Research › Browse › Judgment

Gujarat High Court · body

1992 DIGILAW 270 (GUJ)

TULSHI DHARMSI v. STATE

1992-08-28

R.A.MEHTA

body1992
R. A. MEHTA, J. ( 1 ) THE petitioner no. 1 is the original land holder. He was having agricultural land in excess if the ceiling limit and u/s. 20 of the Urban Land (Ceiling and Regulation) Act 1976 (hereinafter referred to as the Act) by an order dt. 8. 3. 79 Government exempted his land from the provisions of Chapter-3 of the Act on the following three conditions: 1 That the Land should be used for agricultural purposes. 2. Than without prior permission of the Government the land shall not be transferred or divided. 3. If there is breach of the conditions the exemption would be liable to be cancelled u/s. 20 of the Act. ( 2 ) THE petitioner no. 1 was issued a notice dated 4. 5. 84 asking as to why the exemption should not be cancelled as there was breach of the aforesaid conditions. Ultimately the exemption has been cancelled by the order dated 5. 10. 87. ( 3 ) THE petitioner no. 2 is the purchaser of the land from petitioner no. 1. As stated in para 6 of the petition by a sale deed dt. 27. 4. 81 the petitioner no. 1 sold the land to the petitioner no. 2 for a consideration of Rs. 45 0 and the possession has been handed over to the petitioner no. 2 in the year 1981. ( 4 ) THE learned counsel for the petitioners submitted that (1) the order of cancellation and the show cause notice have been issued beyond the reasonable time (2) that the impugned order was beyond the show cause notice (3) that the show cause notice refers only to the breach of conditions regarding clultivation and not regarding transfer (4) that the purchaser has not been given an opportunity of hearing and (5) that there is no breach of any condition. It is also submitted by the learned counsel for the petitioner that the exemption is granted in the year 1979 and the show cause notice has been issued in the year 1984. However the period is required to be counted from the date of breach of the condition. The breach regarding condition of cultivation is during the years 1982-83 and 1983 and during these years the land was not cultivated and was lying fallow. Therefore it cannot be said that there is any delay in issuing show cause notice. However the period is required to be counted from the date of breach of the condition. The breach regarding condition of cultivation is during the years 1982-83 and 1983 and during these years the land was not cultivated and was lying fallow. Therefore it cannot be said that there is any delay in issuing show cause notice. Now the turnover of the year 1980 cannot be said to be a fact not known to the authorities. Therefore the notice issued in the year 1984 cannot be said to be unreasonably delayed. ( 5 ) THE show cause notice mentions 3 conditions of exemption and calls upon the petitioner no. 1 to show cause as to why the exemption should not be cancelled for breach of the conditions mentioned in the show cause notice. Therefore breach of condition regarding transfer is clearly seen from the show cause notice. It is true that it is not mentioned expressly that the land has been transferred on given date to a given person. As regards non-use of agriculture it is specifically stated that there is no cultivation in the suit land. Moreover condition regarding prohibition of transfer has been specifically quoted and the petitioner has been called upon to show cause why exemption should not be cancelled for breach of conditions. It therefore cannot be said that the impugned order goes beyond the show cause notice. ( 6 ) ADMITTEDLY the land has been transferred by the petitioner no. 1 to the petitioner no. 2 without any sanction or prior permission. Therefore breach of this condition is an admitted one. As regards non use for agricultural purpose the learned counsel for the petitioner submitted that during scarcity years the land may not have been cultivated. However there is no plea for scarcity before any authority. In fact after the transfer of the land and parting with the possession the petitioner no. 2 has admittedly not cultivated the land. There is no proof that the petitioner no. 2 had cultivated the land. In fact the revenue records shows that there was no cultivation for two years prior to the issuance of the notice. In view of these clear breaches of conditions of exemption the order of cancellation of exemption is unexceptional and unassailable. ( 7 ) THE learned counsel for the petitioner submitted that u/s 20 (2) of the Act the petitioner no. In view of these clear breaches of conditions of exemption the order of cancellation of exemption is unexceptional and unassailable. ( 7 ) THE learned counsel for the petitioner submitted that u/s 20 (2) of the Act the petitioner no. 2 was entitled to an opportunity of hearing and without giving him any show cause notice exemption should not have been cancelled. Section 20 (1) (a) of the Act provides that where any person holds vacant land in excess of the ceiling limit the State Government may by an order exempt such vacant land from the provisions of Chapter-3 subject to specified conditions. Sub-section 2 of section 20 of the Act provides that if the State Government is satisfied that any of the conditions of exemption is not complied with by any person it shall be competent to withdraw such exemption by giving such person a reasonable opportunity. Therefore such person means a person who was granted exemption subject to the conditions and who was holding the vacant land in excess of the ceiling limit. Exemption is not granted to the transferee. In fact the transfer is prohibited and the transferee has no locus standi and he is not entitled to any hearing before cancellation of exemption. He is neither a necessary nor a proper party to such proceedings. ( 8 ) THE learned counsel for the petitioners also submitted that the petitioner not had made an application for permission to transfer the land and that permission was not refused within 60 days and it is deemed to have been granted u/s. 26 of the Act. Section 26 of the Act applies where a person wants to transfer the land within ceiling limit because it provides that no person holding vacant land within the ceiling limit shall transfer such land except after giving notice in writing to the Competent Authority. In the present case this provision has no application because the land which is sought to be transferred is not within the ceiling limit and no notice u/s. 26 of the Act could have been given for the intended transfer. Section 26 (2) of the Act does not speak of any permission. It only gives an option to the competent authority to purchase the suit land within 60 days. Section 26 (2) of the Act does not speak of any permission. It only gives an option to the competent authority to purchase the suit land within 60 days. In the present case since the land is not within the ceiling limit there is no question of application of provisions of section 26 of the Act. No notice has been given under section 26 (2) and therefore section 26 (2) does not come into the picture in any manner whatsoever. ( 9 ) IN view of the admitted fact of transfer in breach of conditions of exemption and also in view of the finding regarding non use of the land for agricultural purpose the authority has rightly cancelled the exemption. Hence this petition deserves to be dismissed and accordingly the same is dismissed. Notice discharged. Petition Dismissed. .