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“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)

J U D G M E N T

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.  

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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.

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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  

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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  

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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  

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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.

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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.  

xxxxxxxx 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 Co- operative Society are also set aside. In that view of the  matter, the appeal of the Co-operative Society stands  allowed.”

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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 under-

sub-section (3) of Section 10 and any action taken will be a  

nullity.  Consequently, Notification under Section 10 (1), under  

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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.

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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  

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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  

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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.

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(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  

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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,  

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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.  

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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  

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taking possession of the land. At this juncture, it is relevant to  

mention here that no notice has been produced by the State to  

show that the appellants were asked to surrender or deliver  

the possession of plot nos. 36 to 43.  Nor there is any evidence  

to show that the appellants ever refused or failed to comply  

with any notice issued under Section 10(5) of the Act.

22. Perusal  of  the documents reveals that  the respondent-

State has not come with clean hands which is evident from the  

counter affidavit filed by the State before the High Court in the  

writ petition.  In paragraph 13 of the counter affidavit it was  

stated  by  the  State  that  by  order  dated  27.2.1986  land  

comprised within the plot nos. 1 to 16 of Village Nana mauva  

was  declared  excess.  It  is  stated  that  the  said  order  was  

passed relying upon the  documents dated 6.9.1965 submitted  

with form No.1, wherein  total number of plots were  shown as  

1  to  16.   However,  it  is  stated  that  by  corrigendum dated  

26.6.1989, instead of plot nos. 1 to 16, possession of plot nos.  

16 to 23 and 36 to 43 was published in compliance with the  

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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  

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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  

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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 sub- sections (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,  

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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  sub- section (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.  

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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,  

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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.

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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

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