RAMESHCHANDRA DAHYABHAL MODI v. STATE — 1992 DIGILAW 151 (GUJ)

SHAH, J. ( 1 ) THIS petition under Art. 227 of the Constitution of India is directed against the judgment and order of the State Government in exercise of its revisional powers under Sec. 34 of the Urban Land (Ceiling and regulation) Act, 1976, hereinafter referred to as "the said Act", dated 2 2/01/1985 as well as against the judgment and order of the competent authority, dated 23/11/1982. ( 2 ) IN order to appreciate the contentions raised by the petitioner in this petition, relevant facts are required to be stated : (i) On coming into force of the said Act, the petitioner filed statement under Sec. 6 (1) declaring his total holding of land and also the land which was liable to be declared as excess vacant land. The said statement filed under Sec. 6 (1) was processed and draft-statement was issued under Sec. 8 (3) of the said Act inviting objections to the draft statement to which objections were filed by the petitioner. After taking into consideration said objections and after hearing the petitioner the competent authority passed order, dated 23/11/1982, whereby it declared that total holding of the petitioner was 2,932. 62 sq. mts. and after deducting permissible holding of 1000 sq. mts. it directed that land admeasuring 1,932. 62 sq. mts. was excess vacant land which was to be acquired from out of survey no. 138 of Meghaninagar. It appears that final statement under Sec. 9 was also thereafter served on the petitioner. (ii) On 26/11/1982 notification under Sec. 10 (1) was prepared. and was dispatched for publication. On 31/12/1982 said notification under Sec. 10 (1) came to be published in Government Gazette, dated 3 1/12/1982. By said notification the competent authority gave particulars of vacant land held by the petitioner in excess of ceiling limit and notified its intention to acquire said land and all persons interested in such vacant land were called upon to prefer objections against said acquisition, (iii) It may be stated at this stage that the competent authority vide its aforesaid order accepted the objections of the petitioner filed under Sec. 8 (3) with respect to property bearing Final Plot No. 172 sub-plot No. 13 at Sheikhpur khanpur admeasuring365. 30sq. Mtrs. and also with respect to Shop No. 56 at Ellisbridge and S. No. 2141 of Kalupur. 30sq. Mtrs. and also with respect to Shop No. 56 at Ellisbridge and S. No. 2141 of Kalupur. According to competent authority the said properties were duly constructed upon and were being used for residential purposes prior to coming into force of the said Act, and therefore, said three properties were not declared to be vacant land liable to be taken into computation for the purpose of determining the excess vacant land held by the petitioner. (iv) With respect to properties mentioned at Item Nos. 2, 3 and 1 being s. No. 442/b of Jamalpur, admeasuring 20. 06 sq. mts. , S. No. 4521 Shahpur admeasuring 30. 29 sq. mts. as well as S, No. 1414 of Shahpur admeasuring 48. 49 sq. mts. The competent authority recorded the finding that the parcels of land were already constructed upon and that they were being used for residential purposes. Therefore, the competent authority proceeded to hold that under Sec. 4 (9) the said land was required to be taken in calculating the extent of vacant land held by said persons. The competent authority found that however, such land shall not be liable to be declared excess vacant land under Sec. 4 (11) of the said Act. As regards properties mentioned at Item nos. 4, 5 and 6 bearing S. Nos. 1427 to 1430 of Shahpur admeasuring 66. 89 sq. mts. Shop No. 56 of Ellisbridge admeasuring 18. 58 sq. mts. and S. No. 2141 of Kalupur admeasuring 68. 56 sq. mts. the competent authority held that the said properties were fully constructed upon prior to 1971 and were being used for commercial purposes and therefore they were not to be treated as vacant land. Thus, said aforesaid properties were excluded from computation of vacant land. As regards property at Sl. No. 8 being parcel of land at memnagar the competent authority found that all the three brothers including the petitioner have 1/3rd equal share in the said property and therefore only 2427 sq. mts. of land was required to be treated as vacant land falling to the share of the present petitioner. Similarly, with respect to Item No. 8 being land at Ghatlodia the competent authority found that all the three brothers have equal 1/3rd share in the said parcel of land and held that of the petitioner from the said parcel of land shall be treated as 429 sq. mts. Similarly, with respect to Item No. 8 being land at Ghatlodia the competent authority found that all the three brothers have equal 1/3rd share in the said parcel of land and held that of the petitioner from the said parcel of land shall be treated as 429 sq. mts. which was required to be included in the vacant land. Accordingly the competent authority had found that following properties were to be treated as vacant land held by the petitioner. 1. S. No. 442-B of Jamalpur - 20. 60. sq. mts. (residence) 2. S. No. 4521 of Shahpur admeasuring 30. 29 sq. mts. (residence) 3. S. No. 1419 Shahpur 48. 49 sq. mts. (residence) 4. S. No. 138 Memnagar 1/3rd share of the petitioner therein admeasuring 2429 sq. mts. 5. S. No. 40 of Ghatlodia 1/3rd share admeasuring 429 sq. mts. Total = 2932. 62 sq. mts. It appears that the aforesaid order passed by the competent authorities was not challenged by the petitioner by preferring appeal to the Urban Land ceiling Tribunal under Sec. 33 of the said Act. (v) Thereafter, the State Government has in exercise of its revisional powers under Sec. 34 of the said Act decided to revise the order passed by the competent authority by issuing notice to show cause, dated 16-2-1984 and after taking into consideration the objections filed by the petitioner the State government passed the final order dated 22/01/1985, whereby the state Government has declared 3688. 39 sq. mts. of land as total holding of the petitioner and has further declared that 2688. 39 sq. mts. of land as excess vacant land. The State Government thus revised the order of the competent authority and instead of 1932. 62 sq. mts. of land which was declared excess vacant land by the competent authority and declared 2688. 39 sq. mts. of land as excess vacant land held by the petitioner. . . . . . . . . . . . . . . . . . . . . . . . . ( 3 ) MR. Mohit Shah, learned Advocate for petitioner has made following submissions to challenge the aforesaid order of the State Govt. : (a) The State Govt. . . . . . . . . . . . . . . . . . . . . . . . . ( 3 ) MR. Mohit Shah, learned Advocate for petitioner has made following submissions to challenge the aforesaid order of the State Govt. : (a) The State Govt. has exercised its powers under Sec. 34 of the said act after a period of more than two years which can be said to be unreasonably long and exercise of such power after lapse of long period of more than two years was unreasonable and not permissible and therefore the order of the revisional authority is required to be quashed and set aside. (b) Two parcels of land, namely, land at Memnagar and Ghatlodia which are at Item Nos. 8 and 9 of the order of the competent authority are agricultural lands and were mainly used for agricultural purposes and therefore they were liable to be excluded from the purview of vacant land" as defined by Sec. 2 (q) of the said Act. (c) The State Govt. has erred in computing excess vacant land so far as lands at Memnagar and Ghatlodia are concerned and finding of the revisional authority is contrary to the actual fact on record and therefore same is require to be quashed and set aside. (d) As per the recent decision of the Supreme Court in the case of Mira gupta v. State of West Bengal, reported in 1991 (4) JT 162 the competent authority was not justified in treating the land bearing S. Nos. 442-B at Jamalpur, 4521 at Shahpur, 1427 to 1430 at Shahpur and 1419 of Shahpur as vacant land even for the purpose of Sec. 4 (11) of the said Act and therefore the order of competent authority was liable to be quashed and set aside with respect to the said properties. ( 4 ) AS regards second submission made by Mr. Shah he mainly urged that from the statement filed under Sec. 6 (1) of the Act as well as from the letter addressed to the competent authority by the petitioner, dated 26/03/1980, it was clear that S. No. 138 of Memnagar as well as S. No. 40/3 of Ghatlodia were being used mainly for agricultural purposes and therefore in his submission the said lands were not vacant land as defined by Sec. 2 (q) of the Act. Section 2 (q) defines "vacant land" to mean, land, not being land mainly used for agricultural purposes, in an urban agglomeration, but does not include -" (I) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated; (ii) in an area where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day with the approval of the appropriate authority and the land appurtenant to such building; and (iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such building. "he has mainly stressed the words "land not being land mainly used for the purpose of agriculture" to bring home the point that the land which was actually used for the purpose of agriculture cannot be regarded as vacant land within the meaning of Sec. 2 (q) of the said Act. The aforesaid submission of Mr. Shah cannot be accepted if reference is made to explanation given below Sec. 2 (o) for the purpose of clause (o) and (q) of Sec. 2. The said explanation reads as under :" (C) Notwithstanding anything contained in clause (B) of this Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master-plan for a purpose other than agriculture. "from the aforesaid explanation it becomes clear that parcel of land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master-plan for a purpose other than agriculture. It is the case of the respondent State that the aforesaid two parcels of land were initially in the Green Belt when the Act came into force and subsequently on preparation of master-plan said two parcels of land were reserved for the purpose of public housing. In view of this reservation in the master-plan said two parcels of lands for the purpose of public housing the aforesaid two parcels of land cannot be said to be mainly used for agricultural purposes despite their being actually used for agricultural purposes. In view of this reservation in the master-plan said two parcels of lands for the purpose of public housing the aforesaid two parcels of land cannot be said to be mainly used for agricultural purposes despite their being actually used for agricultural purposes. By explanation (C) referred to hereinabove a deeming provision is enacted and fiction is created to the effect that a parcel of land which is specified in master-plan for the purposes other than agriculture shall not be deemed to be mainly used for the purpose of agriculture. Therefore, specification of land in the master-plan assumes importance and actual use of the land would not be relevant Therefore, in my opinion, even if the land is actually being used for agricultural purposes, the same cannot be excluded from the definition of "vacant land" as defined in Sec. 2 (q) of the Act, if such parcel of land is specified in the master-plan for purposes other than agricultural. In this case admittedly the two parcels of land are specified in the master-plan for the purpose other than agriculture and therefore deeming fiction would operate and the said parcels of land despite their being actually used for agricultural purpose are hot to be treated as land merely used for the purpose of agriculture. The second submission of Mr. Shah therefore must fail and cannot be accepted. ( 5 ) AS regards third submission made by Mr. Shah it is required to be stated that the competent authority has taken 1/3rd share of the petitioner in property at Memnagar as 2427 sq. mts. as vacant land. The original parcel of land is admeasuring 9307 sq. mts. . out of which the portion of land was required for the purpose of widening of road line and therefore sq. mts. of land was treated as land from which share of three sharers was to be ascertained and competent authority accordingly ascertained 2427 sq. mts. of land being 1/3rd of the total land held by the three co-parceners. Similarly, with respect to the parcels of land at Ghatlodia 1/3rd share of the petitioner is worked out at 429 sq. mts. Total area of land was 1315 sq. mts. out of which certain area was required for widening of road line and balance area was treated as 1283 sq. mts. from which 1/3rd share of the petitioner was worked out at 429 sq. mts. mts. Total area of land was 1315 sq. mts. out of which certain area was required for widening of road line and balance area was treated as 1283 sq. mts. from which 1/3rd share of the petitioner was worked out at 429 sq. mts. by the competent authority. However, the State Govt. while exercising its revisional powers under Sec. 34 of the said Act has disturbed the said finding reached by the competent authority and has treated the original area of land being 9307 sq. mts. of land at Memnagar and 1315 sq. mts. of land at Ghatlodia and has called upon the petitioner to show cause as to why the order passed by the competent authority should not be revised. The State Govt. has in its revisional powers treated 1/3rd share of the petitioner from Memnagar property as 3102. 33 sq. mts. and from Ghatlodia property as 438. 33 sq. mts. as against 2427 sq. mts. and 429 sq. mts. calculated by the competent authority. Submission of Mr. Shah is that the competent authority has justifiably and for very good reasons excluded the portion of said land which was to be used for the purpose for widening of road line and that portion of the land on which construction of a building is not permissible under the Building regulations in force in the area in which such land is situated is to be excluded from the definition of "vacant land". He therefore submits that when such portion of land which was going into road line was excluded by the competent authority the State Govt. is not justified in revising the said order. There is no dispute about the fact that the competent authority has excluded the area which was meant for widening of road line and has thereafter determined 1/3rd share of the petitioner. The competent authority was perhaps of the view that such portion of land on which construction of a building was not permissible under the building regulations in force in that area and therefore- same was required to be excluded from the vacant land. Said finding of competent authority is disturbed by the Govt. under its revisional powers solely on the ground that the competent authority has erred in working out 1/3rd share of the petitioner. The Govt. Said finding of competent authority is disturbed by the Govt. under its revisional powers solely on the ground that the competent authority has erred in working out 1/3rd share of the petitioner. The Govt. has not examined as to why the competent authority has excluded certain area of land from the aforesaid two parcels of land while computing 1/3rd share of the petitioner. Since the order of the competent authority was not a speaking order in that sense Govt. has revised the 1/3rd share of the petitioner to 3102. 33 Sq. Mtrs. instread of 2427 Sq. Mtrs. and 438. 33 sq. Mtrs. instead of 429 Sq. Mtrs. This part on enquiry requires investigation into questions of fact and Govt. as revisional authority would not proceed to set aside the order of the competent authority solely on the ground that the competent authority has not given reasons as to how it has computed the excess holding. It would have been just and proper for the Court in the facts and circumstances of the case to call for the reasons from the competent authority or to remand the matter to the competent authority for ascertaining as to how it has calculated 1/3rd share of the petitoner in the aforesaid two parcels of land. I am, therefore, of the opinion that the third submission of Mr. Shah shall have to be accepted and the order of the Govt. as well as the competent authority with respect to computation of 1/3rd share of the petitioner in the properties of Memnagar and Ghatlodia the matter shall have to be remanded to competent authority for the purpose of ascertaining the 1/3rd share of the petitioner and for the purpose of determining the area of land which shall have to be computed from out of the said two parcels of land while determining the vacant land held by the petitioner. Mr. Mohit Shah has invited my attention to the decision of the Orissa High Court in the case of Benjamin Mohanta v. State of orissa, reported in AIR 1982 Ori 236 and has submitted that even while remanding the matter to the competent authority I should direct the compstent authority to follow the aforesaid decision of the Orissa High Court. Mr. Mohit Shah has invited my attention to the decision of the Orissa High Court in the case of Benjamin Mohanta v. State of orissa, reported in AIR 1982 Ori 236 and has submitted that even while remanding the matter to the competent authority I should direct the compstent authority to follow the aforesaid decision of the Orissa High Court. In the aforesaid decision the Divisions Bench of Orissa High Court has held that the portion of vacant land possessed by the owner on which no construction was permitted by the local authority and the portion which is to be kept vacant as per building Rules, cannot be taken into consideration while calculating the surplus vacant land and same are required to be exempted under Sec. 2 (q) (l) of the said Act. In my opinion, it is not necessary to undertake that exercise because provisions of sec. 2 (q) (l) are very clear and in the light of observations made by me hereinabove the competent authority is required to determine vacant land by specific reference to Sec. 2 (q) (l) of the Act and if any portion of land was reserved for widening of road line the competent authority shall apply See. 2 (q) (l) and shall determine the holding of the petitioner in accordance. with law. To the aforesaid extent the submission of Mr. Shah shall have to be accepted and the order of the State Govt. shall have to be quashed and set aside and the matter shall have to be remanded to the competent authority. ( 6 ) MR. Thakker, learned A. G. P. has however vehemently submitted that even this order of remanding is not necessary in the facts and circumstances of the case because at no point of time the petitioner has raised such contention before the competent authority and or before the revisional authority. I do not find any substance in this contention because such a contention was accepted by the competent authority and the competent authority has excluded from consideration the land which was to be reserved for or to be used for widening of road line as land on which possibly no construction can be made as per building regulations in force in the area. I do not find any substance in this contention and I am of the opinion that the order of remand as stated hereinabove shall have to be passed. ( 7 ) MR. Thakkar, learned A. G. P. has submitted that the order passed by the competent authority was not challenged by the petitioner by preferring appeal under Sec. 31 (3) of the said Act. The said order has therefore become final. Petitioner has accepted the said order and he has acquiesced with the said order inasmuch as he has failed to challenge the said order. Therefore, when the order is taken under revision by the State Govt. under its suo motu revisional powers under Sec. 34 of the Act and when the order is revised to the detriment of the petitioner, the order of the revisional authority insofar as it is detrimental to the petitioner or adverse to the petitioner can be challenged and petitioner cannot and should not be restrained from challenging the original order of the competent authority. In this connection it would be necessary to refer to Sec. 34 of the said Act. Section 34 of the Act reads as under:"34. Revision by State Government .- The State Government may, on its own motion, call for and examine the records of any order passed or proceeding taken under the provisions of this Act and against which on appeal has been preferred under sec. 12 or Sec. 30 or Sec. 33 for the purpose of satisfying itself as to the legality or propriety of such order or as to regularity of such procedure and pass such order with respect thereto as it may think fit : provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard in the matter. "from the aforesaid provision it becomes clear that the power of revision is restricted. In cases where appeal has been preferred under Sec. 12 or sec. 30 or Sec. 33 the State Govt. has no revisional power. In the present case admittedly no appeal was preferred against the order of the competent authority and therefore the State Govt. was justified in exercising the revisional power. In its revisional power the State Govt. may satisfy itself as to the legality or propriety of any order passed by the competent authority. has no revisional power. In the present case admittedly no appeal was preferred against the order of the competent authority and therefore the State Govt. was justified in exercising the revisional power. In its revisional power the State Govt. may satisfy itself as to the legality or propriety of any order passed by the competent authority. It can, thereafter, pass such order bring respect to the matter as it may think fit. The State Govt. can exercise revisional power for the purposes of satisfying itself as to the legality or propriety of said order or as to the irregularity of said procedure. Therefore, excepting in cases where appeal is preferred it will be open to the State Govt. to revise the orders passed by the competent authority. The nature of power of the State govt. is very wide. It can pass any order as it may think fit. It can set aside the order of the competent authority. It can modify the order of the competent authority. It can confirm the order passed by the competent authority. The power which the revisional authority exercises under Sec. 34 of the Act is undoubtedly a quasi-judicial power. It is required to afford opportunity of being heard to the person concerned. Question is as to what is the effect of invocation of revisional power and exercise thereof. Is the entire matter at large ? Can the holder of the land challenge the order of revisional authority as well as the competent authority ? In my opinion, the order of the competent authority can be challenged by preferring appeal under Sec. 33 of the said Act. When the appellate authority exercises power and passes the order permissible under Sec. 33 the order of the competent authority would merge into the order of the appellate authority. However, when no appeal is preferred it is open to the State Govt. to revise the order of the competent authority. The power of the revisional authority is very wide. It can confirm, quash and set aside or modify the order of the competent authority. Since the revisional authority is to act judicially and is to pass a speaking order which is of course subject to judicial review of the higher Courts, once the order is passed by the revisional authority doctrine of merger should apply. It can confirm, quash and set aside or modify the order of the competent authority. Since the revisional authority is to act judicially and is to pass a speaking order which is of course subject to judicial review of the higher Courts, once the order is passed by the revisional authority doctrine of merger should apply. The order of competent authority cannot be said to be subsisting even after it is modified or it is quashed and set aside by the revisional authority. The principle of merger of order of lower authority into the order of appellate authority and further order of revisional authority is now well accepted. In the case of Shankar ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, reported in AIR 1970 sc 1 this very doctrine of merger was applied even to the order of revisional authority. Before the Supreme Court the appellant was the owner of the house and the respondent was the tenant of the said house. The appellant-plaintiff filed the suit in the Court of Small Causes under the provisions of Bombay rents, Hotel and Lodging House Rates Control Act, 1947 for the possession of the suit premises on the ground that the respondent had acquired suitable accommodation elsewhere. The trial Court passed a partial decree for possession of two out of four rooms. The landlord as well as the tenant preferred appeal to the Court of District Judge. The Extra Assistant Judge has affirmed the decree of the trial Court. Thereupon the tenant preferred revision application under Sec. 115c. P. C. to the Bombay High Court. The learned single Judge of the Bombay High Court dismissed the revision application. Thereafter, the respondent moved the petition under Art. 227 of the Constitution of India. The Division Bench of Bombay High Court took the view that despite rejection of revision application it was permissible to entertain the petition under Arts. 226 and 227 of the Constitution of India. The Division Bench also took the view that the respondent has not acquired alternative suitable accommodation and therefore it was pleased to allow the writ petition and to set aside the order passed by the lower Court. 226 and 227 of the Constitution of India. The Division Bench also took the view that the respondent has not acquired alternative suitable accommodation and therefore it was pleased to allow the writ petition and to set aside the order passed by the lower Court. It was in this context the Supreme Court was called upon to decide as to whether the order of the Small Causes Court confirmed by the Extra Assistant Judge can be said to have merged into the order of the High Court when it dismissed the revision application under Sec. 115 C. P. C. The Supreme Court found that right of appeal is one of entering a superior forum and invoking its aid and inter-position to redress the error of the Court below. The Court noticed that two things must exist to constitute appellate jurisdiction, i. e, (i) the existence of the relation of superior in inferior Court and (ii) and the power on the part of the former to review the decision of the latter. The Court, therefore, found that when the aid of High Court is invoked on the revisional side it is so invoked because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Though the power of the High court under Sec. 115 was revisional power the Court held that the jurisdiction which was being exercised by the High Court was exercised as a part of general appellate jurisdiction of the High Court as a superior Court. The supreme Court also referred to its earlier decision in the case of Madanlal rungta v. Secretary to the Govt. of Orissa, reported in AIR 1962 SC 1513 wherein the Court took the view that even the order passed in review application by the Central Govt. would be final order and the order of the State Govt. would merge into the order of the Central Govt. ( 8 ) FROM the aforesaid decision of the Supreme Court ii becomes clear that the essential criterion of appellate jurisdiction is that it revises and creates the proceedings in case already instituted and does not create a case. Appellate jurisdiction may be exercised in a variety of forms and indeed in any form in which the Legislature may choose to prescribe. It is in this sense that the power of the State Govt. Appellate jurisdiction may be exercised in a variety of forms and indeed in any form in which the Legislature may choose to prescribe. It is in this sense that the power of the State Govt. under Sec. 34 shall have to be viewed. The order which is the subject-matter of challenge in appeal cannot be revised by the State Govt. It is the order of the competent authority or the order of appellate authority which can be subjected to revisional power under Sec. 34 of the Act. The State Govt. exercises the power which is akin to the power of the appellate authority. Once it revises the order to the detriment of the holder of the land, the order of competent authority would not stand and it shall have to be treated as having merged into the order of revisional authority. The State Govt. while exercising revisional power is a superior authority to the competent authority acting under Sees. 8 and 9 of the Act. It is also superior authority to the appellate authority acting under Sec. 33 of the said Act. The jurisdiction which is being exercised by the State Govt. under Sec. 34 of the Act is a part of general appellate jurisdiction. It has only one of the modes of exercising power conferred by the Statute. Basically and fundamentally it is the appellate jurisdiction which the State Govt. exercises, and in that sense, the order of competent authority should be treated to have merged into the order of the revisional authority and therefore when the order of revisional authority is challenged in a petition under Art. 227 of the Constitution of india before this Court in my opinion it is open to the holder of land to challenge the said order on all grounds including challenges to the order of competent authority. In my opinion, the order of competent authority, thereafter, no longer survives and it merges into the order of revisional authority. It is that order which can be subjected to challenge permissible under law and therefore when the petitioner is challenging before me in this Court the finding of competent authority in computing excess vacant land in substance he is challenging the order of revisional authority which has confirmed the order of competent authority. Therefore, the objection raised by Mr. It is that order which can be subjected to challenge permissible under law and therefore when the petitioner is challenging before me in this Court the finding of competent authority in computing excess vacant land in substance he is challenging the order of revisional authority which has confirmed the order of competent authority. Therefore, the objection raised by Mr. Thakkar, learned a. G. P. should not deter this Court from accepting the submission of Mr. Shah. (Rest of the Judgment is not material for the Reports.) .