CHEHARAJI SHANAJI Vs. COMPETENT AUTHORITY AND ADDITIONAL COLLECTOR

JUDGEMENT

(1.) Heard learned Sr. advocate Mr. B.P.Tanna for the petitioner; Ms. Pandit, learned AGP for respondents nos. 1 and 4; Mr. R.M. Chhaya, learned advocate for respondent No. 3 and Mr. Jayesh M. Barot for Mr. Munshaw, learned advocate for respondent No. 2. In this petition, rule was issued by this Court on 28th June, 1995. On 28th June, 1995, following order was passed by this Court :

(2.) In 1976, a Form was filled in by the petitioner as per Annexure - A to the petition, in respect of survey No. 830; the petitioner had made an application under section 21 of the Urban Land (Ceiling and Regulation) Act, 1976 ("the ULC Act" for short) and had accordingly filled in Form No.5 and had submitted estimate and plan. Under the provisions of the law, the powers are delegated by the State Government to the competent authority in this regard and application under section 21 was rejected by the competent authority on the ground that the Gujarat Housing Board needed the plot in question, by order dated 15.3.1986. Said order dated 15.3.86 which is at annexure-C to the petition was challenged by the petitioner before the Additional Urban Land Tribunal and Ex Officio Secretary to the Government, Revenue Department by filing an appeal which appeal was allowed by the said Tribunal by order dated 26.6.1986. Copy of the said order dated 26.6.1986 is at Annexure D to the petition. As per order dated 26.6.1986, the tribunal remanded the matter to the competent authority for considering the petitioner's scheme as per the provisions of section 21 of the ULC Act. It has been submitted that the scheme of the petitioner ought to have been considered by the competent authority in light of the directions given by the Additional Urban Land Tribunal and Ex Officio Secretary to the Government, Revenue Department. That in the meanwhile, the competent authority had disposed of Form No.1 and had declared the land in question as surplus and had entered the Government as owner of the land. In view of this, the petitioner was having no option but to file another appeal before the tribunal and accordingly, appeal no. 235 of 1986 was filed before the tribunal wherein the tribunal passed an order on 20.8.87 and thereby allowed the appeal in part ordering that the impugned order be modified to reflect the status of Survey No. 830 as a result of the final order in respect of the petitioner's scheme under section 21 of the ULC Act. By said order dated 20.8.87, it was also ordered by the tribunal that if the scheme is sanctioned, excess vacant land will be 214 sq. mt. and if the scheme is rejected, excess vacant land as per the impugned order should be surrendered. The tribunal further ordered by said order that before issuing Notification under section 10(3) of the ULC Act, the competent authority should wait for the final order in respect of survey no. 830 u/s.21 of the ULC Act. The petitioner has submitted that despite the two clear mandates of the tribunal, one dated 26.6.87 and the other one dated 20.8.87, the competent authority decided to proceed further and passed an order on 19.4.88 to the effect that since the Government was entered as owner, application under section 21 of the ULC Act cannot be granted. Copy of the order dated 20.8.87 is at annexure F to the petition and copy of the order dated 19.4.88 is at annexure G to the petition. The petitioner has also submitted that the competent authority, for some or the other reason, is trying to throw away the reasonable request of the petitioner. according to the petitioner, the entry of the Government as the land owner was wrongly done and that error was corrected by the tribunal by its order dated 20.8.87 and the position was made clear and, therefore, the application of the petitioner - land owner could not have been disposed of on the ground that the Government was entered as owner of the land. As per the submissions made, said order, as a matter of fact, has merged with the order of the tribunal and all what the competent authority was required to consider was annexures D and F which are orders dated 26.6.87 and 20.8.87 respectively. It is submitted that the third appeal was preferred by the petitioner being appeal no. 320 of 1988 before the tribunal wherein the tribunal passed an order dated 30.11.88 and the case was remanded back to the competent authority. According to the petitioner, despite three rounds of litigation and three orders of the tribunal i.e. order dated 26.6.87, 20.8.87 and 30.11.88, the competent authority decided the matter against the petitioner. It has been submitted that as a matter of fact, in view of the mandate given by the tribunal on 26.6.87 (Annexure-D) read with the mandate given on 20.8.87 (Annexure F) and 30.11.88, there was no scope for the competent authority to dispose of the application in this fashion and the right procedure is to wait till the recommendation of the tribunal which is pending with the Government is not disposed. It has also been pointed out that as per the order dated 20.8.87, the tribunal had made it clear that before issuing the Notification under section 10(3) of the ULC Act, the competent authority should wait for the final order in respect of Survey No. 830 u/s.21 of the ULC Act. In all fairness, on combined reading of three orders referred to above, the competent authority ought not to have rejected the prayer of the petitioner. However, the competent authority passed order dated 28.2.1990 and rejected the scheme under section 21 of the ULC Act which is under challenge in this petition.

(3.) The competent authority has filed affidavit in reply and on behalf of respondent No. 2 Board also, two affidavit in replies have been filed and thereafter, the competent authority has filed affidavit in reply. No rejoinder thereto has been filed by the petitioner.