collector andCompetent Authority & Ors.[4], State of Uttar Pradesh vs. Hari Ram[5],Gajanan Kamlya Patil vs. Additional Collector and CompetentAuthority (ULC) & Ors.[6]and Mangalsen vs. State of Uttar Pradesh& Anr.[7]. The consistent view of this Court is that physical possessionmust be taken by the State authorities, failing which the proceedingsshall abate on account of the repeal Act. The appellants have relied onRevenue records to show that the continued possession remained withthe appellants/land owners even after the Possession Panchnama wasmade on 20.3.1986. The Revenue entries have presumptive value andthe respondent State had failed to rebut the same. It is further contendedthat the purported Possession Panchnama dated 20.3.1986 is not a reliabledocument at all. It is vague and bereft of details. Its authenticity andcontents have been disputed by the appellants. It is intriguing that althoughthe subject land is dispersed and not one continuous piece of land, yetone common Possession Panchnama is drawn without any explanationas to the manner in which the possession of five non-contiguous plotscame to be taken by the authorities concerned. Further, the Panchnamadoes not bear any time. All these deficiencies lead to the only conclusionthat the Possession Panchnama was prepared by the officials sitting intheir office without visiting the site. Secondly, the Possession Panchnamahas not been signed by any of the twelve (12) land owners. The appellantsare also relying on the observations made by the learned single Judgerecording the factum of possession being in favour of the appellants tohold that the Possession Panchnama was illegal. It is then urged that theauthorities could not have recorded Possession Panchnama until theapplication under Section 21 of the 1976 Act was finally decided by thecompetent authority. Admittedly, the said application was filed on22.8.1985 and was pending on 20.3.1986. This is impermissible in lawand the action is vitiated even on that count. To bolster this position,reliance is placed on the dictum in Full Bench of the High Court inM/s. Avanti Organisation vs. Competent Authority & Additional 4 (2012) 4 SCC 718 (paragraphs 9 to 11)

5 (2013) 4 SCC 280 (paragraphs 36-37)

6 (2014) 12 SCC 523 (paragraphs 10 and 12)

7 (2014) 15 SCC 332 (paragraphs 10 to 14)

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ACollector, Urban Land Ceiling Act, Rajkot & Anr.[8] and also onSamrathben Manilal Chokshi & Anr. vs. State of Gujarat & Anr.[9]and Savitaben Ramanbhai Patel vs. State of Gujarat & Ors.[10].Reliance is also placed on the decision of this Court in Darothi ClareParreira (Smt.) & Ors. vs. State of Maharashtra & Ors.[11]. Relianceis also placed on South India Corporation (P) Ltd. vs. Secretary,BBoard of Trivandrum & Anr.[12], wherein it is held that Sections 10 and21, both, fall under Chapter III of the Act, and thus, Section 21 operates“in spite of Section 10”. Reliance is also placed on Special Officer &Competent Authority, Urban Land Ceilings, Hyderabad & Anr. vs.P.S. Rao[13], wherein it is observed that unless the quantum of excessCland is determined, the land owner cannot be expected to surrender theexcess land or seek exemption under Sections 20 or 21 or 22 of the 1976Act. Moreover, the period of filing the application under Section 21 oughtto be reckoned from the date of withdrawal of the exemption underSection 20 of the 1976 Act and not from the date of commencement ofthe Act i.e. 17.2.1976, as such. It is urged that notice was not servedDupon all the land owners in respect of action(s) under Section 10 of the1976 Act. Hence, the Possession Panchnama would be of no avail andis void and illegal. This Court in Hariram (supra) has expounded thatrequirement of giving notice under Section 10(5) and/or 10(6) is mandatoryand failure to do so would entail in the land owner being dispossessedEwithout notice, which cannot be countenanced. It is urged that therespective shares of the four (4) noticees are as follows: - F

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8 AIR 1989 Guj 1299 (1994) 35(1) GLR 20310 (1999) 40(1) GLR 86011 (1996) 9 SCC 633 (paragraphs 5 and 6)

12 AIR 1964 SC 207 (paragraph 19)H13 (2000) 2 SCC 451 (paragraph 4)

Although the competent authority recognised twelve (12) landowners, it chose to issue notice only to selected four (4) land owners.The notice served on them cannot bind the other land owners. In absenceof notice, plea regarding vesting of land qua such land owners cannotbe countenanced. Reliance is placed on Ramanlal Bhailal Patel &Ors. vs. State of Gujarat[14] and Har Pyari (Smt.) vs. IInd AdditionalJudge, Moradabad & Ors.[15]. As regards Ambalal Parsottambhai Patel,he had expired on 31.12.1985. As a result, notice issued to AmbalalParsottambhai Patel admittedly remained unserved on his legalrepresentatives. Further, Ambalal Parsottambhai Patel’s share is 5829.50square meters of total surplus/excess land, which must be excluded andno further action can be taken in that regard in view of the repeal Act.In substance, the grievance is that the Division Bench ought not to haveinterfered with the decision of the learned single Judge, which was awell-considered decision and a just approach, considering the facts ofthe present case.

11. The respondent State, on the other hand, would urge that thewrit petition filed by the appellants was hopelessly delayed and sufferedfrom laches. The possession of the suit land was taken under thePossession Panchnama dated 20.3.1986. That fact was within theknowledge of the appellants as is evident from the record and in particularfrom the stand taken by the respondent-State to oppose review applicationin relation to application under Section 21 of the 1976 Act. It was clearlystated by the respondent in the said proceedings that the appellants werenot entitled for any relief as possession has already been taken on20.3.1986 and that the subject land had already vested in the State.Thus, it was within the knowledge of the appellants being party to thesaid proceedings. That fact has been recorded in the order dated19.9.1998 in review application while remanding the application (underSection 21) for reconsideration by the competent authority. The presentwrit petition, however, has been filed only in 2001 without disclosing anycause for such delay and laches, much less plausible explanation. TheDivision Bench of the High Court was, therefore, justified in non-suitingthe appellants including on the ground of delay and laches in filing of thewrit petition. That finding is unexceptionable. It is urged that beforetaking possession vide Possession Panchnama dated 20.3.1986, notices 14 (2008) 5 SCC 449 (paras 27 and 29)

15 (2001) 10 SCC 525 (paragraphs 3 and 4)

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Awere duly issued to the land owners under Section 10(5) of the 1976Act. The first notice was issued on 17.12.1985 to Ambalal ParsottambhaiPatel, Bhikhabhai Maganbhai Patel, Natvarbhai Bhailalbhai Patel andJayantibhai Babarbhai Patel. This was duly served. The second noticedated 23.1.1986 was also issued to Ambalal Parsottambhai Patel,Bhikhabhai Maganbhai Patel, Natvarbhai Bhailalbhai Patel andBJayantibhai Babarbhai Patel. The second notice sent to AmbalalParsottambhai Patel returned with endorsement “said owner has expired”.However, the other noticees – Bhikhabhai Maganbhai Patel, NatvarbhaiBhailalbhai Patel and Jayantibhai Babarbhai were duly served with thesecond notice and their acknowledgments have been produced on record.CDespite those notices, the concerned appellants failed to remain presentfor handing over the possession on the specified date. Therefore, afterwaiting for 30 days’ period, the authority proceeded to take forciblepossession on 20.3.1986 vide Possession Panchnama. That is permissiblein law and was the only course open to the authority to take forward theacquisition process of the excess/surplus land. It is urged that none ofDthe appellants challenged the said notices or the Possession Panchnamaof 1986. Further, the appellants have not asked for further relief ofdeclaration regarding the other proceedings, which have become finalor for that matter that the entire proceedings stood abated in terms ofthe repeal Act, knowing fully well that such a plea would not be availableEto them in light of having lost possession of the surplus/excess land on20.3.1986.

12. The respondent has placed reliance on State of Assam vs.Bhaskar Jyoti Sarma & Ors.[16] and also on Larsen & Toubro Ltd. vs.State of Gujarat & Ors.[17]. According to the respondent, pendency ofFapplication under Section 21 of the 1976 Act is no bar for proceedingbeyond Section 10(3) of the 1976 Act, as is contended by the appellants.This legal position is no more res integra and in fact, has been plainlyrejected by this Court in Darothi Clare Parreira (supra). Moreover,the pendency of application under Section 21 is not saved by the repeal Act, as in those proceedings, the claim of the owners is for acquiring aGright and not for enforcement of accrued right. Reliance is placed onState of Gujarat & Anr. vs. Gyanaba Dilavarsinh Jadega[18] andMadhusudan Bhanuprasad Pandya vs. State of Gujarat & Ors.[19].

16 (2015) 5 SCC 321 (paragraphs 13 to 17)17 (1998) 4 SCC 387 (paragraphs 14 to 16)H18 (2013) 11 SCC 486 (paragraph 13)19 (2019) SCC Online SC 1050 (paragraphs 14 and 16)

13. It is urged that the State authorities have already takenpossession of the land as is evident from the Possession Panchnamaand also from the Revenue record, as the name of the State has beenentered therein qua Survey No. 362, Final Plot No. 280 on 26.9.1989and for other surplus lands on 15.2.2000 pursuant to the request made tothe Mamlatdar, Baroda City vide communication dated 11.4.1986. Thisapplication was made much before coming into force of the repeal Act.In other words, after the final statement was drawn on 1.2.1985, soonthereafter notice under Section 10(1) was issued on 8.3.1985/21.3.1985and under Section 10(3), on 25.7.1985 followed by notification/noticeunder Section 10(5) of the 1976 Act, dated 17.12.1985 and again on23.1.1986 before taking forcible possession on 20.3.1986. Soon thereafter,request was sent to the Mamlatdar, Baroda City for entering name ofthe State in the Revenue records on 11.4.1986. Pursuant thereto, theentry in the name of the State was effected in the revenue record in duecourse. Further, the fact of possession having been taken was notedeven in the Review proceedings in September, 1998 and despite that, thesubject writ petition was filed only in 2001 to assail the PossessionPanchnama dated 20.3.1986. It is, therefore, urged by the respondentthat the appeal be dismissed and the decision of the Division Benchought to be upheld on this count alone.

14. We have heard Mr. Shyam Divan, learned senior counsel forthe appellants and Ms. Deepanwita Priyanka, learned counsel for therespondent.

15. After cogitating over the rival submissions and the relevantrecord, it is manifest that the appellants have resorted to all possiblepleas. First, the application for exemption under Section 20 of the 1976Act was moved, which was allowed by the competent authority on6.3.1980, but the appellants chose to withdraw the same. That requestwas eventually granted by the competent authority on 1.2.1985. Theappellants then waited till the notification under Section 10(3) of the1976 Act was issued on 25.7.1985 and opted for remedy of exemptionunder Section 21 by filing an application on 22.8.1985. That came to berejected on 15.12.1986 against which decision a review application wasfiled only by Devikaben Chandubhai Bhailalbhai alongwith her threesiblings, after lapse of two years. Nevertheless, the same was entertainedby the authority concerned and after quashing the entire order in appeal,a remand order came to be passed on 19.9.1998. Even in review A

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Aproceedings, the fact of State authorities having taken forcible possessionof the surplus/excess land on 20.3.1986 vide Possession Panchnama,was reiterated, as can be discerned from the order dated 19.9.1998. It isnot clear as to why the appellants did not take clue at least from suchunambiguous stand taken by the respondent and forthwith proceed toassail the stated stand of the State (of having taken over forcibleBpossession on 20.3.1986). Besides taking possession, the respondent haddetermined the compensation for which notice under Section 11 wasissued to the appellants on 17.5.1986. It is not the case of the appellantsthat they were unaware even about that development until 2001. Nosuch plea is taken by the appellants in the writ petition filed in the yearC2001. It is only after the competent authority declined to issue NoObjection Certificate vide order dated 19.5.1999, they thought of changingthe track by taking advantage of the repeal Act having come into forceon 30.3.1999. However, they chose to file the writ petition only in thename of Kamleshbhai Parekh in the capacity of Power of Attorneyholder of late Ambalal Parsottambhai Patel, being SCA No. 8402/1999,Dlittle realizing that the authority given by Ambalal Parsottambhai Patelhad come to an end after his demise on 31.12.1985 itself. No doubt thelearned single Judge was persuaded to quash the entire proceedingswhich had culminated with taking forcible possession of the surplus/excess land vide Possession Panchnama dated 20.3.1986, being vitiatedEand/or abated. However, it is only after the other appellants realised thatthe decision of the learned single Judge in SCA No. 8402/1999 wasflawed and has been justly assailed by the State Government on thatcount by way of LPA No. 460/2002, they chose to file the present writpetition (SCA No. 12602/2001). In the said writ petition, however, nodisclosure has been made as to why these appellants did not assail theFPossession Panchnama dated 20.3.1986 in earlier point of time includingwhen the existence of this document was specifically pleaded by therespondent-State, in particular, in the review application. In the writpetition, the only assertion made regarding delay and laches can bediscerned from paragraph 5, which reads thus: -G“5. The petitioners have approached this Hon’ble Court withoutany delay or laches. The petitioners had remained under animpression that the matter was being looked after by thelate Ambalal Purshottamdas Patel’s constituted attorney andthat therefore it was not necessary for them to approachHthis Hon’ble Court in the matter. The petitioners are agriculturists and not conversant with the intricacies of law werenot aware that on Ambalal Purshottamdas Patel’s death theAuthority of his constituted attorney Kamlesh Parekh had cometo an end. Though Kamleshbhai Parekh has informed thepetitioners of the objections likely to be raised on behalf of theappellants in the said Letters Patent Appeal, he has also informedthe petitioners that he was not aware that he could not rely uponthe power of attorney given by Ambalal Purshottamdas Patel afterhis death and in fact has regretted putting the petitioners in theawkward position. The petitioners submit that under thecircumstances the time taken in the prosecution of the SpecialCivil Application No. 8402 of 1999 and the said Civil Applicationand the Letters Patent Appeal by the respondents be excluded inconsidering the time taken by the petitioners to approach thisHon’ble Court in the matter. The petitioners submit that theyare approaching this Hon’ble Court as expeditiously as thecircumstances of the case would permit. The petitionersfurther submit that the delay, if any, on the part of thepetitioners in approaching this Hon’ble Court has not inany manner caused any prejudice or detriment to therespondents. The petitioners submit that this Hon’ble Courtbe pleased to entertain the Petition and not to reject it onthe ground of delay, acquiescence or laches.”

The earlier part of the writ petition deals with the factualbackground and assertion that the appellants still continue to be in physicalpossession of the stated land and was using it for agricultural purpose,as can be noticed from the Revenue record. Indeed, the Revenue recordmay have presumptive value, but that can be rebutted, which in this casehas been done by the respondent-State by relying on the PossessionPanchnama and the subsequent proceedings including the applicationsubmitted to the Mamlatdar, Baroda City in right earnest for entering thename of the State Government in the Revenue records, dated 11.4.1986,and pursuant to which entries had been effected on 26.9.1989 and15.2.2000 respectively.

16. Obviously, therefore, the appellants thought of the last attemptto assail the Possession Panchnama dated 20.3.1986 itself without seekingany further relief of declaration regarding the earlier proceedings whichhad attained finality.

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17. The Division Bench, in our opinion, therefore, was right inconcluding that the writ petition filed by the appellants after lapse of 14years was hopelessly barred by delay and suffered from laches. We arein agreement with the said view taken by the High Court in the peculiarfacts of the present case.

B18. Strikingly, in this appeal by special leave, a vague ground hasbeen raised to challenge the said conclusion of the Division Bench.Further, no substantial question of law has been formulated in the appealby special leave in that regard. Furthermore, in the grounds all that isasserted is that the High Court erred in holding that there was delay of14 years in filing of writ petition and in not appreciating that the noticeCunder Section 10(5) of the 1976 Act, dated 23.1.1986, was not servedupon Ambalal Parsottambhai Patel as he had already expired on31.12.1985 and the notice sent to him was returned back on 2.2.1986unserved with remark “said owner has expired”. Further, the legal heirsof Ambalal Parsottambhai Patel ought to have been served with the saidDnotice. From the factual matrix already stated hitherto, these grounds, in our opinion, are of no avail to the appellants. It is manifest from theacknowledgement produced by the respondent-State that the first noticeunder Section 10(5) issued to Ambalal Parsottambhai Patel was dulyserved on 26.12.1985. By the time second notice under Section 10(5)was issued on 23.1.1986, Ambalal Parsottambhai Patel had died (onE31.12.1985). The second notice was also issued to others, namely,Bhikhabhai Maganbhai Patel, Natvarbhai Bhailalbhai Patel andJayantibhai Babarbhai Patel. Be that as it may, we are not inclined toreverse the conclusion recorded by the Division Bench of the High Courtthat the writ petition filed by the appellants was hopelessly delayed and Fsuffered from laches. That is a possible view in the facts of the presentcase.

19. The respondents had additionally relied on the decision of thisCourt in Larsen & Toubro Ltd. (supra), wherein the Court adverted tothe exposition in Balwant Narayan Bhagde vs. M.D. Bhagwat &GOrs.[20], Balmokand Khatri Educational and Industrial Trust vs. State of Punjab[21]and Tamil Nadu Housing Board vs. A. Viswam (Dead)by LRs.[22] regarding the settled legal position that it is difficult to take 20 (1976) 1 SCC 700 (paragraph 28)

21 (1996) 4 SCC 212 (paragraph 4)H22 (1996) 8 SCC 259 (paragraph 9)

physical possession of the land under compulsory acquisition. Further,that the normal mode of taking possession is drafting the Panchnama inthe presence of Panchas and taking possession and giving delivery tothe beneficiaries is accepted mode of taking possession of the land.Subsequent thereto, the retention of possession would tantamount onlyto illegal or unlawful possession. Reliance is also placed on paragraphs14 to 16 of Bhaskar Jyoti Sarma (supra). However, it is not necessaryfor us to dilate on these aspects having agreed with the conclusionrecorded by the Division Bench of the High Court that the writ petitionfiled in the year 2001 by the appellants with limited relief of questioningthe Possession Panchnama dated 20.3.1986, suffered from laches. TheDivision Bench of the High Court noted that the learned single Judgecompletely glossed over this crucial aspect of the matter, and we find noreason to depart from that conclusion.

20. In view of the above, it is not necessary for us to dilate onother contentions raised by the appellants or by the respondent-State onmerits.

21. Having said thus, it must follow that the present appeal isdevoid of merits and the impugned decision of the Division Bench of theHigh Court ought to be upheld on the threshold ground of writ petitionbeing barred by laches.

22. Accordingly, this appeal must fail. The same is dismissedwith no order as to costs. Pending interlocutory applications, if any, shallstand disposed of.

Divya Pandey

Appeal dismissed.

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