DINESHKUMAR JAGUBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These two Intra ­Court Letters Patent Appeals are directed against the common order of the learned Single Judge (Coram : Bela M. Trivedi, J.), dismissing the Special Civil Application No.3776 of 1997 (Dineshkumar Jagubhai Patel and Others v. State of Gujarat and Others) and Special Civil Application No.2612 of 1997 (Jagubhai Dayabhai Patel and Others v. Competent Authority and Additional Collector) . The matter arises under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 ('the ULC Act' for short) and though we, prima facie, found the controversy to be covered by our decision in the case of Heirs of Deceased Jethabhai Ishwarbhai v. State of Gujarat and Others rendered in Letters Patent Appeal No.405 of 2017, dated 22.1.2021, Mr.Dhaval C. Dave, learned Senior Counsel appearing for the Appellants - Petitioners, urged and took almost entire day of hearing for taking us through a complex matrix of facts and Documents with their widespread litigative history of the present case, pertaining to the land admeasuring 36,827 Sq. Mtrs. declared as excess or surplus land under the provisions of the ULC Act which, according to the said enactment, would vest with the State Government once the draft order under Section 8(4) and final order under Section 9 of the ULC Act is made by the Competent Authority and a Notification under Section 10(3) of the ULC Act is issued by the State Government vesting the surplus land in the State free from all encumbrances. Thereafter, a Notice­cum­Order under Section 10(5) of the ULC Act has to be served on the land owners or occupants of the land in question and if the possession is not handed over to the State Authorities within 30 days in compliance of such Notice­cum­ Order under Section 10(5) of the ULC Act, the State Authorities can take forcible possession of the land in question under Section 10(6) of the ULC Act and then, allot the same to needy persons in terms of Section 23 of the Act.

(2.) The exception to compulsory take over of the surplus / excess land beyond the prescribed limits of the urban ceiling in the Act is provided under Sections 20 and 21 of the ULC Act, where the State Government has power to exempt and let the land remain with the landholder under Section 20 of the ULC Act in the given circumstances or under Section 21 of the ULC Act, upon a Scheme for housing for Weaker Section of the Society, if approved, as submitted by the land owner, his land can be so exempted under Sections 20 or Section 21 of the ULC Act.

(3.) What the Division Bench of this Court held in the case of Heirs of Deceased Jethabhai Ishwarbhai (Supra) following the Supreme Court decision in the case of State of Assam v. Bhaskar Jyoti Sarma, reported in (2015) 5 SCC 321, is that earlier judgment in the case of State of U.P. v. Hari Ram, reported in (2013) 4 SCC 280 was watered down and distinguished and it was held that no Notice under Section 10(6) of the ULC Act is required to be given and if the possession in pursuance of the Notice­cum­Order under Section 10(5) of the ULC Act is not handed over and an objection against that is raised belatedly, the taking over of the possession under Section 10(6) of the ULC Act even through Panchnama process, even in the absence of land owner, would get legitimacy and later on, such belated challenges cannot be accepted and will be deemed to have been waived by the landholder.