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2021 Supreme(Guj) 97

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VINEET KOTHARI, BIREN VAISHNAV, JJ.
PRABHATBHAI SHIVABHAI SOLANKI THROUGH LEGAL HEIRS - Appellant
Versus
STATE OF GUJARAT - Respondent
LETTERS PATENT APPEAL NO. 1281 of 2016
In
SPECIAL CIVIL APPLICATION NO. 5985 of 1999
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2016
In
LETTERS PATENT APPEAL NO. 1281 of 2016
Decided On : 23-03-2021

Advocates Appeared:
For the Appellant : MR P.M. BHATT
For the Respondent: MR. K.M. ANTANI, Assistant Government Pleader, MR NILESH A PANDYA

Point of Law: At the commencement of the Act, persons may be “holding vacant land in excess of ceiling limit”, but as the 'vacant land' does not automatically 'vest' in the State Government, they hold it subject to certain obligations.

Headnote:
Urban Land (Ceiling and Regulation) Act, 1976 - Sections 6, 21, 10(5), 10(3), 20(1),10(6),10(3), 21,20 -Transfer of Property Act - Sections 40,53A,54,55,5 - Indian Succession Act, 1925 – Sections 69,70 - Specific Relief Act, 1963 – Section 3 - Constitution of India,1950 – Article 226 - Challenge - Land holder made an application seeking exemption under Section 21 of ULC Act, 1976 on which came to be rejected by Competent Authority on - Matter was taken up by land holder before Tribunal which was also rejected by Tribunal on - A writ petition being Special Civil Application was filed in this Court and on alleged ground of breach of principles of natural justice this Court vide order allowed Special Civil Application and remanded back to case to Tribunal for deciding appeal afresh after affording reasonable opportunity of hearing to both parties - Tribunal vide its order allowed appeal and set aside order passed by Competent Authority and remanded case back to Competent Authority for deciding application under Section 21 of ULC Act 1976 afresh - Whether such grievance could be made long after the alleged violation of Section 10(5).
Finding of the court: Petitioners or predecessor of petitioners had not challenged order of competent authority passed on nor had they challenged notification under Section 10(3) or notice under Section 10(5) of said Act and therefore they had waived their right to challenge same - A grant of power of attorney is essentially governed by Chapter X of Contract Act By reason of a deed of power of attorney an agent is formally appointed to act for principal in one transaction or a series of transactions or to manage affairs of principal generally conferring necessary authority upon another person -- Court do not find such application filed after Section 10(3) Notification but upon remand by Tribunal earlier application filed on a copy of which is produced with Additional Affidavit of Appellants / Petitioners –allegedly Power of Attorney Holder of - Court cannot permit any document to be filed by a Power of Attorney Holder at fag end of proceedings in this manner. Secondly said purported Affidavit is not even a properly sworn Affidavit - Therefore same even cannot be taken on record - Since writ proceedings including Letters Patent Appeal which are nothing but an extension of writ proceedings depend upon only duly sworn Affidavits of parties to proceedings in considered opinion of this Court no document whatsoever can be taken on record without they being supported by properly sworn Affidavit of party concerned - Thirdly even if these documents were to be looked into without any value attached to them purported copy of application under Section 21 of ULC Act 1976 is nothing but a two page prescribed form signed by party - Unless application under Section 21 which as to meet condition laid down in Section 21 is accompanied by proper Plan of development of housing, construction Plans of plots applicable rates for allotment for poor sections of people to pay how plots are sought to be developed construction work with Map is considered even before Competent Authority it cannot have any value at all.
Result: Civil Application also stands dismissed

JUDGMENT :

VINEET KOTHARI, J.

1. This Intra Court Appeal is directed against the Judgment and Order dated 3031.8.2016, by which the learned Single Judge dismissed Special Civil Application No.5985 of 1999 – Heirs & Legal Representatives of Deceased Prabhatbhai Shivabhai Solanki vs. State of Gujarat & Others.

2. The case arose under provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (ULC Act, 1976) and the proceedings under the ULC Act, 1976 stood concluded with the following dates worth noting.

3. The declaration under Section 6 of the ULC Act, 1976 was filed by the Petitioners in 1986 and vide order dated 29.10.1986, the Competent Authority declared following excess vacant / surplus land from the holding of the land owners:

(i) 3943 sq. mtrs., out of total area of 3943 sq. mtrs., of the Survey No.692, Final Plot No.501;

(ii) 23 sq. mtrs., out of total area of 1523 sq. mtrs., of the Survey No.964, Final Plot No.463; and

(iii) 506 sq. mtrs., out of total area of 506 sq. mtrs., of the Survey No.926, Final Plot No.501, as excess vacant land.

4. The land holder made an application seeking exemption under Section 21 of the ULC Act, 1976 on 1.5.1987 which came to be rejected by the Competent Authority on 20.6.1988. The matter was taken up by the land holder before the Tribunal which was also rejected by the Tribunal on 30.8.1990. A writ petition being Special Civil Application No.4853 of 1993 was filed in this Court and on the alleged ground of breach of principles of natural justice, this Court, vide order dated 7.2.1993, allowed Special Civil Application No.4853 of 1993 and remanded back to the case to the Tribunal for deciding the appeal afresh after affording reasonable opportunity of hearing to both the parties. The Tribunal, vide its order dated 30.12.1994, allowed the appeal and set aside the order passed by the Competent Authority dated 20.6.1988 and remanded the case back to the Competent Authority for deciding the application under Section 21 of the ULC Act, 1976 afresh. It is stated that the said application was not decided until the ULC Act, 1976 came to be repealed with effect from 30.3.1999.

5. But much before the remand by order dated 30.12.1994, the Notification under Section 10(3) of the ULC Act, 1976 was issued by the Competent Authority on 13.7.1989 which was duly published in the Official Gazette on 3.8.1989 vesting the land in the State free from all encumbrances. After that a Notice under Section 10(5) of the ULC Act, 1976 was issued on 29.8.1989 which was duly served upon Prabhatbhai Shivabhai Solanki by R.P.A.D. and by drawing Panchnama in presence of the panch witnesses, the possession of the land in question was taken over on 1.4.1992 (Annexure-R/ 1 colly.). The proceedings under ULC Act, 1976, thus, stood concluded even before the remand and these proceedings were never challenged by the Petitioners / Appellants.

6. The present writ petition thereafter came to be filed by the Petitioners which came to be dismissed by the learned Single Judge with the following discussion which is found not only opportune to reproduce the lengthy extract but which, in our opinion, meticulously and rightly discusses the legal position in the following terms:

“7. In the instant case, it appears that the Form No.1 filled up by the deceased Prabhatbhai Shivabhai Solanki was finalized by the competent authority vide the order dated 29.10.1986 as per AnnexureB. The said order remained unchallenged at the instance of the said Prabhatbhai Shivabhai Solanki. It further appears that earlier the said Prabhatbhai was granted exemption under Section 20(1) of the said Act in respect of the land bearing Survey No.692, however, the said exemption was withdrawn by the competent authority on 26.9.1986. Thereafter, the said Prabhatbhai Shivabhai Solanki had made an application seeking exemption under Section 21 of the ULC Act for putting up constructions of dwelling units for weaker section of the society on 24.11.1986. The said applicatio

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2021 Supreme(Guj) 97

Point of Law: At the commencement of the Act, persons may be “holding vacant land in excess of ceiling limit”, but as the 'vacant land' does not automatically 'vest' in the State Government, they hold it subject to certain obligations.

Cases Referred (6)