NATWARBHAI J. PATEL v. STATE — 1999 DIGILAW 588 (GUJ)

D. C. SRIVASTAVA, J. ( 1 ) THE prayer of the petitioners in this writ petition is for quashing the order dated 19. 10. 1989 passed by the Competent Authority and order dated 20. 10. 1995 passed by the State Government by issuing a writ of certiorary. Further prayer was added by seeking amendment in the writ petition for issuing writ of mandamus quashing notification u/s. 10 (3) of the Urban Land (Ceiling and Reglation) Act published on 26. 4. 1990 and direction to the respondents to restore possession of the petitioners land bearing Srvey No. 43/1 area 5244 sq. mtrs. ( 2 ) THE facts giving rise to this petition are as under : petitioner Natvarbhai Jivanlal Patel filled form No. 1 under Section 6 (1) of the Urban Land (Ceiling and Regulation) Act declaring the properties held by him. The Competent Authority sent draft statement with notice under Section 8 (3) of the Act on 19. 10. 1983. After considering objections of the land holder and after giving full opportunity of hearing to him the competent Authority passed an order on 16. 1. 1987 whereby it was held that in view of fact that the land holder had been granted agricultural exemption by the Sate Government under Section 20 of the Act the same was excluded from his holding and the application was kept pending as agricultural exempted land. Revision was filed against this order by the State Government under Sec. 34 of the Act which was allowed and the order of the competent Authority was set aside on 22. 2. 1989 and the matter was remanded to the competent Authority. Information was received by the competent Authority from the State Government that the agricultural exemption granted to the petitioner regarding Survey No. 43/1 was cancelled. Accordingly form under Sec. 6 (1) was processed and on 19. 10. 1989 the competent Authority held that the petitioner was entitled to four units of 1500 sq. mtrs. each, namely, total 6000 sq. mtrs. and 5244. 97 sq. mtrs. of land was declared as surplus. Final statement under Sec. 9 of the Act was issued on 21. 10. 1989. Notification under Section 10 (1) of the Act was published in the Gazette on 21. 12. 1989. Notification under Section 10 (1) of the Act was published in the Gazette on 26. 4. 1990. mtrs. and 5244. 97 sq. mtrs. of land was declared as surplus. Final statement under Sec. 9 of the Act was issued on 21. 10. 1989. Notification under Section 10 (1) of the Act was published in the Gazette on 21. 12. 1989. Notification under Section 10 (1) of the Act was published in the Gazette on 26. 4. 1990. Notice under Section 10 (5) of the Act was served on the petitioner on 31. 5. 1990. Revision was preferred against the order of the competent Authority passed on 19. 10. 1989 which was rejected by order dated 20. 10. 1995 and proceedings under Sec. 34 were closed. Thereafter the Deputy Collector was authorised to take possession of excess vacant land. Possession of surplus land was taken over on 5. 12. 1995. Petitioner submitted scheme under Sec. 21 of the Act with respect to Survey No. 43/1. Competent Authority rejected the same on 5. 9. 1995. Against this order the petitioner preferred Appeal before the Urban Land Tribunal under Section 33 of the Act. The Tribunal by its order dated 30. 9. 1996 set aside the order of the competent Authority which was directed to restore the petitioners scheme under Section 21 to the file for consideration on merits. The matter is still pending and no final decision has been taken on the application under Section 21 because new schedule of rates were not received from the specified Officer and the Superintending Engineer. Accordingly, this writ petition has been filed in which on 19. 7. 1996 this Court directed the parties to maintain status-quo. However, possession was already taken over by the State Government on 5. 10. 1995 i. e. before the interim order was passed by this Court. ( 3 ) THE writ petition was filed on 18. 7. 1996. During pendency of this writ petition Urban Land (Ceiling and Regulation) Act of 1976 was repealed by Act No. 15 of 1999. The effect of the repealing Act and the provisions of repeal, saving and abatement contained in this Act have to be taken into consideration as subsequent events and it has to be seen what would be the fate of this writ petition and the impugned order. ( 4 ) URBAN Land (Ceiling and Regulation) Repeal Act, 1999 (Act No. 15 of 1999) was passed. ( 4 ) URBAN Land (Ceiling and Regulation) Repeal Act, 1999 (Act No. 15 of 1999) was passed. Under Section 1 (3) of this Act, it shall be deemed to have come into force in the States of Haryana and Punjab and in all the Union territories on 11/01/1999 and in any other State which adopts this Act it shall come into force in such State from the date it is adopted. In the State of Gujarat this Repeal Act was adopted on 30. 3. 1999. As such it will be deemed that this Act came into force in the State of Gujarat on 30. 3. 1999. ( 5 ) SECTION 2 of the Repeal Act (for short "the Act") provides that the Urban Land (Ceiling and Regulation) Act, 1976 (for short "the Principal Act") is hereby repealed. Thus, according to this section Urban Land Ceiling Act, 1976 stood repeal in the State of Gujarat with effect from 30. 3. 1999. Section 3 of the Act provides for certain savings and section 4 provides for abatement of certain proceedings pending immediately before the commencement of this Act. ( 6 ) ACCORDING to Section 3 (1) (a) the repeal of the principal Act shall not affect the vesting of any vacant land under Sub-section (3) of Section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent Authority. Another savings under Sec. 3 (1) (b) is that the repeal shall not affect the validity of any order granting exemption under sub-section (1) of section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary. The third saving is that the Act shall not affect any payment made to the State Government as a condition for granting exemption under Sub-section (1) of Section 20. These are the savings provided under Section 3 (1) of the Act ( 7 ) SUB. The third saving is that the Act shall not affect any payment made to the State Government as a condition for granting exemption under Sub-section (1) of Section 20. These are the savings provided under Section 3 (1) of the Act ( 7 ) SUB. SECTION 2 of Section 3 provides that if possession has not been taken over of the land by the State Government or person authorised by it, but the land which is deemed to have been vested in the State Government u/s. 10 (3) of the Principal Act and any amount has been paid by the State Government with respect to such land then possession of such land which is deemed to have been vested, but its actual possession was not taken over by the State Government shall not be restored to the land holder unless he has refunded the amount to the State Government. ( 8 ) SECTION 4 of the Act provides that all proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act before any Court, Tribunal or other authority shall abate. ( 9 ) PROVISO to Section 4 provides that the provisions of this section shall not apply to the proceedings relating to sections 11, 12, 13 and 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the Stategovernment or any person duly authorised by the State Government in this behalf or by the competent Authority. ( 10 ) FROM the above scheme of the Act it is clear that the principal Act has been repealed, but the repeal shall not affect vesting of any land u/s. 10 (3), possession of which has been taken over by the State Government. From Counter Affidavit of the State Government it is clear that in the instant case possession was taken over by the person authorised by the State Government on 5. 12. 1995. The contention has been that it was symbolic possession rather it was illegal possession and as such no notice of such delivery of possession should be taken by this Court. It was also contended that the question whether delivery of possession was legal or illegal is also to be examined by this Court in this writ petition. 12. 1995. The contention has been that it was symbolic possession rather it was illegal possession and as such no notice of such delivery of possession should be taken by this Court. It was also contended that the question whether delivery of possession was legal or illegal is also to be examined by this Court in this writ petition. I am unable to agree with the contention of the learned Counsel for the petitioner on this point. The reason is that under section 4 of the Act all proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act before any Court, Tribunal or other authority shall abate. The writ petition under Article 226 of the Constitution of India is certainly a proceeding pending before the High Court. The word "any Court" under Section 4 of the Act includes the High Court. Consequently when Section 4 is clear and unambiguous no interpretation is required to be made on this section. It is clear that this writ petition arises out of the orders passed by the Authorities under the principal Act, namely, Urban Land (Ceiling and Regulation) Act, 1976 and those proceedings were pending immediately before the commencement of this Act. ( 11 ) THE last order under challenge is Judgment of the Tribunal in Appeal No. 70 of 1995, decided on 30. 9. 1996. It is true that through this order the Appeal of the petitioner was allowed, whereas the Appeal of the Competent Authority was dismissed. The impugned order of the Competent Authority rejecting the scheme under Section 21 was set aside. The Tribunal directed the competent Authority to restore the Appellants scheme under Sec. 21 for consideration on merits. In persuance of this order application under Sec. 21 of the petitioner was pending and it is still pending which is evident from Para : 8 of Counter Affidavit. Thus what was pending before the Competent Authority was Application under Section 21 filed by the petitioner. ( 12 ) FROM plain reading of Section 4 of the Act, this writ petition will abate. The words "shall abate" in Section 4 of the Act are mandatory and such proceeding "shall abate" without any further orders of the Court if the same were pending immediately before the commencement of the Act. ( 12 ) FROM plain reading of Section 4 of the Act, this writ petition will abate. The words "shall abate" in Section 4 of the Act are mandatory and such proceeding "shall abate" without any further orders of the Court if the same were pending immediately before the commencement of the Act. There can be no dispute that this writ petition was pending immediately before the commencement of the Act hence the petition will abate. ( 13 ) THE proceeding under Section 21 of the Principal Act were also pending before the competent Authority immediately before the commencement of this Act. As such those proceedings will also abate in view of Section 4 of the Act. Proviso to Section 4 is not attracted inasmuch as the proceeding u/s. 21 was obviously not a proceeding u/s. 11, 12, 13 and 14 of the principal Act in respect of land whose possession was not taken over by the State Government. In this case possession was already taken over by the State Government on 5. 12. 1995. ( 14 ) IN view of the above analysis it is clear that this writ petition abates so also the proceedings under Section 21 of the principal Act pending before the Competent Authority. If the writ petition itself abates then the writ petition cannot be considered and decided on merits. It would be contradiction in terms to hold that on the one hand the writ petition abates, but on the other hand the legality of the order of the Authority can be examined. I am therefore not impressed with the contention of the learned Counsel for the petitioner that illegality of proceeding for taking over possession on 6. 12. 1995 can be examined. Delivery of possession was followed by Panchnama, Annexure : IV to the Counter Affidavit. It will therefore be deemed that possession was taken in accordance with law. Section 3 (1) (a) of the Act does not contemplate inquiry into question whether possession was taken legally or illegally. On the other hand the Legislature provided that in case possession of the land has been taken over by the State Government or by a person duly authorised by the State Government then the vesting of any vacant land under Section 10 (3) of the Principal Act shall not be affected by the Repeal Act. On the other hand the Legislature provided that in case possession of the land has been taken over by the State Government or by a person duly authorised by the State Government then the vesting of any vacant land under Section 10 (3) of the Principal Act shall not be affected by the Repeal Act. As such the question of symbolic possession or actual possession in taking possession cannot be examined once it is held that the writ petition abates in view of the provision under Section 4 of the Act. ( 15 ) LEARNED Counsel for the petitioner contended that other reliefs have also been sought in the writ petition which have to be considered. My attention has been drawn to relief 11 (AA) introduced after the writ petition was amended. This prayer is for issuing a writ of mandamus or any other writ or order for quashing notification u/s. 10 (3) of the Principal Act published on 26. 4. 1990 and for a writ of mandamus directing the respondents to restore symbolic possession of the disputed land. Again, for the reasons stated above, if the writ petition abates this question cannot be examined and answered. ( 16 ) IT was also argued that the Tribunal in its order dated 30. 9. 1996 has quashed and set aside the order of the competent Authority under Sec. 10 (3) and (5) of the Principal Act hence possession of the surplus land has to be ordered to be restored. This contention also cannot be accepted. The operative portion of the order of the Tribunal reads as under :"appeal No. 70/95 is allowed. The impugned order is not as do and CA is hereby directed to restore the appellants scheme u/s. 21 to file for consideration on merits. Cross Appeal No. 28/96 is dismissed. The above translation of the operative portion of the order is apparently incorrect. From the operative portion of the order it is clear that the Appeal of the Competent Authority was dismissed whereas the Appeal of the petitioner was allowed and the order of Competent Authority rejecting the scheme u/s. 21 of the Principal Act was restored and the Competent Authority was directed to hear it on merits. From the operative portion of the order it is clear that the Appeal of the Competent Authority was dismissed whereas the Appeal of the petitioner was allowed and the order of Competent Authority rejecting the scheme u/s. 21 of the Principal Act was restored and the Competent Authority was directed to hear it on merits. There is no mention in the operative portion of the order of the Tribunal that the actions under Sections 10 (3) and 10 (5) of the principal Act were illegal and set aside. The only observation on the point is that it is usual practice to cancel action under Section 10 (3) and (5) if the scheme is found to be pending. Reference was also made to some order of the State Government. However, in the Judgment of the Tribunal it is not observed that these actions under Section 10 (3) and (5) were quashed and set aside by it. Casual observation of the Tribunal in these circumstances cannot be said to be the order of the Tribunal quashing this action. ( 17 ) LEARNED Counsel for the petitioner further contended that if the writ petition abates, so also the proceeding under Sec. 21, its natural consequence would be that all actions under Section 10 (3) and 10 (5) will also abate and as a consequence thereof possession has to be restored to the petitioner. This contention also cannot be acceptable. In view of Section 4 of the Repeal Act what abates on the facts and circumstances of the case is the writ petition and the proceedings under Sec. 21 of the Principal Act pending before the competent Authority. The actions of declaration of surplus land and various notification issued thereafter and action of taking over possession on 5. 12. 1995 cannot be said to have been abated. ( 18 ) THE Full Bench Pronouncement of this Court in M/s. Avanti Organisation v/s. Competent Authority and Addl. Collector, Urban Land Ceiling, reported in 1989 (1) G. L. R. 586 relied upon by the learned Counsel for the petitioner hardly helps the petitioner in view of the fact that under the Repeal Act proceedings under Sec. 21 of the Principal Act will abate. Collector, Urban Land Ceiling, reported in 1989 (1) G. L. R. 586 relied upon by the learned Counsel for the petitioner hardly helps the petitioner in view of the fact that under the Repeal Act proceedings under Sec. 21 of the Principal Act will abate. The Full Bench in this case considered only two questions, one whether the State Government is bound to give personal hearing to the concerned person or his agent i. e. a right of audience, before rejecting as exemption application made under Sec. 20 (1) (a) of the Act; The second question was whether the State Government must decide the application made under Secion 20 (1) (a) of the Act before the draft statement is prepared under Sec. 8 (1) of the Act. The first question answered by the Full Bench cannot be applied to the facts of the present case because it is evident that hearing was given to the petitioner before rejecting the application under Section 21. On the second question the verdict of the Full Bench is that the application under Sec. 20 (1) of the Principal Act should be decided expeditiously within the prescribed time, say within six months. At Page : 607 the Full Bench observed that it is indeed true, as pointed out earlier, that it should be the endeavour of the State Government to dispose of the application under Section 20 (1) at an early date but we are not inclined to the view that merely because application for exemption is pending, the entire process beyond the Section 6 stage should grind to a halt till such application is decided. In this case there was no discussion regarding disposal of scheme under Section 21 of the Principal Act. ( 19 ) THE Full Bench at Page : 607 in Avanti Organisation case (supra) further observed that in our view ordinarily process can be carried upto Sec. 8 (3) stage and at that stage the competent authority must apply its mind whether having regard to the nature of the objection it would be desirable to pass an order adverse to the objector under Sec. 8 (4) notwithstanding the pendency of the exemption application. ( 20 ) THE Honourable Supreme Court in Smt. Darothi Clare Parreira and ors. ( 20 ) THE Honourable Supreme Court in Smt. Darothi Clare Parreira and ors. v/s. State of Maharashtra, reported in A. I. R. 1996 SC 2553, on the other hand considered the applicability of Section 10 (3) of the principal Act in relation to the application under Sec. 20 and 21 of the principal Act. The Apex Court observed as under :"having regard to the scheme of the Act, it cannot be said that until the application under S. 21 or S. 20 is considered and disposed of, the competent authority has no power to have the notification under S. 10 (3) vesting the excess land in the Government published. The very language of Ss. 20 and 21 and the exercise of the power thereunder would arise only when the land stands vested in the Government. The power of examination and exemption would arise only when the Government becomes the owner and the erstwhile owner seeks to obviate the hardships under S. 20 or to subserve the housing scheme for weaker sections under S. 21 as envisaged thereunder. Thereat, the Government is required to consider whether the proposals made by the erstwhile owner for undertaking the scheme as envisaged under S. 21 or hardships as envisaged under S. 20 for exemption would merit consideration. " . ( 21 ) IN view of above verdict of the Apex Court the notification u/s. 10 (3) vesting the excess land in government is not prohibited merely because of pendency of applications under Sections 20 and 21 of the principal Act. As such prima facie the actions complained of cannot be quashed on the facts and circumstances of the case especially when the writ petition has abated. ( 22 ) IN view of the foregoing discussions it is held that this writ petition abates so also the proceedings under sec. 21 of the pringipal Act pending before the competent Authority and nothing beyond this can be ordered to have been abated. Since possession was already taken over on 5. 12. 1995 no order for restoration of possession to the petitioner can be passed. ( 23 ) IT is, therefore, orderd that this writ petition abates so also the proceedings u/s. 21 of the Act pending before the Authority. On the facts and circumstances of the case there shall be no order as to costs. .