KAPILABEN AMBALAL PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(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 Ahmedabad[1] 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:- [1] For short, "the High Court" "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. (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, 1976[2] 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" "Particulars of surplus land. ========================= <FRM>JUDGEMENT_32_LAWS(SC)5_2020.html</FRM> 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 Section 10(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 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 twoindependent 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.