VIPINCHANDRA VADILAL BAVISHI (D) BY LRS & ANR. Vs. STATE OF GUJARAT & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 7434 of 2012, Judgment Date: Jan 28, 2016
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7434 OF 2012
Vipinchandra Vadilal Bavishi (D) by Lrs.
and another ….Appellant(s)
versus
State of Gujarat and others ….Respondent(s)
J U D G M E N T
M.Y. EQBAL, J.
The appellants are aggrieved by the judgment and order dated
26.3.2010 passed by the Division Bench of Gujarat High Court dismissing the
Letters Patent Appeal No.740 of 2002 holding that the appellants are not
entitled to the benefit of the Urban Land (Ceiling and Regulation) Repeal
Act, 1999 and thereby upheld the judgment passed by the learned Single
Judge in the writ petition filed by the appellants.
2. The factual matrix of the case is that the appellants were the owners
and land holders of vacant lands situated in different places in the State
of Gujarat. When the Urban Land (Ceiling and Regulation) Act, 1976 (in
short, “Act of 1976”) came into force in August, 1976, the appellants filed
the return as required under Section 6 of the Act of 1976 and in the said
form the appellants declared their lands situated in village Rajkot,
Kothariya and Nana Mauva in the district of Rajkot, Gujarat. The return in
the specified form shows that the appellants owned land in survey nos. 1,
2, 7 to 18 and 44 in Village Rajkot and plot nos. 36 to 43 in village Nana
Mauva in the district of Rajkot. The wife of the appellant Bipin Chandra
Babhishi (appellant No.2) also filed separate return.
3. The draft statement was prepared by the authority and final statement
under Section 9 was issued showing plot nos. 1 to 16 as excess land held by
the appellants beyond ceiling limit.
4. The Notification under Section 10(1) of the Act was published on 24-3-
1986 declaring the land together with other land as surplus land. The
respondent’s case is that the numbers of plots and the measurements were
described as Plot Nos. 1 to 16, instead of either 16 plots or Plot Nos. 36
to 43 and the area was mentioned as of 9030.71 sq.mtrs. instead of 4610
sq.mtrs. Thereafter, on 16-6-1986, the Notification under Section 10
(3) was published showing the details of the land of Plot No. 1 to 16 as
they were shown in the Notification under Section 10(1) of the Act.
Against the order dated 27-2-1986 for declaring the land in question
together with the other land as surplus land, the appellant preferred
appeal being No. Rajkot/41/86, before the Urban Land Tribunal and on 17-6-
1986. In the said appeal, the interim stay was granted against the
publication of the Notification under Section 10(3) of the Act. However,
prior thereto, i.e. on 16-6-1986, the Notification under Section 10(3) of
the Act as stated above, was already published. On 20-12-1988, the Urban
Land Tribunal dismissed the appeal preferred by the appellant as well as by
his wife. However, so far as the land in question is concerned, the
Tribunal, vide Para No. 4 of the judgment in the Appeal No. 41 of 1986 of
the appellants, considered that the land in question bearing Plot Nos. 36
to 43 admeasuring 4610 sq. mtrs. was declared as land under holding of the
appellant and had also recorded that the declaration under Section 10(3) of
the Act was issued on 16-6-1986.
5. Thereafter, corrigendum dated 26-6-1989 allegedly issued for correcting
the mistake occurred in the description of plot numbers and areas of the
land in question and as per the said order, it was mentioned that the plot
numbers are to be correctly read as 16 to 23 and 36 to 43. It is the case
of the respondent authorities that on 26-6-1989, the possession of the land
in question bearing Plot Nos. 16 to 23 and Plot Nos. 36 to 43 was taken
over and the panchnama was also drawn to that effect. In the panchnama
dated 26-6-1989, it has also been mentioned that over the land in question
Plot Nos. 16, 17, 23 and 24, the construction of houses are made. In
October 1989, the appellant preferred Spl.C.A. No. 3456 of 1989 before the
High Court against the order dated 27-2-1986 passed by the Urban Land
Authority and order dated 28-12-1988 passed by the Urban Land Tribunal. In
the said Spl. Civil Application, High Court passed an order of issuing
notice and directed the parties to maintain the status quo as on that day.
The said petition was heard and dismissed by the High Court on 19-7-1993.
Being aggrieved, the appellant had preferred appeal before this Court under
Article 136 of the Constitution, which stood dismissed.
6. On 18th March, 1999, the Urban Land (Ceiling and Regulation) Repeal
Act, 1999 (in short, “Repeal Act”) came into force whereby the Urban Land
(Ceiling & Regulation) Act stood repealed. In September, 2000, the
appellant preferred a petition before the High Court for declaration that
respondent nos. 1 and 2 have no powers or authority to take the possession
of the land in question and has also prayed for the permanent injunction
against respondent Nos. 1 and 2 for dealing or disposing of the land in
question pending the petition. The appellants came to know that the land in
question admeasuring 2100 Sq. Mtrs. has been allotted to one Shram Deep Co-
op. Housing Society, by the State Government as per order dated 12th Sept.,
2000, and therefore, the appellants also challenged the legality and
validity of the said order for allotment of the land.
7. Learned Single Judge of the High Court dismissed the petition filed
by the appellants. Observing that the State Government was not legally
justified in disposing the land in question after the Repeal Act and since
the same has been disposed of without observing the settled norms for
disposal of the public property, learned Single Judge also quashed and set
aside the order dated 12-9-2000 whereby the land in question was allotted
to the respondent No. 3-Society. The appellants herein challenged
dismissal of their petition by way of filing Letters Patent Appeal.
Respondent-Society also filed Letters Patent Appeal challenging
cancellation of aforesaid allotment.
8. After hearing both sides, the Division Bench of the High Court
dismissed the appeal preferred by the appellants and allowed the appeal
filed by the Society. The Division Bench confirmed the order of learned
Single Judge in Special Civil Application so far as it related to the
appellant, and set aside the findings so far it related to the Co-operative
Society, holding thus:
“39. Learned Single Judge has non-suited the petitioners on the ground that
their land at village Kotharia was sold in the year 1997 by the State
Government authorities, no objection was raised by them in this relation.
Thus, for all practical purposes they have understood that the land
belonging to them having been declared as surplus has rightly vested in the
State Government and the State Government had a right to sell the same and
therefore no grievance whatsoever was raised in that relation. That
tantamounts to acquiescence of the petitioners and we do not think that
learned Single Judge was wrong in holding the same.
40. Learned Single Judge has also noticed that there is non-disclosure of
necessary facts in the petition filed before this Court regarding the
material questions, such as corrigendum, preparation of panchnama and the
proceedings initiated by them for encroachment which tantamounts to
withholding the material information and this shows that the petitioners
had not come to this Court with clean hands and lack bona fides and
therefore on that count also the judgement of learned Single Judge is not
found vitiated by us.
xxxxxxxx
44. In view of the aforesaid, we are of the considered opinion that the
petitioners' petition has rightly been dismissed by learned Single Judge.
Since the petitioners' petition held by us to be not maintainable in the
facts of this case, the question of allotment of the land acquired from the
petitioners to the respondent/appellant Co-operative Society is not gone
into by us because if the petition itself is held to be not maintainable
then that question was not liable to be gone into by learned Single Judge
because such allotment would not fall within the purview of its
jurisdiction exercised by learned Single Judge. That could have been done
in a Public Interest Litigation. In any case, the Co-operative Society
having been made to deposit money in the year 1991 and the State having not
allotted the land to it until this Court had issued a direction, we
consider that that question is not required to be gone into at the instance
of the petitioners. Therefore, the findings of learned Single Judge in that
relation are considered by us to be not proper and therefore they are
liable to be set aside.
45. In view of the above, the petition filed by the petitioners before
learned Single Judge is dismissed. Since we have dismissed Special Civil
Application filed by the petitioners, the findings in relation to the Co-
operative Society are also set aside. In that view of the matter, the
appeal of the Co-operative Society stands allowed.”
9. Hence the present appeal by special leave by the landholders.
10. Mr. Harin P. Raval, learned senior counsel appearing for the
appellants-landholders, before briefing the point of submission, contended
that the instant case is squarely covered by the judgment rendered by this
Court in the case of State of Uttar Pradesh vs. Hari Ram, (2013) 4 SCC 280.
Learned counsel submitted that in the instant case the State Government
has failed to establish that possession has been legally taken over either
by way of the voluntary surrender of possession under sub-section (5) of
Section 10 or forceful dispossession under sub-section (6) of Section 10 of
the Act.
11. Mr. Raval submitted that admittedly there was a status quo order
granted by the Land Ceiling Tribunal on 17.6.1986. Hence, the notification
purported to have been issued under-sub-section (3) of Section 10 and any
action taken will be a nullity. Consequently, Notification under Section
10 (1), under Section 10(3) and under Section 10(5) and the Panchnama
mentioned therein in respect of survey nos. 73, 74 and 71 are patently bad
and illegal.
12. Mr. Raval submitted that in the final statement dated 27.2.1986
issued under Section 9 of the Act relates to plot nos. 1 to 16 of survey
no.71. So also Notification under Section 10(1), Section 10(3) are in
respect of of plot Nos. 1 to 16 whereas Panchnama dated 26.6.1989 was
prepared for taking possession of plot nos.16 to 23 and 36 to 43 of Survey
No. 71 of village Mauva. That was based on so called corrigendum dated
26.6.1989 alleging that plot numbers have been corrected. Admittedly the
same was not published in the Government Gazette and the appellants never
knew the same. Learned counsel submitted that the said corrigendum is a
got up document which is very clear from the letter dated 18.8.2000.
13. Mr. Raval, learned senior counsel, lastly contended that the stand of
the State Government that the corrigendum is not required to be published
in the Government Gazette cannot be sustained in view of Section 21 of the
General Clauses Act and the law decided by this Court in the case of
Mahendra Lal Jaini vs. State of U.P. & Ors. AIR 1963 SC 1019, and State of
Kerala vs. P.J. Joseph, AIR 1958 SC 296.
14. Mr. Preetesh Kapur, learned counsel appearing for the respondent-
State firstly contended that the learned Single Judge rightly dismissed the
writ petition on the ground of constructive res judicata as well delay and
acquiescence. Learned counsel submitted that all the contentions raised by
the appellant in the present proceedings could have been and ought to have
been raised in the first round of litigation in the Writ Petition No. 3456
of 1989. Learned counsel submitted that the appellants were fully aware
that in pursuance of the corrigendum dated 26.6.1989 possession of the land
in question namely plot Nos. 36 to 43 has been taken over by the State
which is clear from the Panchnama and the notice dated 23.10.1989.
Further, in the earlier writ petition, the appellants in effect accepted
that the correct plot nos. 36 to 43 were declared surplus. According to the
learned counsel, therefore, the appellants were all along aware of this
corrigendum.
15. Mr. Kapur then contended that in any view of the matter, the
appellants could have challenged the said corrigendum as well as taking
over the possession of plot nos. 36 to 43, if according to the appellant
there is no valid Notification under Section 10(3) in respect of plots in
question or that the corrigendum was required to be notified.
16. Referring to the Repeal Act of 1999, learned counsel submitted that
the said Repeal Act does not give any fresh cause of action to the
appellants if the foundation for the relief in the present proceedings is
nothing but the ground that was always available to the appellants in the
earlier round of litigation. In this regard, learned counsel relied upon
the decision in the case of Shiv Chander More & Ors. vs. Lieutenant
Governor & Ors., (2014) 11 SCC 744.
17. Mr. C.A. Sundaram, learned senior counsel appearing for some of the
appellants, at the very outset, submitted that a person can be divested
from his property only by Notification under Section 10(3) of the Act and
not by an order under Section 45 of the Act. Learned counsel submitted
that the cause of action for approaching the court arose only after the
Repeal Act of 1999 came into force. Learned counsel drawn our attention to
the scheme of the Act and the mandate provided therein. Divesting the land-
holders from their property without following the mandatory provision is a
nullity.
18. In order to decide the correctness of the impugned judgment of the High
Court, we would like to refer some of the facts which are not in dispute.
(i) After the statutory form under Section 6 of the Act was submitted by
the appellants-land-holders, Notification was issued under Section 10(1) of
the Act giving the particulars of the vacant land held by the appellants in
excess of ceiling limit. In the said Notification, plot nos. 1 to 16 were
declared as excess land. There is no mention of plot nos. 36 to 43.
(ii) On 16.6.1986, Notification under Section 10(3) was issued by
the competent authority declaring the excess vacant land referred to in the
Notification under Section 10(1) deemed to have been acquired by the State
Government. In that Section 10(3) Notification also there is no mention of
vesting of land of plot nos. 36 to 43.
(iii) Although Land Ceiling Tribunal by order dated 17.6.1986 granted
status quo restraining publication of Section 10(3) Notification and not to
conduct further proceedings, but in spite of status quo, again Section
10(3) Notification was published in the Gazette on 24.7.1986 showing plot
nos. 1 to 16 as excess vacant land deemed to have been acquired.
(iv) A handwritten corrigendum was allegedly prepared on 26.6.1989, but it
was never given effect to, which is evident from the letter dated
18.8.2000. We shall discuss the said letter dated 18.8.2000 hereinafter.
19. Now the question that needs consideration is as to whether
handwritten corrigendum dated 26.6.1989 and the alleged panchnama of the
same dated 26.6.1989 can be relied upon and that on the basis of said
corrigendum and the panchnama can the land stood vested in the State. As
noticed above, according to the respondent-State a handwritten corrigendum
dated 26.6.1989 correcting plot numbers have been issued, but from the
letter dated 18.8.2000, it is clear that the said handwritten corrigendum
was never given effect to. In the letter dated 18.8.2000 issued by the
Deputy Secretary, Revenue Department to the Additional Collector,
(Competent Officer of Urban Land Ceiling), it was mentioned that possession
of land of plot nos. 1 to 16 of survey no. 71 was taken over by the
Government and when it came to the notice that the landholders were holding
plot nos. 36 to 43, possession was taken over of those plots. The competent
officer has sought sanction of the Government for publishing necessary
corrigendum. It is also mentioned in the letter that sanction is required
for showing plot nos. 36 to 43 by issuing a corrigendum.
20. From these facts and the documents available on record, it is
evidently clear that neither the Notifications under Sections 10(1), 10(2),
10(3) and 10(5) were issued in respect of plot nos. 36 to 43 nor
possession of those plots have been taken over by the respondents.
Curiously enough even the map attached to the letter dated 26.6.1989 shows
that the possession of plot nos. 1 to 16 were taken and not of plot nos. 36
to 43.
21. From perusal of the Urban Land (Ceiling and Regulation) Act, 1976 (in
short “Ceiling Act”), the provisions contained in Sections 8, 9 and 10 have
to be mandatorily complied with before the land is declared in excess of
the ceiling limit. Section 8 empowers the authority to prepare a draft
statement giving particulars of the land holders, vacant lands and such
draft statement is served upon the land holders inviting objections to the
draft statement. Admittedly, in the draft statement, neither the lands
comprised within plot nos. 36 to 43 were shown as excess land nor objection
was invited from the appellants. In the final statement prepared under
Section 9 of the Act, again the land of plot nos. 36 to 43 was not shown as
excess land beyond ceiling limit. As noticed above, a Notification under
Section 10(1) of the Act was published showing the land of plot nos. 1 to
16 as excess vacant land held by the appellants. Thereafter, the competent
authority issued Notification under Section 10(3) of the Act which was
published in the Gazette of the State declaring that the land of plot nos.
1 to 16 deemed to have been acquired by the State. In spite of the fact
that the land in question being plot nos. 36 to 43 of survey no. 71 was not
the land under Notification issued under Section 10(1) and 10(3) of the
Act, the authority alleged to have proceeded under Section 10(5) of the Act
for taking possession of the land. At this juncture, it is relevant to
mention here that no notice has been produced by the State to show that the
appellants were asked to surrender or deliver the possession of plot nos.
36 to 43. Nor there is any evidence to show that the appellants ever
refused or failed to comply with any notice issued under Section 10(5) of
the Act.
22. Perusal of the documents reveals that the respondent-State has not
come with clean hands which is evident from the counter affidavit filed by
the State before the High Court in the writ petition. In paragraph 13 of
the counter affidavit it was stated by the State that by order dated
27.2.1986 land comprised within the plot nos. 1 to 16 of Village Nana mauva
was declared excess. It is stated that the said order was passed relying
upon the documents dated 6.9.1965 submitted with form No.1, wherein
total number of plots were shown as 1 to 16. However, it is stated that
by corrigendum dated 26.6.1989, instead of plot nos. 1 to 16, possession of
plot nos. 16 to 23 and 36 to 43 was published in compliance with the
provision contained in Section 45 of the Act and accordingly the possession
of plot nos. 16 to 23 and 36 to 43 was taken over on 26.6.1989 in the
presence of panchas. From perusal of panchnama dated 26.6.1989, it is
mentioned that the appellants were informed to remain present for handing
over possession but the appellants had not remained present to hand over
the possession. Hence, in presence of two panchs possession of excess land
as per particulars given therein was taken over. In the particulars of
land regarding the taken over possession plot nos. 16 to 19 has been shown
with boundary. If the contention of the respondent is accepted, then
according to the respondent everything i.e. preparation of corrigendum,
information to the appellant for the handing over the possession and
finally taking over the possession have been done on the same date i.e. on
26.6.1989. If that was so, then why sanction was sought by the authority
of the respondent for notifying the corrigendum by letter dated 18.8.2000
after the Repeal Act came into force. We are therefore, constraint to hold
that the case made out by the respondent-State the possession of plot nos.
36 to 43 was taken over on 26.6.1989 cannot be accepted.
23. A similar question came up for consideration before this Court in the
case of State of U.P. vs. Hari Ram, 2013 (4) SCC 280. In this case, a
question arose as to whether the deemed vesting of surplus land under
Section 10(3) of the Act would amount to taking de facto possession
depriving the landholders of the benefit of the saving clause under Section
4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. After
examining in detailed provisions of the Ceiling Act as also the Repeal
Act, the Court observed :-
“35. If de facto possession has already passed on to the State Government
by the two deeming provisions under sub-section (3) of Section 10, there is
no necessity of using the expression “where any land is vested” under sub-
section (5) of Section 10. Surrendering or transfer of possession under sub-
section (3) of Section 10 can be voluntary so that the person may get the
compensation as provided under Section 11 of the Act early. Once there is
no voluntary surrender or delivery of possession, necessarily the State
Government has to issue notice in writing under sub-section (5) of Section
10 to surrender or deliver possession. Sub-section (5) of Section 10
visualises a situation of surrendering and delivering possession,
peacefully while sub-section (6) of Section 10 contemplates a situation of
forceful dispossession.
Forceful dispossession
36. The Act provides for forceful dispossession but only when a person
refuses or fails to comply with an order under sub-section (5) of Section
10. Sub-section (6) of Section 10 again speaks of “possession” which says,
if any person refuses or fails to comply with the order made under sub-
section (5), the competent authority may take possession of the vacant land
to be given to the State Government and for that purpose, force—as may be
necessary—can be used. Sub-section (6), therefore, contemplates a situation
of a person refusing or fails to comply with the order under sub-section
(5), in the event of which the competent authority may take possession by
use of force. Forcible dispossession of the land, therefore, is being
resorted to only in a situation which falls under sub-section (6) and not
under sub-section (5) of Section 10. Sub-sections (5) and (6), therefore,
take care of both the situations i.e. taking possession by giving notice,
that is, “peaceful dispossession” and on failure to surrender or give
delivery of possession under Section 10(5), then “forceful dispossession”
under sub-section (6) of Section 10.
37. The requirement of giving notice under sub-sections (5) and (6) of
Section 10 is mandatory. Though the word “may” has been used therein, the
word “may” in both the sub-sections has to be understood as “shall” because
a court charged with the task of enforcing the statute needs to decide the
consequences that the legislature intended to follow from failure to
implement the requirement. Effect of non-issue of notice under sub-section
(5) or sub-section (6) of Section 11 is that it might result in the
landholder being dispossessed without notice, therefore, the word “may” has
to be read as “shall”.”
24. The Bench further considered the effect of Repeal Act and held that:-
“41. Let us now examine the effect of Section 3 of Repeal Act 15 of 1999 on
sub-section (3) of Section 10 of the Act. The Repeal Act, 1999 has
expressly repealed Act 33 of 1976. The objects and reasons of the Repeal
Act have already been referred to in the earlier part of this judgment. The
Repeal Act has, however, retained a saving clause. The question whether a
right has been acquired or liability incurred under a statute before it is
repealed will in each case depend on the construction of the statute and
the facts of the particular case.
42. The mere vesting of the land under sub-section (3) of Section 10 would
not confer any right on the State Government to have de facto possession of
the vacant land unless there has been a voluntary surrender of vacant land
before 18-3-1999. The State has to establish that there has been a
voluntary surrender of vacant land or surrender and delivery of peaceful
possession under sub-section (5) of Section 10 or forceful dispossession
under sub-section (6) of Section 10. On failure to establish any of those
situations, the landowner or holder can claim the benefit of Section 4 of
the Repeal Act. The State Government in this appeal could not establish any
of those situations and hence the High Court is right in holding that the
respondent is entitled to get the benefit of Section 4 of the Repeal Act.
43. We, therefore, find no infirmity in the judgment of the High Court and
the appeal is, accordingly, dismissed so also the other appeals. No
documents have been produced by the State to show that the respondents had
been dispossessed before coming into force of the Repeal Act and hence, the
respondents are entitled to get the benefit of Section 4 of the Repeal Act.
However, there will be no order as to costs.”
25. The submission of Mr. Kapoor, learned counsel appearing for the
respondent-State, that mentioning of Plot Nos. 1 to 16 in the Notification
issued under Sections 10(1), 10(3) and 10(5) is a clerical mistake which
can be corrected by issuing a corrigendum, is absolutely not tenable in
law. How Plot Nos. 1 to 16 can be replaced by Plot Nos. 36 to 43 in those
Notifications by issuing a hand-written corrigendum which was not even
finally approved by the authorities after 1976 Act stood repealed.
26. An arithmetical mistake is a mistake in calculation, while a clerical
mistake is a mistake of writing or typing error occurring due to accidental
slip or omissions or error due to careless mistake or omission. In our
considered opinion, substituting different lands in place of the lands
which have been notified by a statutory Notification under Section 10(1),
10(3) and 10(5) cannot and shall not be done by issuing a corrigendum
unless the mandatory requirements contained in the aforementioned sections
is complied with. A land holder cannot be divested from his land on the
plea of clerical or arithmetical mistake liable to be corrected by issuing
corrigendum.
27. The submission of the learned counsel appearing for the respondent-
State that the writ petition is barred by res judicata is also not
sustainable in law. In our considered view, question as to whether the
appellants landholders were dispossessed from the land in question and the
effect of the Repeal Act on this was not the issue in the earlier writ
petition and, therefore, it cannot be held that the instant writ petition
is barred by res judicata or constructive res judicata.
28. For the aforesaid reasons this appeal is allowed and the impugned
judgment passed by the High Court is set aside. Consequently, it is held
that the appellants landholders are entitled to retain possession of the
land comprised within Plot Nos. 36-43, Survey No.71 in village Nana Mauva
in the District of Rajkot, Gujarat, as the same is not vested in the State.
29. So far the contention made by respondent no.3 - Cooperative Society
is concerned, we have examined their case and found that the Division Bench
rightly set aside the finding of the learned Single Judge so far it related
to the Co-operative Society.
…………………………….J.
(M.Y. Eqbal)
…………………………….J.
(C. Nagappan)
New Delhi
January 28, 2016
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