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1994 DIGILAW 19 (GUJ)

PESTANJI JAMSHEDJI PATEL v. STATE

1994-01-25

R.A.MEHTA

body1994
MEHTA, J. ( 1 ) MISCELLANEOUS Civil Application for restoration of Special Civil application is granted and disposed of and the Special Civil Application is finally heard. The learned Counsel for the petitioner challenges the order of the Competent authority and the Appellate Authority declaring excess surplus land of the petitioner from his holding of land. ( 2 ) THE orders are challenged on two grounds : (1) That the land of survey No. 124 admeasuring about 9,915 sq. mts. is agricultural land and mainly used for agriculture on the date of commencement of the Act and, therefore, it is not vacant land and, therefore, it could not have been included in the petitioners holding of vacant land and could not have been declared surplus. (2) The petitioners application for exemption of this land made on 7-8-1976 was pending and not decided when the Competent Authority and the appellate Authority decided to include this land in the holding of the petitioner and declared the excess land. ( 3 ) THE first contention is based on the definition of vacant land in Sec. 10 (2) which provides that vacant land means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration. The definition or urban land in Sec. 2 (o) is in the same language that urban land means any land situated within the limits of an urban agglomeration, but does not include any such land which is mainly used for the purpose of agriculture. ( 4 ) FOR the purposes of clauses (o) and (q), there is an Explanation (C) which provides that 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 the purpose other the agriculture. It is contended that there was no master plan on the date of the commencement of the Act and the master plan has come into existence for the first time in Surat urban agglomeration area in 1986 and, therefore, it is submitted that since this is agricultural land, it is not vacant urban land and, therefore, it is not subject to the ceiling prescribed in Sec. 3 of the Act. ( 5 ) RELIANCE has been placed on the judgment of the Supreme Court in the case of Smt. Atia Mohammad Begum v. State of U. P. , AIR 1993 SC 2465 . In that case, in para 3, the Supreme Court observed that there was no master plan for that area at the time of commencement of the Act. In the present case, though it is submitted that a master plan came into existence for Surat urban agglomeration in 1986, it is not correct to say that there was no master plan prior thereto and on the date of commencement of the Act. The whole village of Singanpore is included within the limits of Municipal Corporation of City of Surat by a gazetted notification dated 7-8-1975. The definition of master plan is contained in Sec. 2 (h) which reads as follows :" (H) master Plan in relation to an area within an urban agglomeration or any part thereof, means the plan (by whatever name called) prepared under any law for the time being in force or in pursuance of an order made by the State Government for the Development of such area or part thereof and providing for the stages by which such development shall be carried out. "the Central Legislature was aware that there are 18 different States and state Legislatures having various town planning and municipal laws dealing with the subject of development of the area in widely varied ways and it would be impossible for the Central Legislature to enumerate everyone of them exhaustively. Therefore, though the word master plan is used by the central Legislature, it is clearly and without leaving any doubt provided that master plan means a plan by whatever name called for development of the area and that would include necessarily the zoning of areas for different development purposes. In the present case, it is already shown in the order itself that the land is included in the residential zone. Therefore, that plan would be a master plan as denned in Sec. 2 (h) of the Act and the petitioners land is included in a residential zone and, therefore, it cannot be deemed to be an agricultural land though it may have been used mainly for the purpose of agriculture. Therefore, the reliance placed by the petitioner on the provisions of Secs. Therefore, the reliance placed by the petitioner on the provisions of Secs. 2 (o) and 2 (q) and the aforesaid judgment of the supreme Court is of no assistance to the cause of the petitioner and hence this contention must fail. ( 6 ) IT is also to be noted that no such contention has been raised before any authority or even in the petition. It is only during the course of argument that this question has been raised. This point has no substance and is rejected. ( 7 ) IN the petition, it is stated that an application for exemption under sec. 20 of the Act was made on 7-8-1976 and that application has not been decided till today and the Competent Authority and Appellate Authority had no jurisdiction to finalise Form No. I under Sec. 6 and to declare any surplus land. Reliance is placed on the Pull Bench judgment in the case of avanti Organisation v. Competent Authority, 1989 (1) GLR 586 . The competent Authority had decided the matter on 8-2-1982 and the Appellate authority had decided it on 5-3-1983. ( 8 ) IN the petition, it is also stated that though the application under sec. 20 was pending the petitioner had by way of an abundant caution, sent a reminder on 12-3-1983 claiming exemption under Sec. 20 of the Act and for which the petitioner was also called upon for hearing on 27-7-1983 and it is further stated that the said application was not yet decided. It is true that when the petitioner had filed the petition, the application was not decided. However, the application was considered, the petitioner was given ample opportunity of hearing and thereafter, by an order dated 5-12-1987, application for exemption was dismissed and this is not in dispute. ( 9 ) HOWEVER, the contention is that during the pendency of that application, the Competent and Appellate Authority could not have finalised Form No. I under Sec. 6 and could not have passed an order declaring the land surplus. ( 10 ) REALLY speaking, this argument is academic because the exemption application has been rejected in 1987 and that order has become final. ( 11 ) THE Full Bench judgment on which reliance is placed does not bold that the authorities under the Act cannot decide Form No. I till the application for exemption is pending. ( 10 ) REALLY speaking, this argument is academic because the exemption application has been rejected in 1987 and that order has become final. ( 11 ) THE Full Bench judgment on which reliance is placed does not bold that the authorities under the Act cannot decide Form No. I till the application for exemption is pending. The Full Bench clearly held that proceedings upto sec. 8 (3) can certainly go on in all cases and it can go even further. The full Bench has held that no hard and fast rule of general applicability can be made that in all the cases wherein an application for exemption is pending under Sec. 20 (1) of the Act, everything must be stayed and the Competent authority has jurisdiction to decide whether or not to proceed beyond Sec. 8 (3 ). The Full Bench further observed that the proceedings should not be allowed to go beyond Sec. 10 (2) stage if the exemption application has not been disposed of by then. It is, thus, clear that there is no lack of jurisdiction to proceed with the processing, hearing and deciding Form No. I under Sec. 6 merely because exemption application is pending. Therefore, the reliance placed on this judgment is also of no assistance to the petitioner. Moreover, the exemption application has already been decided in 1987 and rejected. ( 12 ) IN view of the aforesaid discussion, both the contentions fail. Hence, the petition is dismissed. Rule discharged. No order as to costs. .