MADHUSUDAN BHANUPRASAD PANDYAversusSTATE OF GUJARAT & ORS.

626                       [2019]
               SUPREME COURT     10 S.C.R. 626
                              REPORTS                      [2019] 10 S.C.R.


A               MADHUSUDAN BHANUPRASAD PANDYA
                                        v.
                         STATE OF GUJARAT & ORS.
                         (Civil Appeal No. 6022 of 2019)
B                              AUGUST 01, 2019
              [DR. DHANANJAYA Y CHANDRACHUD AND
                          INDIRA BANERJEE, JJ.]
             Urban Land (Ceiling and Regulation) Act, 1976: s.20 –
C     Application for exemption under s.20 filed by appellant – State
      Government rejected the application – Writ petition filed by
      appellant to set aside the order of State Government rejecting
      exemption – High Court dismissed the writ petition holding that
      entire procedure of vesting the land in Government and taking the
      possession thereof under s.10 of the Act was completed way back
D
      in the year 1990 and rejected the plea of appellant that upon repeal
      of the said Act, the proceedings would abate – On appeal, held:
      s.3(1)(b) of the Repealing Act provides that the repeal will not affect
      the validity of an order granting exemption under s.20(1) or any
      action taken thereunder, notwithstanding any judgment of any Court
E     to the contrary – What is saved by s.3(1)(b) is the validity of an
      order under which an exemption under s.20(1) has been granted –
      In the instant case, there was no order for the grant of an exemption
      under s.20 on the date on which the repeal was brought into force
      – The appellant did not place in issue either the order of vesting or
      the consequences which followed under the terms of the Act of 1976
F
      – Once possession was taken over prior to the date of repeal i.e. 31
      March 1999, there is no reason to interfere with the judgment of the
      High Court – Urban Land (Ceiling and Regulation) Repeal Act,
      1999 – s.3(1)(b).
            State of Gujarat v. Gyanaba Dilavarsinh Jadega (2013)
G           11 SCC 486 – referred to.
                             Case Law Reference
      (2013) 11 SCC 486               referred to              Para 16

H
                                       626
    MADHUSUDAN BHANUPRASAD PANDYA v. STATE OF                              627
                 GUJARAT & ORS.

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6022                 A
of 2019.
      From the Judgment and Order dated 24.01.2013 of the High
Court of Gujarat at Ahmedabad in Letters Patent Appeal No. 1570 of
2005 in Special Civil Application No. 9057 of 1998.
      With                                                                 B

      S.L.P. (C) No. 16944 of 2013.
      Nakul Dewan, Sr. Adv., Hemal Kiritkumar Sheth, A. Venayagam
Balan, Vipin Kumar Jai, Advs. for the Appellant.
      Preetesh Kapur, Sr. Adv., Aniruddha P. Mayee, A. Rajarajan,          C
Purvish Jitendra Malkan, Dharita Purvish Malkan, Bhaskar Singh, Alok
Kumar, Ms. Deepa Gorasia, Ms. Rumi Chanda, Advs. for the
Respondents.
      The Judgment of the Court was delivered by
                                                                           D
      DR. DHANANJAYA Y CHANDRACHUD, J.
      1. Leave granted1.
       2. The appeal arises from a judgment and order dated 24 January
2013 of a Division Bench of the High Court of Gujarat, affirming the
dismissal of a Writ Petition by the Single Judge. On 7 July 2005, the      E
Single Judge dismissed a Writ Petition filed by the appellant seeking to
set aside an order of the State Government rejecting an application for
exemption under Section 20 of the Urban Land (Ceiling and Regulation)
Act 19762.
        3. The appellant claims to be engaged in the business of           F
manufacturing cement pipes through M/s General Cement Pipe Company
Limited3 on land bearing Survey No 288/4 admeasuring 5160 sq m situated
at village Chandlodia, Taluka City District, Ahmedabad. The appellant
claims leasehold rights in the land under a rent note dated 27 March
1975. Upon the enactment of the Act of 1976 on 12 September 1976,
Form I under Section 6(1) was submitted on behalf of the Company,          G
declaring that the land was leased from the original owners. Village
form No 7/12 contained an entry for the years 1979-80 and 1980-81 to
1
  SLP(C) No 24021 of 2013
2
  “Act of 1976"
3
   “Company”                                                               H
628              SUPREME COURT REPORTS                         [2019] 10 S.C.R.


A     the effect that the land had been put to non-agricultural use without
      permission. As a result, by virtue of the provisions of Section 2(q), the
      land upon which construction had been put up was liable to be considered
      as vacant land. On 26 November 1982, a draft statement under Section
      8(1) was issued. On 26 August 1985, the competent authority under
      Section 8(4) declared land admeasuring 4160 sq m as excess vacant
B
      land. On 17 September 1985, a final statement was issued under Section
      9. A notification under Section 10(1) was published on 31 January 1986.
      This was followed by a notification under Section 10(3) on 6 December
      1986. A notice under Section 10(5) was issued on 6 March 1987. On 6
      July 1990, the competent authority issued a notice under Section 10(6)
C     intimating that possession of the excess land would be taken over.
             4. At this stage, on 19 July 1990, the appellant filed an application
      for exemption under Section 20.
             5. According to the appellant, on 23 July 1990, the Company
      instituted a suit4 before the Civil Judge, Senior Division, Ahmedabad in
D     which an order of status quo was granted on the same day. The case
      of the appellant is that on 24 July 1990, possession of the excess land
      was purported to be taken over under a valid panchnama, inspite of the
      order of the Civil Court. On 20 July 1990, the order of the competent
      authority dated 26 August 1985 declaring the land as excess vacant land
E     was challenged in an appeal under Section 33 before the Urban Land
      Tribunal5. On 31 December 1990, the Tribunal dismissed the appeal on
      the ground that the delay of over four years had not been satisfactorily
      explained. On 1 September 1992, an order was passed under Section 11
      in the matter of compensation.

F           6. On 3 March 1998, Special Civil Application6 No 1584 of 1998
      was filed by the appellant under Article 226 of the Constitution before
      the High Court of Gujarat seeking the following reliefs:
             “(A) This Hon’ble Court may be pleased to issue a writ of
             mandamus or a writ in the nature of mandamus or any other
G            appropriate writ, order or direction directing the respondent
             authorities to grant appropriate land (at least 3000 sq. mtrs.) or
             any other appropriate measurement of land which this Hon’ble
             Court deem fit and proper, to the petitioner firm so that the
      4
        Regular Civil Suit No 469 of 1990
      5
        “Tribunal”
H     6
        “SCA”
MADHUSUDAN BHANUPRASAD PANDYA v. STATE OF 629
GUJARAT & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

      manufacturing activities may be carried on properly, on merits           A
      and in accordance with the provisions of the said Act.
      (B) The respondent authorities may be restrained from taking
      possession of the land bearing Survey No. 288/4 admeasuring
      5160 sq. mtrs. situated at village Chandlodiya, Taluka City District
      Ahmedabad till pending hearing and final disposal of the application     B
      under Section 20 of the Act, pending before the Revenue Secretary
      or the status-quo with regard to the possession of the said land
      may be maintained by the respondent authorities, till the admission,
      hearing and final disposal of this petition.”
       7. By an order dated 3 July 1998, the High Court disposed of the        C
above SCA with a direction to the State Government to expeditiously
decide the appellant’s application under Section 20. On 5 October 1998,
the application under Section 20 was rejected in view of the fact that the
land had vested in the State. Thereupon, the appellant filed another Writ
Petition being SCA No 9057 of 1998 challenging the rejection of the
application under Section 20. The reliefs that were sought before the          D
High Court were in the following terms:
      “(A) This Hon’ble Court would be pleased to issue a writ of
      mandamus or a writ in the nature of mandamus or any other
      appropriate writ, order or direction and be pleased to quash and
      set aside the order passed by the State Government, dated 5th            E
      October, 1998 (Annexure “G”) and further be pleased to direct
      the respondents, their agents and servants to grant the application
      preferred by the petitioner under Section 20 of the Urban Land
      (Ceiling & Regulation) Act, 1976 as prayed for.”
       8. By an order dated 16 July 1999, a Single Judge allowed the           F
above SCA. However, in a Letters Patent Appeal filed by the State, the
Division Bench, by an order dated 3 August 2004, set aside the order
dated 16 July 1999 and remitted the writ proceedings back to the Single
Judge for fresh disposal. Upon remand, a Single Judge of the High Court
dismissed the SCA by a judgment dated 7 July 2005. Insofar as is material      G
to the controversy in the present case, the Single Judge held thus:
      “From the materials on record it is clear that the petitioner himself
      has averred in the petition that the orders passed by the authorities
      under the said Act declaring 4160 sq. mtrs. of land of the petitioner,
      is excess vacant land, had become final and the petitioner had not
                                                                               H
630      SUPREME COURT REPORTS                            [2019] 10 S.C.R.


A     challenged the same before any authority or Court. In para 10 of
      the petition, the petitioner has in fact stated that after declaring
      the excess land, further procedure was also initiated by the
      respondent no.2 authority and ultimately the land is vested in the
      State Government under the provisions of the said Act. This is a
      clear admission on the part of the petitioner. Nowhere in the petition
B
      or in the rejoinder the petitioner has stated that no notice was
      received by the petitioner from the Government regarding taking
      the possession of the land in question. Despite a clear averment
      in the affidavit in reply on behalf of respondent no. 2, in the rejoinder
      affidavit the petitioner has not controverted this important aspect
C     of the matter. It is thus clear that entire procedure of vesting the
      land in Government and taking the possession thereof under Section
      10 of the said Act was completed way back in the year 1990. The
      learned advocate for the petitioner could not state whether these
      facts were brought to the notice of this Court in Special Civil
      Application No.1584/1998 which came to be disposed of by order
D
      dated 03.07.1998. In that view of the matter and in view of the
      fact that the question of the possession of the petitioner was not
      directly at issue in the said litigation, I am unable to ignore the
      overwhelming material on record in the present petition to the
      effect that indisputably, the possession of the land in question was
E     taken by the Government and after passing through several stages,
      land had vested in the Government. In that view of the matter, it is
      not possible to accept the contentions on behalf of the petitioner
      that upon repeal of the said Act, the proceedings should abate.
      The impugned order passed by the Government rejecting the
      application of the petitioner under Section 20 of the said Act also
F
      cannot be interfered with. The learned A.G.P. Shri P.R.
      Abichandani relies on the decision of the Learned Single Judge of
      this Court in the case of Vipinchandra Vadilal Bavishi & anr. V/s.
      State of Gujarat & ors. reported in 2002 (3) GLR page-2592,
      wherein the Learned Judge had relied on the Panchnama of taking
G     over of the possession supported by the affidavit filed by the
      competent authority as sufficient proof that possession has been
      taken over. The learned A.G.P. Shri Abichandani pointed out that
      the said decision of the Learned Single Judge is based on the
      decision of the Hon’ble Supreme Court in the case of M/s. Larsen
      and Toubro Ltd. etc. v/s State of Gujarat and ors. reported in AIR
H
MADHUSUDAN BHANUPRASAD PANDYA v. STATE OF 631
GUJARAT & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

         1998 SC 1608 wherein the Hon’ble Supreme Court has upheld              A
         the validity of Panchnama of taking possession even when the
         panchas had subsequently filed an affidavit, with their signatures
         obtained on blank papers and they had not gone to the site.” (Sic)
       9. Aggrieved by the order of the Single Judge, the appellant
preferred a Letters Patent Appeal before the Division Bench, which has          B
ended in the impugned order dated 24 January 2013. The submission in
support of the appeal is that possession could not have been taken over
in breach of the order of injunction passed by the Civil Court and was in
fact not taken over. Hence, ceiling proceedings have lapsed upon repeal
of the Act of 1976.
                                                                                C
      10. At this stage, it would also be necessary to note that a companion
Special Leave Petition7 has been filed by the original owners, the landlord
from whom the appellant in the main appeal claims his interest under a
rent note. The owners got themselves impleaded before the Division
Bench in the Letters Patent Appeal. It was urged on their behalf that in
view of the order which was passed in the appeal under Section 33               D
preferred by the land owners, there was no occasion for them to adopt
any proceedings of their own under Article 226 of the Constitution and it
was only upon the judgment of the Division Bench that it has become
necessary for the land owners to assert their grievance before this Court.
The land owners have submitted that in the absence of actual taking             E
over of possession, the proceedings under the Act of 1976 would stand
abated by the repeal of the legislation. Moreover, it was urged that the
possession was purportedly taken over even before the order under
Section 10(2) was passed.
        11. In dealing with the rival submissions, it is necessary to analyse   F
the correctness of the grievance that possession was purported to have
been taken over on 24 July 1990 in spite of a restraining order of status
quo passed by the Civil Court on 23 July 1990. It was urged that
irrespective of the maintainability of the suit, so long as the order of
status quo held the field, the authorities were duty bound to comply with
it. In dealing with this submission, it is necessary to note that the order     G
dated 23 July 1990 specifically adverts to the fact that while the first to
third defendants had appeared, the fourth defendant had neither appeared
nor filed a reply. The defendants who appeared before the Court were

7
    SLP(C) No 16944 of 2013
                                                                                H
632             SUPREME COURT REPORTS                          [2019] 10 S.C.R.


A     the land owners themselves. The fourth defendant was the Deputy
      Collector and the competent authority under the Act of 1976.
             12. Mr Preetesh Kapur, learned Senior Counsel appearing on
      behalf of the State of Gujarat, submitted that the suit which was instituted
      before the Civil Court besides being not maintainable, appeared to be
B     clearly collusive. Quite apart from this submission of the State, there is
      nothing to indicate that a copy of the order of status quo was served on
      the competent authority before possession was taken over on 24 July
      1990. In this context, it is necessary to advert to the pleadings of the
      appellant in SCA No 9057 of 1998 with reference to the suit and passing
      of the order of status quo. In paragraph 9 of the SCA before the High
C     Court, it was stated on behalf of the appellant that:
            “Petitioner submits that the petitioner firm has filed one Regular
            Civil Suit No.469 of 1990 in the Court of the learned Civil Judge
            (S.D.), Ahmedabad, at Mirzapur, praying inter alia, injunction
            restraining the landlords and the respondent no.2 from taking
D           possession of the suit land from the petitioner’s firm. The learned
            Judge was pleased to grant interim injunction as prayed
            for against the landlords and not against defendant No.4,
            i.e. the Competent Officer and Deputy Collector,
            Ahmedabad. However, due to extra care and caution, the
E           petitioner has submitted one purshis dated 3-3-1998 before
            the learned Judge, declaring that the present respondent
            No.2, i.e. the Competent Officer and Deputy Collector,
            (U.L.C.) Ahmedabad, be deleted as defendant No.4 from
            the said suit No.469 of 1990.”

F                                                           (Emphasis supplied)
              13. Hence, the averment of the appellant before the High Court
      was that an interim injunction was sought in the suit against the landlords
      and not against the competent authority under the Act of 1976. Moreover,
      as is stated in the above extract, on 3 March 1998 the competent authority
G     was deleted from the array of parties to the suit. From this course of
      events, there can be no manner of doubt that the institution of the suit
      was, as learned Senior Counsel for the State has urged, a collusive attempt
      to thwart the State from taking possession on the next day. In any event,
      there is nothing on record to indicate that the order of status quo was

H
MADHUSUDAN BHANUPRASAD PANDYA v. STATE OF 633
GUJARAT & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

ever served on the competent authority under the Act of 1976. An attempt       A
has been made to suggest that the panchnama dated 24 July 1990 shows
that possession could not be taken. The Division Bench of the High
Court has analysed the panchnama and has rejected the claim that a
‘tick mark’ has been placed on one of the three options in the panchnama
to indicate that due to the presence of structures on the land, possession
                                                                               B
could not be taken over. In view of the provisions of Section 2(q), it was
urged on behalf of the State that the land was liable to be treated as
vacant land since the structures on the land were not authorised, in the
absence of required permission for non-agricultural use. We see no reason
to take a view at variance with what has been held by the Division
Bench of the High Court since it is evident from the record that possession    C
of the land was taken over on 24 July 1990. The Single Judge of the
High Court has also dealt with this aspect of the matter. Above all, the
pleadings of the appellant in SCA No 9057 of 1998 leave no manner of
doubt that possession was taken over on behalf of the State. The Single
Judge observed that despite a clear averment in the affidavit in reply, the
                                                                               D
rejoinder which was filed on behalf of the appellant had not controverted
this important aspect of the matter. Thus, for the above reasons, we are
unable to accept the submission which has been urged on behalf of the
appellant.
        14. Significantly, the relief that was sought before the High Court
in the first SCA (SCA No 1584 of 1998) was for the grant of “appropriate       E
land” to the appellant and an order of injunction restraining the State
from taking over possession until the application under Section 20 was
disposed of. The Division Bench, in the course of its judgment, has dwelt
on the clear suppression in the above SCA, of the fact that possession
had already been taken over. That apart, it has been correctly urged on        F
behalf of the State that upon the repeal of the Act of 1976 by the Repealing
Act of 19998, proceedings under Section 20 would not survive. Moreover,
in the absence of a challenge to the order of vesting, to the consequence
that followed under Sections 10(5) and 10(6) and in the absence of the
question of possession being squarely placed in issue, it was not open to
the appellant to canvass that aspect.                                          G

     15. Section 3(1) which contains the saving provision in the
Repealing Act provides as follows:

8
    “Repealing Act”                                                            H
634               SUPREME COURT REPORTS                        [2019] 10 S.C.R.


A              “3. Saving.—
               (1) The repeal of the principal Act shall not affect—
               (a) the vesting of any vacant land under sub-section (3) of Section
               10, possession of which has been taken over by the State
               Government or any person duly authorised by the State
B              Government in this behalf or by the competent authority;
               (b) the validity of any order granting exemption under sub-section
               (1) of Section 20 or any action taken thereunder, notwithstanding
               any judgment of any court to the contrary;

C              (c) any payment made to the State Government as a condition for
               granting exemption under sub-section (1) of Section 20.”
             16. In State of Gujarat v Gyanaba Dilavarsinh Jadega9, a two
      judge Bench of this Court held that on the repeal of the Act of 1976 by
      the Repealing Act, which came into force on 31 March 1999, the only
D     actions which are saved are the ones set out in Sections 3(1)(a), (b) and
      (c) of the Repealing Act. It has been held that a claim of acquiring a
      right is not an enforcement of an accrued right.
             17. Section 3(1)(b) of the Repealing Act provides that the repeal
      will not affect the validity of an order granting exemption under Section
      20(1) or any action taken thereunder, notwithstanding any judgment of
E
      any Court to the contrary. What is saved by Section 3(1)(b) is the validity
      of an order under which an exemption under Section 20(1) has been
      granted. In the present case, there was no order for the grant of an
      exemption under Section 20 on the date on which the repeal was brought
      into force.
F
             18. The appellant has not placed in issue either the order of vesting
      or the consequences which followed under the terms of the Act of 1976.
      Once we have come to the conclusion that possession was taken over
      prior to the date of repeal i.e. 31 March 1999, we find no reason to
      interfere with the judgment of the High Court. The appeal is accordingly
G     dismissed. There shall be no order as to costs.
               SLP(C) No 16944 of 2013
             19. Though the petitioner in this Special Leave Petition was not a
      party to the proceedings before the Single Judge, it did not question the
      9
H         (2013) 11 SCC 486
MADHUSUDAN BHANUPRASAD PANDYA v. STATE OF 635
GUJARAT & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

correctness of the order of the Single Judge and merely got itself               A
impleaded as a respondent to the Letters Patent Appeal. We have already
dealt with the merits of the challenge and have found no substance therein.
       20. For the above reasons, we see no merit in the Special Leave
Petition. The Special Leave Petition is accordingly dismissed. No costs.
                                                                                 B
Devika Gujral                                              Petition dismissed.




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