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1994 DIGILAW 161 (GUJ)

ANILBHAI GOPALDAS PARIKH v. COMPETENT AUTHORITY

1994-05-04

A.N.DIVECHA

body1994
DIVECHA, J. ( 1 ) THE order passed by and on behalf of respondent No. 2 on 22/08/1989 under Sec. 34 of the Urban Land (Ceiling and regulation) Act, 1976 ("the Act for brief) as also that passed on 2 6/08/1993 under Sec. 20 thereof are under challenge in this petition under Arts. 226 and 227 of the Constitution of India. By the impugned order passed on 22/08/1989, respondent No. 2 revised the order passed by the Competent Authority (respondent No. 1 herein) on 1 5/01/1983 in the proceeding arising from the prescribed form filled in by the petitioners under Sec. 6 (1) of the Act and declared the holding of each petitioner to be surplus to the extent specified therein. By the impugned order passed on 26/08/1993, the application for exemption made by petitioner No. 4 came to be rejected. ( 2 ) THE facts giving rise to this petition move in a narrow compass. Petitioners Nos. 1, 2 and 3 and the husband of petitioner No. 4 filled in the prescribed forms under Sec. 6 (1) of the Act. Pursuant thereto, respondent No. 1 passed the order of 15/01/1983 declaring that no declarants holding was in excess of the ceiling limit prescribed under the Act. Its copy is at Annexure a to this petition. It appears to have come to the notice of the concerned officer of respondent No. 2. He appears to have found it not according to law. It appears that thereupon a show-cause notice for its revision under Sec. 34 of the Act came to be issued. Pursuant thereto, by the order passed on 22/08/1989, the order at Annexure a to this petition came to be revised and the holding of each declarant was declared to be in excess of the ceiling limit to the extent mentioned therein. A copy of the aforesaid order passed on 22/08/1989 is at Annexure b to this petition. The aggrieved petitioners have thereupon moved this Court by means of this petition under Arts. 226 and 227 of the Constitution of India for questioning the correctness of the order at Annexure b to this petition. A copy of the aforesaid order passed on 22/08/1989 is at Annexure b to this petition. The aggrieved petitioners have thereupon moved this Court by means of this petition under Arts. 226 and 227 of the Constitution of India for questioning the correctness of the order at Annexure b to this petition. ( 3 ) IT appears that, while this petition was pending before this Court, petitioner No. 4 applied for exemption under Sec. 20 (1) of the Act with respect to sub-plot No. 2 of Final Plot No. 35 in T. P. S. No. 21 situated at Vastrapur. A copy of her application is. at Annexure f to this petition. It appears that the petitioners also made one application on 3 1/03/1990 for exemption under Sec. 20 (1) of the Act with respect to sub-plots Nos. 5, 6, 7 and 8 of Final Plot No. 718 and 719 situated at Madalpur to the extent the area was declared excess and surplus therefrom. A copy of that application is at Annexure h to this petition. After hearing petitioner No. 4, by the order passed on 26/08/1993 respondent No. 2 rejected the application at Annexure f to this petition. A copy of the aforesaid order passed on 26/08/1993 is at Annexure g to this petition. By amendment, the petitioners have questioned its correctness in this petition. Shri Bhatt for the petitioners states at the Bar that the application at Annexure h to this petition is pending and has not come to be disposed of so far. ( 4 ) THE applications at Anaexures f and H to the petition would cover the area declared excess and surplus under the impugned order at Annexure b to this petition. So far as the application at Annexure h to this petition is concerned, respondent No. 2 deserves to be directed to dispose it of as expeditiously as possible preferably by 31/08/1994 if it has not come to be disposed of so far. ( 5 ) SO far as the application at Annexure f to this petition is concerned, it has come to be rejected by the impugned order at Annexore g to this petition. The ground for its rejection inter alia is that theclaim for exemption was not raised in the proceeding under Sec. 34 of the Act. ( 5 ) SO far as the application at Annexure f to this petition is concerned, it has come to be rejected by the impugned order at Annexore g to this petition. The ground for its rejection inter alia is that theclaim for exemption was not raised in the proceeding under Sec. 34 of the Act. It cannot be gainsaid that the proceeding under Sec. 34 of the act was with respect to the order at Annexure a to this petition passed under Sec. 8 (4) of the Act. An application under Sec. 20. of the Act operates in a different field. It is true that the power under Sec. 34 of the Act and also under Sec. 20 thereof vests in the State Government, that is, respondent No. 2 herein. However, in both the proceedings the aforesaid two provisions would operate in two different fileds. It is not the case of respondent No. 2 that the same authority or officer is empowered to deal with both the proceedings. Even otherwise, a landholder making an application under Sec. 20 (1) of the Act would not know that the same authority would be exercising powers under Sec. 34 of the Act in a proceeding which such landholder was facing. The ground given for not entertaining the application at Annexure f to this petition on the ground that such claim for exemption was not made in the proceeding culminating into the impugned order at Annexure b to this petition cannot, therefore, be sustained in law. ( 6 ) SO far as the other grounds are concerned, petitioner No. 4 wag not called upon to lead evidence in support of her case of undue hardship. If she was called upon to give any evidence in support thereof, he would certainly have done so. She had already put up her case of hardship in her application at Annexure f to this petition. In that view of the matter, the case ought to have been proceeded either on the basis of averments made in the application or the applicant ought to have been given an opportunity to lead evidence in that regard. Nothing of the sort appears to have been done in the matter. Ground No. 4 given for rejecting the application at Annexure f to this petition is quite strange. Nothing of the sort appears to have been done in the matter. Ground No. 4 given for rejecting the application at Annexure f to this petition is quite strange. It has been stated that the applicant is a woman and she has only two daughters and since there is no male member in the family they would not face any hardship with respect to their enjoyment of their property. This approach on the part of the author of the order at Annexure g to this petition is contrary to law and discriminatory against the womenfolk in the society. That ground cannot be said to be germane while deciding the application at Annexure f to this petition on its own merits. ( 7 ) IN view of my aforesaid discussion, I am of the opinion that the impugned order at Annexure g to this petition cannot be sustained in law. It will have to be quashed and set aside. The matter will have to be remanded to respondent No. 1 for deciding afresh the fate of the application at Annexure f to this petition. ( 8 ) IT is not possible for me to interfere with the impugned order at Annexure b to this petition at this stage for the simple reason that its legality and validity can be examined only after the fate of the applications at Annexures f and h to this petition is decided. It may, however, be made clear that the impugned order at Annexure b to this petition cannot and need not be declared illegal and invalid on the sole ground that the action under Sec. 34 of the Act was taken nearly 41/2 years after the order at Annexure a to this petition without anything more in view of the Division Bench ruling of this Court in the case of Haresh Kantilal Vora v. Competent Authority and Additional collector, Rajkot and Anr. , reported in 1992 (2) GLH 424 . It would be open to the petitioners to challenge its legality and validity after the fate of the exemption applications at Annexures f and h is decided. ( 9 ) IN the result. , this petition is accepted to the aforesaid extent. The order passed by and on behalf of respondent No. 2 on 2 6/08/1993 at Annexure g to this petition is quashed and set aside. ( 9 ) IN the result. , this petition is accepted to the aforesaid extent. The order passed by and on behalf of respondent No. 2 on 2 6/08/1993 at Annexure g to this petition is quashed and set aside. The matter is remanded to respondent No. 2 for deciding afresh the application for exemption made by petitioner No. 4 on 19/03/1990 at Annexure f to this petition. Respondent No. 2 is also directed to dispose of the application made by the petitioners for exemption under sec. 20 (1) of the Act at Annexura h to this petition as expeditiously as possible if it has not been disposed of so far. Rule is accordingly made absolute to the aforesaid extent with no order as to costs. .