DELUX LAND ORGANIZERS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner seeks to challenge the impugned orders at Annexurcs 'H' collectively and 'I' whereby while granting exemption under Sec. 20(1) (b) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the said Act') on the ground of undue hardship the Government imposed the condition of paying penalty of 20 per cent of the value of the land in accordance with the directions issued in the Circular dated 13/06/1979 referred to in the order at Annexure 'H' collectively. The challenge against the other orders at Annexure 'H' collectively by which permission granted under Sec. 27 by the competent authority was revoked by the Government, was given up at the hearing of this petition by the learned Counsel appearing for the petitioner on the ground that it did not survive since exemption was granted under Sec. 20(l)(b) of the said Act and in view of the decision of the Supreme Court in the case of Bhim Singhji v. Union of India (reported in AIR 1981 SC 234) in which the Supreme Court held that the provision of sub-sec. (1) of Sec. 27 of the Act was invalid in so far as it seeks to affect a citizen's right to dispose of his urban property in an urban agglomeration within the ceiling limits. Therefore, both the sides addressed this Court only on the question as to whether the land was vacant land and whether penalty could be imposed while granting exemption under Sec. 20(l)(b) of the said Act. Miss V. P. Shah, learned Counsel for the petitioner submitted that in view of the provisions of Sec. 2(q)(ii) of the said Act, since the construction on the land was being carried on on the appointed day, i.e., on 28-1-1976, the land was not a vacant land and, therefore, the provisions of the said Act will not apply to the said land bearing final Plot No. 703, 704 B-1-1 of Ellisbridge Town Planning Scheme No. 3. She further argued that even assuming that the Act applies, the Government could not impose the penalty under its Circular dated 13-6-1979 because the earlier Circular issued by the Central Government did not envisage imposition of any such penalty while granting exemption under Sec. 20(1)(b) on the ground of undue hardship. She also submitted that under Rule 3 of the Building Rules the petitioner had given notice in November 1979 and since the Municipal Commissioner did not reject the plans the petitioner could have validly started construction after one month of the notice and within one year thereof. Therefore the construction started by the petitioner was in accordance with the bye-laws. Learned Counsel for the petitioner further submitted that when the revised plans were sanctioned on 6-2-1976, it had the effect of validating the construction and therefore even if the construction was being done on the appointed day without the approval of the authority, the subsequent approval related back so as to make the construction on the appointed day valid within the meaning of Sec. 2(q)(ii) of the said Act.

(2.) Mr. H. B. Antani, learned Assistant Government Pleader appearing for the respondents contended that as per paragraph 5(1) of the guidelines issued by the State Government in its Circular dated 13/06/1979 at Annexure 'D', the penalty was validiy imposed. He submitted that Sec. 20 of the said Act empowers the Government to grant such exemption subject to such conditions as may be specified in the order. Hi, therefore, submitted that the Government had a discretion to lay down a condition imposing such penalty. He relied upon the decision of this High Court in the case of Manilal Hiralal Doshi v. Slate of Gujarat (reported in 1985 0 GLH 222) in support of his contention and submitted that the Government can issue general guidelines on the exercise of powers under Sec. 20 and therefore it could impose such condition of penalty.

(3.) The definition of 'vacant land' under Sec. 2(q) excludes the land occupied by any building which was constructed before, or was being constructed on, the appointed day, i.e., 28-1-1976 with the approval of the appropriate authority and the land appurtenant to such building in an area where there are building regulations. Admittedly no sanction was granted to the revised plans before 6-2-1976. Therefore the construction at whatever stage it may have been, which was going on on the appointed day, i.e., on 28-1-1976, was being done without the approval of the appointing authority on that day. From a copy of the plan which is annexed to the petition it appears that the commencement certificate was granted by the Municipal Corporation on 6-2-1976. The requirement under Sec. 2(q) of the said Act that the construction which was carried on on the appointed day should be with the approval of the appropriate authority, will have an overriding effect over any provision in the building regulations by which construction which is made initially without the approval is regularised by subsequent sanction of plans and approval. This would be so in view of the provision of Sec. 42 of the said Act which lay down that the provision of the said Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or any cutsom, usage or agreement or decree or order of a Court, Tribunal or other authority. Therefore, even if the subsequent sanction granted on 6-2-1976 to the revised plans may have had the effect of validating the construction under the Municipal Building Regulations, it would not amount to an approval at the time of construction on the appointed day for the purpose of the provisions of Sec. 2(q)(ii) of the said Act. In this view of the matter Rule 3 contained in Chapter XII of the Schedule-A to the Bombay Provincial Municipal Corporations Act, 1949 under which the person who has given notice under Sec. 253 or 254 of that Act could proceed with the building work when the Commissioner fails to intimate his approval of the proposed building or work, cannot help the petitioner. Therefore, the said land cannot be excluded from the expression 'Vacant Land' as denned under Sec. 2(q) of the said Act and would, therefore, be governed by the provisions of the said Act. From the facts on record it does appear that on 28/01/1976, i.e., the appointed day, construction was being done on the said land though the building plans were sanctioned only on 6/06/1976. The question arose before the Central Government as to how lands in urban agglomeration on which construction activities had commenced after the appointed day but before the commencement of the Act, i.e. before 17-2-1976 should be treated and the Central Government issued guidelines by their Circular letter No. I/243/76/UCU dated 19/11/1976 (Annexure-C). It is observed in the said Circular that the Bill was introduced in the Lok Sabha on 2 8/01/1976, which was, therefore, the appointed day for the purpose of the Act in the concerned States and Union Territories referred to, there was no ban on sanctioning of building plans or construction of buildings in accordance with sanctions already issued by the municipal authorities. Till the Bill was passed and received the assent of the President, therefore, there could not be said to be any law preventing the sanctioning of building plans and starting of construction of buildings in accordance with plans already approved. In that context the question arose for consideration as to how such lands on which construction was commenced between the appointed day and before the commencement of the Act in accordance with building plans sanctioned by the appropriate authority should be treated and whether the land occupied by the building and land appurtenant thereto including the additional extent upto 500 sq. mtrs. of contiguous vacant land with a building with a dwelling unit therein should be allowed. The Government of India directed in paragraph 3 of the said Circular that in all cases where private parties have started construction in accordance with approved building plans before the commencement of the Act, the benefit of land occupied by the building and the land appurtenant thereto might be extended to them also since otherwise it would put them to hardship. The Government of India, therefore, gave directions in paragraph 4 of the Circular to the State Governments to grant exemption under Sec. 20(l)(b) of the said Act on applications being received from such parties. In the present case the plans were approved on 6-2-1976, i.e., before the commencement of the Act. It is, therefore, not disputed that the exemption which has been granted to the petitioner under Sec. 20(l)(b) of the said Act is in accordance with the directions issued by the Central Government in the Circular dated 19-11-1976.