Vipinchandra Vadilal Bavishi v. State of Gujarat

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. Page 11

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 Page 12 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 Page 13 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. Page 14

(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 Page 15 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, Page 16 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. Page 17 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 Page 18 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 Page 19 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 Page 20 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:-

37. The requirement of giving notice under subsections (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, Page 22 therefore, the word “may” has to be read as “shall”.”

24. The Bench further considered the effect of Repeal Act and held that:-

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, Page 24 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. Page 25

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