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2018 Supreme(Guj) 22
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SONIA GOKANI, J.
Champaklal Rangildas Ghael & Others – Petitioners
Versus
State of Gujarat & Others – Respondents
Special Civil Application No. 4241 of 2006
Decided On : 17-01-2018
For the Petitioner:Mr. C.J. Vin, Advocate, Mr. K.K. Trivedi, Advocate
For the Respondent: Mr. Krutik Parikh, Government Pleader
Headnote:
Civil Law – Constitution of India, 1950 – Article 226 – Urban Land (Ceiling & Regulation) Act, 1976 – Sections 6(1), 10(3), 10(6) and 15 – Notice – Use of land was for agricultural purpose – Petitioners were, since, interested in using said land for agricultural purpose, and therefore, they had representated before competent authority with a request that original owners be permitted to sell said lands to petitioners. After passing of order to that effect, the original owners sold the said land to the petitioners and a registered sale deed came to be executed on – An entry to that effect came to be mutated vide Entry No. 920 in Form No.6 and the same came to be certified – Petitioners continued to enjoy the possession of the said land and carried out agricultural activities – Grievance on part of petitioners that Respondent No.2, without application of mind, mechanically acted breach of principles of natural justice also has been pleaded –Authority concerned also ignored the specific order of exemption and mechanically perused the records prior to filling the form under Section 6(1) of ULC Act and passed an order, declaring the lands held by the petitioners as excess lands – Held, While passing the order it was incumbent upon Collector to mutatethe names of present petitioners therein so also in Village Form Nos. 6 and 7/12 – This condition had not been fulfilled by the competent authority and the petitioners continued to enjoy possession of the land for the agricultural purpose for all these years. With the extension of the limits of the Surat City, the said land came to be included in the municipal corporation on finalization of the Master Plan and the notice for vacating the possession was also issued to the petitioners – There is a belated challenge by the present petitioners to the order passed – But fact remains that notice under Section 10(6) of ULC Act was issued – It is contended that the possessions had been taken over in presence of panchas on – Repeal of ULC Act, another parcel of the land bearing Survey No. 100 paiki admeasuring 11,736 sq.mts. was taken over – Therefore the challenge by petitioners in the year 1995 cannot be said to be belated challenge – It been case of petitioners not having taken possession from original owners without the prior permission and sanction of the State Government, non-issuance of notice at the time of hearing under Section 6(2) and while carrying out subsequent proceedings could not have justified the action of the respondent authorities. There appears to be a constant possession and use for agricultural purpose by the petitioners – Only infirmity or default on part of petitioners is of not making declaration under Section 15 of ULC Act – That would not nullify ipso facto the original order of grant of permission of transfer of the land by way of a registered sale deed in favour of present petitioners – Impugned order passed by Respondent No.2 is quashed and set aside – Petition allowed. (Paras 7 and 8)
1. The facts in nutshell, in the present petition preferred under Article 226 of the Constitution of India, are that the land bearing Survey No. 93, admeasuring 14,063 sq.mts., 100 paiki admeasuring 11,432 sq.mts. and 100 paiki admeasuring 11,736 sq.mts. were formerly owned by one Vasantbhai Morarbhai and others. The use of the land was for agricultural purpose.
1.1 When the Urban Land (Ceiling & Regulation) Act, 1976 (for short, ‘ULC Act’) was enacted, the agriculturists were required to fill form under Section 6(1) of the ULC Act. Said form was required to be filled-in in the required format for necessary declarations. Any exemption, if, claimed by the agriculturists under the ULC Act, he needed to apply to the competent authority and if satisfied, the competent authority would grant exemption under the ULC Act. Accordingly, the original owners applied for the same and prayed for exemption vide application date 12.08.1976. Said application was examined by the competent authority and being satisfied, it was pleased to allow the same, subject to certain conditions.
1.2 The petitioners were, since, interested in using the said land for agricultural purpose, and therefore, they had representated before the competent authority with a request that the original owners be permitted to sell the said lands to the petitioners. After the passing of the order to that effect, the original owners sold the said land to the petitioners and a registered sale deed came to be executed on 18.10.1979. An entry to that effect came to be mutated vide Entry No. 920 in Form No.6 and the same came to be certified on 15.12.1979. The mutation also was carried out in the Village Form No. 7/12 of record of rights. The petitioners continued to enjoy the possession of the said land and carried out agricultural activities. It is also evident, according to the petitioners, from the Village Form Nos. 6 and 7/12 for the years 1976 to 1979.
1.3 It is the grievance on the part of the petitioners that Respondent No.2, without application of mind, mechanically acted. The breach of principles of natural justice also has been pleaded. The authority concerned also ignored the specific order of exemption and mechanically perused the records prior to filling the form under Section 6(1) of the ULC Act and passed an order, declaring the lands held by the petitioners as excess lands.
1.4 It is the grievance of the petitioners that the order came to be passed without issuance of notice to them in relation to the excess land in the month of March, 1984. No notice was issued to the petitioners and instead a second notice came to be issued upon the original owners on 29.03.1990. The competent authority proceeded to take possession of the said lands and declared the same as the excess land. The panchnama of the same referred to the names of the original owners and none of the petitioners was aware of the same.
1.5 It is also the case of the petitioners that Respondent No.1 appears to have attempted to allot the said land to one M/s. Tannu Gas Agency Company. Since the order was behind the back of the petitioners, a Suit came to be filed by them, challenging the said mutation Entry No. 1561 in the Court of the learned Civil Judge, Surat. The application for injunction was also moved. However, on the ground of jurisdiction, same was not entertained.
1.6 An appeal, therefore, came to be preferred before the District Court, Surat, which, at the time of preferring the present petition was pending.
1.7 The property, as stated above, was attempted to be allot to one M/s. Tannu Gas Agency Company, during the pendency.
1.8 It is also their case that with the widening of the limits of Surat city, the properties were included in the extended limits and the lands were in the names of the petitioners so also in the records of the Surat Municipality.
1.9 During the framing of Town Planning Scheme No. 21 (Bhestan), since, there was need for requisition of land, a notice came to be issued to
