Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Guj) 352

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Vineet Kothari, B.N. Karia, JJ.
Urvashiben Kanubhai Shah – Appellant
Versus
State of Gujarat and Ors. – Respondents
R/Letters Patent Appeal No. 41 of 2017 In R/Special Civil Application No. 11205 of 2000 With Civil Application (For Stay) No. 1 of 2017
Decided On : 10-06-2021

Advocates:
Advocate Appeared:
For the Appellant : Mr Nilesh A Pandya
For the Respondent: Mr Soaham Joshi, AGP

Point of law: Notifications issued from section 10(1) onwards till section 11 have not been quashed or set aside by neither the Hon’ble Tribunal, nor this Hon’ble High Court at any stage of litigation and therefore it cannot be said that by the revised order dated 23.03.1999 the proceedings stand abated as the said order was merely a correction order and the said order does not quashed or set aside order under section 8(4) not section 10(1), 10(3), 10(5), 10(6) and 11.”

Headnote:
ULC Act - Sections 6(1), 20 , 8(4) , 10(5) , 33 and 10(3) - Possession of excess vacant land - Evidence - Co-parceners - Learned counsel for appellant submitted initially declaration under the provisions of Urban Land (Ceiling & Regulation) Act 1976 was filed by appellant petitioner in 1983 on which the competent authority passed the order which is placed on record - Appeal was filed by petitioner appellant before the learned Urban Land Ceiling Tribunal which appeal numbered as Appeal - Appellant’s grievances are two fold - First grievance is suit land was held by her as the karta of HUF and therefore other co-parceners in land should be allowed their due shares - On point, CA noted in the impugned order, suit land was purchased by appellant herself it was her self acquired property and there was no question of the land being ancestral or inherited. CA’s decision is fully supported by records and it is proved suit land was appellant’s self acquired land - Plea of shares of other persons in land cannot be allowed.
Finding of the Court : Appellant petitioner that since the Act stood repealed square meters should revert back to appellant petitioner is misconceived and the said submission cannot be entertained - On this aspect of matter, controversy involved in appeal is concluded by several detailed judgments recently decided by this Court under the ULC Act – Court do not find any merit in appeal and as a matter of fact - Prayer even if it is modified as prayed before us by learned counsel for the appellant petitioner, stood granted with remand direction of the Tribunal – Court find that no such second appeal was maintainable before Tribunal - Anything beyond is already given to petitioner appellant is now represented through her Legal heirs, cannot be granted to the petitioner appellant.
Result: Appeal is dismissed

JUDGMENT :

VINEET KOTHARI, J.

1. This appeal is directed against the order dated 30.8.2016 passed by learned Single Judge rejecting Special Civil Application No.11205 of 2000 filed by appellant – petitioner Urvashiben Kanubhai Shah now represented by her legal representatives Saileshbhai Kanubhai Shah and Rajeshbhai Kanubhai Shah through Power of Attorney Hasmukhbhai N.Pasari. The observations of the learned Single Judge to the relevant extent are quoted below for ready reference.

“8. In the instant case, the possession of the excess vacant land having been already taken over by the State Government after following the due process of law, after issuing the notification under Section 10(3) of the said Act, and the notice under Section 10(5) and the same having remained unchallenged till the Repeal Act came into force, it was not open for the petitioners to raise the dispute in the present petition that possession of excess vacant land taken over by the State Government was not in accordance with law.

9. In that view of the matter, the Court does not find any substance in the present petition. The petition, therefore, is dismissed. The request of Mr. Pandya, learned counsel for the petitioners to continue the interim relief for some time to enable the petitioners to approach the higher Forum, is rejected for the reasons stated above.

10. Interim relief, if any, stands vacated forthwith. Rule is discharged.”

2. Learned counsel for the appellant Mr.Nilesh Pandya submitted that initially declaration under the provisions of the Urban Land (Ceiling & Regulation) Act 1976 (hereinafter referred to as “the Act”) was filed by the appellant petitioner in 1983 on which the competent authority passed the order on 27.7.1983 which is placed on record. Against that, appeal was filed by the petitioner appellant before the learned Urban Land Ceiling Tribunal which appeal numbered as Appeal No.167 of 1983 – Urvashiben Kanubhai Shah Vs Competent Authority came to be disposed of by the competent authority on 8.6.1987. Relevant portion of the said order is also quoted below for ready reference.

“3. The appellant’s grievances are two fold. The first grievance is that the suit land was held by her as the karta of HUF and therefore other co-parceners in the land should be allowed their due shares. On this point, CA noted in the impugned order, that the suit land was purchased by the appellant herself; it was her self acquired property and there was no question of the land being ancestral or inherited. CA’s decision is fully supported by the records and it is proved that the suit land was appellant’s self acquired land. The plea of shares of other persons in the land cannot therefore, be allowed.

4. The second contention was that the land was located in green belt/agricultural zone and therefore it was not “vacant land” under the Act. Here again, CA noted that the suit land was not agricultural land; in VF 7/12 it was entered as non agricultural land and plots had already been demarcated. Thus since the land was non agricultural, CA did not agree that the land was non vacant land.

5. Regarding the plea of the land being of green belt/agricultural zone, in addition to the above said evidence considered by CA, another fact also has come to notice. The certificate from Baroda Urban Development authority submitted by the appellant shows that the suit land was in the agricultural zone as per the Development plan approved on 21.9.1970. However, another certificate dtd. 27.12.1979 at p.177/181 of CAs papers, submitted by the appellant, shows that in the Draft Development plan under consideration of BUDA the suit land was located in the residential zone. According to the provisions of TP Act, draft Development plan, for all practical purposes has the force of development plan. In any case, in the development plan since approved by the Govt., S.No.1001 is located in the residential zone. For this reason also, the appellant’s plea that the suit land is non vacant land fa

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