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2018 DIGILAW 616 (GUJ)

STATE OF GUJARAT v. RAMILABEN A. LAKDAWALA

2018-04-16

R.SUBHASH REDDY, VIPUL M.PANCHOLI

body2018
JUDGMENT AND ORDER : R. Subhash Reddy, J. This Letters Patent Appeal, under Clause 15 of the Letters Patent, is filed by the original respondents in Special Civil Application No.8801 of 1990, aggrieved by the order dated 26.12.2016 passed by the learned Single Judge. 2. The aforesaid Special Civil Application was filed with the prayers, which read as under: "(A) That a writ of certiorari or any other writ or orders may please be issued quashing and setting aside the orders dt.19/12/86 and 22/10/90 being Annex.B and C hereto and it may please be declared that the petitioners are not holding any land in excess of ceiling limit. (B) That during the pendency of hearing of this petition the respondents their agents and subordinates, be restrained by an injunction of this Hon'ble Court from implementing the impugned orders and petitioners possession of land bearing S.No.486 may please be protected. (C) Adinterim in terms of para (B) above. (D) Costs of this petition may please be provided for. (E) Any other order or orders as in the interest of justice this Hon'ble Court may deem fit and proper may please be made." 3. The learned Single Judge, vide order dated 26.12.2016 allowed the petition by quashing the impugned orders questioned in the petition. 4. The respondents, original petitioners, are legal heirs of original owner, late Shri Amrutlal Jamnadas Lakdawala, of the land covered by Survey No.486 of Village Vasu of Surat District. The competent authority under the Urban Land (Ceiling & Regulation) Act, 1976, by order dated 19.12.1986, has held that, the original declarant holds land admeasuring 1066.7 sq.mtrs., as the excess land in Survey No.486. The original petitioners preferred an appeal before the ULC Tribunal and the ULC Tribunal, by order dated 22.10.1990, confirmed the order passed by the competent authority. 5. The petition was earlier disposed of by the learned Single Judge, vide order dated 5.5.1999, on the ground that, Urban Land (Ceiling and Regulation) Act, 1976 is repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999. Aggrieved by the said order, the appellants herein have carried the matter in Letters Patent Appeal No.256 of 2003. The Division Bench of this Court, vide order dated 29.7.2004, allowed the appeal along with other matters and remanded the matter to the learned Single Judge for deciding it afresh on merits. Aggrieved by the said order, the appellants herein have carried the matter in Letters Patent Appeal No.256 of 2003. The Division Bench of this Court, vide order dated 29.7.2004, allowed the appeal along with other matters and remanded the matter to the learned Single Judge for deciding it afresh on merits. After the remand, the appellants herein have filed reply affidavit to which, the respondents-original petitioners have filed rejoinder. 6. The original owner, late Shri Amrutlal Jamnadas Lakdawala, filed declaration in Form No.1, as contemplated under section 6 of the Act, declaring his holding including the land bearing Survey No.486 admeasuring 1 acre 2 gunthas i.e. 5767 sq. mtrs. situated at village Vasu, District Surat. Thereafter, he made an application to the State Government on 13.08.1976 seeking exemption in respect of the land under Section 20 of the Act stating that, he was using the land for agricultural purpose. The competent authority, by the order dated 23.05.1978, held that, as the said land was within the agricultural zone, as such, it would not be treated as the vacant land and, therefore, the question of granting exemption does not arise. Thereafter, the competent authority, vide order dated 15.12.1980, ordered to file Form No. 1 of said Amrutlal on the ground that, said land fell within the agricultural zone, in the master plan. It appears that, said order was taken in suo motu review by the State Government and the State Government set aside the order of competent authority and remanded the case to the competent authority for deciding it afresh after holding requisite inquiry. 7. Though it is the case of the appellant that, such order is passed by the Government without issuing any notice but, having regard to the subsequent proceedings, which are subject matter of challenge, we are of the view that, such aspect need not be gone into in this appeal. 8. After order was passed on suo motu review by the State Government, the competent authority, thereafter again, reconsidered the case and vide order dated 19.12.1986, held that, said Amrutlal held 1066.7 sq. mtrs. of excess land, out of Survey No. 486. It appears that, original declarant expired on 25.7.1988, leaving behind the respondents as heirs and legal representatives. The respondents preferred appeal in Appeal No. 20 of 1990 before the ULC Tribunal. The said appeal was dismissed on merits vide order dated 22.10.1990. 9. mtrs. of excess land, out of Survey No. 486. It appears that, original declarant expired on 25.7.1988, leaving behind the respondents as heirs and legal representatives. The respondents preferred appeal in Appeal No. 20 of 1990 before the ULC Tribunal. The said appeal was dismissed on merits vide order dated 22.10.1990. 9. After the remand order was passed by the Division Bench of this Court, original petitioner No.2 filed additional affidavit stating that, land covered by Survey No. 486 (New Block/Survey No.281) of Village Vasu of District Surat was agricultural land, in the master plan at the time of commencement of the ULC Act. It was further stated that, new master plan published by SUDA showing the land in the residential zone is only made effective from 22.11.1988. It was the case of the petitioners that a canal is passing from the middle of the land bearing Survey No. 486, dividing the said land into three parts and the land, which is required to be kept open under the SUDA Building Regulations, where the construction is not permissible, could not have been treated as the vacant land. It was also pleaded that, actual and physical possession of the subject land was not taken over by the authorities, as such, the subject land was included under the Preliminary Town Planning Scheme No. 6 (Vasu) of Surat and under the said scheme, the old Survey No. 486 was given new Survey No. 281 and the respondents/original petitioners were allotted the original plot Nos. 34, 35 and 36 admeasuring 2400 sq. mtrs. and those original plots were reconstituted as Final Plot No. 37 admeasuring 1990 sq. mtrs. It was also their case that, they were also served with notice under Section 67 of the Town Planning Act for variation in the area of land in question and pursuant to said notice, the possession of excess land under the Town Planning Scheme was also taken and they paid the incremental contribution under the said Town Planning Scheme. 10. After filing of such additional affidavit by the respondents-original petitioners, on behalf of the appellants also, additional affidavit-in-reply was filed, reiterating their stand that, subject land was excess vacant land and notification under Section 10 (3) was issued on 12.09.1989 and the notice under Section 10(5) was issued to the petitioners through registered post. 10. After filing of such additional affidavit by the respondents-original petitioners, on behalf of the appellants also, additional affidavit-in-reply was filed, reiterating their stand that, subject land was excess vacant land and notification under Section 10 (3) was issued on 12.09.1989 and the notice under Section 10(5) was issued to the petitioners through registered post. Thereafter possession of the subject land was taken over on 17.03.1990 by drawing panchnama. 11. The Town Planner, who was impleaded as party respondent, also filed affidavit-in-reply stating that, draft town planning scheme was framed under the Gujarat Town Planning and Urban Development Act, 1976, which was approved by the State Government on 22.12.1995. Thereafter, Preliminary Town Planning Scheme was approved by the State Government on 29.09.2008 and Final Town Planning Scheme was approved by the State Government on 22.01.2014. It is categorically stated that, under the said scheme, Revenue Survey No. 281 admeasuring 2400 sq. mtrs. was given Final Plot No. 37 admeasuring about 1990 sq. mtrs. and the allotment of final plot to the allottees was reflected in the map prepared by the competent authorities. 12. The Surat Urban Development Authority, which was impleaded as party respondent in the petition, also filed affidavit stating inter alia that, as per Regulation No. 14 of the General Development Control Regulations(GDCR) , which came into force from 3.3.1986, no development was permissible within 4.5 mtrs. from the canal and the said regulation was subsequently amended in the year 2004 as per which, no development is permissible within 9 mtrs. from the boundary of canal. 13. The learned Single Judge, while considering the various contentions advanced by both sides and the material placed on record, has allowed the petition, mainly on the ground that, the physical possession of the excess land of the respondents-original petitioners was not taken by the competent authority. Further, taking into account the Scheme prepared under the provisions of the Gujarat Town Planning and Urban Development Act, 1976, the learned Single Judge has held that, land in question was included in the Town Planning Scheme and the respondents were allotted original plot Nos.34 to 36 and the Final Plot No.37, in lieu of the original plots. The learned Single Judge has also held that, the original petitioners were not served with any notice under section 10(6) of the Act before taking over possession. The learned Single Judge has also held that, the original petitioners were not served with any notice under section 10(6) of the Act before taking over possession. The learned Single Judge has considered the plea of the respondents-original petitioners that, the authorities have computed the land on which construction is not permissible as per GDCR. 14. Heard Mr. K.M.Antani, learned Assistant Government Pleader appearing for the appellants, Mr.N.V.Gandhi, learned counsel for the respondent Nos.2, 3 and 4 and Mr. Dhaval G. Nanavati, learned counsel appearing for the respondent No.5. 15. In this appeal, it is contended by Mr. Antani, learned Assistant Government Pleader appearing for the appellants that, under the provisions of Urban Land Ceiling Act, after issuance of notice under section 10(5) of the Act, when the declarant has not handed over the possession, possession of the excess land was taken by the authority by drawing panchnama on 17.3.1990. It is further submitted that, even if such land is included in the Town Planning Scheme, the respondents cannot be held to be entitled for final plot, based on the land, which was found in excess of the holding of the respondents-declarants. It is further submitted that, as much as the possession was taken before Repeal Act of 1999 came into force, the learned Single Judge has committed error in allowing the petition. 16. On the other hand, Mr. N.V.Gandhi, the learned counsel appearing for the respondents-original petitioners has submitted that, as per the definition of the vacant land under section 2(q) of the Urban Land (Ceiling and Regulation) Act, 1976, the competent authorities should not have taken into account the land from the margin of the canal, where building activity is not permissible. It is further submitted that, the very fact that the authorities under the Urban Land (Ceiling and Regulation) Act, 1976, have allotted original Plot Nos.34 to 36 to the respondents-original petitioners and Final Plot No.37, which is outside the original plot numbers, it cannot be said that the authorities have taken possession of the excess land. It is submitted that, as the respondents-original petitioners have continued in actual and physical possession, as such, they were allotted original plots and consequently, final plot in Town Planning Scheme, which is finally approved by the Government. It is submitted that, as the respondents-original petitioners have continued in actual and physical possession, as such, they were allotted original plots and consequently, final plot in Town Planning Scheme, which is finally approved by the Government. In any event, it is submitted that, as admittedly, no notice was issued under section 10(6) of the Act, in view of the Repeal Act of 1999, there are no grounds to interfere with the order passed by the learned Single Judge. 17. From the contentions advanced and the materials placed on record, in this case, it is to be noticed that, at first instance, after filing of the declaration by the original owner, late Shri Amrutlal Jamnadas Lakdawala, an application was filed before the Government, claiming exemption of the land on the ground that, said land was being used for agricultural purpose. At that point of time, having noticed that the land itself is in agricultural zone, in the master plan, which was in force, order was passed by the Government stating that, there was no need to consider the application for exemption. Thereafter, the primary authority has passed the order for filing of Form No.1 by the declarant. However, it appears that, the Government has taken the case in suo motu and reviewed the order passed by the competent authority and remanded the matter to the competent authority for deciding it afresh. Thereafter, the competent authority has reconsidered the matter and passed the order on 19.12.1986, holding that, original declarant, Shri Amrutlal held 1066.7 sq.mtrs. of land as excess land. It is clear from the pleadings and record that the canal passes through the land in question. It is also clear from the affidavit filed by the impleaded respondent Surat Urban Development Authority that, even during the year 1986, as per Regulation No.14 of the General Development Control Regulations, development was not permissible within 4.5 meters from the canal at the relevant time. Said Regulation was subsequently amended in the year 2004, providing that, no development is permissible within 9 meters from the canal boundary. It is the specific case of the respondents that, except leaving the canal area, authorities have not considered for excluding the land from the margin of the canal, where the building activity is not permissible. Said Regulation was subsequently amended in the year 2004, providing that, no development is permissible within 9 meters from the canal boundary. It is the specific case of the respondents that, except leaving the canal area, authorities have not considered for excluding the land from the margin of the canal, where the building activity is not permissible. At this stage, it is apt to note the definition under Section 2(q) of the Urban Land (Ceiling and Regulation) Act, 1976, which reads as under: "2. Definitions: . . . (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; and (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 livestock, 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. 18. It is clear from the aforesaid definition that land, on which construction of the building is not permissible under the building regulations in force in the area in which such land is situated, cannot be termed as a vacant land within the meaning of the Act. 18. It is clear from the aforesaid definition that land, on which construction of the building is not permissible under the building regulations in force in the area in which such land is situated, cannot be termed as a vacant land within the meaning of the Act. It is clear from the reply affidavit filed by the impleaded respondent in the petition i.e. Surat Urban Development Authority that, as per the Regulations, at the relevant time, no construction was permissible to the extent of 4.5 meters from the canal boundary during the year 1986 and subsequently, amended the said Regulation in 2004, as per which, no development is permissible within 9 meters from the boundary of canal. Since the said aspect is not considered, the same itself is a ground to set aside the order of the primary authority and the appellate authority. 19. It is to be noticed that, non-issuance of notice, under section 10(6) of the Act, is also not controverted. Merely it is the case of the respondents-original petitioners that, after issuance of notice under section 10(5) of the Act, which was sent by registered post, the possession of the subject land was taken by drawing panchnama on 17.3.1990. When the declarant does not hand over possession of the excess vacant land, after issuance of notice under section 10(5) of the Act, the authorities are empowered under section 10(6) of the Act to take actual and physical possession of the land. As much as the land in question is a vacant land, unless the declarant is notified about taking forceful possession of the land, as contemplated under section 10(6) of the Act, he is to be issued notice by the authorities, otherwise, such declarant, who is not expected to be at the site, which is a vacant land, will be in dark, whether possession is taken or not. If the authorities, on their own, cannot come to the site and take possession of the land by drawing panchnama, as such, the plea of the respondents that the possession is taken, cannot be accepted. As we are of the view that, no notice is issued under section 10(6) of the Act, before drawing panchnama for taking possession, the alleged taking possession of the excess land on 17.3.1990 is illegal and invalid. As we are of the view that, no notice is issued under section 10(6) of the Act, before drawing panchnama for taking possession, the alleged taking possession of the excess land on 17.3.1990 is illegal and invalid. Further, the very fact that the land in question is included in the Town Planning Scheme and the respondents/original petitioners were allotted original Plot Nos.34 to 36 and were also given Final Plot No.37 and such scheme is approved by the Government, it is too late in the day for the appellants to claim that the said land in question, which is alleged to be in excess, is in their possession. 20. As much as we are of the view that, the possession of the excess land is not taken in accordance with law, as such, we are of the view that Urban Land (Ceiling and Regulation) Repeal Act of 1999 will apply to the land in question. Consequently, all proceedings stand lapsed. Further, the respondent authorities, while computing the land, has wrongly computed even the land from the boundary of the canal, where construction is not permissible, as per GDCR. As per the definition of section 2(q) of Urban Land (Ceiling and Regulation) Act, 1976, the land where construction is not permissible, as per the applicable regulations, cannot be treated as a vacant land. It is clear from the material placed on record that, land, which was found to be in excess, is already included in the Town Planning Scheme and the respondents/original petitioners were allotted original Plot Nos.34 to 36 and were also given Final Plot No.37 in the scheme approved by the Government, we are of the view that, the learned Single Judge has not committed any error in recording the findings on the aforesaid issue, while allowing the petition. 21. Accordingly, we do not find any merit in this Letters Patent Appeal. The same is devoid of any merit and, accordingly, is dismissed. No order as to costs. Consequently, Civil Application also stands disposed of.