# KAPILABEN AMBALAL PATEL & ORS v. STATE OF GUJARAT & ANR

- **Citation:** [2020] 8 S.C.R. 1117
- **Court:** Supreme Court of India
- **Decided:** 2020-05-06
- **Case number:** Civil Appeal No. 6380 of 2012
- **Bench:** A. M. Khanwilkar, Dinesh Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kapilaben-ambalal-patel-ors-v-state-of-gujarat-anr-34845
- **Pages:** 21

## Headnote

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/land
owners are legal representatives of the original owner of the land
in question - Possession of the surplus/excess land was taken over
under a Possession Panchanama dated.20.03.1986 - Eventually,
Power of Attorney holder of one of the land owner filed writ petition
challenging the Panchnama - Partly allowed by Single Judge -
Appeal filed by State Government - Meanwhile, the appellants filed
an independent writ petition in 2001 for the same relief - Appeal
filed 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: Appellants
resorted to all possible pleas - Further, they chose to file the writ
petition only in the name of one of the land owner in the capacity of
his Power of Attorney holder, little realizing that the authority given
by him came to an end after his demise - It was only after the other
appellants realised that the decision of the Single Judge was flawed
and was justly assailed by State Government on that count, they
filed the present writ petition - Appellants thought of the last attempt
to assail the Possession Panchnama itself without seeking any
further relief of declaration regarding the earlier proceedings which
had attained finality - Writ petition filed by the appellants after
lapse of 14 years was hopelessly barred by delay and suffered from
laches - Impugned order upheld - Urban Land (Ceiling and
Regulation) 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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by the competent authority on 6.3.1980, but the appellants chose
to withdraw the same. That request was eventually granted by
the competent authority on 1.2.1985. The appellants then waited
till the notification under Section 10(3) of the 1976 Act was issued
on 25.7.1985 and opted for remedy of exemption under Section
21 by filing an application on 22.8.1985. That came to be rejected
on 15.12.1986 against which decision a review application was
filed only by Devikaben Chandubhai Bhailalbhai (daughter of
Chandubhai Bhailalbhai Patel, who in turn was son of Bhailalbhai
Parsottambhai Patel- one of the five sons of original owner of the
land in question, Parsottambhai Patel. The other four sons were-
(i) Ambalal Parsottambhai Patel, (ii) Maganbhai Parsottambhai
Patel, (iii) Babarbhai Parsottambhai Patel, and (iv) Ramanbhai
Parsottambhai Patel) alongwith her three siblings, after lapse of
two years. Nevertheless, the same was entertained by 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
proceedings, the fact of State authorities having taken forcible
possession of 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 is not clear as to why the appellants
did not take clue at least from such unambiguous stand taken by
the respondent and forthwith proceed to assail the stated stand
of the State (of having taken over forcible possession on
20.3.1986). Besides taking possession, the respondent had
determined the compensation for which notice under Section 11
was issued to the appellants on 17.5.1986. It is not the case of
the appellants that they were unaware even about that
development until 2001. No such plea is taken by the appellants
in the writ petition filed in the year 2001. It is only after the
competent authority declined to issue No Objection Certificate
vide order dated 19.5.1999, they thought of changing the track
by taking advantage of the repeal Act having come into force on
30.3.1999. Howeve

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[2020] 8 S.C.R. 1117
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/land
owners are legal representatives of the original owner of the land
in question - Possession of the surplus/excess land was taken over
under a Possession Panchanama dated.20.03.1986 - Eventually,
Power of Attorney holder of one of the land owner filed writ petition
challenging the Panchnama - Partly allowed by Single Judge -
Appeal filed by State Government - Meanwhile, the appellants filed
an independent writ petition in 2001 for the same relief - Appeal
filed 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: Appellants
resorted to all possible pleas - Further, they chose to file the writ
petition only in the name of one of the land owner in the capacity of
his Power of Attorney holder, little realizing that the authority given
by him came to an end after his demise - It was only after the other
appellants realised that the decision of the Single Judge was flawed
and was justly assailed by State Government on that count, they
filed the present writ petition - Appellants thought of the last attempt
to assail the Possession Panchnama itself without seeking any
further relief of declaration regarding the earlier proceedings which
had attained finality - Writ petition filed by the appellants after
lapse of 14 years was hopelessly barred by delay and suffered from
laches - Impugned order upheld - Urban Land (Ceiling and
Regulation) 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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by the competent authority on 6.3.1980, but the appellants chose
to withdraw the same. That request was eventually granted by
the competent authority on 1.2.1985. The appellants then waited
till the notification under Section 10(3) of the 1976 Act was issued
on 25.7.1985 and opted for remedy of exemption under Section
21 by filing an application on 22.8.1985. That came to be rejected
on 15.12.1986 against which decision a review application was
filed only by Devikaben Chandubhai Bhailalbhai (daughter of
Chandubhai Bhailalbhai Patel, who in turn was son of Bhailalbhai
Parsottambhai Patel- one of the five sons of original owner of the
land in question, Parsottambhai Patel. The other four sons were-
(i) Ambalal Parsottambhai Patel, (ii) Maganbhai Parsottambhai
Patel, (iii) Babarbhai Parsottambhai Patel, and (iv) Ramanbhai
Parsottambhai Patel) alongwith her three siblings, after lapse of
two years. Nevertheless, the same was entertained by 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
proceedings, the fact of State authorities having taken forcible
possession of 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 is not clear as to why the appellants
did not take clue at least from such unambiguous stand taken by
the respondent and forthwith proceed to assail the stated stand
of the State (of having taken over forcible possession on
20.3.1986). Besides taking possession, the respondent had
determined the compensation for which notice under Section 11
was issued to the appellants on 17.5.1986. It is not the case of
the appellants that they were unaware even about that
development until 2001. No such plea is taken by the appellants
in the writ petition filed in the year 2001. It is only after the
competent authority declined to issue No Objection Certificate
vide order dated 19.5.1999, they thought of changing the track
by taking advantage of the repeal Act having come into force on
30.3.1999. However, they chose to file the writ petition only in
the name of Kamleshbhai Parekh in the capacity of Power of
Attorney holder of late Ambalal Parsottambhai Patel, being SCA
No. 8402/1999, little realizing that the authority given by Ambalal
Parsottambhai Patel had come to an end after his demise on
31.12.1985 itself. No doubt the Single Judge was persuaded to
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quash the entire proceedings which had culminated with taking
forcible possession of the surplus/excess land vide Possession
Panchnama dated 20.3.1986, being vitiated and/or abated.
However, it is only after the other appellants realised that the
decision of the Single Judge in SCA No. 8402/1999 was flawed
and has been justly assailed by the State Government on that
count by way of LPA No. 460/2002, they chose to file the present
writ petition (SCA No. 12602/2001). In the said writ petition,
however, no disclosure has been made as to why these appellants
did not assail the Possession Panchnama dated 20.3.1986 in earlier
point of time including when the existence of this document was
specifically pleaded by the respondent-State, in particular, in the
review application. [Paras 3, 15][1123-C; 1133-F-H; 1134-A-F]
1.2 The earlier part of the writ petition deals with the factual
background and assertion that the appellants still continue to be
in physical possession of the stated land and was using it for
agricultural purpose, as can be noticed from the Revenue record.
Indeed, the Revenue record may have presumptive value, but
that can be rebutted, which in this case has been done by the
respondent-State by relying on the Possession Panchnama and
the subsequent proceedings including the application submitted
to the Mamlatdar, Baroda City in right earnest for entering the
name of the State Government in the Revenue records, dated
11.4.1986, and pursuant to which entries had been effected on
26.9.1989 and 15.2.2000 respectively. Obviously, therefore, the
appellants thought of the last attempt to assail the Possession
Panchnama dated 20.3.1986 itself without seeking any further
relief of declaration regarding the earlier proceedings which had
attained finality. The Division Bench therefore, was right in
concluding that the writ petition filed by the appellants after lapse
of 14 years was hopelessly barred by delay and suffered from
laches. The Court is in agreement with the said view taken by
the High Court in the peculiar facts of the present case. Further,
it is manifest from the acknowledgement produced by the
respondent-State that the first notice under Section 10(5) issued
to Ambalal Parsottambhai Patel was duly served on 26.12.1985.
By the time second notice under Section 10(5) was issued on
23.1.1986, Ambalal Parsottambhai Patel had died (on 31.12.1985).
KAPILABEN AMBALAL PATEL & ORS. v. STATE OF
GUJARAT & ANR.
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The second notice was also issued to others, namely, Bhikhabhai
Maganbhai Patel, son of deceased Maganbhai Parsottambhai
Patel, Natvarbhai Bhailalbhai Patel, son of deceased Bhailalbhai
Parsottambhai Patel and Jayantibhai Babarbhai Patel, son of
deceased Babarbhai Parsottambhai Patel. [Paras 3, 15-18][1135F-H; 1136-A-E]
Vinayak Kashinath Shilkar v. Deputy Collector and
Competent 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 Patil
v. Additional Collector and Competent Authority(ULC)
& Ors. (2014) 12 SCC 523 : [2014] 1 SCR 1032;
Mangalsen v. State of Uttar Pradesh & Anr. (2014) 15
SCC 332; M/s. Avanti Organisation v. Competent
Authority & Additional Collector, Urban Land Ceiling
Act, Rajkot & Anr. AIR 1989 Guj 129; Samrathben
Manilal Chokshi & Anr. v. State of Gujarat & Anr.
(1994) 35 (1) GLR 203; Savitaben Ramanbhai Patel
vs. State of Gujarat & Ors. (1999) 40(1) GLR 860;
Darothi Clare Parreira (Smt.) & Ors. v. State of
Maharashtra & Ors. (1996) 9 SCC 633 : [1996] 4
Suppl. SCR 46; SouthIndia Corporation (P) Ltd. v.
Secretary, Board of Trivandrum & Anr. AIR 1964 SC
207 : [1964] SCR 280; Special Officer & Competent
Authority, 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) 10
SCC 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 SCC
387 : [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 Narayan
Bhagde v. M.D. Bhagwat & Ors. (1976) 1 SCC 700;
Balmokand Khatri Educational and Industrial Trust v.
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State of Punjab (1996) 4 SCC 212; Tamil Nadu Housing
Board v. A. Viswam (Dead) by Lrs. (1996) 8 SCC 259 -
referred to.
Case Law Reference
[2012] 2 SCR 219
referred to
Para 10
[2013] 2 SCR 301
referred to
Para 10
[2014] 1 SCR 1032
referred to
Para 10
(2014) 15 SCC 332
referred to
Para 10
[1996] 4 Suppl. SCR 46
referred to
Para 10
[1964] SCR 280
referred to
Para 10
[2000] 1 SCR 257
referred to
Para 10
[2008] 2 SCR 468
referred to
Para 10
(2001) 10 SCC 525
referred to
Para 10
[2014] 14 SCR 1451
referred to
Para 12
[1998] 2 SCR 339
referred to
Para 12
(2013) 11 SCC 486
referred to
Para 12
(1976) 1 SCC 700
referred to
Para 19
(1996) 4 SCC 212
referred to
Para 19
(1996) 8 SCC 259
referred to
Para 19
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6380
of 2012.
From the Judgment and Order dated 26.04.2011 of the High Court
of Gujarat at Ahmedabad in Letters Patent Appeal No. 233 of 2006.
 Shyam Divan, Sr. Adv., Santhosh Krishnan (For Gaurav
Agrawal), Advs. for the Appellants.
Ms. Deepanwita Priyanka (For Aniruddha P. Mayee),
Ms. Hemantika Wahi, Advs. for the Respondents.
KAPILABEN AMBALAL PATEL & ORS. v. STATE OF
GUJARAT & ANR.
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The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. This appeal takes exception to the judgment and order dated
26.4.2011 passed by the Division Bench of the High Court of Gujarat at
Ahmedabad1 in Letters Patent Appeal (LPA) No. 233/2006, whereby,
the writ petition being Special Civil Application No. 12602/2001 filed by
the appellants came to be dismissed whilst setting aside the judgment
and order dated 21.12.2005 passed by the learned single Judge of the
High Court in the said writ petition. By the said writ petition, the appellants
had sought following reliefs: -
"8. The petitioners pray that this Hon'ble Court be pleased to
issue a writ of mandamus or a writ in the nature of mandamus or
any other appropriate writ, direction and/or order and be pleased:
(A) to declare that the Panchnama dated 20.03.1986, (Annexure
D) and the purported action of the respondents to take possession,
purported 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 or
taking possession of the petitioners lands admeasuring 12,385 sq.
mts. or any part thereof mentioned in Panchnama dated 20.03.1986
(Annexure D).
(C) commanding the respondents to deliver back to the petitioners
possession of the said lands, if they are held to be in possession de
facto or dejure thereof.
(D) to restrain the respondents from taking any proceedings in
respect of the said lands pursuant to the order dated 01.02.85 of
the Competent Authority.
(E) to restrain pending the hearing and final disposal of this Petition
the respondents from in any manner disturbing or interfering with
the possession of the said lands which are in joint possession of
the petitioners and other joint holders.
(F) to grant such other and further reliefs as this Honourable Court
in the facts and circumstances of the case deems fit and proper.
1 For short, "the High Court"
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(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 original
owner of the land in question, namely, Parsottambhai Patel, who died on
28.1.1976 before the commencement of the Urban Land (Ceiling and
Regulation) Act, 19762 in the State of Gujarat i.e., with effect from 17th
February, 1976. He had five sons, namely, (i) Ambalal Parsottambhai
Patel, (ii) Maganbhai Parsottambhai Patel, (iii) Babarbhai Parsottambhai
Patel, (iv) Bhailalbhai Parsottambhai Patel and (v) Ramanbhai
Parsottambhai Patel. Family of the said Parsottambhai Patel filed
statements 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) Jayantibhai
Babarbhai Patel and Jethabhai Babarbhai Patel, sons of deceased
Babarbhai Parsottambhai Patel, (iv) Natvarbhai Bhailalbhai Patel, son
of deceased Bhailalbhai Parsottambhai Patel and (v) Ramanbhai
Parsottambhai Patel as owners of land admeasuring 30385.10 square
meters bearing Survey Nos. 362, 378, 592, 593/1, 593/2 (Final Plot
numbers 280, 287, 108, 115 and 116) of Village Manjalpur, District
Vadodara in the State of Gujarat. The statements disclosed that other
persons were also interested in the stated land. Later, an application
came to be filed on behalf of the five brothers for exemption under
Section 20(1)(a) of the 1976 Act. That was granted vide order dated
6.3.1980/29.11.1980 by the Deputy Collector and Under Secretary,
Revenue Department, Government of Gujarat. On 8.6.1981, in response
to the draft statements, objections were filed in the name of Ambalal
Parsottambhai Patel through Power of Attorney holder - Ramanbhai
Parsottambhai Patel. Pursuant to request made by the land owners to
cancel the agriculture exemption, an order was passed by the office of
competent authority and Additional Collector (ULC), Vadodara on
7.11.1983. The competent authority, pursuant to the statements submitted
by the land owners and considering the objections to the draft statement,
issued final statement under Section 9 of the 1976 Act, declaring 12
persons as holders of surplus/excess land to the tune of 12385 square
meters, particulars whereof have been noted in the order dated 1.2.1985,
as follows: -
2 For short, "the 1976 Act"
KAPILABEN AMBALAL PATEL & ORS. v. STATE OF
GUJARAT & ANR. [A. M. KHANWILKAR, J.]
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"Particulars of surplus land.
=========================
Village
S.No.
Final Plot
No.
Extent
Zone
Manjalpur
362
280 Paiki
2672.3
Residential
"
378
287
3035.0
"
"
592
108
2747.0
"
"
593/1
115
1546.0
"
"
593/2
116
2385.0
"
12385.3
 12385 Square metres"
The land owners were duly informed that the surplus/excess land
referred to in the final statement will be acquired as and when required
by the Government and till then, the holders may continue to remain in
possession thereof. Thereafter, on 8.3.1985/21.3.1985, a notification under
Section 10(1) of the 1976 Act was issued proposing acquisition of surplus/
excess land. The said notification included only four (4) names being
Ambalal Parsottambhai Patel, Bhikhabhai Maganbhai Patel, Natvarbhai
Bhailalbhai Patel and Jayantibhai Babarbhai Patel and excluded the names
of 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 members
of family of deceased Parsottambhai Patel. A follow up notification (dated
31.5.1985) under Section 10(3) of the 1976 Act was published in the
Gazette on 25.7.1985. Only after the issuance of notification under
Section 10(3) of the 1976 Act, whereby, the surplus/excess land came
to be vested in the State Government, an application for exemption under
Section 21 of the 1976 Act was filed by Ambalal Parsottambhai Patel
and Tribhovandas Chotabhai Patel on 22.8.1985. While the said
application under Section 21 was pending consideration, notification under
Section10(5) of the 1976 Act came to be issued on 17.12.1985 to handover
possession of the vacant land. The same was duly served upon Ambalal
Parsottambhai Patel on 26.12.1985 as per the endorsement shown in
Annexure A-11 and on Jayantibhai Babarbhai Patel on the same date as
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per endorsement in Annexure A-12. After service of notification/notice
under Section 10(5) of the 1976 Act, Ambalal Parsottambhai Patel expired
on 31.12.1985. Despite that, another notice came to be issued on 23.1.1986
under Section 10(5) of the 1976 Act mentioning the names of Ambalal
Parsottambhai Patel, Bhikhabhai Maganbhai Patel, Natvarbhai Bhailalbhai
Patel and Jayantibhai Babarbhai Patel. In the said notice, it was mentioned
that the date of handing over possession was fixed on 1.2.1986 at 11.00
hrs. and the addressees were called upon to remain present at the site
for handing over possession. According to the appellants, this notice
was issued only to Ambalal Parsottambhai Patel and not to other land
owners. The respondent-State has, however, countered this factual
narrative of the appellants and have relied on acknowledgments produced
alongwith Written Submissions in Annexure R-2. However, it is not
disputed by the respondent-State that the notice sent to Ambalal
Parsottambhai Patel was returned on 2.2.1986 with endorsement "said
owner has expired". The possession of the surplus/excess land was
taken over under a Panchanama dated 20.3.1986 signed by two
independent witnesses. On 11.4.1986, the Mamlatdar, Baroda City was
requested to enter the name of the State Government in the Revenue
record concerning the stated lands. Thereafter, notice dated 17.5.1986
under Section 11 of the 1976 Act was issued to Bhikhabhai Maganbhai
Patel being heir of the deceased Ambalal Parsottambhai Patel to appear
on 27.5.1986 for determination of compensation amount. The competent
authority determined the compensation amount on 6.8.1986. The
application filed by the land owners under Section 21 of the 1976 Act
came to be rejected on 15.12.1986.
4. The above decision was challenged by the land owners through
their Power of Attorney holders Ramanbhai Parsottambhai Patel and
Tribhovandas Chotabhai Patel by way of appeal under Section 33 of the
1976 Act. In this appeal, the competent authority had filed reply on
4.4.1988, stating that the application under Section 21 was not
maintainable, as the land had already vested in the State Government, as
a consequence of notification under Section 10(3) of the 1976 Act. The
aforesaid appeal was rejected by the appellate authority on 28.8.1995.
However, one Devikaben Chandubhai Bhailalbhai (daughter of
Chandubhai Bhailalbhai Patel, who in turn was son of Bhailalbhai
Parsottambhai Patel) alongwith her three siblings filed review application
against the order passed by the appellate authority dated 28.8.1995 after
lapse of over two years i.e. on 29.4.1998. That review application was
KAPILABEN AMBALAL PATEL & ORS. v. STATE OF
GUJARAT & ANR. [A. M. KHANWILKAR, J.]
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allowed on 19.9.1998 and the proceedings came to be remanded to the
competent authority for consideration afresh on merits.
5. During the pendency of the remanded proceedings (arising from
application under Section 21), the repeal Act, namely, the Urban Land
(Ceiling and Regulation) Repeal Act, 19993 came into force from
30.3.1999. The land owners then filed an application dated 30.4.1999
before the competent authority to give No Objection Certificate to the
effect 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 the
land no longer vested in the Government in any manner. Pursuant to the
said application, the competent authority vide order dated 19.5.1999,
held that such No Objection Certificate cannot be given to the land
owners, as the land had already been declared surplus and steps have
been taken under Sections 10(1), 10(3), 10(5) and 10(6) of the 1976 Act,
which have attained finality.
6. After this decision, one Kamleshbhai Parekh, Power of Attorney
holder of Ambalal Parsottambhai Patel was advised to file writ petition
being Special Civil Application (SCA) No. 8402/1999, challenging the
Possession Panchnama dated 20.3.1986. The learned single Judge, partly
allowed the said writ petition vide judgment and order dated 5.12.2000.
Feeling aggrieved by that decision, the State Government carried the
matter in appeal by way of LPA No. 460/2002 before the Division Bench
of the High Court on the ground, amongst others, that Kamleshbhai
Parekh had no subsisting right or locus to file the writ petition on account
of the death of Ambalal Parsottambhai Patel on 31.12.1985, as a result
of which the authority to file such a petition had come to an end. When
the said appeal was pending, the appellants herein were advised to file
an independent writ petition for the same relief(s), being SCA No. 12602/
2001. The reliefs in this writ petition have been reproduced in paragraph
1 above.
7. Finally, the appeal filed by the State Government being LPA
No. 460/2002 came to be allowed by the Division Bench of the High
Court on 16.8.2005, accepting the objection regarding maintainability of
the writ petition by the Power of Attorney holder of the deceased Ambalal
Parsottambhai Patel. However, all other questions were left open.
3 For short, "the repeal Act"
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8. Be that as it may, the writ petition filed by the appellants herein
being SCA No. 12602/2001 was allowed by the learned single Judge of
the High Court vide judgment and order dated 21.12.2005 for reasons
noted therein. That decision was assailed by the State Government by
way of LPA No. 233/2006 before the Division Bench of the High Court,
which came to be allowed vide impugned judgment and order dated
26.4.2011.
9. The Division Bench first proceeded to hold that the application
filed by the land owners under Section 21 of the 1976 Act was barred by
limitation having been filed after 1139 days from the date of
commencement of the 1976 Act. It ought to have been filed before
3.4.1979, whereas, it was filed on 22.8.1985 and there was no power
bestowed on the competent authority to entertain such delayed application.
Having said that, it went on to hold that all the land owners had not
challenged the decision of the competent authority. The appeal under
Section 33, however, was preferred only by Ramanbhai Parsottambhai
Patel and Tribhovandas Chotabhai Patel, the Power of Attorney holders
of Ambalal Parsottambhai Patel. No other appellant had preferred the
said appeal and thus they allowed the order dated 15.12.1986 rejecting
the application under Section 21 to attain finality. The Division Bench
then proceeded to consider the objection taken by the State regarding
delay in filing the subject writ petition by these appellants, to question the
Possession 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 order
taking possession was never challenged before the appellate
authority or the reviewing authority. It was only challenged in the
writ petition after a long delay. Though the aforesaid stand
was taken before the learned Single Judge, it was not
properly discussed.
42. The appellant-State has taken specific plea that the order taking
possession was never challenged before the appellate authority
or the reviewing authority. It was only challenged in the writ
petition 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 Maharashtra
reported in AIR 1990 SC 2281 the Supreme Court while dealing
KAPILABEN AMBALAL PATEL & ORS. v. STATE OF
GUJARAT & ANR. [A. M. KHANWILKAR, J.]
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Sec. 10 of the Act held that the writ petition under Article 226 for
reopening the proceeding on the ground that the competent
authority had not taken into consideration certain fact, filed after
ten years, after the excess land was vested in the State
Government was rightly summarily dismissed by the High Court.
44. While deciding the question of delay and laches in preferring
the petition under Article 226, Supreme Court in the case of The
Municipal Council, Ahmednagar v. Shah Hyder Beig reported in
JT 1999 (10) SC 336 held that the equitable doctrine, namely,
'delay defects equity' has its fullest application in the matter of
grant of relief under Article 226 of the Constitution. The
discretionary relief can be had provided one has not by his act or
conduct given a go-bye to his rights. Equity favours a vigilant
rather than an indolent litigant and this being the basic tenet of
law.
45. In the present case, we have noticed that possession of
the land was taken on 20th March 1986. The order rejecting
the application u/Sec. 21 reached finality on 15th December
1986 against all the petitioners, except one Ramanbhai
Purshottambhai Patel. The writ petition was preferred
against the petitioners being not vigilant in exercise of their
rights, learned Single Judge ought not to have entertained
the petition against the order taking possession after such
a long delay."
(emphasis supplied)
The Division Bench accordingly allowed the appeal preferred by
the State and dismissed the writ petition filed by the appellants herein by
setting aside the judgment and order of the learned single Judge and
declaring that the possession of the land has been rightly taken over by
the competent authority of the State on 20.3.1986.
10. Feeling aggrieved, the land owners have approached this Court.
It is urged that there is no tittle of evidence to substantiate the fact
asserted by the respondent-State that physical possession of the land in
question has been taken over on 20.3.1986. It was merely a paperpossession in the form of Possession Panchnama. According to the
appellants, de facto possession of the subject land as on the date of the
repeal Act is crucial and entail in abatement of all the actions of the
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State authorities under the 1976 Act. Mere issuance of notification under
Section 10(3) of the 1976 Act regarding deemed vesting of the land in
the State is not enough for the purposes of the repeal Act. Reliance has
been placed on Vinayak Kashinath Shilkar vs. Deputy Collector and
Competent Authority & Ors.4, State of Uttar Pradesh vs. Hari Ram5,
Gajanan Kamlya Patil vs. Additional Collector and Competent
Authority (ULC) & Ors.6 and Mangalsen vs. State of Uttar Pradesh
& Anr.7. The consistent view of this Court is that physical possession
must be taken by the State authorities, failing which the proceedings
shall abate on account of the repeal Act. The appellants have relied on
Revenue records to show that the continued possession remained with
the appellants/land owners even after the Possession Panchnama was
made on 20.3.1986. The Revenue entries have presumptive value and
the respondent State had failed to rebut the same. It is further contended
that the purported Possession Panchnama dated 20.3.1986 is not a reliable
document at all. It is vague and bereft of details. Its authenticity and
contents have been disputed by the appellants. It is intriguing that although
the subject land is dispersed and not one continuous piece of land, yet
one common Possession Panchnama is drawn without any explanation
as to the manner in which the possession of five non-contiguous plots
came to be taken by the authorities concerned. Further, the Panchnama
does not bear any time. All these deficiencies lead to the only conclusion
that the Possession Panchnama was prepared by the officials sitting in
their office without visiting the site. Secondly, the Possession Panchnama
has not been signed by any of the twelve (12) land owners. The appellants
are also relying on the observations made by the learned single Judge
recording the factum of possession being in favour of the appellants to
hold that the Possession Panchnama was illegal. It is then urged that the
authorities could not have recorded Possession Panchnama until the
application under Section 21 of the 1976 Act was finally decided by the
competent authority. Admittedly, the said application was filed on
22.8.1985 and was pending on 20.3.1986. This is impermissible in law
and 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 in
M/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)
KAPILABEN AMBALAL PATEL & ORS. v. STATE OF
GUJARAT & ANR. [A. M. KHANWILKAR, J.]
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Collector, Urban Land Ceiling Act, Rajkot & Anr.8 and also on
Samrathben 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 Clare
Parreira (Smt.) & Ors. vs. State of Maharashtra & Ors.11. Reliance
is also placed on South India Corporation (P) Ltd. vs. Secretary,
Board of Trivandrum & Anr.12, wherein it is held that Sections 10 and
21, 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. Rao13, wherein it is observed that unless the quantum of excess
land is determined, the land owner cannot be expected to surrender the
excess land or seek exemption under Sections 20 or 21 or 22 of the 1976
Act. Moreover, the period of filing the application under Section 21 ought
to be reckoned from the date of withdrawal of the exemption under
Section 20 of the 1976 Act and not from the date of commencement of
the Act i.e. 17.2.1976, as such. It is urged that notice was not served
upon all the land owners in respect of action(s) under Section 10 of the
1976 Act. Hence, the Possession Panchnama would be of no avail and
is void and illegal. This Court in Hariram (supra) has expounded that
requirement of giving notice under Section 10(5) and/or 10(6) is mandatory
and failure to do so would entail in the land owner being dispossessed
without notice, which cannot be countenanced. It is urged that the
respective shares of the four (4) noticees are as follows: -
S.
No.
Individual
Total land
owned
(sq. mt.)
Land
permitted
under ULC
Act
(sq. mt.)
Excess
Land
(sq. mt.)
1.
Ambalal
7329.50
1500
5829.50
2.
Bhikhabhai
2613.50
1500
1113.50
3.
Natwarbhai
1546.40
1500
46.40
4.
Jayantibhai
1758.30
1500
258.30
8 AIR 1989 Guj 129
9 (1994) 35(1) GLR 203
10 (1999) 40(1) GLR 860
11 (1996) 9 SCC 633 (paragraphs 5 and 6)
12 AIR 1964 SC 207 (paragraph 19)
13 (2000) 2 SCC 451 (paragraph 4)
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Although the competent authority recognised twelve (12) land
owners, it chose to issue notice only to selected four (4) land owners.
The notice served on them cannot bind the other land owners. In absence
of notice, plea regarding vesting of land qua such land owners cannot
be countenanced. Reliance is placed on Ramanlal Bhailal Patel &
Ors. vs. State of Gujarat14 and Har Pyari (Smt.) vs. IInd Additional
Judge, Moradabad & Ors.15. As regards Ambalal Parsottambhai Patel,
he had expired on 31.12.1985. As a result, notice issued to Ambalal
Parsottambhai Patel admittedly remained unserved on his legal
representatives. Further, Ambalal Parsottambhai Patel's share is 5829.50
square meters of total surplus/excess land, which must be excluded and
no 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 have
interfered with the decision of the learned single Judge, which was a
well-considered decision and a just approach, considering the facts of
the present case.
11. The respondent State, on the other hand, would urge that the
writ petition filed by the appellants was hopelessly delayed and suffered
from laches. The possession of the suit land was taken under the
Possession Panchnama dated 20.3.1986. That fact was within the
knowledge of the appellants as is evident from the record and in particular
from the stand taken by the respondent-State to oppose review application
in relation to application under Section 21 of the 1976 Act. It was clearly
stated by the respondent in the said proceedings that the appellants were
not entitled for any relief as possession has already been taken on
20.3.1986 and that the subject land had already vested in the State.
Thus, it was within the knowledge of the appellants being party to the
said proceedings. That fact has been recorded in the order dated
19.9.1998 in review application while remanding the application (under
Section 21) for reconsideration by the competent authority. The present
writ petition, however, has been filed only in 2001 without disclosing any
cause for such delay and laches, much less plausible explanation. The
Division Bench of the High Court was, therefore, justified in non-suiting
the appellants including on the ground of delay and laches in filing of the
writ petition. That finding is unexceptionable. It is urged that before
taking 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)
KAPILABEN AMBALAL PATEL & ORS. v. STATE OF
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were duly issued to the land owners under Section 10(5) of the 1976
Act. The first notice was issued on 17.12.1985 to Ambalal Parsottambhai
Patel, Bhikhabhai Maganbhai Patel, Natvarbhai Bhailalbhai Patel and
Jayantibhai Babarbhai Patel. This was duly served. The second notice
dated 23.1.1986 was also issued to Ambalal Parsottambhai Patel,
Bhikhabhai Maganbhai Patel, Natvarbhai Bhailalbhai Patel and
Jayantibhai Babarbhai Patel. The second notice sent to Ambalal
Parsottambhai Patel returned with endorsement "said owner has expired".
However, the other noticees - Bhikhabhai Maganbhai Patel, Natvarbhai
Bhailalbhai Patel and Jayantibhai Babarbhai were duly served with the
second notice and their acknowledgments have been produced on record.
Despite those notices, the concerned appellants failed to remain present
for handing over the possession on the specified date. Therefore, after
waiting for 30 days' period, the authority proceeded to take forcible
possession on 20.3.1986 vide Possession Panchnama. That is permissible
in law and was the only course open to the authority to take forward the
acquisition process of the excess/surplus land. It is urged that none of
the appellants challenged the said notices or the Possession Panchnama
of 1986. Further, the appellants have not asked for further relief of
declaration regarding the other proceedings, which have become final
or for that matter that the entire proceedings stood abated in terms of
the repeal Act, knowing fully well that such a plea would not be available
to them in light of having lost possession of the surplus/excess land on
20.3.1986.
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 of
application under Section 21 of the 1976 Act is no bar for proceeding
beyond 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 plainly
rejected 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 a
right and not for enforcement of accrued right. Reliance is placed on
State of Gujarat & Anr. vs. Gyanaba Dilavarsinh Jadega18 and
Madhusudan 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)
18 (2013) 11 SCC 486 (paragraph 13)
19 (2019) SCC Online SC 1050 (paragraphs 14 and 16)
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13. It is urged that the State authorities have already taken
possession of the land as is evident from the Possession Panchnama
and also from the Revenue record, as the name of the State has been
entered therein qua Survey No. 362, Final Plot No. 280 on 26.9.1989
and for other surplus lands on 15.2.2000 pursuant to the request made to
the Mamlatdar, Baroda City vide communication dated 11.4.1986. This
application was made much before coming into force of the repeal Act.
In other words, after the final statement was drawn on 1.2.1985, soon
thereafter notice under Section 10(1) was issued on 8.3.1985/21.3.1985
and under Section 10(3), on 25.7.1985 followed by notification/notice
under Section 10(5) of the 1976 Act, dated 17.12.1985 and again on
23.1.1986 before taking forcible possession on 20.3.1986. Soon thereafter,
request was sent to the Mamlatdar, Baroda City for entering name of
the State in the Revenue records on 11.4.1986. Pursuant thereto, the
entry in the name of the State was effected in the revenue record in due
course. Further, the fact of possession having been taken was noted
even in the Review proceedings in September, 1998 and despite that, the
subject writ petition was filed only in 2001 to assail the Possession
Panchnama dated 20.3.1986. It is, therefore, urged by the respondent
that the appeal be dismissed and the decision of the Division Bench
ought to be upheld on this count alone.
14. We have heard Mr. Shyam Divan, learned senior counsel for
the appellants and Ms. Deepanwita Priyanka, learned counsel for the
respondent.
15. After cogitating over the rival submissions and the relevant
record, it is manifest that the appellants have resorted to all possible
pleas. First, the application for exemption under Section 20 of the 1976
Act was moved, which was allowed by the competent authority on
6.3.1980, but the appellants chose to withdraw the same. That request
was eventually granted by the competent authority on 1.2.1985. The
appellants then waited till the notification under Section 10(3) of the
1976 Act was issued on 25.7.1985 and opted for remedy of exemption
under Section 21 by filing an application on 22.8.1985. That came to be
rejected on 15.12.1986 against which decision a review application was
filed only by Devikaben Chandubhai Bhailalbhai alongwith her three
siblings, after lapse of two years. Nevertheless, the same was entertained
by 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
KAPILABEN AMBALAL PATEL & ORS. v. STATE OF
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proceedings, the fact of State authorities having taken forcible possession
of 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 is
not clear as to why the appellants did not take clue at least from such
unambiguous stand taken by the respondent and forthwith proceed to
assail the stated stand of the State (of having taken over forcible
possession on 20.3.1986).