VIPINCHANDRA VADILAL BAVISHI (D) BY LRS. AND ANOTHERversusSTATE OF GUJARAT AND OTHERS

                        [2016] 1 S.C.R. 283



    VIPINCHANDRA VADILAL BAVISHI (D) BY LRS. AND                         A
                    ANOTHER
                                 v.
              .STATE OF GUJARAT AND OTHERS
                   (Civil Appeal No. 7434 of2012)                        B
                        JANUARY 28, 2016
            [M.Y. EQBAL AND C. NAGAPPAN, JJ.]
      Urban Land (Ceiling and Regulation) Act. 1976 - ss. 8, 9
and JO - Handwritten corrigendum and the alleged panchnama -
Reliance upon - On the basis of handwritten corrigendum and
                                                                         c
panchnama, whether the land stood vested in the State - Held: 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 - Substituting different lands in place of the lands which      D
have been notified by a statutory Notification uls. 10(1), (3) and
(5) cannot be done by issuing a corrigendum unless the mandatory
requirements contained in the said sections is complied with - Land
holder cannot be divested from his land on the plea of clerical or
arithmetical mistake liable to be corrected by issuing corrigendum
                                                                         E
- Judgment passed by.the High Court is set aside-::- Appellants-
landholders entitled to retain possession of the land comprised within
Plot Nos. 36-43 as the same is n,ot vested in the State - Urban Land
(Ceiling and Regulation) Repeal Act, 1999.
       Allowing the appeal, the Court
                                                                         F
      HELD: 1.1 From perusal of the Urban Land (Ceiling and
Regulation) Act, 1976, 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
I.and holders, vacant lands and such draft· statement is served          G
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
                                                                         H
                                 283
284                 SUPREME COURT REPORTS               [2016] I S.C.R.


 A under Section 9 of the Act, again the land of plot nos. 36 to 43
   was not shown as excess land beyond ceiling limit. A Notification
   under Section 10(1) was published showing the land of plot nos.
   1 to 16 as excess vacant land held by the appellants. Thereafter,
   th,e competent authority issued Notification under Section 10(3)
   which was published in the Gazette of the State declaring that the
 B
   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), the authority alleged to
   have proceeded under Section 10(5) for taking possession of the
 c land. Further, 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. (Para 21)(293-
   G··H; 294-A-D]
 D
          1.2 From these facts and the documents available on record,
   it is evidently cleat· 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. Even the map attached to the letter dated
 E 2(1.6.1989 shows that the possession of plot nos. 1 to 16 were
   taken and not of plot nos. 36 to 43. (Para 20] (293-F-G]
          1.3 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
 F letter dated 18.8.2000 issued by the Deputy Secretary, Revenue
   Department to the Additional Collector, it was mentioned that
    possession of land of plot nos. 1 to 1.6 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
 G 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. (Para 19] (293-C-E]
            1.4 Perusal of the documents reveals that the respondent-
      State has not come with clean hands which is evident from the
 H
 VlPINCHANDRA VADILAL BAVlSHI (D) BY LRS. v. STATE                       285
                  OF GUJARAT

counter affidavit filed by the State before the High Court in the        A
writ petition. It was stated by the State that by order dated
27.2.1986 land comprised within the plot nos. 1to16 of the Village
was declared excess. It is stated that the said order was passed
relying upon the documents dated 6.9.1965 submitted with form
No.I, wherein total number of plots were shown as 1 to 16.
                                                                         B
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. The appellants were informed to remain present for           c
handing over possession but the appellants did not remain
present to hand over the possession. If the submission 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
                                                                         D
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. Thus, the
case made out by the respondent-State that the possession of
plot nos. 36 to 43 was taken over on 26.6.1989 cannot be accepted.       E
(Para 22](294-E-H; 295-A-B]
      1.5 The submission that mentioning of Plot Nos. 1 to 16 in
the Notification issued u/ss. 10(1), (3) and (5) is a clerical mistake
which can be corrected by issuing a corrigendum, is absolutely
not tenable in law. How Plot Nos. 1-16 can be replaced by Plot           F
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. [Para 25] [297-D]
       1.6 An arithmetical mistake is a mistake in calculation, while
a clerical mistake is a mistake of writing or typing error occurring     G
du.e to accidental slip or omissions or error due to careless
mistake or omission. Substituting different lands in place of the
lands which have been notified by a statutory Notification under
Section 10(1), (3) and (5) cannot and shall not be done by issuing
a corrigendum unless the mandatory requirements contained in
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286                  SUPREME COURT REPORTS                [2016] I S.C.R.


 A    the said sections is complied with. A land holder canl\,l)t be
      divested from his land on the plea of clerical or arithmetical
      mistake liable to be corrected by issuing corrigendum. [Para 26]
      (297-E-F)
          l.7 The submission that the writ petition is barred by· res
 B iudicata is also not sustainable in law. The 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. [Para 27) [297-G-H)
 c
             1.8 The impugned judgment passed by the High Court is ·
       set aside. The appellants landholders are e.ntitled 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 ve.sted in the State. The Division Bench rightly
 D     set aside the finding of the Single Judge so far it related to the
       Co-opemtive Society. [Para 28, 29] [298~A-C)
             State of Uttar Pradesh vs. Hari Ram (2013) 4 SCC
             280: 2013 (2) SCR 301; Mahendra Lal Jai11i vs. State
             of UP. ~ Ors. AIR 1963 SC 1019: 1963 Suppl. SCR
 E           912; State of Kera/a vs. P.J. Joseph AIR 1958 SC 296:
             Shiv Chander More & Ors. vs. Lieute11a111 Governor &
             Ors. (2014) 11 SCC 744: 2014 (4) SCR 417 - referred
             to.
                               Case Law Reference
 F     2013 (2) SCR 301               referred to.              Para 10
       1963 Suppl. SCR 912            referred to.              Para 13
       Affi 1958 SC 296               referred to.              Para 13
      . 2014 (4) SCR 417              referred to.              Para 16

 G                         '
            CIVIL APPELLATE JURISDICTION: Civil Apepal No. 7434
       of2012
              From the Judgment and Order dated 26.03.2010 by the Division
       Bench of High Court of Gujarat in Appeal No. 740 of2002 in Special
 H     Civil Application No. 9856 of2000
      VIPINCHANDRA VADILAL BAVISH! (D) BY LRS. v. STATE                            287
                     , OF GUJARAT

          C.A. Sundaram, Shirish H. Sanjanwala, Harin P. Raval, Huzefa             A
    Ahmadi, Shamik Sanjanwala, Kailash Pandey, Ranjeet Singh, Zafar
    lnayat, Rohini Musa, Abhishek Gupta, Rohan Sharma, (for K.Y.
    Sreekumar) for the Appellants.
        R.P. Bhatt, Preetesh Kapur, Jesal Wahi, Hemantika Wahi, Mohit
    Kumar Shah for the Respondents.                                                B
          The Judgment of the Court was delivered by
          M.Y. EQBAL, J. I. 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.7 40 of2002
    holding that the appellants are not entitled to the benefit of the Urban       c
    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        D
}   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.           E
    The return in the specified form shows that the appellants owned land in
    survey nos. I, 2, 7 to 18 and 44 in Village Rajkot and plot nos. 36 to 43 in
    village Nana Mauva in the district ofRajkot. 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
                                                                                   F
    statement under Section 9 was issued showing plot nos. 1 to I 6 as excess
    land held by the appellants beyond ceiling limit.
           4. The Notification under Section 10( 1) of the Act was p!;iblished
    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
                                                                                   G
    were described as Plot Nos. 1 to 16, instead of either 16 plots or Plot
    Nos. 36to 43 and the area was mentioned as of9030.7 I 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.
     I to 16 as they were shown in the Notification under Section 10( I) of
    the Act. Against the order dated 27-2-1986 for declaring the land in           H
288                    SUPREME COURT REPORTS                     [2016] I S.C.R.



 A    question together with the other land as sm plus 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 I 0(3) of the Act.
      However, prior thereto, i.e. on 16-6-1986, the Notification under
      Section I0(3) of the Act as stated above, was already published. On 20-
 B
      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 ad measuring 4610 sq. mtrs. was declared as
 c    land under holding of the appellant and had also recorded that the
      declaration under Section I 0(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
 D    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
 E    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 directd the parties to
 F    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 18'' March, 1999, the Urban Land (Ceiling and Regulation)
 G    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 Cour~ for
      declaration that respondent nos. I 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. I and 2 for dealing or
 H
   VIPINCHANDRA YADILAL BAVISHI (D) BY LRS. v. STATE                                289
             OF GUJARAT [M.Y. EQBAL, J.]

 disposing of the land in question pending the petition. The appellants             A
 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.
                                                                                    B
         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 di.sposing 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              c
  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           D
 dismissed the appeal preferred by the appellants and allowed the appeal
 filed by the Society. The Division Bench confirmed the order oflearned
 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:                                                                      E
        "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             F
        as surplus has rightly vested in the State Government and the
        State Government had a right to sell the same and therefore no
        grie~ancc 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.
                                                                                    G
       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 inf<!nnation and this shows
                                                                                    H
290                   SUPREME COURT REPORTS                      [2016] I S.C.R.


 A    that the petitioners had not come to this Court with clean hands and lack
      bona tides and therefore on that count also the judgement of learned
      Single Judge is not found vitiated by us.


            44. In view of the aforesaid, we are of the considered opinion that
 B          the petitioners' petition has rightlybeen 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 ifthe petition
 c          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
 D          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.
 E          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."
 F           9. Hence the present appeal by special leave by the landholders.
             I 0. 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 Pradeslt vs. Hari Ram, (2013)
 G    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 I 0 of the Act.

 H
  VlPlNCHANDRA VADlLAL BAVlSHl {D) BY LRS. v. STATE                           291
            OF GUJARAT [M.Y. EQBAL, J.]

       11. Mr. Raval submitted that admittedly there was a status quo         A
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
l 0(5) and the Panchnama mentioned therein in respect of survey nos.
                                                                              B
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. I to 16 of survey
no. 71. So also Notification under Section I 0( I), Section l 0(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 to43 of
                                                                              c
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 appella11ts never knew the same. Learned counsel
submitted that the said corrigendum is a got up document which is very        D
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       E
in the case of Mllliemlrll Lal Jai11i v.,, State of U.P. & Ors. AIR 1963
SC 1019, and Sil/le of Kera/I/ 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 rcsjudicata as      F
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        G
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.
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292                    SUPREME COURT REPORTS                      [2016] I S.C.R.



 A           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 I 0(3) in respect of plots in
      question or that the corrigendum was required to be notified.

 B           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 ifthe 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 & On·. vs. Lieute11a11/
 c    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 I 0(3) of
      the Act and not by an order under Section 45 of the Act. Learned
 D    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 I.and-holders from their property without
      following the mandatory provision is a nullity.
 E           18. Jn 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
  F   Section I0( I) 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.
       I to 16 were declared as excess land. There is no mention of plot nos.
      36to43.
             (ii) On 16.6.1986, Notification under Section I 0(3) was issued by
  G   the competent authority declaring the excess vacant land referred to in
      the Notification under Section I 0( I) deemed to have been acquired by
      the State Government. Jn 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
 H    granted status quo restraining pub Iication of Section I 0(3) Notification
  VIP!NCHANDRA VADILAL BAV!SHI (D) BY LRS. v. STATE                              293
            OF GUJARAT [M.Y. EQBAL, J.]

and not to conduct further proceedings, but in spite of status quo, again        A
Section 10(3) Notification was published in the Gazette on 24.7.1986
showing plot nos. l to 16 as excess vacant land deemed to have been
acquired.
       (iv) A handwr.itten corrigendum was allegedly prepared on
26.6.1989, but it was never given effect to, which is evident from the           B
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          c
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. l 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                 E
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 l 0( I), l 0(2),   F
l 0(3) and l 0(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. I to 16 were taken and not of plot
nos. 36 to 43.
                                                                                 G
       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 Iimit. 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         H
294                    SUPREME COURT REPORTS                     (2016] I S.C.R.



 A    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 I 0( I) of the Act was published showing the
 B
      land of plot nos. I to 16 as excess vacant land held by the appellants.
      Thereafter, the competent authority issued Notification under Section
       I 0(3) of the Act which was published in the Gazette of the State declaring
      that the land of plot nos. I 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
 c    43 of survey·no. 7 I was not the land under Notification issued under
      Section I0( I) and I 0(3) of the Act, the authority alleged to have proceeded
      under Section I 0(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
 D
      show thatthe appellants ever refused or failed to comply with any notice
       issued under Section I 0(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 Cow1 in the writ petition. In paragraph
 E    13 of the counter affidavit it was stated by the State that by order dated
      27.2.1986 land comprised within the plot nos. I 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. I,
      wherein total number of plots were shown as I to 16. However, it is
 F    stated that by corrigendum dated 26.6. I 989, instead of plot nos. I to I<i,
      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 ofpanchnama dated 26.6.1989,
      it is mentioned that the appellants were informed to remain present for
 G    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 ofland regarding the taken over possession plot nos. 16 to 19
      has been shown with boundary. ff the contention of the respondent is
 H    accepted, then according to the respondent everything i.e. preparation
  YIPINCHANDRA VADILAL BAYI.SHI (D) BY LRS. v. STATE                            295
            OF GUJARAT [M.Y. EQBAL, J.]

of corrigendum, information to the appellant for the handing over the           A
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-
                                                                                B
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 ofU.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
                                                                                c
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           D
       Government by the two deeming provisions under sub-s.ection (3)
    -- of Section 10, there is no necessity ofusing 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               E
       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 I 0 to surrender or deliver possession. Sub-
       section (5) of Section I 0 visualises a situation of surrendering and
       delivering possession, peacefully while sub-section (6) of Section       F
       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        G
       (5) of Section 10. Sub-section (6) of Section 10 again speaks of
       "possession" whic.h 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        H
296                  SUPRtME COURT REPORTS                     [2016] I S.C.R.



 A          ofa 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 I 0.
            Sub-sections (5) and (6), therefore, take care of both the situations
 B
            i.e. taking possession by giving notice, that is, "peaceful
            dispossession" and on failure to surrender or· give delivery of
      ,   · possession under Section I 0(5), then "forceful dispossession".
            under sub-section (6) of Section 16-.
           37. The requirement of giving notice under sub-sections (5) and
 c         (6) of Section I 0 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
 D         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
           "1nay" has to be read as "shall"."
             24. The Bench further considered the effect of Repeal Act and
 E    held that:-
            "41. Let us now examine the effect of Section 3 of Repeal Act 15
            of 1999 on sub-section (3) of Section I 0 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
  F         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
 G
            I 0 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 possessi.on under sub-
 H          section (5) of Section I 0 or forceful dispossession under sub-
 VIPINCHANDRA VADILAL BAVISHI (D) BY LRS. v. STATE                               297
           OF GUJARAT [M.Y EQBAL, J.]

      section (6) of Section 10. On failure to establish any of those            A
      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.
                                                                                 B
      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          c
      wi II be no order as to costs."
       25. The submission of Mr. Kapoor. learned counsel appearing for
the respondent-State, that mentioning of Plot Nos. I to 16 in the
Notification issued under Sections I 0( I), 10(3) and I 0(5) is a clerical
mistake which can be corrected by issuing a corrigendum, is absolutely           D
not tenable in law. How Plot Nos. I 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          E
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) ca1inot and shall not be done by issuing a                F
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               G
respondent-State that the writ petition is barred by resjudicata 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 judicma or constructive res judicata.                           H
298                    SUPREME COURT REPORTS                     [2016] I S.C.R.



 A            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 ofRajkot, Gujarat, as the same is not vested
      in the State.
 B
             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.
 C    Nidhi Jain                                                   Appeal allowed.