Madhusudan Bhanuprasad Pandya vs State Of Gujarat .

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No 6022 of 2019 (Arising out of SLP(C) No 24021 of 2013)

Madhusudan Bhanuprasad Pandya .... Appellant(s) Versus

State of Gujarat & Ors ....Respondent(s)

WITH Special Leave Petition (C) No 16944 of 2013

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1 Leave granted1.

2 The appeal arises from a judgment and order dated 24 January 2013

of a Division Bench of the High Court of Gujarat, affirming the dismissal of

a Writ Petition by the Single Judge. On 7 July 2005, the Single Judge

dismissed a Writ Petition filed by the appellant seeking to set aside an

order of the State Government rejecting an application for exemption under

Section 20 of the Urban Land (Ceiling and Regulation) Act 1976 2.

Signature Not Verified Digitally signed by SANJAY KUMAR Date: 2019.08.16 3 The appellant claims to be engaged in the business of manufacturing 16:50:34 IST Reason:

1 SLP(C) No 24021 of 2013 2 “Act of 1976” 2

cement pipes through M/s General Cement Pipe Company Limited 3 on

land bearing Survey No 288/4 admeasuring 5160 sq m situated at village

Chandlodia, Taluka City District, Ahmedabad. The appellant claims

leasehold rights in the land under a rent note dated 27 March 1975. Upon

the enactment of the Act of 1976 on 12 September 1976, Form I under

Section 6(1) was submitted on behalf of the Company, declaring that the

land was leased from the original owners. Village form No 7/12 contained

an entry for the years 1979-80 and 1980-81 to the effect that the land had

been put to non-agricultural use without permission. As a result, by virtue

of the provisions of Section 2(q), the land upon which construction had

been put up was liable to be considered as vacant land. On 26 November

1982, a draft statement under Section 8(1) was issued. On 26 August

1985, the competent authority under Section 8(4) declared land

admeasuring 4160 sq m as excess vacant land. On 17 September 1985, a

final statement was issued under Section 9. A notification under Section

10(1) was published on 31 January 1986. This was followed by a

notification under Section 10(3) on 6 December 1986. A notice under

Section 10(5) was issued on 6 March 1987. On 6 July 1990, the competent

authority issued a notice under Section 10(6) intimating that possession of

the excess land would be taken over.

4 At this stage, on 19 July 1990, the appellant filed an application for

exemption under Section 20.

5 According to the appellant, on 23 July 1990, the Company instituted a

3 “Company” 3

suit4 before the Civil Judge, Senior Division, Ahmedabad in which an order

of status quo was granted on the same day. The case of the appellant is

that on 24 July 1990, possession of the excess land was purported to be

taken over under a valid panchnama, inspite of the order of the Civil Court.

On 20 July 1990, the order of the competent authority dated 26 August

1985 declaring the land as excess vacant land was challenged in an

appeal under Section 33 before the Urban Land Tribunal 5. On 31

December 1990, the Tribunal dismissed the appeal on the ground that the

delay of over four years had not been satisfactorily explained. On 1

September 1992, an order was passed under Section 11 in the matter of

compensation.

6 On 3 March 1998, Special Civil Application 6 No 1584 of 1998 was

filed by the appellant under Article 226 of the Constitution before the High

Court of Gujarat seeking the following reliefs:

“(A) This Hon’ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent authorities to grant appropriate land (at least 3000 sq. mtrs.) or any other appropriate measurement of land which this Hon’ble Court deem fit and proper, to the petitioner firm so that the manufacturing activities may be carried on properly, on merits and in accordance with the provisions of the said Act.

(B) The respondent authorities may be restrained from taking possession of the land bearing Survey No. 288/4 admeasuring 5160 sq. mtrs. situated at village Chandlodiya, Taluka City District Ahmedabad till pending hearing and final disposal of the application under Section 20 of the Act, pending before the Revenue Secretary or the status-quo with regard to the possession of the said land may be maintained by the respondent authorities, till the admission, hearing and

4 Regular Civil Suit No 469 of 1990 5 “Tribunal” 6 “SCA” 4

final disposal of this petition.”

7 By an order dated 3 July 1998, the High Court disposed of the above

SCA with a direction to the State Government to expeditiously decide the

appellant’s application under Section 20. On 5 October 1998, the

application under Section 20 was rejected in view of the fact that the land

had vested in the State. Thereupon, the appellant filed another Writ

Petition being SCA No 9057 of 1998 challenging the rejection of the

application under Section 20. The reliefs that were sought before the High

Court were in the following terms:

“(A) This Hon’ble Court would be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside the order passed by the State Government, dated 5th October, 1998 (Annexure “G”) and further be pleased to direct the respondents, their agents and servants to grant the application preferred by the petitioner under Section 20 of the Urban Land (Ceiling & Regulation) Act, 1976 as prayed for.”

8 By an order dated 16 July 1999, a Single Judge allowed the above

SCA. However, in a Letters Patent Appeal filed by the State, the Division

Bench, by an order dated 3 August 2004, set aside the order dated 16 July

1999 and remitted the writ proceedings back to the Single Judge for fresh

disposal. Upon remand, a Single Judge of the High Court dismissed the

SCA by a judgment dated 7 July 2005. Insofar as is material to the

controversy in the present case, the Single Judge held thus:

“From the materials on record it is clear that the petitioner himself has averred in the petition that the orders passed by the authorities under the said Act declaring 4160 sq. mtrs. of land of the petitioner, is excess vacant land, had become final and the petitioner had not challenged the same before any authority or Court. In para 10 of the petition, the petitioner has 5

in fact stated that after declaring the excess land, further procedure was also initiated by the respondent no.2 authority and ultimately the land is vested in the State Government under the provisions of the said Act. This is a clear admission on the part of the petitioner. Nowhere in the petition or in the rejoinder the petitioner has stated that no notice was received by the petitioner from the Government regarding taking the possession of the land in question. Despite a clear averment in the affidavit in reply on behalf of respondent no. 2, in the rejoinder affidavit the petitioner has not controverted this important aspect of the matter. It is thus clear that entire procedure of vesting the land in Government and taking the possession thereof under Section 10 of the said Act was completed way back in the year 1990. The learned advocate for the petitioner could not state whether these facts were brought to the notice of this Court in Special Civil Application No.1584/1998 which came to be disposed of by order dated 03.07.1998. In that view of the matter and in view of the fact that the question of the possession of the petitioner was not directly at issue in the said litigation, I am unable to ignore the overwhelming material on record in the present petition to the effect that indisputably, the possession of the land in question was taken by the Government and after passing through several stages, land had vested in the Government. In that view of the matter, it is not possible to accept the contentions on behalf of the petitioner that upon repeal of the said Act, the proceedings should abate. The impugned order passed by the Government rejecting the application of the petitioner under Section 20 of the said Act also cannot be interfered with. The learned A.G.P. Shri P.R. Abichandani relies on the decision of the Learned Single Judge of this Court in the case of Vipinchandra Vadilal Bavishi & anr. V/s. State of Gujarat & ors. reported in 2002 (3) GLR page-2592, wherein the Learned Judge had relied on the Panchnama of taking over of the possession supported by the affidavit filed by the competent authority as sufficient proof that possession has been taken over. The learned A.G.P. Shri Abichandani pointed out that the said decision of the Learned Single Judge is based on the decision of the Hon’ble Supreme Court in the case of M/s. Larsen and Toubro Ltd. etc. v/s State of Gujarat and ors. reported in AIR 1998 SC 1608 wherein the Hon’ble Supreme Court has upheld the validity of Panchnama of taking possession even when the panchas had subsequently filed an affidavit, with their signatures obtained on blank papers and they had not gone to the site.” (Sic)

9 Aggrieved by the order of the Single Judge, the appellant preferred a

Letters Patent Appeal before the Division Bench, which has ended in the 6

impugned order dated 24 January 2013. The submission in support of the

appeal is that possession could not have been taken over in breach of the

order of injunction passed by the Civil Court and was in fact not taken over.

Hence, ceiling proceedings have lapsed upon repeal of the Act of 1976.

10 At this stage, it would also be necessary to note that a companion

Special Leave Petition7 has been filed by the original owners, the landlord

from whom the appellant in the main appeal claims his interest under a

rent note. The owners got themselves impleaded before the Division

Bench in the Letters Patent Appeal. It was urged on their behalf that in

view of the order which was passed in the appeal under Section 33

preferred by the land owners, there was no occasion for them to adopt any

proceedings of their own under Article 226 of the Constitution and it was

only upon the judgment of the Division Bench that it has become

necessary for the land owners to assert their grievance before this Court.

The land owners have submitted that in the absence of actual taking over

of possession, the proceedings under the Act of 1976 would stand abated

by the repeal of the legislation. Moreover, it was urged that the possession

was purportedly taken over even before the order under Section 10(2) was

passed.

11 In dealing with the rival submissions, it is necessary to analyse the

correctness of the grievance that possession was purported to have been

taken over on 24 July 1990 in spite of a restraining order of status quo

passed by the Civil Court on 23 July 1990. It was urged that irrespective of

7 SLP(C) No 16944 of 2013 7

the maintainability of the suit, so long as the order of status quo held the

field, the authorities were duty bound to comply with it. In dealing with this

submission, it is necessary to note that the order dated 23 July 1990

specifically adverts to the fact that while the first to third defendants had

appeared, the fourth defendant had neither appeared nor filed a reply. The

defendants who appeared before the Court were the land owners

themselves. The fourth defendant was the Deputy Collector and the

competent authority under the Act of 1976.

12 Mr Preetesh Kapur, learned Senior Counsel appearing on behalf of

the State of Gujarat, submitted that the suit which was instituted before the

Civil Court besides being not maintainable, appeared to be clearly

collusive. Quite apart from this submission of the State, there is nothing to

indicate that a copy of the order of status quo was served on the

competent authority before possession was taken over on 24 July 1990. In

this context, it is necessary to advert to the pleadings of the appellant in

SCA No 9057 of 1998 with reference to the suit and passing of the order of

status quo. In paragraph 9 of the SCA before the High Court, it was stated

on behalf of the appellant that:

“Petitioner submits that the petitioner firm has filed one Regular Civil Suit No.469 of 1990 in the Court of the learned Civil Judge (S.D.), Ahmedabad, at Mirzapur, praying inter alia, injunction restraining the landlords and the respondent no.2 from taking possession of the suit land from the petitioner's firm. The learned Judge was pleased to grant interim injunction as prayed for against the landlords and not against defendant No.4, i.e. the Competent Officer and Deputy Collector, Ahmedabad. However, due to extra care and caution, the petitioner has submitted one purshis dated 3-3-1998 before the learned Judge, declaring that the present respondent No.2, i.e. the Competent Officer and Deputy Collector, (U.L.C.) Ahmedabad, be deleted as 8

defendant No.4 from the said suit No.469 of 1990.” (Emphasis supplied)

13 Hence, the averment of the appellant before the High Court was that

an interim injunction was sought in the suit against the landlords and not

against the competent authority under the Act of 1976. Moreover, as is

stated in the above extract, on 3 March 1998 the competent authority was

deleted from the array of parties to the suit. From this course of events,

there can be no manner of doubt that the institution of the suit was, as

learned Senior Counsel for the State has urged, a collusive attempt to

thwart the State from taking possession on the next day. In any event,

there is nothing on record to indicate that the order of status quo was ever

served on the competent authority under the Act of 1976. An attempt has

been made to suggest that the panchnama dated 24 July 1990 shows that

possession could not be taken. The Division Bench of the High Court has

analysed the panchnama and has rejected the claim that a ‘tick mark’ has

been placed on one of the three options in the panchnama to indicate that

due to the presence of structures on the land, possession could not be

taken over. In view of the provisions of Section 2(q), it was urged on behalf

of the State that the land was liable to be treated as vacant land since the

structures on the land were not authorised, in the absence of required

permission for non-agricultural use. We see no reason to take a view at

variance with what has been held by the Division Bench of the High Court

since it is evident from the record that possession of the land was taken

over on 24 July 1990. The Single Judge of the High Court has also dealt

with this aspect of the matter. Above all, the pleadings of the appellant in 9

SCA No 9057 of 1998 leave no manner of doubt that possession was

taken over on behalf of the State. The Single Judge observed that despite

a clear averment in the affidavit in reply, the rejoinder which was filed on

behalf of the appellant had not controverted this important aspect of the

matter. Thus, for the above reasons, we are unable to accept the

submission which has been urged on behalf of the appellant.

14 Significantly, the relief that was sought before the High Court in the

first SCA (SCA No 1584 of 1998) was for the grant of “appropriate land” to

the appellant and an order of injunction restraining the State from taking

over possession until the application under Section 20 was disposed of.

The Division Bench, in the course of its judgment, has dwelt on the clear

suppression in the above SCA, of the fact that possession had already

been taken over. That apart, it has been correctly urged on behalf of the

State that upon the repeal of the Act of 1976 by the Repealing Act of

19998, proceedings under Section 20 would not survive. Moreover, in the

absence of a challenge to the order of vesting, to the consequence that

followed under Sections 10(5) and 10(6) and in the absence of the

question of possession being squarely placed in issue, it was not open to

the appellant to canvass that aspect.

15 Section 3(1) which contains the saving provision in the Repealing Act

provides as follows:

“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 by the

8 “Repealing Act” 10

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;

(c) any payment made to the State Government as a condition for granting exemption under sub-section (1) of Section 20.”

16 In State of Gujarat v Gyanaba Dilavarsinh Jadega9, a two judge

Bench of this Court held that on the repeal of the Act of 1976 by the

Repealing Act, which came into force on 31 March 1999, the only actions

which are saved are the ones set out in Sections 3(1)(a), (b) and (c) of the

Repealing Act. It has been held that a claim of acquiring a right is not an

enforcement of an accrued right.

17 Section 3(1)(b) of the Repealing Act provides that the repeal will not

affect the validity of an order granting exemption under Section 20(1) or

any action taken thereunder, notwithstanding any judgment of any Court to

the contrary. What is saved by Section 3(1)(b) is the validity of an order

under which an exemption under Section 20(1) has been granted. In the

present case, there was no order for the grant of an exemption under

Section 20 on the date on which the repeal was brought into force.

18 The appellant has not placed in issue either the order of vesting or

the consequences which followed under the terms of the Act of 1976.

Once we have come to the conclusion that possession was taken over

prior to the date of repeal i.e. 31 March 1999, we find no reason to

interfere with the judgment of the High Court. The appeal is accordingly

9 (2013) 11 SCC 486 11

dismissed. There shall be no order as to costs.

SLP(C) No 16944 of 2013

19 Though the petitioner in this Special Leave Petition was not a party to

the proceedings before the Single Judge, it did not question the

correctness of the order of the Single Judge and merely got itself

impleaded as a respondent to the Letters Patent Appeal. We have already

dealt with the merits of the challenge and have found no substance

therein.

20 For the above reasons, we see no merit in the Special Leave Petition.

The Special Leave Petition is accordingly dismissed. No costs.

…………...…...….......………………........J. [Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J. [Indira Banerjee]

New Delhi;

August 01, 2019