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Gujarat High Court · body

2018 DIGILAW 146 (GUJ)

Champaklal Rangildas Ghael v. State of Gujarat

2018-01-17

SONIA GOKANI

body2018
JUDGMENT : 1. The facts in nutshell, in the present petition preferred under Article 226 of the Constitution of India, are that the land bearing Survey No. 93, admeasuring 14,063 sq.mts., 100 paiki admeasuring 11,432 sq.mts. and 100 paiki admeasuring 11,736 sq.mts. were formerly owned by one Vasantbhai Morarbhai and others. The use of the land was for agricultural purpose. 1.1 When the Urban Land (Ceiling & Regulation) Act, 1976 (for short, ‘ULC Act’) was enacted, the agriculturists were required to fill form under Section 6(1) of the ULC Act. Said form was required to be filled-in in the required format for necessary declarations. Any exemption, if, claimed by the agriculturists under the ULC Act, he needed to apply to the competent authority and if satisfied, the competent authority would grant exemption under the ULC Act. Accordingly, the original owners applied for the same and prayed for exemption vide application date 12.08.1976. Said application was examined by the competent authority and being satisfied, it was pleased to allow the same, subject to certain conditions. 1.2 The petitioners were, since, interested in using the said land for agricultural purpose, and therefore, they had representated before the competent authority with a request that the original owners be permitted to sell the said lands to the petitioners. After the passing of the order to that effect, the original owners sold the said land to the petitioners and a registered sale deed came to be executed on 18.10.1979. An entry to that effect came to be mutated vide Entry No. 920 in Form No.6 and the same came to be certified on 15.12.1979. The mutation also was carried out in the Village Form No. 7/12 of record of rights. The petitioners continued to enjoy the possession of the said land and carried out agricultural activities. It is also evident, according to the petitioners, from the Village Form Nos. 6 and 7/12 for the years 1976 to 1979. 1.3 It is the grievance on the part of the petitioners that Respondent No.2, without application of mind, mechanically acted. The breach of principles of natural justice also has been pleaded. The authority concerned also ignored the specific order of exemption and mechanically perused the records prior to filling the form under Section 6(1) of the ULC Act and passed an order, declaring the lands held by the petitioners as excess lands. The breach of principles of natural justice also has been pleaded. The authority concerned also ignored the specific order of exemption and mechanically perused the records prior to filling the form under Section 6(1) of the ULC Act and passed an order, declaring the lands held by the petitioners as excess lands. 1.4 It is the grievance of the petitioners that the order came to be passed without issuance of notice to them in relation to the excess land in the month of March, 1984. No notice was issued to the petitioners and instead a second notice came to be issued upon the original owners on 29.03.1990. The competent authority proceeded to take possession of the said lands and declared the same as the excess land. The panchnama of the same referred to the names of the original owners and none of the petitioners was aware of the same. 1.5 It is also the case of the petitioners that Respondent No.1 appears to have attempted to allot the said land to one M/s. Tannu Gas Agency Company. Since the order was behind the back of the petitioners, a Suit came to be filed by them, challenging the said mutation Entry No. 1561 in the Court of the learned Civil Judge, Surat. The application for injunction was also moved. However, on the ground of jurisdiction, same was not entertained. 1.6 An appeal, therefore, came to be preferred before the District Court, Surat, which, at the time of preferring the present petition was pending. 1.7 The property, as stated above, was attempted to be allot to one M/s. Tannu Gas Agency Company, during the pendency. 1.8 It is also their case that with the widening of the limits of Surat city, the properties were included in the extended limits and the lands were in the names of the petitioners so also in the records of the Surat Municipality. 1.9 During the framing of Town Planning Scheme No. 21 (Bhestan), since, there was need for requisition of land, a notice came to be issued to the petitioners by the Municipal Corporation. Therefore, it is the grievance of the petitioners that in the record of the Municipal Corporation, the names of the original owners reflected as the owners, on the basis of the order of Respondent No.2 dated 11.02.1988, when the land was declared excess and was owned by the land owners. Therefore, it is the grievance of the petitioners that in the record of the Municipal Corporation, the names of the original owners reflected as the owners, on the basis of the order of Respondent No.2 dated 11.02.1988, when the land was declared excess and was owned by the land owners. However, the authority concerned had not issued notice to the present petitioners under Sections 48A, 67 and 68 of the ULC Act and under Rule 33 of the Town Planning Rules, 1979. 2. Hence, the petitioners are before this Court seeking following reliefs : “15. … (A) Your Lordships may be pleased to issue a writ of Mandamus or any other appropriate writ order or directions in the form of Mandamus or any other appropriate writ declaring the order passed by the respondent No.2 dated 11-02-88 Annexure ‘G” Supra as illegal, arbitrary and without application of mind inasmuch as the same was passed without affording the present petitioners an opportunity of being heard inspite of the fact that the present petitioners were the owners of the impugned land. (B) Your Lordships may be pleased to issue a writ of Mandamus or any other appropriate writ order or directions in the form of Mandamus or any other appropriate writ pending admission and final disposal of this petition, the implementation of the order passed by the respondent No.2 dated 11-02-88 produced at Annexure ‘G’ supra be stayed. (C) Costs of this petition may be awarded to the petitioners. (D) ...” 3. Affidavit-in-reply came to be filed by the competent authority and the Addl. Collector, ULC, Surat, to contend that the submissions made by the petitioners are not in order and that they are trying to suppress the material facts from the Court. It is the case of suppressio falsi and suggessio vary, though, it is the duty of the petitioners to approach this Court with clean hands. 3.1 It is contended that the original owners, i.e. Vasant Morarbhai and others, filed a declaration under Section 6(1) of the ULC Act and the Draft Statement was given to the original owners by the competent authority on 14.07.1982 and 28.07.1982 and no objections were raised by the original owners in the said proceedings. 3.2 On 06.05.1993, a notice was issued to the present petitioners under Section 6(2) of the ULC Act, but, the petitioners did not file any declaration. 3.2 On 06.05.1993, a notice was issued to the present petitioners under Section 6(2) of the ULC Act, but, the petitioners did not file any declaration. Therefore, the notice for hearing was issued to the original owners and thus, as the petitioners failed to file any declaration under Section 6(1) of the ULC act that the notice under Section 6(2) of the ULC Act was given to them. Then, the notice for hearing was issued to the original owners and the order came to be passed by the competent authority under Section 8(4) of the ULC Act on 17.08.1987 and on 11.02.1988. The final statement under Section (9) was issued to the original owners by the competent authority on 17.08.1987 and 11.02.1988. 3.3 It is, further, contended that a notification under Section 10(1) and Section 10(3) of the ULC Act came to be published in the government Gazette and the notice under Section 10(5) was issued on 26.03.1990 and 18.09.1990. The competent authority also issued a notice under Section 10(6) of the ULC act on 06.09.1991 and 11.11.1992 and an authorized officer had, under Section 10(c) of the ULC Act, taken over the possession of Revenue Survey No. 100 paiki admeasuring 9932 sq.mts. in the presence of panchas on 20.02.1992, whereas, the possession of Revenue Survey No. 93, admeasuring 14063 sq.mts. and Revenue Survey No. 100 paiki admeasuring 11736 sq.mts. came to be taken over, in the presence of panchas, by the authorized officer on 05.02.1994. 3.4 Here, it may be noted that the petitioners were not the owners of the said land, at the time of commencement of the ULC Act on 17.02.1976 and the original owners, i.e. Vasantbhai Morarbhai and others, had filed a declaration under Section 6(1) of the ULC Act before the competent authority on 04.07.1977. It is not in dispute that the original owners made an application before the State Government on 13.08.1978 for grant of permission to sale the same to the present petitioners only for agricultural purpose. The State Government granted permission to the original owners for sale of the said land to the present petitioners only for agricultural purpose, subject to the conditions laid down in the order dated 11.09.1979 and also in consonance with the relevant provisions of the of the ULC Act. The State Government granted permission to the original owners for sale of the said land to the present petitioners only for agricultural purpose, subject to the conditions laid down in the order dated 11.09.1979 and also in consonance with the relevant provisions of the of the ULC Act. 3.5 It is the case of the Respondent authority that the petitioners were not agriculturists, at the relevant point of time, and therefore, they could not have purchased the agricultural land within the peripheral area of 8 kilometers from the said land, as provided under the Bombay Tenancy and Agricultural Lands Act, 1948 (‘Tenancy Act’, in brief). Hence, the condition No.8 of the said order was not fulfilled by the petitioners. The petitioners were also required to file, under Section 15 of the ULC Act, a declaration within a period of three months after purchasing the said land in the year 1979. In absence of any declaration filed by the petitioners, as required under Section 15 of the ULC Act, they were not heard. 3.6 It is, further, contended that the petitioners had not applied for exemption for agricultural purpose, as required under Section 20 of the ULC Act, since, the said lands fall under the Industrial Zone, as per the Master Plan of Urban Agglomeration of Surat, after purchasing the said lands. 3.7 Since, the permission was granted to the petitioners to purchase the land under Section 20(1) of the ULC Act, it was incumbent upon them to file a declaration under Section 6(1) of the ULC Act within three months from the date of such purchase. Thus, on or before 10.12.1979, the declaration was contemplated, as per Section 15 of the ULC Act. Therefore, the competent authority issued notices on 06.05.1983 and on 26.10.1988 to the petitioner and his firm, i.e. M/s. Lakshmi Vishnu Silk Mills, Salabatpura, Surat. The petitioners also filed an application in respect of the said land for exemption for the use of Industrial Purpose under Section 20 of the ULC Act before the State Government, which came to be rejected on 25.06.1987. The petitioners had other properties at village Dumbhal and Surat city for which the declaration under Section 6(1) of the ULC Act had already been filed. The petitioners had other properties at village Dumbhal and Surat city for which the declaration under Section 6(1) of the ULC Act had already been filed. Notice for the Draft Statement under Section 8(1) and notice under Section 8(3) was issued to the petitioners in the year 1982, with regard to which, the objections were also filed by the petitioners. However, they did not declare the property at Bhestan before the competent authority. 3.8 It is, further, the say of the respondent that the petitioners did not reveal the purchase of the said property, even when the competent authority passed the order under Section 8(4) of the said Act, declaring 3131 sq.mts of land as excess vacant land of village Dumbhal. 3.9 The petitioners, according to the answering respondent, filed an appeal under Section 33 of the ULC Act in the Urban Land Tribunal Against the order under Section 8(4) of the ULC Act passed by the competent authority. After remanding of the matter by the ULT, the competent authority again issued a notice under Section 8(4) of the ULC Act and at that stage also, the petitioners did not declare the land in question before the competent authority. On 25.05.1987, in exercise of its powers under Section 8(4) of the ULC Act, gave five units to the petitioners admeasuring 7500 sq.mts.. It is, therefore, contended that so far as village Dumbhal and Surat city is concerned, the petitioners, as submitted by them, have been granted five separate units. It, therefore, can be said that the lands in question are the excess land and the same were declared as such under the provisions of the ULC Act in the year 1987 and 1988. 3.10 It is, therefore, the case of the Respondent that, since, the petitioners failed to carry out the exercise, which, otherwise, they were bound to fulfill, it is nothing but a stance adopted to get, at a later stage, the advantage of the repeal of the ULC Act. 4. Rejoinder affidavit is also filed by the petitioners in reply and in reply to the same additional affidavit-in-rejoinder also has come on record. 5. This Court has heard the learned Advocate, Mr. Vin, appearing with learned Advocate, Mr. Trivedi, for the petitioners and learned AGP for the Respondent-State. 6. 4. Rejoinder affidavit is also filed by the petitioners in reply and in reply to the same additional affidavit-in-rejoinder also has come on record. 5. This Court has heard the learned Advocate, Mr. Vin, appearing with learned Advocate, Mr. Trivedi, for the petitioners and learned AGP for the Respondent-State. 6. On due perusal of the record and the submissions made, at the outset, the authorities sought to be relied on for the purpose of understanding the law on the subject would desirable to refer to. 6.1 Special Civil Application No. 2062 of 2002 (Coram: Mr. M.R. Shah, J.) was a petition under Article 226 of the Constitution of India, wherein, the Court held that the repeal of the principal Act shall not affect the validity of any order granting exemption under Section 20(1) of the ULC Act. 6.2 In Special Civil Application No. 12892 of 2003, the permission was granted under Section 20 of the ULC Act. The proceedings were, when, initiated under Section 8 of the ULC Act, the Court held that it would be inconsistent with the grant of permission, and hence, the land could not be declared as the excess vacant land. 7. It is not in dispute that in the matter on hand, the original owners hand filled-up the form with necessary declaration under Section 6(1) of the ULC Act. The original owners also prayed for exemption under Section 20 of the Act, as regards use of the of the land for the agricultural purpose. The permission to sale the lands to the petitioners also was granted by the competent authority, and therefore, the registered sale deed was executed in favour of the present petitioners on 18.10.1979 and an entry was also mutated being Entry No. 920 in the Village Form No.6 so also in the Village Form No. 7/12 of record of rights. The Collector- Respondent No.3, herein, was also directed to follow the condition Nos. 7 and 8 and to make necessary entries in the Village Form Nos. 6 and 7/12 of the subject land. 7.1 It is the say of the petitioners that they continued to carryout the agricultural activities on the said land from the year 1976- 1979 and there was no disturbance at all. The Village Form No. 7/12 reflects the names, against the subject lands, of the petitioners as agriculturists. 6 and 7/12 of the subject land. 7.1 It is the say of the petitioners that they continued to carryout the agricultural activities on the said land from the year 1976- 1979 and there was no disturbance at all. The Village Form No. 7/12 reflects the names, against the subject lands, of the petitioners as agriculturists. The permission taken by them under the ULC Act is a matter of record. However, Respondent Nos. 2 and 3, since, failed to make necessary endorsements about the order in the record of rights, the subject land was held to be excess vacant land. An attempt was also made by the respondents to allot the said property to a third party, M/s. Tannu Gas Agency Company. However, due to pendency of the proceedings, the same could not be done. It is also a matter of record that the petitioners’ property came to be included into extended limits of the Surat Municipal Corporation and the petitioners are shown as the owners of the properties. Therefore, the notices were issued by the Surat Municipal Corporation in the year 2005-06 in the names of the petitioners. It is again not in dispute that the properties of the petitioners were included in the Master Plan after the finalization of the TP Scheme, after which the notice of dispossession came to be issued to the petitioners. 7.2 What goes against the petitioners is that they show that the subject land was another property of theirs by making a declaration under Section 15 of the ULC Act before the competent authority. Although, two other lands of the petitioners came to be declared before the competent authority. They needed to declare their holdings within three months of the order passed in their favour on 18.10.1979. Thus, on 18.01.1980, such a declaration under Section 15 of the Act ought to have been made by the petitioners. 7.3 Two aspects need reference at this stage, exemption was sought under Section 20 of the ULC Act by the petitioners for the use of the land for industrial purpose. However, on the ground that the subject land being the agricultural land, the State Government rejected, such a request, vide its order dated 25.06.1987. The petitioners were since required to fulfill, within three months of the purchase of the said land in the year 1979, the declaration, they did not seek any exemption. However, on the ground that the subject land being the agricultural land, the State Government rejected, such a request, vide its order dated 25.06.1987. The petitioners were since required to fulfill, within three months of the purchase of the said land in the year 1979, the declaration, they did not seek any exemption. Yet, another aspect goes against the petitioners that they were not agriculturists, at the relevant point of time, when they purchased the said land within the peripheral limits of 8 kilometers from the said land, as provided under the Tenancy Act. Such a declaration was to be filed under Section 15 of the ULC Act within a period of three months after the purchase of the land. Therefore, the petitioners were not heard, as there was no declaration filed by them under Section 15 of the ULC Act. 7.4 It is a matter of record that the permission under Section 20 of the ULC Act was granted to the petitioners for purchase of the land on 11.09.1979. It is, of course, not in dispute that the petitioners have not submitted any such declaration as was required under Section 15 of the ULC Act before the competent authority by 11.01.1980 of thereafter. A notice came to be issued on 06.05.1983 so also on 26.10.1988 under Section 6(2) of the ULC Act to the petitioner and their firm. Thereafter, a declaration came to be filed before the competent authority by the petitioners in the year 1995. The petitioners also filed an application for exemption for the use of the land for the industrial purpose under Section 20 of the ULC Act before the State Government, thereafter. The fact remains that the original owners of the land made an application before the State Government on 12.08.1978, seeking permission for sell of the land to the petitioners for agricultural purpose and the said permission was granted by the State Government, subject to the fulfillment of the conditions laid down in the order dated 11.09.1979. The land was to be used for the agricultural purpose. The permission for any other purpose shall be done as per the tenant regulations, as provided under the Master Plan. No transfer shall be made without prior permission of the government. No transfer in any other mode was to be made, against without prior permission of the State. The land was to be used for the agricultural purpose. The permission for any other purpose shall be done as per the tenant regulations, as provided under the Master Plan. No transfer shall be made without prior permission of the government. No transfer in any other mode was to be made, against without prior permission of the State. Any illegal construction on the land, for which the permission was granted, would automatically cancel such exemption with a further condition that the same cannot result into fragmentation of the total holding that the permission was granted. Breach of any of the conditions would entitle to recall exemption. The collector was directed to make an entry in the Village Form Nos.6 and 7/12, which was subject to the other prevalent laws. 7.5 With regard to the petitioners not being agriculturists and hence the prohibition, within the peripheral area of 8 kilometers from the said land, as provided under the provisions of the Tenancy Act, no authority, at any point of time, had raised any objection and the petitioners continued to possess the same and the entry was also mutated, where the names of the petitioners mutated in the records of the Surat Municipal Corporation. It also emerges from the affidavit-in- reply filed by the respondent-authority that notice came to be issued to the petitioners on 06.05.1983 under Section 6 (3) of the ULC Act. However, since, the petitioners had not filed the required declaration, the notice for her were issued to the original owners. The original owners naturally no longer were interested in the said land, and therefore, they did not file any reply to the notice issued for hearing and hence, the competent authority passed the order under Section 8(4) of the ULC Act on. 17.08.1987 and on 11.02.1988 and the Final Statement under Section 9 was issued to the original owners, by the competent authority again on both these days. The notification under Section 10(1) and 10(3) of the ULC Act came to be published on 20.01.1988 so also on 31.08.1989 and on 09.09.1990. The notice under Section 10(3) of the ULC Act was issued on 26.03.1990 and on 18.09.1990 so also on 10.06.1992 and 11.11.1992. The notification under Section 10(1) and 10(3) of the ULC Act came to be published on 20.01.1988 so also on 31.08.1989 and on 09.09.1990. The notice under Section 10(3) of the ULC Act was issued on 26.03.1990 and on 18.09.1990 so also on 10.06.1992 and 11.11.1992. The authorized officer under Section 10(6) took the possession of the said land in the following manner: 7.6 Had the authority concerned not aware of the land having been already ordered to be transferred in favour of the petitioner, in wake of the order dated 11.09.1979, there was no any requirement for the authority concerned to issue notice under Section 6(2) of the ULC Act to the petitioners on 06.05.1983. However, later on, the notice for hearing came to be issued to the original owners. The petitioners, of course, were required to file the declaration under Section 15 of the ULC Act. While passing the order dated 11.09.1979, it was incumbent upon the Collector to mutate the names of the present petitioners therein so also in Village Form Nos. 6 and 7/12. This condition had not been fulfilled by the competent authority and the petitioners continued to enjoy possession of the land for the agricultural purpose for all these years. With the extension of the limits of the Surat City, the said land came to be included in the municipal corporation on finalization of the Master Plan and the notice for vacating the possession was also issued to the petitioners. Of course, there is a belated challenge by the present petitioners to the order passed on 11.02.1988. But, the fact remains that notice under Section 10(6) of the ULC Act was issued on 06.09.1992 and on 11.11.1992 and it is contended that the possessions had been taken over in the presence of the panchas on 20.02.1992. The repeal of the ULC Act, another parcel of the land bearing Survey No. 100 paiki admeasuring 11,736 sq.mts. was taken over on 05.02.1993. Therefore the challenge by the petitioners in the year 1995 cannot be said to be belated challenge. Had it been the case of the petitioners not having taken possession from the original owners without the prior permission and sanction of the State Government, non-issuance of the notice at the time of hearing under Section 6(2) and while carrying out subsequent proceedings could not have justified the action of the respondent authorities. Had it been the case of the petitioners not having taken possession from the original owners without the prior permission and sanction of the State Government, non-issuance of the notice at the time of hearing under Section 6(2) and while carrying out subsequent proceedings could not have justified the action of the respondent authorities. There appears to be a constant possession and use for agricultural purpose by the petitioners. The only infirmity or default on the part of the petitioners is of not making declaration under Section 15 of the ULC Act. That would not nullify ipso facto the original order of grant of permission of transfer of the land by way of a registered sale deed in favour of the present petitioners. 7.7 The cumulative appreciation of the factual matrix would lead this Court to quash and set aside the impugned order 11.02.1988, which needs to be held to without availing an opportunity to the petitioners of hearing under the ULC Act. This Court sees no reason to direct any authority to once again avail an opportunity to the parties concerned. Such a validity of the action taken under Section 20 continues and the petition deserves to be allowed. 8. Resultantly, this petition is ALLOWED. The impugned order dated 11.02.1988 passed by Respondent No.2 is quashed and set aside. Rule is made absolute, accordingly. Direct service is permitted.