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1994 DIGILAW 332 (GUJ)

MANSUKHLAL GORDHANDAS KANERIYA v. STATE

1994-10-26

A.N.DIVECHA

body1994
A. N. DIVECHA, J. ( 1 ) ). The order passed by and on behalf of the respondents on 17th July 1987 is under challenge in both these petitions. Common question of law and fact are found arising in both these petitions. I have therefore thought it fit to dispose of both these petitions by this common judgment of mine. ( 2 ) ). The petitioner of Special Civil Application No. 6630 of 1987 (the second petition for convenience) filed his declaration under prescribed form under Section 6 (1) of the Urban Land (Ceiling and Regulation Act 1976 (the Act for brief) with respect to its holding within the urban agglomeration of Rajkot. By his order passed on 25 March 1980 the competent authority of Rajkot came to the conclusion that the holding of the declarant was not in excess of the ceiling limit prescribed under the Act. It appears to have come to the notice of the concerned officer of the State Government. He appears to have found it not according to law. Its suo motu revision under Section 34 of the Act was contemplated. A show-cause notice was issued to the declaration on 2 November 1985. It appears that in the meantime certain parcels of land came to be transferred to the petitioners of Special Civil Application No. 6377 of 1987 (the first petition for convenience ). They were also thereupon served with the aforesaid show-cause notice issued on 2nd November 1985 under Section 34 of the Act. After hearing the parties by the order passed by and on behalf of the respondents on 17th July 1987 the order passed by the competent authority on 25th March 1980 was quashed and set aside and the holding of the petitioner of the second petition was declared to be surplus by 3226 sq. mts. Its copy is at Annexure A to each petition. The petitioners of both the petitions were aggrieved by the said order. They have therefore moved this Court by means of their respective petitions under Article 237 of the Constitution of India for questioning its correctness. ( 3 ) ). Shri Dave for the respondent is right in his submission that this petition under Article 227 of the Constitution of India is not maintainable. At this stage Shri Shah for the petitioners prays for its conversion into the one under Article 226 thereof. ( 3 ) ). Shri Dave for the respondent is right in his submission that this petition under Article 227 of the Constitution of India is not maintainable. At this stage Shri Shah for the petitioners prays for its conversion into the one under Article 226 thereof. That request made by Shri Shah for the petitioners is accepted and this petition is treated as the one under Article 226 of the Constitution of India. Since the grievance of the petitioners in each petition is contravention of their fundamental right inter alia under Article 14 of the Constitution of India the petitioners are not required to pay any deficit court fees. ( 4 ) THE grievance voiced by the petitioners in these petitions against the order at Annexure At this petition is to the effect that the revisional powers under Section 34 of the Act have been exercised after unreasonable time and it has caused great prejudice to the petitioner in as much as the petitioners of the first petition have purchased certain lands from the petitioner of the second petition and they have raised construction thereon. According to the petitioners if the petitioners had known that the order of the competent authority was liable to revision within reasonable time. they might not have gone for the transaction with respect to the subject-matter of the first petition. As against his Shri Dave for the respondent in each case has urged that some lapse of lime however unreasonable would not invalidate the exercise of powers under Section 34 of the Act 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 Another reported in 1992 (2) G. L. H. at page 424 ( 5 ) IN this connection a reference deserves to be made to the ruling of this Court in the case of Jayantilal K Shah v. State of Gujarat and Another reported in 1994 (2) G. C. D. 83 (Gujarat ). In that case the aforesaid Division Bench ruling of this Court in the case of Haresh Kantilal (supra) was considered and it has been held that it it is shown by the parties that serious prejudice is caused on account of belated exercise of powers under Section 34 of the Act the said action of the part in the case of Jayantilal K. Shah (supra) is applicable in this case qua the petitioners of the first petition. ( 6 ) IT is the case of the petitioners of the first petition that they have purchased lands from the petitioner of the second petition and have raised construction thereon after obtaining the necessary permission from the concerned authorities. It is also their case that the petitioner of the second petition had already moved the competent authority by its notice under Section 26 of the Act before selling the land in question to the petitioners of the first petition. It is an admitted position that the competent authority passed the order on the declaration made by the petitioner of the second petition under Section 6 (1) of the Act on 25 March 1980 and the show cause notice for its revision was issued on 2nd November 1985 nearly five years and seven and half months thereafter. The intervening period between the two can be said to be quite long. It has resulted in prejudice to the petitioners of the first petition. The impugned order at Annexure A to this petition cannot be sustained in law qua them. ( 7 ) SO far as the petitioner of the second petition is concerned it is not shown by him or by it or on its behalf how the impugned order at Annexure A to this petition is anyway erroneous except that it has been passed after passage of nearly seven years from the date of the order of the competent authority. The merits of the impugned order at Annexure A to this petition cannot be disputed for the simple reason that the petitioner is a partnership firm and it should answer the definition person contained in Section 2 (i) of the Act. The merits of the impugned order at Annexure A to this petition cannot be disputed for the simple reason that the petitioner is a partnership firm and it should answer the definition person contained in Section 2 (i) of the Act. So far as the passage of time is concerned it cannot be said that it has been prejudiced for the simple reason that it has received more value of the land than the compensation payable to it for the excess land declared surplus under the Act. Since the petitioner of the second petition has no land available for surrender as the excess land the excess land to be surrendered by the petitioner of the second petition under the impugned order at Annexure A to this petition will be deemed to have been allotted to it against the net consideration of Rs. 60 0 The price will be net of the compensation to be paid for the surrendered land. It is clarified that the petitioner of the second petition would not be entitled to any compensation for the excess land to be surrendered under the impugned order at Annexure A to this petition. It will have to pay Rs. 60 0 to the State Government as the net price of the land to be allotted to it for surrender. The price fixed for such land is Rs. 60 0 plus the compensation payable for the excess land. As observed earlier since the compensation is not now required to be paid the petitioner of the second petition will have to pay Rs. 60 0 to the respondent against surrender of the excess land declared under the impugned order at Annexure A to this petition. ( 8 ) ). In view of my aforesaid discussion I am of the opinion that both these petitions deserve to be accepted and the impugned order at Annexure A to these petitions deserve to be set aside on condition of payment of Rs. 60 0 by the petitioner of the second petition to the respondent. Shri Shah for the petitioner in the second petition agrees that the amount of Rs. 60 0 would be paid to the respondent an or before 31st December 1994 by means of its deposit in this Court. ( 9 ) ). In the result both these petitions are accepted. Shri Shah for the petitioner in the second petition agrees that the amount of Rs. 60 0 would be paid to the respondent an or before 31st December 1994 by means of its deposit in this Court. ( 9 ) ). In the result both these petitions are accepted. The impugned order at Annexure A to each petition is quashed and set aside on condition that the petitioner of the second petition shall deposit on or before 31st December 1994 Rs. 60 0 in this Court. Shri Shah for the second petitioner states that partner of the concerned litigant named Shri Bhagwanji M. Nathwani is present in this Court. The said litigant is identified by Shri Shah for the petitioners. The said litigant states and undertakes before this court that he would deposit Rs. 60 0 in this Court on or before 31st December 1994 with intimation therefore the concerned department of the respondent. In view of this oral undertaking no written undertaking is insisted upon. On deposit of the aforesaid amount in this Court the registry shall make its payments to the concerned department of the State Government. Rule is accordingly made absolute in both these petitions to the aforesaid extent with no order as to costs. .