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2007 Supreme(Guj) 32
Gujarat High Court
Judgename :Jayant Patel
SHAKRABHAI ALIAS SHANKERSING VIRABHA1 (SINCE DECD.) THROUGH HIS HEIRS - Appellant
Versus
STATE OF GUJARAT - Respondent
Special Civil Application 156 Of 1999
Decided On : 01/16/2007
Headnote:
Constitution of India – Urban Land act - Sections 6,20, 8 (4), 9, 10 (1), 10 (3), 10 (5), 23 and 8 - Short facts of the case are that as per the petitioners are the owners of the land bearing. and land bearing at village Ishanpur in Ahmedabad district - As the Urban Land - Petitioner filed separate forms under of the Act and as per the petitioners, their shares in the land bearing Survey inter alia with the other land were declared the petitioner entered into an agreement with petitioner which is a Co-operative Housing Society for purchase of the land. As per the petitioners - Notification qua excess land and notification under of the act was issued for vesting of the excess land including the land in question in the Government it appears that as per the State Government , action under of the Act was taken for the possession and the possession - petition except to the extent of retainable land and except to the extent of declaration in the prescribed form filed by petitioner pending the disposal - Aforesaid was in view of the circumstance that the form filed by petitioner, was pending and was yet not finalised - Court that first three petitioners will not be permitted to deal with the subject-matter of the petition except to the extent of retainable land, but the pertinent aspect is that the retainable land did not include the land in question bearing Survey and the land in question was declared as the surplus land. It was further ordered by this Court - Court further observed that the respondent-authority may dispose of the surplus land as declared under the impugned order but may not hand over the possession – Held, further remaining area admeasuring which the exemption is granted in proportion to the net area as may be available - Scheme will be identified by the State Government. It is clarified that the reservation for commercial purpose over the land bearing Survey 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 - Petitioner in association with petitioner petitioner as well as respondent 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 - Respondent -Society to get the refund of the amount from the Government on account of the deduction - 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 - Government in consultation with the concerned T. P. authority and/or the U. L. C. authority and/or the Land Record authority shall get the option finalized and the area identified of the land bearing Survey by giving effect to the present judgment as early as possible, preferably within a period of six months from the date of receipt of the order of this Court - All parties are also directed to co-operate the State Government - Petition is partly allowed.
( 1 ) THE short facts of the case are that as per the petitioners, petitioner Nos. 1 and 2 are the owners of the land bearing Survey no. 622 admeasuring 16390 sq. mtr. and land bearing Survey No. 503 admeasuring 15985 sq. mtr. 503 at village Ishanpur in Ahmedabad district. As the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as "the U. L. C. Act"), came into force, the petitioner Nos. 1 and 2 filed separate forms under Sec. 6 of the Act and as per the petitioners, their shares in the land bearing Survey No. 622 inter alia with the other land were declared. On 5-10-1989, the petitioner Nos. 1 and 2 entered into an agreement with petitioner no. 3 which is a Co-operative Housing Society for purchase of the land. As per the petitioners, an application for exemption was made under Sec. 20 of the U. L. C. Act on 7-10-1989. However, on 2/22-11-1989, the order came to be passed by the U. L. C. authority under the U. L. C. Act for declaring 50% of the land bearing Survey No. 622 admeasuring 8888. 75 sq. mtr. together with the other land as excess land. It may be recorded that in the said order passed under Sec. 8 (4) of the U. L. C. Act by the authority, it was found that in the land bearing Survey No. 622, there is equal share of Shakrabhai @ Shankersing and Galalben. However, the form of Shankersing was processed but the form of Galalben remained pending. It appears that on 17-12-1989, the final statement came to be issued under Sec. 9 of the Act so far as holding of the land by shakrabhai is concerned declaring various lands as excess land including the land bearing Survey No. 622 (hereinafter referred to as "the land in question" ). The notification under Sec. 10 (1) of the U. L. C. Act came to be issued on 25-10-1990 qua excess land and on 24-1-1991, notification under Sec. 10 (3) of the act was issued for vesting of the excess land including the land in question in the Government. Thereafter, it appears that as per the State Government, on 18-12-1991, action under Sec. 10 (5) of the Act was taken for the possession and the possession also came to be taken over on 18-12-1991.
( 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 u. L. C. 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 U. L. C. 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 4-5-1995, 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
