PUNJIBEN RANCHHODJI Vs. STATE OF GUJARAT
LAWS(GJH)-2014-3-207
HIGH COURT OF GUJARAT
Decided on March 31,2014

Punjiben Ranchhodji Appellant
VERSUS
STATE OF GUJARAT Respondents

JUDGEMENT

- (1.) HEARD learned advocate Mr.N.K.Pahwa for the petitioner and learned AGP Mr.Bharat Vyas for the respondents.
(2.) IT is the case of the petitioner that Form No.6 was submitted by the petitioner under section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 ("the Act" for short) on 14.9.1976 and the land admeasuring 17394 square meters was declared vacant and surplus. It is not under dispute that the final statement under section 9 of the Act was issued on 21.9.1983. Thereafter, notification under section 10(1) of the Act was issued on 19.12.1983 for the land bearing Revenue Survey Nos.1256 and 1335/1 of village Vejalpur, Taluka City Ahmedabad and it was stated that the land admeasuring 17394 square meters was declared vacant and surplus. The said notification under section 10(1) of the Act was published in the official gazette on 19.1.1984. Thereafter, the notification under section 10(3) of the Act was issued by the competent authority on 17.5.1989 and the notification under section 10(5) of the Act was issued on 17/31.5.1990. It is the fact that possession of excess vacant land was taken by the respondents by drawing panchnama dated 2.7.1990, copy of which is at pages 55 to 57 of the petition and necessary entries in the revenue record were mutated in favour of the respondents. 2.1 Learned advocate for the petitioner has submitted that the respondents can take possession only after issuance of the notice under section 10(6) of the Act, but the prescribed procedure established by law has not been followed and accordingly, the action of the respondents taking possession by merely drawing panchnama is nothing but paper possession, as such, alleged to have been taken by the respondents in violation of Articles 14 and 21 of the Constitution of India. 2.2 It has also been submitted by learned advocate for the petitioner that respondents have made attempt to show that they have acquired the property high -handedly under section 10(6) of the Act, but without issuance of the notice, the respondents herein alleged to have taken possession by drawing the panchnama dated 2.7.1990 and the said action is against the principles of natural justice. It has been submitted by learned advocate for the petitioner that the land is in actual possession of the petitioner and the respondents have, as such, not given any compensation against the alleged land acquired by the Government and as the Act has been repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 ("the Repeal Act" for short), all the proceedings under the Act are abated and, therefore, the petitioner is entitled to hold the said land and hence, the present petition has been filed by the petitioner seeking the following reliefs. "(A) That the Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, quashing and setting aside the impugned action of the respondents in taking paper possession of the disputed land bearing Survey No.1256 and 1335/1 admeasuring 17394 square meters of land of Vejalpur village, Ahmedabad. (B) That the Hon'ble Court may be pleased to hold that the action of the respondents in acquiring the disputed land of the petitioner bearing Survey No.1256 and 1335/1 admeasuring 17394 square meters without following the provisions u/s 10 of the said Act, is illegal, unjust and against the provisions of natural justice and requires to be quashed and set aside; (C) xxxx xxxx xxxx (D) xxxx xxxx xxxx (E) xxxx xxxx xxxx"
(3.) LEARNED advocate for the petitioner has mainly submitted that the actual possession of the land is not taken by the respondent authorities and, therefore, under the provisions of section 3 read with section 4 of the Repeal Act, the proceedings would abate. Drawing attention of this Court on the panchnama dated 2.7.1990 at pages 55 to 57 of the petition, learned advocate for the petitioner has submitted that referring to the same, it is clear that no forceful possession is ever taken from the land owner and the law contemplates that if the land owner and/or a person in possession does not hand over the possession voluntarily and even after giving the notice under section 10(5) of the Act, the authority is obliged to give notice under section 10(6) of the Act to take forceful possession and thereafter, the authority is obliged to take forceful possession and so far as the present case is concerned, there is no material or evidence forthcoming on record from the respondents to show that the authority has either issued the notice under section 10(6) of the Act or that the authority has acquired forcible actual and physical possession of the land. Drawing further attention on the above referred panchnama dated 2.7.1990, learned advocate for the petitioner has submitted that as mentioned in the said panchnama, it has come on record that while drawing the said panchnama, the concerned authority has found that at least 300 350 constructed houses were there on the site and no vacant land is there at the site. He has, then, drawn attention of this Court on the notice issued under section 10(5) of the Act dated 17/31.5.1990 at page 53 and submitted that referring to the same, it is clear that the respondents have issued the notice to the petitioner only and no notice has been issued or served to the persons who are residing in 300 350 constructed houses which were as such constructed by the Laxmikrupa Cooperative Housing Society Limited as mentioned in the above referred panchnama dated 2.7.1990. 3.1 Learned advocate for the petitioner has drawn attention of this Court on the provisions of section 10(5) of the Act which provide for notice in writing ordering any person who may be in possession of the vacant land to surrender or deliver possession to the State Government or to any person duly authorized by the State Government within a period of thirty days from service of the notice. The said provisions have also not been followed in its letter and spirit by issuing the notices to the persons who are in possession of 300 to 350 houses constructed by the cooperative housing society by the respondents and accordingly, alleged notice under section 10(5) referred hereinabove issued by the respondents is also bad in law and accordingly, subsequent action alleged to have taken under section 10(6) of the Act simply by drawing the panchnama dated 2.7.1990 is also nothing, but nonest action on the part of the respondents and hence, he has requested to allow the present petition as prayed for. 3.2 In support of his submissions, learned advocate Mr.Pahwa for the petitioner has placed reliance on the decision in the case of State of Uttar Pradesh Vs Hari Ram, 2013 4 SCC 280. Paragraphs 30 to 37 read as under. "30. Vacant land, it may be noted, is not actually acquired but deemed to have been acquired, in that deeming things to be what they are not. Acquisition, therefore, does not take possession unless there is an indication to the contrary. It is trite law that in construing a deeming provision, it is necessary to bear in mind the legislative purpose. The purpose of the Act is to impose ceiling on vacant land, for the acquisition of land in excess of the ceiling limit thereby to regulate construction on such lands, to prevent concentration of urban lands in hands of few persons, so as to bring about equitable distribution. For achieving that object, various procedures have to be followed for acquisition and vesting. When we look at those words in the above setting and the provisions to follow such as sub -sections (5) and (6) of Section 10, the words 'acquired' and 'vested' have different meaning and content. Under Section 10(3), what is vested is de jure possession not de facto, for more reasons than one because we are testing the expression on a statutory hypothesis and such an hypothesis can be carried only to the extent necessary to achieve the legislative intent. Voluntary Surrender 31. The 'vesting' in sub -section (3) of Section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. The court in Maharaj Singh v. State of UP, while interpreting Section 117(1) of the U.P. Zamindari Abolition and Land Reform Act, 1950 held that 'vesting' is a word of slippery import and has many meaning and the context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. The court in Rajendra Kumar v. Kalyan held as follows: "28. We do find some contentious substance in the contextual facts, since vesting shall have to be a "vesting" certain. 'To "vest", generally means to give a property in.' (Per Brett, L.J. Coverdale v. Charlton. Stroud's Judicial Dictionary, 5th edn. Vol. VI.) Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorization cannot however but be termed to be a contingent event. To 'vest', cannot be termed to be an executory devise. Be it noted however, that 'vested' does not necessarily and always mean 'vest in possession' but includes 'vest in interest' as well." 32. We are of the view that so far as the present case is concerned, the word "vesting" takes in every interest in the property including de jure possession and, not de facto but it is always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act. 33. Before we examine sub -section (5) and sub -section (6) of Section 10, let us examine the meaning of sub -section (4) of Section 10 of the Act, which says that during the period commencing on the date of publication under sub -section (1), ending with the day specified in the declaration made under sub -section (3), no person shall transfer by way of sale, mortgage, gift or otherwise, any excess vacant land, specified in the notification and any such transfer made in contravention of the Act shall be deemed to be null and void. Further, it also says that no person shall alter or cause to be altered the use of such excess vacant land. Therefore, from the date of publication of the notification under sub - section (1) and ending with the date specified in the declaration made in sub -section (3), there is no question of disturbing the possession of a person, the possession, therefore, continues to be with the holder of the land. Peaceful dispossession 34. Sub -section (5) of Section 10, for the first time, speaks of "possession" which says that where any land is vested in the State Government under sub -section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorized by the State Government. 35. If de facto possession has already passed on to the State Government by the two deeming provisions under subsection (3) of Section 10, there is no necessity of using the expression "where any land is vested" under sub -section (5) of Section 10. Surrendering or transfer of possession under subsection (3) of Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub -section (5) of Section 10 to surrender or deliver possession. Subsection (5) of Section 10 visualizes a situation of surrendering and delivering possession, peacefully while sub -section (6) of Section 10 contemplates a situation of forceful dispossession. Forceful dispossession 36. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub -section (5) of Section 10. Sub -section (6) of Section 10 again speaks of "possession" which says, if any person refuses or fails to comply with the order made under subsection (5), the competent authority may take possession of the vacant land to be given to the State Government and for that purpose, force as may be necessary can be used. Sub -section (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub -section (5), in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted only in a situation which falls under sub -section (6) and not under sub -section (5) of Section 10. Sub -sections (5) and (6), therefore, take care of both the situations, i.e. taking possession by giving notice that is "peaceful dispossession" and on failure to surrender or give delivery of possession under Section 10(5), than "forceful dispossession" under sub -section (6) of Section 10. 37. Requirement of giving notice under sub -sections (5) and (6) of Section 10 is mandatory. Though the word "may" has been used therein, the word "may" in both the sub -sections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non -issue of notice under sub -section (5) or subsection (6) of Section 10 is that it might result in the land holder being dispossessed without notice, therefore, the word "may" has to be read as "shall"." . On the other -hand, learned AGP Mr.Bharat Vyas for the respondents has submitted that de jure ownership of the land vested in the State Government upon due procedure of law adopted under the Act and after issuance of the notification under section 10(3) of the Act in the official gazette and after issuance of the notice under section 10(5) of the Act, de facto possession as envisaged under section 10(6) of the Act was taken by the respondents herein by drawing the panchnama dated 2.7.1990, copy of which is at pages 55 to 57 of the petition i.e. forceful possession was taken by the competent authority and now the petitioner, as such, is estopped from raising the dispute of land vested in the State Government which is free from encumbrances. Learned AGP Mr.Bharat Vyas has put reliance on the decision in the case of Khodabhai Chakubhai Patel and others Vs State of Gujarat and others, 2001 3 GLH 52, more particularly, on head -note "C" and submitted that it has been decided by this Court that action of taking over possession by the competent authority by way of paper possession was good possession. The said Head -Note "C" reads as under. "(C) Urband Land (Ceiling and Regulation) Act, 1976 Ss.10(1), 10(3), 10(5) S.11 Affidavit reveals about publication of notification, taking over possession, award of compensation and allotment of excess land to cooperative housing societies Under these circumstances it can't be believed that action of taking over possession by competent authority was mere paper transaction and no actual possession was taken." 4.1 In support of his submissions, learend AGP Mr.Bharat Vyas also put reliance on the decision in the case of Sita Ram Bhandar Society, New Delhi Vs Lieutenant Governor, Government of NCT, Delhi and others), 2009 10 SCC 501. Paragraphs 28 and 30 read as under. 28. A cumulative reading of the aforesaid judgments would reveal that while taking possession, symbolic and notional possession is perhaps not envisaged under the Act but the manner in which possession is taken must of necessity depend upon the facts of each case. Keeping this broad principal in mind, this Court in T.N.Housing Board vs. A.Viswam after considering the judgment in Narayan Bhagde's case, observed that while taking possession of a large area of land (in this case 339 acres) a pragmatic and realistic approach had to be taken. This Court then examined the context under which the judgment in Narayan Bhagde's case had been rendered and held as under: (Viswam case, SCC p.262, para 9). "9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchanama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not be cooperative in taking possession of the land." 29. xxxx xxxx xxxx 30. It would, thus, be seen from a cumulative reading of the aforesaid judgments, that while taking possession of a large area of land with a large number of owners, it would be impossible for the Collector or the Revenue Official to enter each bigha or biswa and to take possession thereof and that a pragmatic approach has to be adopted by the Court. It is also clear that one of the methods of taking possession and handing it over to the beneficiary department is the recording of a Panchnama which can in itself constitute evidence of the fact that possession had been taken and the land had vested absolutely in the Government." 4.2 Learned AGP Mr.Bharat Vyas for the respondents has, then, submitted that ratio laid down by the Honourable Supreme Court in the case of Hari Ram on which learned advocate for the petitioner has placed reliance is not applicable to the case on hand because in the case of Hari Ram , the Honourable Supreme Court has decided the question whether deemed vesting of surplus land under section 10(3) of the Act would amount to taking de facto possession depriving the land holder of the benefit of saving clause under section 3 of the Repeal Act. Thus, the question involved in the said case of Hari Ram before the Honourable Supreme Court whether the notification under section 10(3) of the Act saying deeming vesting of land in the State Government is sufficient before taking actual de facto possession under section 10(5) and under section 10(6) of the Act after Repeal Act came into force. He has, then, submitted that the Repeal Act came into force in State of Gujarat on 30.3.1999 and prior to the Repeal Act, de facto possession as provided under section 10(5) of the Act was taken by issuance of the notice under section 10(5) of the Act dated 17/31.5.1990 and thereafter, under section 10(6) of the Act, by drawing the panchnama dated 2.7.1990, actual and physical possession of excess vacant land was taken by the respondents and so the facts in the case of Hari Ram are quite different than the facts of the case on hand. As observed in the case of Hari Ram , in State of Uttar Pradesh, the Repeal Act came into force on 18.3.1999 and the notice under section 10(5) of the Act was issued on 19.6.1999 which is subsequent to the date of the Repeal Act and, therefore, de facto possession of the land, as such, was neither taken by the competent authority under section 10(6) of the Act nor the owner has voluntarily surrendered the land under section 10(5) of the Act and, therefore, the Honourable Supreme Court has decided the case on section 10(3) of the Act that mere publication of notification under section 10(3) deemed vesting of land prior to the Repeal Act is not sufficient to say that the land is absolutely vested in the State Government in absence of the procedure prescribed under section 10(5) and 10(6) of the Act. In the case on hand, the order under section 11 of the Act for payment of compensation was already made on 20.8.1990 and thus, excess vacant land was vested in the State Government prior to the Repeal Act came into force on 30.3.1999 as referred hereinabove. 4.3 Learned AGP Mr.Bharat Vyas for the respondents has, then, submitted that in the case of Hari Ram , it has been observed by the Honourable Supreme Court that notice under section 10(5) and 10(6) of the Act is mandatory and though the word "may" has been used therein in the said both sub -sections, the same is to be understood as "shall", but in section 10(5) of the Act, the word notice is used which has already been issued so far as the case on hand is concerned as referred hereinabove and under section 10(6) of the Act, the word notice is absent and accordingly, the competent authority has acted as per the provisions of sections 10(5) and 10(6) of the Act and taken actual and physical possession of excess vacant land by operation of existing law at the relevant point of time and thus, ratio laid down in the case of Hari Ram is not applicable to the case on hands considering the fact that factual matrix is different and the possession of the land in dispute was already taken by operation of section 10(6) of the Act.;


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