Saturday, 25 June 2016

Whether writ petition will be barred by res judicata if issues are not same?

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.
“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)
Citation:(2016) 4 SCC531
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.

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 Cooperative
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 undersub-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 respondentState
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 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,

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 subsection
(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

Print Page

No comments:

Post a Comment