Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Guj) 378

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VINEET KOTHARI, B.N. KARIA, JJ.
RAVJIBHAI PRABHUDAS PATEL SINCE DECD.THR'HEIRS - Appellant
Versus
ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C. - Respondent
LETTERS PATENT APPEAL NO. 94 of 2008
In R/SPECIAL CIVIL APPLICATION NO. 5460 of 1999
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2015
Decided On : 06-07-2021

Advocates Appeared:
For the Appellant : MR ANSHIN DESAI, SENIOR COUNSEL with MR ZALAK B PIPALIA, PRATEEK S BHATIA
For the Respondent: MR SOAHAM JOSHI, ASSISTANT GOVERNMENT PLEADER

Point of Law: Exemption, if validly granted and availed could survive in favour of the party only if it was properly used it as a defence in the proceedings under Section 8(4) / 10(3) of the ULC Act before the Competent Authority.

Headnote:
Constitution of India- Writ Petiton - Urban Land (Ceiling and Regulation) Act, 1976 – Sections 8, 9 and 21- Preparation of draft statement as regards vacant land held in excess of ceiling limit - Where a person holds vacant land and also holds any other land on which there is a building with a dwelling unit therein, the extent of such other land occupied by the building and the land appurtenant thereto shall also be taken into account in calculating the extent of vacant land held by such person - Excess vacant land not to be treated as excess in certain cases - whether a decree for specific performance can be granted by the Court where the proceedings under ULC Act, 1976 have been undertaken by the State and can the Defendant raise a plea in the Court that such decree for specific performance cannot be granted in view of the action of compulsory acquisition under provisions of the ULC Act, 1976 - Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5)-
Finding of the Court:
There was no occasion to claim that the possession continued to be with the land holders and mere revenue entry continuing does not upset the declaration of vesting of land in the State under Section 10(3) of the ULC Act, 1976 nor the factum of possession taken over by the Competent Authorities under Section 10(5) / 10(6) of the ULC Act, 1976 - There is no question of any voluntary handing over of possession on the part of the land owner. Whatever is done under sub-section (5) is done in pursuance of the notice-cum-order of the Competent Authority under Section 10(5) of the Act - The land owner cannot claim that since such possession was taken over after a belated period after expiry of 30 days as prescribed in Section 10(5) of the Act, he was entitled to again a notice in this regard requiring his presence on the spot giving him option either to voluntarily surrender such possession or obstruct the same –
Result: Civil application dismissed.

JUDGMENT :

VINEET KOTHARI, J.

1. This Letters Patent Appeal is directed against the order dated 1.5.2007 of the learned Single Judge (Coram : R. S. Garg, J.), who dismissed the Special Civil Application No.5460 of 1999 in which the proceedings of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “ULC Act”) initiated against the Appellant – Petitioner (landholder), were under challenge.

2. The facts as noted by the learned Single Judge in the impugned order are quoted below for ready reference :

“3. The short facts necessary for disposal of the present writ application are that the petitioner is the owner of the land of surveys no. 350 and 330 admeasuring 1 Acre and 1 Guntha and 2 Acres and 16 Gunthas situated at Manjalpur, Vadodara. On 14.8.76, the petitioner made an application in form-5 under Section 21 of the Gujarat Urban Land [Ceiling & Regulation] Act, 1976 seeking permission to develop the land in accordance with Section 21 of the Act. During pendency of the said application, the State Government/Competent Authority proceeded under Sections 8 and 9 of the Urban Land [Ceiling & Regulation] Act. A final order came to be passed on 29.11.82. Copy of the said order has not been filed by the petitioner in these proceedings. Appeal No. 1680 of 1994 came to be dismissed by the appellate authority holding that possession of the land in dispute was already taken by the State Government through its Competent Officer, therefore, the appeal deserved to be dismissed. It is to be noted that the order dated 6.11.85 was not challenged before any court or authority as the parties felt content. However, Ravjibhai, son of Prabhudas and Dahyabhai, son of Prabhudas challenged the very same earlier order dated 20.1.83 passed by the Competent Authority, in the very same Tribunal on the ground that their application filed under Section 21 was pending consideration and as such final order could not be passed.

4. The appellate authority, after referring to the facts observed that in view of the earlier dismissal order, another appeal by the appellant should not normally be entertained. After observing so, to oblige the appellant before it, it observed that there were certain special circumstances which deserved consideration. It observed that the impugned order was ab initio void having been passed disregarding the pendency of application filed under Section 21 of the Act; that the above said fact was not brought to the notice of the appellate authority when Appeal No. 1680 of 1984 was decided and that the said appellant Prabhudas had already expired. It further observed that as regards computation of excess vacant land made by the Competent Authority, there was no valid ground to interfere with the same except that the decision on the application under Section 21 of the Act should have been taken before passing the order. It disposed of the Appeal No.217/87 with a direction that the appeal stands allowed to the extent that the Competent Authority to dispose of the application filed by the declarant under Section 21 of the Act, if the scheme stands sanctioned, suitable modification should be carried out in the impugned order and if the scheme stands rejected, the impugned order will not require any modification. Appeal No. 7/86, which related to compensation was disposed of with the directions that it should also be governed by the outcome of the decision made on application under Section 21 of the Act. It is to be noted that dismissal of the earlier Appeal No. 1680/84 was not challenged by the petitioner before any forum and similarly, decision made on 5.4.88 in Appeals No. 217/87 and 7/86 was also not challenged before any further forum, which would simply mean that on one side, the first dismissal would stare in the eyes and at the second occasion, order in the interest of the petitioner only would be that if the application un

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2021 Supreme(Guj) 378

Point of Law: Exemption, if validly granted and availed could survive in favour of the party only if it was properly used it as a defence in the proceedings under Section 8(4) / 10(3) of the ULC Act before the Competent Authority.

Cases Referred (22)