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2001 Supreme(Guj) 819
Gujarat High Court
Judgename :KUNDAN SINGH
NUTAN SAURASHTRA ENGINEERING WORKS - Appellant
Versus
GOVERNMENT OF GUJARAT - Respondent
S.C.A. 1273 of 1987
Decided On : 12/18/2001
Headnote:Urban Land (Ceiling & Regulation) Act, 1976 (Central Act 33 of 1976) -Secs. 4(5), 6(1), 10(1), 10(3), 10(5) & 13(3) -Prayer for quashing orders passed by respondents Nos. 2 & 3 & for declaring that petitioner not legally holding excess land -Held, according to Sec. 4(5), property of partnership firm will not be deemed to be one unit for purpose of calculating extent of vacant land -Hence, impugned orders being illegal, quashed & set aside -State Govt. directed to forthwith hand over possession of disputed land to petitioner firm.
The provisions of Sec. 4(5) of the Act makes it clear that the share of partner of the partnership firm regarding vacant land shall also be taken into account in calculating the extent of vacant land held by such person. As such, on the basis of the statutory provisions of law, it is clear that the property of the partnership firm will be deemed to be property of each individual and share therein of each partner will be considered for taking into account in calculating the extent of vacant land. Thus, the provisions of Sec. 4(5) of the ULC Act make it clear that the property of the partnership firm will not be deemed to be one unit for the purpose of calculating extent of vacant land under the ULC Act. Thus, all the authorities have committed error on the face of the record in holding that the partnership firms property will be deemed to be one unit and the share of the partners of the partnership firm will not be taken into account. It is pointed out that one of the partners of the petitioner firm has been given 795.66 sq. mtr. as share vide order dated 8.9.1982, the remaining property of the land would be the property of the rest of the partners of the petitioner firm. It appears from the calculation that after dividing the share of other partners of the petitioner firm would less for declaring excess land out of the entire property of the partnership firm. The excess land taken over in possession by State Government has not been used for any purpose by the State Government.
[Para 13]
Considering the facts and circumstances of the case, material on record and the submissions made by the learned counsel for the parties, the impugned orders passed by the respondent Nos. 2 and 3 Annexures B and D respectively are illegal and are not sustainable in the eye of law and are not in consonance with the statutory provisions of law. Therefore, this petition deserves to be allowed. Accordingly, this petition is allowed and the impugned orders passed by the respondents No. 2 and 3 Annexures B and D respectively are quashed and set aside. The State Government is directed to forthwith hand over the possession of the disputed land to the petitioner firm if the land is in possession of the State Government.
[Para 14]
( 1 ) THIS petition has been filed for quashing an setting aside the orders passed by the respondents no. 2 and 3 at Annexures - B and Annexure-D to the petitioner respectively and also for declaring that the petitioner is not holing any excess land than the prescribed by the (Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred as the ULC Act.
( 2 ) IT is also stated that the petitioner is a registered partnership firm having two partners in the partnership firm namely Pranlal Tribhovandas Khara and Virendra Pranlal Khara. The petitioner firm purchased the land bearing Survey No. 401 admeasuring 2652-1 sq. mtr. situated at Umakant Udyognagar Plot No. 12, Rajkot and that land belongs to the partnership firm and that was for the industrial purpose to start the industry and to construct a shed. The petitioner firm filled in form u/s 6 (1) of the ULC Act. Before the respondent no. 3 it was urged that initially there were six partners in the petitioner firm and each of the partners is entitled to hold vacant land to the extent of 1500 sq. mtr. . As such, there is no excess land. The property of the partnership firm cannot be assessed as one unit and individual share of the partners of the petitioner firm should also be take into account and it should be assessed accordingly. The respondent no. 3 held that the land to the e extent of 1152-20 sq. mtr. is in excess and ordered to vacate the specified portion of the land. The petitioner firm filed an appeal before the Tribunal wherein it was pointed out that one of the partners Pranlal Tribhovanas Khara had filed in his form in his individual capacity and his case was disposed of by ULC 6 (1) 2154 dated 8-9-1982 and by the said order, the land admeasuring 795-66 sq. mtr. has been included in his holding of the land in question of the firm. The respondent no. 2 dismissed the appeal. Hence, this petition has been filed against the orders passed by the lower authorities - respondents no. 2 and 3.
( 3 ) IT is stated that when form was filled in by the respondent firm, there were 6 partners. But thereafter by the dissolution of the partnership deed dated 7-11-1980, the firm was dissolved and thereafter there remained only 2 partners and outgoing partners were paid a sum of Rs. 23,064. 00. One partner of the petitioner firm was assessed in his individual capacity as he was holding some other land. The land admeasuring 795-66 sq. mtr. . belonging to his share from the land in question has already been assessed in his individual capacity. It is also stated that in view of the provisions of the ULC Act, the same land cannot be assessed twice. As such, the respondent authorities have committed an error parent on the face of the record of the case on the ground that Section 4 (5) of the ULC Act the authority concerned is required to take into account vacant excess land held by any person. Where any partnership firm or union corporate association or body of individuals holds vacant lands or holds any other land on which there is a building with a dwelling - unit therein or holds both vacant land and such other land, then the right or interest of any person in the vacant land or such other land or both, as the case may be, on the basis of his share in such firm or association or body shall also be taken into account in calculating the extent of vacant land held by such person.
( 4 ) THE authorities have committed an error in holding that the firms property will be deemed to be one unit after excluding 1500 sq. mtr. and remaining land will be deemed to be excess land. As such, the orders passed by the lower authorities - respondents no. 2 and 3 require to be quashed and set aside by this Court.
( 5 ) IN the counter affidavit filed on behalf of the respondent no. 3 it is stated that on verification of the file, the competent authority has passed the order declaring the land excess admeasuring 1152. 20 sq. mtr. vide order dated 12-8-1983 and the appeal was also filed ag
