New Shivshakti Vijay Saw Mill vs State of Gujarat and Others

Akil Kureshi, J.—The petition is directed against judgement dated 12.11.2008 passed by the learned Single Judge in Special Civil Application No. 8257/1991 filed by the present appellant.

In the writ petition, appellant-petitioner had challenged order dated 5.11.1988 passed by the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 ( ''the Ceiling Act'' for short ) as well as order dated 30.7.1990 passed by the Urban Land Tribunal confirming the order passed by the Competent Authority. The Competent Authority by its impugned order as upheld by order of the Urban Land Tribunal had declared 602 sq. mtrs. of land of the appellant situated at village Sarkhej as excess vacant land under the Ceiling Act.

2.1 Appellant had also challenged an order dated 22.2.1991 passed by the Secretary, Revenue Department, rejecting application u/s 20 of the Ceiling Act for exemption.

2.2 Before the Learned Single Judge, the appellant-petitioner had mainly contended that the possession of the land was never taken over by the Government and that therefore, upon repeal of the Ceiling Act vide Urban Land (Ceiling and Regulation) Repeal Act, (''the Repeal Act'' for short) proceedings should be treated to have lapsed. It was also contended that the land was held by partnership firm and that therefore, each individual partner should be allowed to retain one unit i.e. 1000 sq. mtrs. of land individually. Thus, considered, no part of the land of the appellant would be rendered surplus.

2.3 Learned Single Judge turned down both the contentions. With respect to the possession of the land, learned Judge relied on the Government records suggesting that after following procedure under the Ceiling Act, possession was taken over by drawing over Panchnama on 10.2.1992.

With respect to contention regarding individual units to be permitted to each partner of the firm, learned Judge relied on the decision in case of Indequip Engineering Ltd. and Anr. v. Urban land Tribunal and Ex-officio Additional Chief and Ors. reported in (2006) 1 GLR 215 wherein such a contention was turned down.

Before the learned Judge it was canvassed that there are 11 shops situated in the land in question. Learned Judge however, was of the opinion that such shops were constructed after the High Court passed order of status-quo. Learned Judge therefore, dismissed the petition with costs of Rs. 25,000/-.

Before us, Counsel for the appellant has relied only on one ground namely, that actual possession of the surplus land was never taken over by the Government before the Repeal Act or any time thereafter also. On this sole ground, Counsel drew our attention to the materials on record.

On the other hand, learned AGP Shri Desai relying on the official records strongly contended that possession was taken over at the relevant time. If the appellant reentered the land, through such unauthorized possession, benefits of the Repeal Act would not be available.

Before resolving the said controversy, we may notice that undisputedly the appellant-petitioner held a total of 1602 sq. mtrs. of land in village Sarkhej on the date of introduction of the Ceiling Act. The Competent Authority as well as the Urban Land Tribunal permitted 1000 sq. mtrs. thereof the be retained by the land owner and declared 602 sq. mtrs. of land as excess vacant land. To this order, there can hardly be any dispute. In fact, no arguments were canvassed before us to contend that these orders suffered from any irregularity or illegality. Insofar as Learned Single Judge confirming these findings of the Competent Authority as well as the Urban Land Tribunal is concerned, we see no infirmity.

Sole question, that calls for consideration is whether the possession of the excess vacant land was taken over by the Government before the Repeal Act.

6.1 In this regard, counsel for the appellant submitted that Panchnama does not inspire confidence and there is nothing on record to suggest that possession was actually taken over. According to him, even as per the Panchnama there was a ban-saw on the excess land. He further contended that there are as many as 11 shops on the land with electricity connections granted way back in the year 1990. He further submitted that once the petition was entertained by the High Court and order of status-quo was granted, thereafter, possession in any case could not have been taken over. On these cumulative grounds, it was his contention that possession of the land always remained with the appellant. Upon introduction of the Repeal Act, proceedings should therefore be treated to have lapsed.

On the other hand, learned APP Shri Desai from the records pointed out that the Government had taken possession of the land after following due procedure. That after the judgement of the Urban Land Tribunal on 31.7.1990, notification u/s 10(3) of the Ceiling Act was published in official gazette on 1.8.1991 whereby 602 sq. mtrs. of land of survey No. 2 of village Sarkhej was declared to have vested in the Government. Notice u/s 10(5) of the Ceiling Act was issued on 30.9.1991 which was duly served on the petitioner. Possession of excess vacant land of 602 sq. mtrs. was taken over by the authority on 10.2.1992 in presence of Panchas and after drawing Panchnama which is part of the record. He further contended that construction of some shops on the disputed land, per-se would not mean that the petitioner is in lawful possession of the land in question.

Having thus heard learned advocates for the parties, we find that previously to ascertain the correct position regarding construction of 11 shops as contended by the Counsel for the appellant, we had directed the respondents to file a report after having the land in question surveyed in presence of the petitioner. Along with affidavit dated 20.4.2010 filed by one Prakash Makwana, such a report in the form of Panchnama and a map has been produced. This does show presence of some of the shops on the disputed land.

However, the question is would this per-se establish that possession of the excess vacant land was never taken over by the Government. In the present case, we find that admittedly in the declaration that the appellant filed before the competent authority under the Ceiling Act in Form-6, there was no mention about the 11 shops or any of them existing on the disputed land. Further, neither before the Learned Single Judge nor before us the appellant has been able to produce anything to suggest that construction of the shops was with proper permission of the concerned authorities. In view of this, inevitable conclusion would be that on the date of introduction of the Ceiling Act, there were no shops on the disputed land and that such shops were constructed later on without any permission. The question of possession has to be answered on the basis of available materials on record.

From the materials on record, as already noted, as per the official records, after declaration of 602 sq. mtrs. of land of the petitioner as excess vacant land by the competent authority as well as the Urban Land Tribunal, steps were taken to take possession thereof after formally declaring that said land is vested in the Government. After issuing notice u/s 10(5) of the Ceiling Act, in presence of Panch witnesses, possession of 602 sq. mtrs. of land was taken over on 10.2.1992 and the Panchnama was also produced which is part of record of these proceedings. Except for the bare words of the appellant, there is nothing on record to suggest that official records do not reflect the true and correct position. We have nothing to go by to hold that the said record is either inaccurate or fabricated. In case of M/s. Larsen and Toubro Ltd. Vs. State of Gujarat and Others, the Apex Court observed as under:

The High Court held that actual physical possession of the land subject matter of the acquisition proceeding was not handed over to the appellant while it was the contention of the appellant as well as the State Government that possession of the land was handed over to L&T Ltd. on July 5, 1989. At the time the possession was taken over a Panchanama was prepared duly witnessed by two farmers of the Village Magdalla and singed by the Circle Officer evidencing handing over of possession and also by M.H. Adhikari an officer of the L&T Ltd. for taking over possession. The possession receipt of the same date duly signed by the Circle Officer and the officer of the L&T Ltd. was given. L&T Ltd. thus took possession of the land in presence of the panchas. Panchanama recites that both the witnesses (Panchas) had been intimated in advance by Mamlatdar Choryasi and that possession of the concerned land that day taken over in their presence by the Circle Officer and that the land was an open spot and there was no construction or crops grown therein. Possession of the land was taken over along with the trees standing thereon. As noted above, possession was thereafter delivered to the representative of the L&T Ltd. at that time itself. In the High Court it was contended that no actual physical possession of the land had been taken. The petitioners filed affidavits of the Panchas who had signed the Panchanama. In these affidavits they stated that they were called to the office of the Panchayat and that their signatures were obtained on blank papers and that they had not gone to the sita and that neither the landlord was present not the actual possession was delivered to the acquiring body. Ready with these affidavits High Court noticed from the recitation in the Panchanama that it was nowhere mentioned that the panchas had gone to the site from the office of the panchayat. It was not disputed that in the revenue records it was L&T Ltd. who was shown in possession of the land. Affidavits of the Panchas filed in the High Court which contained statements contrary to what was recorded in the Panchanama and against the revenue entries are quite meaningless and in our opinion High Court unnecessarily put undue reliance on the same. High Court could not convert itself into a revenue court and hold that in spite of the Panchanama and the revenue records actual physical possession of the acquired land had not been handed over to the acquiring body. High Court, in our opinion, has not correctly analysed the two judgments of this Court in Balmokand Khatri Educational and Industrial Trust, Amritsar Vs. State of Punjab and others, and Balwant Narayan Bhagde Vs. M.D. Bhagwat and Others, to come to the conclusion that actual physical possession of the land was not taken over by the State.

Under the circumstances, we have no hesitation in approving the conclusion of the Learned Single Judge that at the relevant point of time as the record reflects, possession of the excess vacant land was taken over by the Government.

The subsidiary question is whether after the possession was once taken over if the appellant-petitioner reentered the land and may also have put up some construction thereon, that by itself would be sufficient to ensure lapsing of the proceedings under the Repeal Act. A similar question came up before the Division Bench wherein following observations were made:

In view of the above position of the record, we do not find any case to hold that the possession of the land was not taken over on 10th October, 1991, contrary to affidavits and the records of the State. The contention of the counsel for the appellants that subsequent record suggests actual possession of the appellants is neither here nor there. If the possession was taken over at the relevant time but some time thereafter if the appellants reentered into land, such possession would not be relevant for the purpose of deciding the position of the repeal of the Act. In the Repeal Act, u/s 3 it is provided as under:

Section 3 Saving.-- (1) The repeal of the principal Act shall not affect --

(a) the vesting of any vacant land under Sub-section (3) of Section 10, possession of which has been taken over the State Government or any person duly authorised by the State Government 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, notwithstanding any judgment of any court to the contrary; any payment made to the State Government as a condition for grnting exemption under Sub-section (1) of Section 20.

(2) Where --

(a) any land is deemed to have vested in the State Government under Sub-section (3) of Section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and

(b) any amount has been paid by the State Government with respect to such land then such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.

From the language used in Sub-section (1) of Section 3 of the Repeal Act, it is clear that the Repeal Act would not apply in a case where the vacant land has vested in the Government under Sub-section (3) of Section 10 of the ULC Act and possession of which has been taken over by the State Government or by an authorized person or by the Competent Authority. Sub-section (2) of Section 3 of the Repeal Act further provides that if any land has vested in the State Government but possession of which has not been taken over by the Government or the authorized officers of the Competent Authority, then such land shall not be vested unless compensation if any paid is refunded.

Thus, for the purpose of applicability of the Repeal Act, crucial question is if the Government by taking over possession of the vacant land before the Repeal Act was introduced. If possession of the land has been taken over by the Government before the Repeal Act but the declarant re-enters the land, such unauthorized possession on the date of introduction of the Repeal Act cannot be the basis to hold that the ULC proceedings have lapsed.

In view of the above discussion, we find that Learned Single Judge committed no error in holding that possession of the excess vacant land was taken over by the Government long before the introduction of the Repeal Act. Existence of few shops thereon would in our opinion not change the position.

Status-quo order was passed by this Court in the year 1992. There is nothing on record to pin point that shops were constructed thereafter. Considering these factors, we are inclined to delete the direction for payment of cost imposed by the Learned Single Judge.

In the result, the appeal insofar as judgment of the Learned Single Judge is concerned, fails and is hereby dismissed. However, direction for payment of cost is deleted.

Civil Application also stands dismissed accordingly.