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Judgment
Akil Kureshi, J.—This petition pertains to proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 (''Ceiling Act'' for short) with respect to land bearing survey No. 84 of village Bhestan, District Surat. The land was jointly inherited by Bhikhiben and Chimiben Bhudharbhai and one hand and Thakorbhai Parbhubhai on the other. Both groups of owners filed separate declarations u/s 6(1) of the Ceiling Act at the relevant time in the year 1976 itself.
So far as declaration and Bhikhiben and Chimiben is concerned, sequence of events is as follows:
(a) The Competent Authority by his order dated 4.10.83 declared 31887 sq. mtrs. of land as excess land.
(b) Land-owners preferred appeal before the Urban Land Tribunal which came to be dismissed on 15.9.84.
(c) The land-owners thereupon filed Special Civil Application No. 2922/85 before the High Court.
(d) High Court by judgment dated 9.7.85 remanded the proceedings to the competent authority.
(e) The competent authority by his order dated 31.3.87 in the fresh proceedings granted total 8 units of 1500 sq.mtrs. each and ultimately declared 12099 sq. mtrs. out of survey No. 84 as excess land.
(f) Government took the order of the Competent Authority in suo motu revision u/s 34 of the Ceiling Act and by order dated 23.4.94 declared 30387 sq. mtrs. of land as excess land.
(g) The Competent Authority passed consequential order on 4.5.94 giving effect to the order of the Government.
(h) Bhikhiben and Chimiben preferred Special Civil Application No. 6945/97 before this Court challenging the said order passed by the Government and the consequential order.
(i) On 22.10.97, learned single Judge of this Court passed following order:
Mr. N.M. Kapadia for the petitioner. Issue notice to the respondents returnable on 12.11.97. In the meantime, status quo as obtaining today shall be maintained. Direct service is permitted.
Upon perusal of the Government files, I find that the said order was served on 29.10.97. Despite the order of status quo, the respondents proceeded to take possession of excess land from out of survey No. 84 which according to the panchnama produced by the Government was taken on 29.12.97.
(j) Eventually, Special Civil Application No. 6945/97 came to be disposed of by the learned single Judge of this Court by order dated 4.9.98 by setting aside the order of the State Government and directing the Government to decide the representation of the petitioners once again in accordance with law after hearing the petitioners. It is an admitted position that such remand proceedings were never disposed of thereafter.
So far as the declaration filed by Thakorbhai Parbhubhai is concerned, it followed the following sequence of events:
(a) On 26.10.93, the Competent Authority declared 33387 sq. mtrs. of land as excess land.
(b) Final statement u/s 9 was sent on 8.11.93.
(c) Notification u/s 10(1) of the Ceiling Act was issued on 6.5.94 which was published in the official gazette on 16.3.95.
(d) On 1.5.95 Thakorbhai Parbhubhai expired.
(e) Further notifications u/s 10(3) and 10(5) were published between 1995 and 1997.
(f) It is the say of the petitioners, that heirs of Thakorbhai having come to know about the developments, approached the Government u/s 34 of the Ceiling Act on 18.9.97.
(g) By common exercise and drawing panchnama, possession of the excess land was taken over on 29.12.97.
On the above facts and circumstances, it is necessary to judge whether the Government had legally taken over the possession of the excess land before the Ceiling Act was repealed by the Urban Land (Ceiling and Regulation) Repealing Act, 1999 (Repeal Act, for short) which came into effect with effect from 30.3.99.
In so far as the case of Bhikhiben and Chimiben is concerned, facts are clear. As already noted, order of the Government taking the order of the Competent Authority in suo motu revision and declaring a total of 33387 sq. mtrs. of land as excess land was challenged before this Court in Special Civil Application No. 6945 of 1997. The petition was entertained, notice was issued and status quo order granted on 22.10.97. This was through direct service served on the authorities on 29.10.97. When there was an order of status quo to be maintained by the Court, there was no question of taking possession of the excess land thereafter. Despite the order having been served on the authorities, the authorities proceeded to draw panchnama and took possession of the land on 29.12.97. Thus the Government cannot be stated to have legally taken over the possession of the land in question from the land-holders. In fact, subsequently, this Court by an order dated 4.9.98 quashed the order passed by the Government and remanded the proceedings to the Government for fresh consideration of the representation of the petitioners.
It is true that the order passed by the Competent Authority declaring total of 12099 sq. mtrs. of land out of survey No. 84 as excess in the declaration made by Bhikhiben and Chimiben was never challenged by the declarants. However, this Court had granted status quo as obtaining on 22.10.97. Admittedly the Government till then had not taken possession in part of survey No. 84. Such fact loses its significance in view of the subsequent repeal of the Ceiling Act as per the provisions contained in the Repeal Act applying to all proceedings under the Ceiling Act in respect of which possession of the land was not taken over by the Government on the date of Repeal Act.
Since the subject matter of the land is common in both proceedings, perhaps the heirs of Thakorbhai Parbhubhai could avail of the fortuitous circumstance of the position obtaining in the case of Bhikhiben and Chimiben. However, independently also, I find that their stand also needs to be accepted.
Thakorbhai expired in the year 1995 is not disputed by the authorities. All proceedings subsequent to issuance of Section 10(1) notification were thus undertaken in absence of any notice to heirs of deceased Thakorbhai. Even the possession is said to have been taken without prior notice to Thakorbhai when he was dead a couple of years earlier. The respondents in the affidavit have stated that they were not aware about the death of Thakorbhai and therefore proceedings were carried on in absence of his heirs. The revision filed by Thakorbhai before the Government has remained dormant and never disposed of.
Combined effect of these facts would be that the Government cannot be stated to have taken possession of the land from the land-holders legally on the date when the Repeal Act became effective. Proceedings under the Ceiling Act with respect to such declaration regarding survey No. 84 must be treated to have abated. The petition is therefore, allowed with above declaration. The symbolic though unauthorized act of the Government of having taken over possession of the land is set aside. The petition is disposed of. Rule is made absolute accordingly.