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Supreme Court of India
Kapilaben Ambalal Patel Heirs Of … vs The State Of Gujarat Revenue … on 6 May, 2020Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar, S. Ravindra Bhat
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6380 OF 2012
Kapilaben Ambalal Patel & Ors. …Appellant(s)
Versus
State of Gujarat & Anr. …Respondent(s)
JUDGMENT
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:
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2020.05.06
“8. The petitioners pray that this Hon’ble Court be
16:03:09 IST
Reason:
pleased to issue a writ of mandamus or a writ in the
1 For short, “the High Court”
2
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 17 th February, 1976. He had five
sons, namely, (i) Ambalal Parsottambhai Patel, (ii) Maganbhai
2 For short, “the 1976 Act”
3
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
4
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:
“Particulars of surplus land. =========================
Village S.No. Final Extent Zone
Plot No.
Manjalpu 362 280 2672.3 Residentia
r Paiki l
” 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
5
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
6
endorsement shown in Annexure A11 and on Jayantibhai
Babarbhai Patel on the same date as per endorsement in
Annexure A12. 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 respondentState has, however, countered this
factual narrative of the appellants and have relied on
acknowledgments produced alongwith Written Submissions in
Annexure R2. 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
7
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
8
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 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, 1999 3 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/ExOfficio 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
3 For short, “the repeal Act”
9
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.
10
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.
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
11
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 appellantState 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 appellantState 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 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.
12
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 gobye 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 20 th 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 respondentState 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
13
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 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
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)
14
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
noncontiguous 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
15
this position, reliance is placed on the dictum in Full Bench of
the High Court in M/s. Avanti Organisation vs. Competent
Authority & Additional 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. Rao 13, 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.
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)
16
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. Individual Total land Land Excess
No owned permitted Land
. (sq. mt.) under ULC (sq. mt.)
Act
(sq. mt.)
1. Ambalal 7329.50 1500 5829.50
2. Bhikhabhai 2613.50 1500 1113.50
3. Natwarbhai 1546.40 1500 46.40
4. Jayantibha 1758.30 1500 258.30
i
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
17
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 Gujarat 14 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 wellconsidered 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
14 (2008) 5 SCC 449 (paras 27 and 29)
15 (2001) 10 SCC 525 (paragraphs 3 and 4)
18
the record and in particular from the stand taken by the
respondentState 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 nonsuiting 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
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
19
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
20
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)
21
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,
22
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
23
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
24
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 learned single Judge
was persuaded to 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 learned 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
respondentState, in particular, in the review application. In the
writ petition, the only assertion made regarding delay and laches
can be discerned from paragraph 5, which reads thus:
“5. The petitioners have approached this Hon’ble Court
without any delay or laches. The petitioners had
remained under an impression that the matter was
being looked after by the late Ambalal Purshottamdas
Patel’s constituted attorney and that therefore it was
25
not necessary for them to approach this Hon’ble
Court in the matter. The petitioners are agriculturists
and not conversant with the intricacies of law were not
aware that on Ambalal Purshottamdas Patel’s death the
Authority of his constituted attorney Kamlesh Parekh had
come to an end. Though Kamleshbhai Parekh has
informed the petitioners of the objections likely to be
raised on behalf of the appellants in the said Letters
Patent Appeal, he has also informed the petitioners that
he was not aware that he could not rely upon the power
of attorney given by Ambalal Purshottamdas Patel after
his death and in fact has regretted putting the petitioners
in the awkward position. The petitioners submit that
under the circumstances the time taken in the
prosecution of the Special Civil Application No. 8402 of
1999 and the said Civil Application and the Letters Patent
Appeal by the respondents be excluded in considering the
time taken by the petitioners to approach this Hon’ble
Court in the matter. The petitioners submit that they
are approaching this Hon’ble Court as expeditiously
as the circumstances of the case would permit. The
petitioners further submit that the delay, if any, on
the part of the petitioners in approaching this Hon’ble
Court has not in any manner caused any prejudice or
detriment to the respondents. The petitioners submit
that this Hon’ble Court be pleased to entertain the
Petition and not to reject it on the ground of delay,
acquiescence or laches.”
(emphasis supplied)
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
respondentState by relying on the Possession Panchnama and
the subsequent proceedings including the application submitted
26
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.
16. 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.
17. The Division Bench, in our opinion, 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. We are in agreement with the said view taken by the
High Court in the peculiar facts of the present case.
18. Strikingly, in this appeal by special leave, a vague ground
has been raised to challenge the said conclusion of the Division
Bench. Further, no substantial question of law has been
formulated in the appeal by special leave in that regard.
Furthermore, in the grounds all that is asserted is that the High
Court erred in holding that there was delay of 14 years in filing of
writ petition and in not appreciating that the notice under
27
Section 10(5) of the 1976 Act, dated 23.1.1986, was not served
upon Ambalal Parsottambhai Patel as he had already expired on
31.12.1985 and the notice sent to him was returned back on
2.2.1986 unserved with remark “said owner has expired”.
Further, the legal heirs of Ambalal Parsottambhai Patel ought to
have been served with the said notice. From the factual matrix
already stated hitherto, these grounds, in our opinion, are of no
avail to the appellants. It is manifest from the acknowledgement
produced by the respondentState 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). The second notice was also issued to
others, namely, Bhikhabhai Maganbhai Patel, Natvarbhai
Bhailalbhai Patel and Jayantibhai Babarbhai Patel. Be that as it
may, we are not inclined to reverse the conclusion recorded by
the Division Bench of the High Court that the writ petition filed
by the appellants was hopelessly delayed and suffered from
laches. That is a possible view in the facts of the present case.
19. The respondents had additionally relied on the decision of
this Court in Larsen & Toubro Ltd. (supra), wherein the Court
28
adverted to the exposition in Balwant Narayan Bhagde vs.
M.D. Bhagwat & Ors.20, Balmokand Khatri Educational and
Industrial Trust vs. State of Punjab21 and Tamil Nadu
Housing Board vs. A. Viswam (Dead) by LRs. 22 regarding the
settled legal position that it is difficult to take physical possession
of the land under compulsory acquisition. Further, that the
normal mode of taking possession is drafting the Panchnama in
the presence of Panchas and taking possession and giving
delivery to the beneficiaries is accepted mode of taking
possession of the land. Subsequent thereto, the retention of
possession would tantamount only to illegal or unlawful
possession. Reliance is also placed on paragraphs 14 to 16 of
Bhaskar Jyoti Sarma (supra). However, it is not necessary for
us to dilate on these aspects having agreed with the conclusion
recorded by the Division Bench of the High Court that the writ
petition filed in the year 2001 by the appellants with limited relief
of questioning the Possession Panchnama dated 20.3.1986,
suffered from laches. The Division Bench of the High Court
noted that the learned single Judge completely glossed over this
20 (1976) 1 SCC 700 (paragraph 28)
21 (1996) 4 SCC 212 (paragraph 4)
22 (1996) 8 SCC 259 (paragraph 9)
29
crucial aspect of the matter, and we find no reason to depart
from that conclusion.
20. In view of the above, it is not necessary for us to dilate on
other contentions raised by the appellants or by the respondent
State on merits.
21. Having said thus, it must follow that the present appeal is
devoid of merits and the impugned decision of the Division Bench
of the High Court ought to be upheld on the threshold ground of
writ petition being barred by laches.
22. Accordingly, this appeal must fail. The same is dismissed
with no order as to costs. Pending interlocutory applications, if
any, shall stand disposed of.
…………………………….J.
(A.M. Khanwilkar)
…………………………….J.
(Dinesh Maheshwari)
New Delhi;
May 6, 2020.
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