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2016 DIGILAW 2215 (GUJ)

Ajitsinh Ramubha Jhala v. State of Gujarat

2016-12-08

BELA M.TRIVEDI

body2016
JUDGMENT : 1. By way of the present petition, the petitioner has sought declaration that the subject land bearing Survey No.74 admeasuring 14759 sq. mtrs. situated at Village Ghanteshwar, Taluka and District Rajkot did not fall within the purview of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the 'ULC Act') and could not be made, subject to the provisions of the said Act. The petitioner has also sought declaration, inter-alia, that the orders passed by the competent authorities including the order passed under Section 8(4) and other consequential orders were ex-facie illegal and ab-initio null void. 2. The case of the petitioner, in nutshell, is that the father of the petitioner Ramubha Jhala was holding various lands including the land bearing Survey No.74 paiki admeasuring 4 acres. The said lands were partitioned by way of family arrangement and entry in respect of the said partition was also mutated in the record of rights on 22.10.1978. According to the petitioner, the petitioner and his two brothers were minors at the relevant time, when the ULC Act came into force in 1976 and the mother of the petitioner had filled in the form No.1 under Sec.6 thereof showing her holdings including the land in question. It is further the case of the petitioner that though the provisions of the said Act were not applicable to the subject land, the said land was declared as the excess vacant land and the possession thereof was also taken over by the State Government. 3. Learned Senior Counsel Mr. Anshin Desai for the petitioner has pressed into service various provisions of the Act, including the definition clauses to submit that the subject land did not fall within the Urban agglomeration at the relevant time and therefore, could not have been declared as the excess vacant land. He also submitted that though the land in question was subsequently allotted to the respondent No.4 – Gujarat Housing Board, the very declaration of the land as the excess vacant land was illegal and void, and therefore the order of the competent authority and other subsequent orders were illegal and void. He has also relied upon various decisions of this Court in support of his submissions that the land could not be subjected to the provisions of the ULC Act. 4. He has also relied upon various decisions of this Court in support of his submissions that the land could not be subjected to the provisions of the ULC Act. 4. Nobody is present for the respondents except learned Assistant Government Pleader for the respondent State authority. He submitted that the petition suffers from vice of suppression of material facts, as the petitioner had not stated the true and correct facts in the petition. 5. At the outset, it is required to be noted that the petition was filed by the petitioner somewhere in November 1999 seeking declaration as stated hereinabove, when the ULC Act was already repealed with effect from 30.03.1999. It is further required to be noted that as transpiring from the record, the petitioner had suppressed the material facts of the case namely that the form filled in by the mother of the petitioner under Section 6 of the ULC Act was already processed by the competent authority and the land in question alongwith other lands was declared as the excess vacant land vide the order dated 08.06.1984. Thereafter, the notifications under Sections 10(1) and 10(2) were duly published in the Official Gazette. It further transpires from the record that the notice under Section 10(5) issued by the Registered Post was also duly received by the land holder, i.e. the mother of the petitioner. Thereafter, the possession of the land was already taken over on 24.11.1992. The order for payment of compensation was also passed by the competent authority on 31.12.1993. After taking over possession of the land in question, the same was allotted to the Gujarat Housing Board by the State Government u/s. 23 of the ULC Act in July 1996, and the Gujarat Housing Board had taken over the possession for constructing houses for the weaker section of the society. It also transpires from the reply filed by the respondent No.2 competent authority that the Appeal being No.27/1998 filed by the petitioner against the order of the competent authority dated 05.06.1984, before the ULC Tribunal was also dismissed by the Tribunal vide order dated 30.10.1998. All these material facts have been suppressed by the petitioner in his petition. It also transpires from the reply filed by the respondent No.2 competent authority that the Appeal being No.27/1998 filed by the petitioner against the order of the competent authority dated 05.06.1984, before the ULC Tribunal was also dismissed by the Tribunal vide order dated 30.10.1998. All these material facts have been suppressed by the petitioner in his petition. Thus it clearly transpires that after having failed in all the proceedings, the present petition was filed by the petitioner after the ULC Act was repealed by the Repeal Act, 1999, and that too without disclosing the correct facts misusing the process of law. Hence, the petition deserves to be dismissed on the ground of suppression of material facts alone. 6. However, since the matter has been argued on merits also, it is required to be noted that the petitioner has not challenged the order passed by the ULC Tribunal in the Appeal confirming the order of the competent authority, apart from the fact that prior to filing of the said appeal the possession of the land in question was already taken over by the State Government and handed over to the Gujarat Housing Board. The main contention raised in the petition is that the land was not falling within the Urban agglomeration and therefore, could not be declared as the vacant land. Whether the subject land was falling within the purview of the ULC Act or not was required to be agitated by the mother of the petitioner who had filled in the form, before the competent authority when her form was being finalised. No such contention was raised by her. There is also nothing on record to suggest that such contentions were raised by her or by the petitioner in the Appeal filed before the Tribunal. The order of Tribunal dismissing the Appeal has remained unchallenged. It is also not in dispute that the subject land after having been declared as excess vacant land was alloted to the respondent No.4 – Gujarat Housing Board in July 1996 and the possession thereof, was also handed over to the Board by the State Government before the ULC Act was repealed in 1999. It is also not in dispute that the subject land after having been declared as excess vacant land was alloted to the respondent No.4 – Gujarat Housing Board in July 1996 and the possession thereof, was also handed over to the Board by the State Government before the ULC Act was repealed in 1999. Hence, the action of taking over possession of the land in question having not been challenged, the same had attained finality and the land had legally stood vested in the Government in view of Section 3 of the ULC Repeal Act. All the proceedings under ULC Act had already attained finality prior to the enforcement of the Repeal Act and therefore, it was too late in light of the day for the petitioner to challenge the said proceedings after the repeal of the ULC Act on the ground that ULC Act did not apply to the land in question. There was suppression of material fact regarding filing of appeal before the Tribunal against the order of competent authority and thereby the petitioner has also not challenged the order of the Tribunal passed in the said Appeal. 7. There cannot be any disagreement to the proposition of law laid down in the judgments relied upon by the learned Senior Counsel, however, the said judgments have no application to the facts of the present case. The petition having been filed after the repeal of the ULC Act and having been filed suppressing material facts does not deserve any further consideration. 8. In that view of the matter, the petition being devoid of merits is dismissed. Rule is discharged.