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SUPREME COURT OF INDIA
M.Y. Eqbal, C. Nagappan, JJ.
Vipinchandra Vadilal Bavishi (D) by Lrs. and another – Appellants
Versus
State of Gujarat and others – Respondents
Civil Appeal No. 7434 of 2012
Decided on : 28-01-2016
(2013) 4 SCC 280 – Relied upon
(2013) 4 SCC 280; AIR 1963 SC 1019; AIR 1958 SC 296; (2014) 11 SCC 744 – Referred
(b) Urban Land (Ceiling and Regulation) Act, 1976 – Sections 10(1), 10(3) and 10(5) – Contention that plot no. mentioned in notifications u/s 10(1), 10(3) and 10(5) were clerical mistake and can be corrected by corrigendum – Such correction by a hand written corrigendum after repeal of Act, 1976 and not approved by authorities – Not permissible. (Para 25, 26)
(c) Code of Civil Procedure, 1908 – Section 11 – Res Judicata – Question in instant writ petition is whether appellant land holders were dispossessed from the land – Effect of repeal of Act 1976 also an issue presently – These issued did not arise in earlier writ petition – Instant writ petition not barred by res judicata. (Para 27)
Facts of the case:
The appellants were the owners and land holders of vacant lands situated in different places in the State of Gujarat.
The appellants filed the return as required under Section 6 of the Urban Land (Ceiling and Regulation) Act, 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 showing 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.
Final statement under Section 9 was issued showing plot nos. 1 to 16 as excess land held by the appellants beyond ceiling limit.
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.
Thereafter, corrigendum dated 26-6-1989 allegedly issued wherein it was mentioned that the plot numbers are to be correctly read as 16 to 23 and 36 to 43.
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.
Challenge to the order by the appellant was dismissed upto the Supreme Court.
After repeal of the Act, 1976 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.
Single Judge of the High Court dismissed the petition filed by the appellants.
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.
Finding of the Court:
Impugned judgment is not sustainable.
Result: Appeal allowed.
JUDGMENT :
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 he
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