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2007 Supreme(Guj) 30
Gujarat High Court
Judgename :JAYANT PATEL
VALIBEN SHAKARABHAI ALIAS SHANKERSING VIRABHAI - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION 156 Of 1999
Decided On : 01/16/2007
Headnote:Point in Issue :
Whether in the facts and circumstances of the case impugned order passed by State Government relating to grant of exemption deserves to be interfered with?
Head Note :
Urban Land (Ceiling and Regulation) Act, 1976 (Central Act 33 of 1976) - Sections 6, 20, 8(4), 9, 10(1), 10(3), 10 (5), 23, 20(1), 8(2)(iii) & 20 (1)(b) - Exemption - Grant of - Order of State Government - Sustainability - Scope of interference - Finding as to - In view of facts and circumstances of the case impugned order of State Government dated 31.12.1998 so far it relates to granting exemption for the area admeasuring 10390 bearing Survey No. 622 does not deserve to be interfered with, since the challenge to the said order of grant of exemption only upto that area and not for the whole area is meritless, save and except to the extent that Galalben would be entitled to exercise option for whole for the land admeasuring 8195 sq. mtrs. or the proportion to the net amount as may be available in T.P. Scheme and from the remaining area which goes to the share of Government - The State Government may identify the portion to be allotted to Respondent No. 3 admeasuring 4500 sq. mtrs. or in proportion to the net area as may be available in T.P. Scheme - Similarly area admeasuring 1500 sq. mtrs. may be allotted to Respondent No. 4 Society - Court clarify that the reservation for commercial purpose over the land bearing Survey No. 622 in T.P. Scheme shall remain as it is and shall not be disturbed - Further Court clarify that present order shall not be read as investing any right with the Respondent Nos. 3 and 4 Society to get the refund the amount from the Government on account of deduction in T.P. Scheme - State Government shall get the option finalised and the area finalised in consultation with relevant parties.
Held :
From the observations and discussions the impugned order passed by the State Government dated 31.12.1998 so far as it relates to granting exemption for the area admeasuring 10390 bearing Survey No. 622, does not deserve to be interfered with, since the challenge to the said order of grant of exemption only up to that area and not for the whole area is meritless, save and except to the extent that in view of the reason recorded hereinabove, Galalben would be entitled to exercise option for whole for the land admeasuring 8195 sq. mtrs., (original measurement) or in proportion to the net amount as may be available in the T.P. Scheme and from the remaining area, which goes to the share of the Government, the State Government may identify the portion to be allotted to Respondent No. 3 admeasuring 4500 sq. mtrs. (original measurement) or in proportion to the net area as may be available in the T.P. Scheme in proportion thereto and the area admeasuring 1500 sq. mtrs. (original measurement) to Respondent No. 4 Society or the proportionate net area in the T.P. Scheme and the further remaining area admeasuring 2195 sq. mtrs. (original measurement) (in which the exemption is granted) in proportion to the next area as may be available in T.P. Scheme will be identified by the State Government. It is clarified that the reservation for commercial purpose over the land bearing Survey No. 622 in the T.P. Scheme shall remain as it is and shall not be disturbed by the present order and each holder namely. Petitioner No. 2 the Petitioner No. 1 and Petitioner No. 3 in association with Petitioner No. 1 and Petitioner No. 2 as well as Respondent Nos. 3 and 4 Society may be entitled to the actual area in proportion to the original holding also after adjustment of the area reserved for commercial purpose of admeasuring 1500 sq. mtrs. [Para 31]
It is also clarified that the present order shall not be read as investing any right with the Respondent Nos. 3 or 4 Society to get the refund of the amount from the Government on account of the deduction in the T.P. Scheme and availability of the net area in the T.P. Scheme as against the original holding or allotment and the rights for proportionate compensation as may be available as per the provisions of the Gujarat Town Planning and Urban Development Act may be pursued in accordance with law separately. [Para 32]
Law Laid Down :
It is only after the excess land is actually determined a person can know the extent of excess land in his holding and think of asking for exemption.
Case Law Analysis :
Special Recovery Officer and Competent Authority vs. P.R. Rao, JT 2000 (1) SC 393 [Para 26].-Relied on
Conclusion :
In view of the facts and circumstances impugned order of State Government granting exemption does not deserve to be interfered with.
Decided in Favour of :
Appellant
Petition Partly Allowed
( 2 ) AS per the Government, the whole Survey No. 622 was comprising of the larger area, but the Government has taken possession of the land, which is declared as surplus land on 18. 12. 1991, pursuant to the order passed by the ULC Authority.
( 3 ) IN the year 1995, Shakrabhai @ Shankersing together with others preferred Special Civil Application No. 2211 of 1995 for the relief inter alia to quash and set aside the order dated 22. 11. 1989 passed by the ULC Authority declaring surplus lands including the land in question as excess land and it was also prayed in the said petition to declare that the petitioners were having no excess land. In the said petition, on 04. 05. 1995, this Court (Coram:a. N. Divecha,j.) in the petition passed the following order:
"it is not in dispute that the declaration in the prescribed form filed by petitioner No. 4 herein is pending for disposal by the Competent Authority at Ahmedabad. It also pertains to some portion of the subject-matter of this petition. Learned Assistant Government Pleader Shri D. C. Dave informs me that the said declaration in the prescribed form filed by petitioner No. 4 herein will be disposed of as expeditiously as possible preferably by 31st July 1995. Petitioner No. 4 through her learned Advocate agrees to co-operate in its expeditious disposal. 2. In view of the aforesaid observation, this petition stands disposed of as withdrawn at the instance of learned Advocate Shri Y. N. Oza for the petitioners. It is clarified that the petitioners are divested of all interests in the subject-matter of this petition except to the extent they are permitted to retain the land within the ceiling limit waived the impugned orders and to the extent the declaration in the prescribed form filled in by petitioner No. 4 is pending for disposal. It is further clarified that the first three
