1993 Supreme(Guj) 197

Gujarat High Court
Judgename :S.D.Shah
Givndlal Chunilal Dalvadi - Appellant
Versus
STATE - Respondent
S.C.A.7891 of 1988
Decided On : 06/11/1993

Headnote:Urban Land (Ceiling & Regulation) Act, 1976 — S. 21(1)(2) — Permission with condition to complete construction within a period of 5 years — Contravention thereof — Competent Authority as well as appellate Tribunal can not be allowed to exercise power under sub-s. (2) of S. 21 so as to declare the land as excess vacant land when persons belonging to the weaker sections of society have invested their hard earned income and are in possession — Power should be exercised in meaningfully to see that any contravention of the condition of scheme does not result in frustration of the scheme — Than apart there is reasonable & just explanation of existence of disturbed condition in the city of Ahmedabad due to communal riots delaying completion of work — Held, in the facts & circumstances of the case it is reasonable to condone breach of condition by imposing some reasonable penalty.

       It is true that such construction is completed beyond the time limit. Despite such contravention the question which is required to be answered by this Court is as to whether for such non-compliance entire scheme can be rendered meaningless by permitting the Government to take over the land as vacant land especially when all houses are constructed and are being occupied by persons belonging to the weaker sections of the society. This Court also fails to understand as to how in the fact situation of this type the Competent Authority can be permitted to utilise the power u/s.21(2) so as to declare the land as excess vacant land when persons belonging to the weaker sections of the society have invested their hard earned income for getting the dwelling units and when they have got such dwelling units, Therefore, I am of the opinion that the order of the competent Authority as confirmed by the Appellate Tribunal cannot be permitted to stand, but at the same time some reasonable condition shall have to be imposed for breach of terms and condition subject to which permission u/s. 21(1) was granted.

       [Para 11]

       It was the case of the holder of the land that he could not complete the construction within the stipulated time as building permission was granted very late by Nagar Panchayat of Odhav and also because of he disturbed condition in the city of Ahmedabad due to communal riots which erupted for 3 to 4 times in the period of 3 years. The construction work was therefore required to be abandoned and labourers were also affraid for coming to the work immediately after normalcy was restored. The factum of riots in the city of Ahmedabad cannot be disputed and it shall have to be accepted that some reasonable explanation was given by the land holder which partially explained the delay in completing the construction. It would have been therefore just and reasonable in the facts and circumstances of the case to condone such breach of condition by imposing some reasonable penalty.

       [Para 12]

       Urban Land (Ceiling & Regulation) Act, 1976 — S. 21(1)(2) — Charging more price in breach of condition of permission — Not affording justification in cancelling the scheme as such — Competent Authority after determining the excess amount charged shall call upon the petitioner to deposit such amount within reasonable time — Order of competent authority & that of appellate Authority to declare the land as excess vacant land quashed & setaside — Subject to conditions — Laid down.

       After holding necessary inquiry the competent Authority shall decide as to what excess amount has been paid by Jethabhai Ughrabhai Parmar and Chirag P. Sutaria and for such excess amount the Competent Authority shall call upon the petitioner to deposit such excess amount with Competent Authority within reasonable time. The petitioner shall deposit such amount as may be determined by the Competent Authority before the Competent Authority and in case the petitioner fails to deposit such amount within stipulated time the Judgment and order of this Court shall become in-operative and the order of the Competent Authority as confirmed by the Appellate Authority shall operate.

       [Para 13]

       This Court is of the opinion that there was no justification in cancelling the Scheme as such. The order of the Competent Authority and that of the Appellate Authority are therefore quashed and set aside subject to following conditions which the petitioner shall comply by 31st July 1993.

       (i)

       The petitioner shall deposit penalty/compensation for late construction at the rate of Rs. 2,000/- per incomplete dwelling units in `A type tenements totalling to Rs. 20,000/- and at the rate of Rs. 2,000/- per incomplete `B type row-house totalling to Rs. 90,000/-

       (ii)

       One plot of land in `B type row-houses which is not constructed upon shall vests in the Government:

       (iii)

       The petitioner shall deposit the amount of excess recovery made from Jethabhai Ugharabhai Parmar and Chirag P. Sutaria which may be determined by the Competent Authority as directed hereinabove whthin one month of the order of Competent Authority and the Competent Authority shall decide such amount within 3 months from today;

       (iv)

       In case, any of the aforesaid conditions are not complied with by the petitioner, the Judgment and order of the Competent Authority as confirmed by the Appellate Authority shall operate and Judgment of this court shall become inoperative.

       [Para 14]

       Urban Land (Ceiling & Regulation) Act, 1976. — S. 21 — Permission for utilisation of land — Object of the provision was to see that excess vocant land is utilised for `have nots — But unfortunately considered as major escape route to escape from clutches of the Act, by unscrupulous land holders building Contractors & developers having means — Requirement was to implement the provision faithfully.

       Though object in enacting Section 21 of the Act was laudable, that is, to see that the excess vacant land is utilised for have nots of the society by providing them small dwelling units so that the problems of scarcity of houses which urban population is facing can be substantially solved by implementing the scheme u/s. 21 of the said Act, it has miserably failed to achieve the desired objective. It may be stated that this section is regarded by many commentators as major escape rout to escape from the clutches of U.L.C.Act, by unscrupulous land holders, building contractors and developers who by means, fair and foul thwart and render meaningless the legislative will and the constitutional mandate. Any technical or hyper technical approach to the problem is bound to result into frustrating the legislative will and still further denueding the constitutional guarantee of its meaningful content. Shelter to every homeless individual can only be provided if practical, realistic and sensitive approach is taken to the problem.

       [Para 9]