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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. Thaker, J.
Kantilal Jinabhai Patel Deceased Through Legal Heirs – Petitioner
Versus
State Of Gujarat – Respondent
R/Special Civil Application No. 5969 of 1989
Decided On : 07-07-2022
Constitution of India, 1950 - Articles 226 and 227 - Urban Land Ceiling and Regulation Act, 1976 - Sections 10 (5), 10 (6) and 33 - Agricultural lands - Abatement of legal proceedings– Possession –Vacate land - Petition against order of the appellate authority passed under Section 33 of Act, 1976 confirming the order of the competent authority. By said order, the competent authority has found that the petitioner was holding 14006 sq.mtrs. of excess land - Accordingly, petitioner filed objection contending that he is not holding excess land and property are agricultural lands mainly used for agriculture and, therefore, same cannot be treated as vacant land and his four sons have also share in all properties. Respondent no.2 authority by order declared 14006 sq.mtrs. of land as excess land - No possession of vacant land has been obtained by the State by following procedure under Section 10 (5) and 10 (6) of ULC Act, 1976 and only de jure possession can be deemed to be vested with the Government. (Para 12)
Finding of the court:
It is an admitted fact that no notice under Section 10 (5) or Section 10 (6) has been issued to petitioner - There is no documentary evidence produced by competent authority to show that actual possession was taken over by competent authority from petitioner of alleged excess land - Thus, in present case, no possession of vacant land has been obtained by State by following procedure under Section 10 (5) and 10 (6) of Act, 1976 and only de jure possession can be deemed to be vested with Government - However, on failure to establish any of situation enumerated in Section 10 of Act, 1976 the land owner or holder can claim benefit of Section 3 of the repeal Act. In the present case, as the State Government could not establish any of situation enumerated in Section 10, the petitioner is entitled to get benefit of Section 3 of the repeal Act.
Result: Petition allowed
JUDGMENT :
1. This petition is filed under Articles 226 and 227 of the Constitution of India against the order of the appellate authority passed under Section 33 of the Urban Land Ceiling and Regulation Act, 1976 confirming the order of the competent authority dated 28.2.1984. By the said order, the competent authority has found that the petitioner was holding 14006 sq.mtrs. of excess land.
2. The brief facts giving rise to the present petition are as under :-
2.1 On coming into operation of the Urban Lands (Ceiling and Regulation) Act, the petitioner filed Form No.6 of the said Act in the office of respondent no.2 on 19.8.1976, wherein it mentioned 12 properties held by the petitioner. In column no.14, the petitioner has stated that, in the said property, his four sons have share along with him. On scrutiny of the form, respondent no.2 issued draft statement and notice under Section 8 of the said Act requiring the petitioner to file objection to the said draft statement. Accordingly, the petitioner filed objection on 5.11.1982 contending that he is not holding excess land and property at Survey no.3 paiki, 18 paiki, 482, 499, 418 and 291 are agricultural lands mainly used for agriculture and, therefore, the same cannot be treated as vacant land and his four sons have also share in all the properties. Respondent no.2 authority by order dated 28.2.1984 declared 14006 sq.mtrs. of land as excess land.
2.2 Aggrieved by this order, the petitioner filed appeal under Section 33 of the Act before the appellate forum contending, inter alia, that the land Survey No.291 is mainly used as agricultural land and manure pit cannot be computed in the ceiling as well as Vaada land also cannot be computed in the ceiling as provided by proviso to Section 2 (q) of the Act. He also reiterated his stand that his sons have share in the property. However, same came to be dismissed by the appellate authority.
2.3 The main contention of the petitioner is that his sons have share in the property and the land is agricultural land and, therefore, there is no excess land available. The competent authority has committed an error of facts and law in declaring excess land. He has also contended that possession has not been taken over by the competent authority.
3. Heard learned advocate Mr.M.A.Parekh for the petitioner and learned AGP, Ms.Jyoti Bhatt for the respondent-State at length. Perused the material placed on record. Written submissions produced by learned advocate Mr.Parekh are also considered.
4. Mr.Parekh, learned advocate for the petitioner has vehemently submitted the same facts, which are narrated in the memo of petition and has submitted that the order of competent authority and appellate authority is not proper. He has submitted that during the pendency of the petition, the petitioner-Kantilal Patel has died on 24.11.2009 and the principal Act of 1976 came to be repealed in 1999. According to him, therefore, benefit provided under Section 4 of the repealed Act needs to be extended in the instant case as prima facie petitioner herein-Kantilal died on 24.11.2009 and the order was passed on 7.12.1995, against which status quo is granted in favour of the petitioner. Therefore, no procedure contemplated under Section 10 (5) and 10 (6) of the principal Act was ever initiated, though de jure possession was taken by the government but de facto possession has not been taken by the competent authority. He has submitted that possession of land is still with the petitioner and due to coming into operation of the repealed Act, entire proceedings under the ULC Act 1976 stands abated. While relying upon following decisions, he has prayed to pass appropriate order allowing the petition of the petitioner and holding that in view of repeal of the old Act, matter has been abated.
(i) Letters Patent Appeal No.498 and 699 of 1995 in the case of Mavjibhai Parbatbhai Trapasia v. State of Gujarat decided on 4.1.2001.
(ii) Special Civil Application No.7812 of 1993 in the case o
It is incumbent upon the competent authority to be in actual possession of the property for substantiating its stand that the provisions of repeal Act would not be applicable.
The court held that statutory compliance under the Urban Land (Ceiling and Regulation) Act is mandatory for valid dispossession, emphasizing that mere vesting does not equate to possession.
Possession of land under the Urban Land (Ceiling and Regulation) Act must be established lawfully; mere vesting does not equate to possession, especially post-repeal.
plain language of sub-section (5) of Section 10 means and envisages a notice in writing in the form of an order to surrender or make over the possession to the State. Sub-Section (5) notice is not in....
Failure to issue notice under Section 10(5) of the ULC Act to possessors renders dispossession unlawful and results in the abatement of proceedings under Section 4 of the Repealing Act.
The court ruled that actual physical possession must be established for the State to validly claim ownership under the Urban Land (Ceiling and Regulation) Act, 1976, and procedural requirements for n....
Proceedings issued under the Urban Land Ceiling Act against a deceased declarant are null and void; possession must be established prior to claiming surplus land.
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