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2017 DIGILAW 354 (GUJ)

State of Gujarat v. Ratanben Laxmichand Dayal

2017-02-13

B.M.TRIVEDI

body2017
JUDGMENT : B.M. Trivedi, J. 1. As both the petitions are in respect of the same land and were ordered to be heard together as per the order dated 13.2.2015 passed in MCA No. 2975 of 2010 in SCA No. 5714 of 1996, they were heard together and are being decided by this common judgment. 2. Special Civil Application No. 5714 of 1996 has been preferred by the State, challenging the order dated 30.4.1994 passed by the Urban Land Tribunal (hereinafter referred to as the Tribunal) in Appeal being No. 28/1994 preferred by the respondent Ratanben Laxmichand Dayal, daughter of the deceased Deviben Devchand, challenging the order dated 29.5.1982 passed by the competent authority, declaring 962.25 sq. mtrs. of land situated at Village Mavdi belonging to the deceased Deviben, as the excess vacant land. 3. Special Civil Application No. 890 of 2010 has been preferred by the said Ratanben Laxmichand Dayal, daughter of Deviben seeking direction against the respondent authority to issue "No Objection Certification" (NOC) to the said petitioner Ratanben Laxmichand Dayal, and to enter the name of the petitioner in the revenue record in respect of the said land in question declared as excess vacant land. 4. The short facts giving rise to both the petitions are that the deceased Deviben Devchand, mother of Ratanben Laxmichand Dayal had filled in the Form No. 1 under Section 6(1) of the Urban Land (Ceiling and Regulations) Act, 1976 (hereinafter referred to as "the ULC Act") declaring her holdings i.e. the Plots No. 22, 23 and 38, bearing Survey No. 102/p admeasuring 1496 sq. mtrs. situated at Village Mavdi and one house constructed on the land bearing Survey No. 411/12 admeasuring 962.96 sq. mtrs. situated at Rajkot. It was stated in the form that the property at Rajkot was gifted to Shri Laxmichand Dayal by way of gift deed dated 7.5.1975. The competent authority holding that the said property admeasuring 962.96 sq. mtrs. situated at Rajkot could not have been given by way of gift under Section 4(4)(a) of the said Act, further declared that the land admeasuring 962.25 sq. mtrs. was excess vacant land out of the Plot Nos. 22 & 23 paiki bearing Survey No. 102 at Village Mavdi. It appears that the said order was challenged by Ratanben Laxmichand Dayal through her power-of-attorney holder Tribhovandas G. Danidharia by filing an appeal being No. 28/1994 before the ULC Tribunal. mtrs. was excess vacant land out of the Plot Nos. 22 & 23 paiki bearing Survey No. 102 at Village Mavdi. It appears that the said order was challenged by Ratanben Laxmichand Dayal through her power-of-attorney holder Tribhovandas G. Danidharia by filing an appeal being No. 28/1994 before the ULC Tribunal. The said appeal came to be allowed by the order dated 30.4.1994 by the Tribunal after condoning the delay and holding that there was no excess vacant land held by the deceased Deviben (Annexure-A). Being aggrieved by the said order, the State had preferred the Special Civil Application No. 5714 of 1996. 5. It further appears that the Special Civil Application No. 5714 of 1996 was disposed of by this Court holding inter-alia that the same had stood abated on the ULC Act having been repealed by the Urban Land (Ceiling and Regulations) Repeal Act, 1999 (hereinafter referred to as "the Repeal Act") vide the order dated 29.6.1999. Thereafter the petitioner State had moved a review application seeking review of the said order dated 29.6.1999, along with an application for condonation of delay of about ten years in filing the said review application. The said CA No. 11369 of 2010 seeking condonation of delay was allowed by the Court vide the order dated 26.10.2010. 6. The respondent Ratanben Laxmichand Dayal, therefore, filed LPA being No. 2696 of 2010, however, the same was dismissed by the Division Bench vide the order dated 9.11.2011 with the direction to the State to pay cost of Rs. 10,000/-. The respondent Ratanben Laxmichand Dayal filed SLP before the Supreme Court but in vain, subject to enhancement of cost from Rs. 10,000/- to Rs. 25,000/- to be paid by the State Government. Thereafter, the MCA being No. 2975 of 2010 seeking review of the order dated 29.6.1999 in SCA No. 5714 of 1996 also came to be allowed by the Court vide the order dated 13.2.2015, and the SCA No. 5714 of 1996 was directed to be heard along with SCA No. 890 of 2010. 7. Special Civil Application No. 890 of 2010 was preferred by the said Ratanben Laxmichand Dayal on the ground that the SCA No. 5714 of 1996 was already disposed of by the Court on 29.8.1999 and since then she was in possession of the land in question throughout, however, her name was not being entered in the revenue record. 7. Special Civil Application No. 890 of 2010 was preferred by the said Ratanben Laxmichand Dayal on the ground that the SCA No. 5714 of 1996 was already disposed of by the Court on 29.8.1999 and since then she was in possession of the land in question throughout, however, her name was not being entered in the revenue record. It has been alleged that various parts of the said land were already sold out by the petitioner to different persons, and their names were entered in the revenue record, but her name was not entered in the revenue record in respect of the remaining land. She, therefore, had filed the said petition seeking prayers as stated herein above. 8. The learned AGP Mr. Patel for the State vehemently submitted that the deceased Deviben had not disclosed in her form that she had the daughter named Ratanben Laxmichand Dayal. He also submitted that the gift deed executed by the said Deviben in respect of the property at Rajkot was prohibited in view of Section 4(4)(a) and therefore, the competent authority had rightly included the said property into the holdings of the deceased Deviben. Pressing into service the provisions contained in Sections 6 and 10 read with Section 4(4) he submitted that the area of land, on which the building was constructed, was required to be included while making calculation of the vacant land of the holder and therefore, the land with building situated at Rajkot was rightly considered by the competent authority. He also submitted that the ULC Tribunal had committed an error in condoning the delay of about ten years occurred in filing the appeal by the said Ratanben Laxmichand Dayal, when the possession of the land was already taken over by drawing panchnama on 29.5.1985. 9. However, the learned Advocate Mr. Asthavadi relying upon the definition clause of vacant land as contained in Section 2(q) of the said Act submitted that the land occupied by any building, which was constructed before the appointed day could not have been included in the vacant land, and that in the instant case, the land at Rajkot was occupied by the construction of dwelling unit, which has not been disputed even by the competent authority, could not have been included while calculating the area of vacant land held by the deceased Deviben. He also submitted that the alleged taking over of the possession by the Deputy Collector was illegal and the said authority could not have taken over the possession of the constructed property. Relying upon the decision of the Supreme Court in the case of Meera Gupta vs. State of West Bengal, (1992) 2 SCC 494 , he submitted that the land under building constructed before the appointed date was required to be excluded from the definition of vacant land. 10. Having regard to the submissions made by the learned Advocates for the parties and to the documents on record and considering the provisions of the ULC Act as they existed at the relevant point of time, it appears that the deceased Deviben had declared her holdings comprising of the land at Village Mavdi and another land with construction of dwelling unit at Rajkot. She had also stated in her form that the property at Rajkot was already given away by way of gift to Shri Laxmichand Dayal, who happened to be her son-in-law by executing a gift deed dated 7.5.1975. Now as rightly submitted by the learned AGP, the said gift deed being in violation of Section 4(4)(a) of the Act, the said area of land with construction was required to be taken into consideration for the purpose of calculating the total holdings of the deceased Deviben. However, the real issue involved in the instant case is whether the land occupied by the building, which was already existing on the appointed day i.e. on 17.2.1976, could be treated as vacant land as per the definition of vacant land contained in Section 2(q) of the said Act. The relevant part of the definition of the vacant land as contained in Section 2(q) reads as under:- "2. The relevant part of the definition of the vacant land as contained in Section 2(q) reads as under:- "2. Definitions.- In this Act, unless the context otherwise requires:- (q) "vacant land" means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration, but does not include – (i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated; (ii) in an area where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day with the approval of the appropriate authority and the land appurtenant to such building; (iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such building: Provided that where any person ordinarily keeps his cattle, other than for the purpose of dairy farming or for the purpose of breeding of live-stock, on any land situated in a village within an urban agglomeration (described as a village in the revenue records), then, so much extent of the land as has been ordinarily used for the keeping of such cattle immediately before the appointed day shall not be deemed to be vacant land for the purposes of this clause." 11. From the bare reading of the said definition clause, it clearly transpires that the land, which was occupied by any building constructed before or is being constructed on the appointed day with the approval of the appropriate authority and the land appurtenant to such building, could not have been included in the vacant land. 12. In the opinion of the Court, the ratio of the judgment in the case of Meera Gupta (supra) clinches the issue. The relevant paragraphs of the said judgment read as under:- "11. To begin with "vacant land" as per the definition given in clause (q) of Section 2 means land as such, not being land mainly used for the purpose of agriculture, but situated in an urban agglomeration. "Vacant Land" however, does not include, as per the definition, land of three categories. To begin with "vacant land" as per the definition given in clause (q) of Section 2 means land as such, not being land mainly used for the purpose of agriculture, but situated in an urban agglomeration. "Vacant Land" however, does not include, as per the definition, land of three categories. The first category is land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated. But this is a category with which we are not concerned in the instant case. Johnson's case (supra) is of this category. The second category is of land occupied by any building in an area, where there are building regulations, which has been constructed upon, or is under construction on the appointed day, with the approval of the appropriate authority, and the land appurtenant to such building. This means that if the building stood constructed on the land prior to January 28, 1976, the land occupied under the building is not vacant land. It also covers the land on which any building was in the process of construction on January 28, 1976 with the approval of the appropriate authority. That too is not "vacant land." Additionally, the land appurtenant to these two kinds of buildings is also not "vacant land." The third category likewise conditioned is of land occupied by any building in an area where there are no building regulations, which has been constructed before January 28, 1976 or is in the process of construction on such date, and the land appurtenant to these two kinds of buildings. 12. The aforesaid three categories of lands would otherwise be "vacant land" but for the definitional exclusion. The specific non-inclusion of these three categories of land is by itself an integral part of the definitional and functional sphere. The question that arises what happens to lands over which buildings are commenced after the appointed day and the building progresses to complete thereafter. On the appointed day, these lands were vacant lands, but not so thereafter because of the surface change. Here the skill of the draftsman and the wisdom of the legislature comes to the fore in cognizing and filling up the gap period and covering it up in the scheme of sub-section (9) of Section 4. On the appointed day, these lands were vacant lands, but not so thereafter because of the surface change. Here the skill of the draftsman and the wisdom of the legislature comes to the fore in cognizing and filling up the gap period and covering it up in the scheme of sub-section (9) of Section 4. The visible contrast between "vacant land" and "any other land" held by a person on which there is a building with a dwelling unit therein becomes prominent. The said "any other land" is reckoned and brought at par with the "vacant land" for the purpose of calculating the final extent of vacant land. It seems to us that the expression "vacant land" in the first portion of the provision connotes land minus land under buildings constructed or in the process of construction before and on the appointed day, and the expression "vacant land" in the latter portion of the provision connotes the sum total of "vacant land" of the first order and distinctly the "other land" on which is a building with a dwelling unit therein of which construction commenced after the appointed day, and the land appurtenant thereto. Such an interpretation is required by the context as otherwise the concept of the appointed day and the gap period would be rendered otiose. The legislature cannot be accused to have indulged in trickery or futility in giving something with one hand and taking it away with the other. "Any other land" in the sequence would thus mean any other built-upon land except the one excluded from the expression "vacant land" on account of it being occupied by a building which stood constructed, or was in the process of construction, on the appointed day. 13. xxx xxx xxx xxx xxx 14. At this juncture, sub-section (11) of Section 4 may be noticed. It provides removal of doubts declaring, inter-alia, that nothing in sub-section (9) shall be construed as empowering the competent authority to declare any land referred to in sub-clause (ii) or sub-clause (iii) of clause (q) of Section 2 as excess vacant land under this Chapter. At this juncture, sub-section (11) of Section 4 may be noticed. It provides removal of doubts declaring, inter-alia, that nothing in sub-section (9) shall be construed as empowering the competent authority to declare any land referred to in sub-clause (ii) or sub-clause (iii) of clause (q) of Section 2 as excess vacant land under this Chapter. Though this provision is not happily worded, yet when meaningfully construed in the context, it means that a building which gets excluded by virtue of the definition of "vacant land" gets clothed with the protective cloak for not being reckoned again as any other land, over which there is a building with a dwelling unit therein. Sub-section (11) of Section 4 means to convey that what is not vacant land under sub-clauses (ii) and (iii) of clause (q) of Section 2 cannot go to add up as "vacant land" under sub-section (9) of Section 4 by descriptive overlapping. If we wipe out the distinction of "vacant land" and "any other land" as demonstrated in sub-section (9) of section 4, we strangulate and destroy the spirit and life-blood of the "appointed day" and the gap period. We would loathe giving such a construction and would rather opt for a construction which carries out the objectives of the Act, primary of which is to fix a ceiling limit on the holding of vacant lands, conditioned as they are on the appointed day, and as held on the date of the commencement of the Act." 13. In view of the afore-stated legal position settled by the Supreme Court, there remains no shadow of doubt that the land occupied by any building which was constructed prior to the appointed day, such land and the land appurtenant to such building could not be treated as the vacant land as per Section 2(q), and that what was not vacant land under Clause (q) of Section 2 could not be declared as vacant land as per sub-section (11) of Section 4. In the instant case, it is not the case of the State that the construction on the land at Rajkot did not exist prior to the appointed day or that such construction was not put up as per the building regulations or was constructed without the approval of the appropriate authority. That being not the case, such land was required to be excluded from being declared as the vacant land. That being not the case, such land was required to be excluded from being declared as the vacant land. 14. In that view of the matter, the Court is of the opinion that the competent authority had committed an error apparent on the face of record in including the land with building at Rajkot for the purpose of calculating the vacant land held by the deceased Deviben. The said area of 962.96 sq. mtrs. being the constructed area was required to be excluded from the vacant land held by the deceased Deviben, while finalizing her form. The Tribunal having rightly held that the said property being constructed property should not have been counted in the holdings of the deceased Deviben, and that the said Deviben was not holding any land in excess vacant land. 15. In that view of the matter, the Special Civil Application No. 5714 of 1996 deserves to be dismissed. 16. So far as the Special Civil Application No. 890 of 2010 is concerned, the petitioner Ratanben Laxmichand Dayal has prayed to direct the authority to enter her name in the revenue record and issue the 'No Objection Certificate', however, no such blanket direction could be issued in this petition. In view of the above discussion, the said Ratanben Laxmichand Dayal may approach the concerned authority by way of a fresh application, and such application, if made, be decided by the respondent authority as expeditiously as possible. Subject to the said observation, the Special Civil Application also deserves to be dismissed. 17. In view of the above, both the petitions are dismissed. Rule is discharged in both the petitions. Petition Dismissed.