HARGOVINDBHAI PRABHUBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition under Art. 226 of the Constitution of India is directed against the judgment and order of the State Government dated 12- 2-1990 passed in exercise of revisional powers under Sec. 34 of Urban Land (Ceiling and Regulation) Act, 1976.

(2.) The relevant facts giving rise to the present petition are as under: (i) One Prabhudas Jadav was the holder of land. He left behind him two sons, namely, (i) Hargovindbhai and (ii) Chimanbhai. Hargovindbhai had two sons, namely, (i) Bhikhubhai and (ii) Dineshbhai and Chimanbhai had three sons, namely, (i) Naginbhai, (ii) Shantilal and (iii) Hashmukhbhai. On the death of Prabhudas Jadav the properties came to be mutated in the name of Hargovindbhai and Chimanbhai. (ii) On coming into force of the Urban Land (Ceiling and Regulation) Act, hereinafter referred to as the "said Act", both Hargovindbhai (petitioner No. 1) and Chimanbhai (petitioner No. 2) filed statements under Sec. 6(1) of the said Act and notices came to be issued under Sec. 8 of the said Act. The draft statement was prepared to which objections were filed. (iii) After taking into consideration the objections and also after hearing the petitioners and appreciating the documentary evidence produced before the competent authority, it took the view that no excess land was held by the petitioners, and therefore, statements filed under Sec. 6(1) were required to be filed. This order was passed by the competent authority on 20/07/1986. (iv) It may be stated that in view of the fact that the property was inherited by the preheat petitioners from Prabhudas Jadav, the separate forms filed by them under Sec. 6(1) were consolidated. The competent authority came to conclusion that with respect to S. Nos. 317, 318, 319, 320 and 327 of village APAJAN scheme under Sec. 21 of the said Act for construction of dwelling units for economically weaker sections of the society was sanctioned. After excluding the said land for which permission under Sec. 21(1) of the Act was granted the competent authority found that 5803 sq. mts. of land was the total holding of the two petitioners. The competent authority found that total holding of petitioner No. 1 was 3076.50 sq. mts. The petitioner No. 1 had one major son on the date of coming into force of the said Act, and therefore, branch of Hargovindbhai (petitioner No. 1) was entitled to two units. The branch of Hargovindbhai was therefore entitled to retain 3000 sq. mts. of land and therefore only 76.50 sq. mts. of land was excess. Therefore, consistent with the Govt. circulars, Revenue Department, bearing No. ULC 2082-5131-1, dated 4/01/1985, he came to conclusion that since the excess vacant land was not exceeding 10% of the returnable land, same was to be treated as margin land and the form filed under Sec. 6(1) of the said Act was required to be filed. The competent authority did not mention anything about second son of Hargovindbhai, namely, Dinesh who was minor on the date on which the Act came into force. (v) As regards holding of Chimanbhai (petitioner No. 2) the competent authority found that his total holding was 3116. 50 sq. mts. The competent authority found that the petitioner No. 2 had two major sons, namely, Shantilal and Naginbhai, and therefore, according to the competent authority the second petitioner was entitled to hold 3 ceiling units, i e., 4500 sq. mts. Since he was holding only 3116.50 sq. mts. of land as against his entitlement to hold 4500 sq. mts. of land the competent authority found that he was nut holding excess land and form filed under Sec. 6(1) was required to be filed. It may be mentioned that the competent authority did not take into consideration the fact that the petitioner No. 2 had three sons and the third sons Hashmukhbhai was minor on the date on which the Act came into force. (vi) Thereafter, the State Government on going through the order passed by the competent authority found that the competent authority has committed a serious error of law while computing the permissible holdings of the petitioners, and therefore, it issued show cause notice dated 26/07/1988 to the present petitioners pointing out the mistake committed by the competent authority while determining the holdings of the two petitioners. The State Government found that the petitioner No. 1 had two sons and share of his minor son-Dinesh was required to be clubbed with the share of the petitioner No. 1 under Sec 4(7) read with Sees. 2(f) and 2(i) of the said Act. On said calculation the holding of the first petitioner was excess holding to an extent of 551.58 sq. mts. and that the holding of second petitioner was excess of vacant land to an extent of 58 sq. mts. and therefore the petitioners were called upon to show cause as to why the order of the competent authority should not be revised. (vii) After hearing the petitioners and after taking into consideration the submissions made by the petitioners, the State Government vide its judgment and order, dated 12-2-1990 was pleased to quash and set aside the order passed by the competent authority, dated 20/07/1986 and was pleased to declare that the holding of the petitioners was above the permissible holding to an extent of 609 sq. mts. and that said parcel of land therefore required to be declared excess vacant land. Being aggrieved and dissatisfied with the said order passed by the State Government in exercise of its revisional powers the petitioners have preferred this Spl.C.A.

(3.) Mr. P. J. Vyas, learned Advocate for petitioner mainly submitted that the State Government has materially erred in passing the impugned order because there is no provision in the Urban Land (Ceiling and Regulation) Act, 1976 providing fur clubbing the share of minor to the share of the father and that therefore the order of the competent authority is required to be restored and the order of the State Government is required to be quashed and set aside. He further submits that the competent authority has rightly determined that there was no excess vacant land held by either of the petitioners and therefore in his submission the State Government was not justified in upsetting the order of the competent authority. He has further submitted that there was construction on the parcels of land and 175 sq. mts. was the area of construction so far as the petitioner No. 1 is concerned and 215 sq. mts. was the area of construction so far as the petitioner No. 2 is concerned. If such area of construction along with land appurtenant thereto is excluded from consideration, there would be no excess vacant land in case of the petitioners.