1994 Supreme(Guj) 50

Gujarat High Court
Judgename :A.N.Divecha
KANAIYALAL MANEKLAL SHETH - Appellant
Versus
COMPETENT AUTHORITY and ADDITIONAL COLLECTOR - Respondent
S.C.A. 2734 of 1986
Decided On : 02/23/1994

Headnote:Urban Land (Ceiling and Regulation) Act, 1976-Sec. -21(1), read with Urban Land (Ceiling and Regulation) Rules-Rule -11-A Condition No. 3-Terms and conditions subject to which a person -can hold excess vacant land-Can Competent Authority lay down any -other condition not prescribed under the Act and Rules-Held, No-Condition -that construction should be started within one year of the permission -is not prescribed under the Act and Rules-Imposition of said condition -and cancellation of permission for alleged breach of condition held -invalid-Time consumed in litigation not to be counted.The wordings of Rule 11-A of the Rules buttress the view -taken by me with respect to interpretation of the concluding part -of Section 21(1) of the Act. It has been clearly provided therein -that the terms and conditions which could be imposed while granting -permission under Section 21(1) of the Act could be none else but what -are specified in Schedule I-A appended to the Rules. As pointed out -hereinabove, the Rules have been made subject to the scrutiny of both -Houses of Parliament as provided in Section 46(3) of the Act. Not -for a moment it can be doubted that Parliament did scrutinise the -Rules for the purpose of finding out whether or not the legislative -policy behind the enactment has been carried out therein. If, on scrutiny, -Parliament had found that the Rules in that regard were not in consonance -with the Scheme of Section 21(1) of the Act, it would have suggested -modifications therein or it would have indicated that such Rules should -not be made in exercise of its power under Section 46(3) of the Act. -Nothing of the sort appears to have been done. In this view of the -matter also, there is no escape from the conclusion that the conditions -to be imposed while granting permission under Section 21(1) of the -Act could be none other than the conditions prescribed by the Rules -or, in other words, set out in Schedule I-A appended thereto. There -could be thousand and one reasons for delay in commencement of the -construction work. What is required to be seen is whether or not the -scheme is completed within the stipulated time-limit. In that view -of the matter also, I am of the opinion that imposition of such condition -as to the time-limit within which the construction activity has to -be commenced is not so much in public interests as is sought to be -made out. The Competent Authority has no power to prescribe conditions -other than what are set out in Schedule I-A appended to the Rules. -This may be subject to the rider that certain conditions in-built -in the scheme of Section 21(1) of the Act can or may be prescribed. -For example, a condition may be prescribed that not more than one -dwelling unit must be allotted to one family belonging to the weaker -sections of the society. This would be in consonance with the binding -law declared by the Apex Court in its ruling in the case of Shantistar -Builders vs. Narayan Khimalal Totame, reported in AIR 1990 SC at -page 630 (vide paragraph 17 at page 635). As aforesaid, such conditions -as are in consonance with the legislative policy reflected in Section -21(1) of the Act may be imposed, for such conditions would be found -in-built thereunder. Except such conditions, the Competent Authority -cannot impose any condition other than those prescribed by the Rules -or, in other words, those set out in Schedule I-A thereto. The conditions -that can be imposed while granting the permission thereunder would -only be the conditions as set out in Schedule I-A appended to the -Rules and such other conditions as are found in-built in the legislative -policy reflected therein. As pointed out hereinabove, the Competent -Authority had no power to impose any such condition with respect to -the time-limit within which the construction work was required to -be commenced by the petitioner in each case. In that view of the matter, -the petitioner in each case could not be subjected to any action for -its breach under Section 21(2) thereof. The fact that each petitioner -agreed to abide by the terms and conditions to be imposed by the Competent -Authority while making an application under Section 21(1) of the Act -is no ground to subject him to abide by any and every condition imposed -by the Competent Authority without any authority of law. It is a settled -principle of law that there cannot be any estoppel against a statute.

       [Paras 12, 15, 16, 17 & 18]

       Urban Land (Ceiling and Regulation) Act, 1976-Sec. -21(1)-Object, purpose and legislative intent-Explained.

       The scheme of Section 21 of the Act makes it clear that -a landholder would be permitted to retain his excess holding if he -undertakes to construct dwelling-units for the weaker sections of -the society. This is done because it would be well- nigh impossible -for the Government or Governmental instrumentalities like a statutory -Housing Board to undertake any construction work of dwelling-units -for the weaker sections of the society on a mass scale or on a very -large scale. It appears that the Legislature in its wisdom has therefore -thought it fit to allow individual landholders to undertake such exercise.

       [Para 10]

       Interpretation of Statute-Word "Prescribed" -in sec. 2(j) of Urban Land (Ceiling & Regulation) Act-Means prescribed -by Rules under the Act.

       The word "prescribed" is defined in Section 2(j) of the -Act to mean prescribed by rules under the Act.

       [Para 4]

       Words and Phrases-Include-Sec. 21(i) of Urban -Land (Ceiling & Regulation) Act-Not to be always read as word -of expansion-In the present context it is a direction to the rule -making authority.

       Word "includes" cannot always be read as a word of extension -without reference to the context. The word "including" in the context -is a direction to the rule-making authority to keep in mind that a -condition as to the time-limit within which such buildings are to -be constructed has to be prescribed. The inclusive portion of the -statutory provision was in the nature of a guideline given to the -rule-making authority while exercising the power inter alia under -Section 46(2)(j) of the Act. The idea appears to be that the rule-making -authority need not overlook a condition in that regard while prescribing -other necessary conditions. This aspect of the Scheme of Section 21(1) -of the Act is to be borne in mind while construing the word "including" -occurring in the concluding part of Section 21(1) of the Act. In this -view of the matter, there is no escape from the conclusion that the -context in which the word "including" occurs in the statutory provision -of Section 21(1) of the Act, that word has to be interpreted as giving -a meaning to the expression rather than as expanding the scope thereof -or extending the power of the Competent Authority in that regard.

       [Paras 7, 8, 10 & 11]

       Words and Phrases-Maxims-No law would compel -a perform an impossibility -Cancellation of permission by Competent -Authority-Cancellation set aside-Party cannot be blamed for -not completing construction within stipulated time limit-Maxim -applied.

       At this stage it would be desirable to take note of certain -well-known legal maxims. Firstly, no law would compel a person to -perform an impossibility. If such landholder whose permission under -Section 21(1) of the Act is cancelled for contravention of a condition -which could not be imposed by the Competent Authority is required -to surrender the concerned excess vacant land on expiry of the stipulated -five-year time limit, the State Government will not be able to provide -dwelling-units to those members of the weaker sections of the society -who might have opted for such dwelling-units for which such permission -was granted. They would be left at the mercy of the government or -the governmental instrumentalities for fulfilment of their dreams -of having their own house. Instead, if such landholder is allowed -to proceed further with implementation of his scheme, those members -of the weaker sections of the society who have opted for such dwelling-units -might expect realisation of their dream-house in certain specified -time-limit though it could be delayed by some period on account of -pendency of the litigation.

       [Paras 20 & 21]