JAYANTILAL GOVINDJI KUNDLIYA v. STATE — 1987 DIGILAW 103 (GUJ)

A. P. RAVANI, J. ( 1 ) PETITIONER No. 1 is the owner of land of part of Survey No. 451 of Rajkot admeasuring 8094 sq. mts. Petitioner No. 2 is a proposed housing Co-operative Society. The petitioners applied for exemption under Sec. 20 of the Urban Land (Ceiling and Regulation) Act 1976 (hereinafter referred to as the Act) in respect of the land owned by petitioner No 1. The application for exemption has been rejected by the Government as per its order dated 8/04/1986 produced at Annexure-B to the petition. The petitioners challenge the legality and validity of this order. ( 2 ) IN respect of this very lard petitioners had obtained permission under Sec. 21 of the Act for constructing dwelling units for the accommodation of the weaker section of the society. Even after obtaining the permission as stated above the petitioners did not construct dwelling units for the weaker section of the society. However the petitioners applied for exemption under Sec. 20 of the Act. In view of this factual position it is observed in the order that the application lade bona fide. Moreover the land was required for construction of houses by Gujarat Housing Board and therefore it is considered that it would not be in public interest to grant exemption. It is also held that if the exemption is not granted no hardship would be caused to the owner of the land i. e. petitioner No. 1. As the owner of the land is desirous to dispose of the land by way of sale if exemption is granted no public interest would be served. For the aforesaid reasons the application has been rejected. ( 3 ) THE learned Counsel for the petitioners submits that grant of permission under Sec. 21 of the Act for construction of houses for weaker section of the society cannot be treated as a ground for rejection of the application seeking exemption from the operation of the Act in his submission as per Government Circulars persons who had obtained permission under Sec. 21 of the Act could also apply for exemption under Sec. 20 of the Act. That may be so. While considering application under Sec. 20 of the Act for exemption from the operation of certain provisions of the Act it cannot be said that application under Sec. 21 of the Act could not have been made. That may be so. While considering application under Sec. 20 of the Act for exemption from the operation of certain provisions of the Act it cannot be said that application under Sec. 21 of the Act could not have been made. A holder of land is not disabled from applying for simultaneously for exemption under Sec. 20 of the Act and also for applying under Sec. 21 of the Act seeking permission to construct houses for weaker section of the society. Section 20 of the Act relates to the powers of the Government to exempt vacant land from the operation of certain provisions of the Act while Sec. 21 of the Act provides that in certain cases excess vacant land should not be treated as excess land. The underlying object and the considerations which should weigh with the Government while dealing with application under Sec. 20 of the Act and an application under Sec. 21 of the Act are quite different. While dealing with application under Sec. 20 of the Act the Government is required to take into consideration the following factors: (I) location of the land; (II) purpose for which the land is to be used or is proposed to be used; (III) whether it is necessary to expedient in the public interest to grant exemption or not; (IV) the question of hardship to the owner of the land. Section 21 of the Act provides that in certain cases the owner of the land for which permission is granted may continue to be the owner of the land but the land shall be used for a specific purpose that is to say construction of houses for weaker section of the society. The user of the land which is admittedly in excess of the ceiling limit is sought to be regulated. As per the terms and conditions in the permission that may be granted under Sec. 21 of the Act the user of the land will be for specific purpose and the same shall have to be put to that use within prescribed time limit. As per the terms and conditions in the permission that may be granted under Sec. 21 of the Act the user of the land will be for specific purpose and the same shall have to be put to that use within prescribed time limit. ( 4 ) IN above view of the matter it is obvious that the object that may be achieved by passing an order under Sec. 20 of the Act and the considerations which may weigh with the Government are quite different than those which may weigh while dealing with an application under Sec. 21 of the Act. A land holder may be in a position to make out case under both the provisions of the Act. Therefore it is understandable that owner of the land may be permitted to apply under both the provisions of the Act. When such applications are made both toe applications are required to be dealt with in accordance with law. But that does not mean that where the owner of the land has been granted permission under Sec. 21 of the Act and has failed to carry out the scheme for construction of houses for weaker section of the society as per the terms and conditions of the permission this circumstance cannot be taken into consideration while deciding an application under Sec. 20 of the Act. Certainly this is a most relevant circumstance for considering bona fides of the applicant that is the owner of the land. This is what is done by the Government while refusing to grant exemption as prayed for. In the order it is mentioned that since the petitioner has not carried out the scheme for construction of houses for weaker sections of the society as permitted under Sec. 21 of the Act the prayer for exemption under Sec. 20 of the Act cannot be considered to be bona fide. Therefore the circumstance that a land holder can apply under both the provisions of Sec. 20 as well as under Sec. 21 of the Act is of no help to the petitioners. The point is while deciding application under Sec. 20 of the Act the factual position namely failure of the land holder to carry out the scheme under Sec. 21 of the Act can be considered a relevant factor or not for the purpose of deciding bona fides of the land bolder. The point is while deciding application under Sec. 20 of the Act the factual position namely failure of the land holder to carry out the scheme under Sec. 21 of the Act can be considered a relevant factor or not for the purpose of deciding bona fides of the land bolder. Surely the answer is in affirmative. Had the land holder been not actuated by the profit motives and had he not been keen to sell the land to petitioner No. 2 proposed co-operative housing society he would have surely carried out the scheme of construction of houses for weaker section of the society for which he had obtained permission under Sec. 21 of the Act. This would have been in furtherance of the object of the Act. As stated hereinabove the land is also required for the purpose of the construction of houses by Gujarat Housing Board. Therefore it is clear that it would not be in the public interest to grant exemption as prayed for. ( 5 ) THE learned Counsel for the petitioners submitted that various documents were produced before the Government for showing that the petitioners would suffer hardship and this material has not been considered while passing the order. There appears to be some misconception as regards the nature of the order to be passed by the authority exercising powers under Sec. 20 of the Act. In the case of Nirmalaben Doshi v. State of Gujarat reported in 25 (1) GLR at page 322 Division Bench of this High Court in para 5 of the judgment has observed to the effect that in such cases the submissions of the applicant are to be dealt with by reasonably reasoned order. Thus all that is required by the authority is to pass a reasonably reasoned order. Meaning thereby it is not necessary for the authority to deal with each and every piece of evidence or material that might have been produced before it. It is sufficient if the order indicates the reasons which have weighed with the authority for not granting the exemption as prayed for. As far as the question of hardship is concerned the same has been taken into consideration and dealt with by the authority while passing the order. It is sufficient if the order indicates the reasons which have weighed with the authority for not granting the exemption as prayed for. As far as the question of hardship is concerned the same has been taken into consideration and dealt with by the authority while passing the order. It is indicated in the order that the owner of the land (petitioner No. 1) is desirious to sell the land and if exemption is not granted it will not cause any hardship to the owner of the land. Be it noted that it is also the finding of the authority that the application for exemption is not bona fide inasmuch as the applicant did not carry out the scheme for construction of houses for weaker section of the society. In view of this position it can never be said that the authority has not dealt with the question with regard to hardship or the same has been decided otherwise than in accordance with law. All that was necessary for the authority was to pass a reasonably reasoned order. Reasons which have weighed with the authority have been indicated in the order. Failure to refer to particular material or particular piece of evidence would not vitiate the order because thereby the order does not become arbitrary or unreasonable. ( 6 ) THOUGH the petition is styled and labelled as one under Art. 226 of the Constitution of India the petition is essentially under Art. 227 of the Constitution of India. Even so I have dealt with all the points which would go beyond the scope of a petition under Art. 227 of the Constitution of India. There is no error much less an error on the face of the record. The impugned order passed by the respondent authorities cannot be said to be in any way arbitrary or unreasonable. No case is made out for interference with the impugned order. Hence the petition is rejected. Notice discharged. Ad interim relief granted on 20-3-1987 was limited and remained in operation upto 9 only. Thereafter no ad interim or interim relief operates. ( 7 ) THE learned Counsel for the petitioners requests that the aforesaid order be kept in abeyance for sometime so as to enable the petitioners to approach the superior forum as may be available to the petitioners. Thereafter no ad interim or interim relief operates. ( 7 ) THE learned Counsel for the petitioners requests that the aforesaid order be kept in abeyance for sometime so as to enable the petitioners to approach the superior forum as may be available to the petitioners. In the facts and circumstances of the case it is defected that the aforesaid order shall remain in abeyance upto 2/11/1987 order accordingly. .