RAMESHCHANDRA DAHYABHAI MODI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition under Art. 227 of the Constitution of India is directed against the judgment and order of the State Government in exercise of its revisional powers under Sec. 34 of the Urban Land (Ceiling and Regulation) Act, 1976, hereinafter referred to as "the said Act", dated 2 2/01/1985 as well as against the judgment and order of the competent authority, dated 23/11/1982.

(2.) In order to appreciate the contentions raised by the petitioner in this petition, relevant facts are required to be stated : (i) On coming into force of the said Act, the petitioner filed statement under Sec. 6(1) declaring his total holding of land and also the land which was liable to be declared as excess vacant land. The said statement filed under Sec. 6(1) was processed and draft-statement was issued under Sec. 8(3) of the said Act inviting objections to the draft statement to which objections were filed by the petitioner. After taking into consideration said objections and after hearing the petitioner the competent authority passed order, dated 23/11/1982, whereby it declared that total holding of the petitioner was 2,932.62 sq. mts. and after deducting permissible holding of 1000 sq. mts. it directed that land admeasuring 1,932.62 sq. mts. was excess vacant land which was to be acquired from out of survey No. 138 of Meghaninagar. It appears that final statement under Sec. 9 was also thereafter served on the petitioner. (ii) On 26/11/1982 notification under Sec. 10(1) was prepared .and was dispatched for publication. On 31/12/1982 said notification under Sec. 10(1) came to be published in Government Gazette, dated 3 1/12/1982. By said notification the competent authority gave particulars of vacant land held by the petitioner in excess of ceiling limit and notified its intention to acquire said land and all persons interested in such vacant land were called upon to prefer objections against said acquisition, (iii) It may be stated at this stage that the competent authority vide its aforesaid order accepted the objections of the petitioner filed under Sec. 8(3) with respect to property bearing Final Plot No. 172 sub-plot No. 13 at Sheikhpur Khanpur admeasuring365.30Sq.Mtrs. and also with respect to Shop No. 56 at Ellisbridge and S. No. 2141 of Kalupur. According to competent authority the said properties were duly constructed upon and were being used for residential purposes prior to coming into force of the said Act, and therefore, said three properties were not declared to be vacant land liable to be taken into computation for the purpose of determining the excess vacant land held by the petitioner. (iv) With respect to properties mentioned at Item Nos. 2, 3 and 1 being S. No. 442/B of Jamalpur, admeasuring 20.06 sq. mts., S. No. 4521 Shahpur admeasuring 30.29 sq. mts. as well as S, No. 1414 of Shahpur admeasuring 48.49 sq. mts. The competent authority recorded the finding that the parcels of land were already constructed upon and that they were being used for residential purposes. Therefore, the competent authority proceeded to hold that under Sec. 4(9) the said land was required to be taken in calculating the extent of vacant land held by said persons. The competent authority found that however, such land shall not be liable to be declared excess vacant land under Sec. 4(11) of the said Act. As regards properties mentioned at Item Nos. 4, 5 and 6 bearing S. Nos. 1427 to 1430 of Shahpur admeasuring 66.89 sq. mts. Shop No. 56 of Ellisbridge admeasuring 18.58 sq. mts. and S. No. 2141 of Kalupur admeasuring 68.56 sq. mts. the competent authority held that the said properties were fully constructed upon prior to 1971 and were being used for commercial purposes and therefore they were not to be treated as vacant land. Thus, said aforesaid properties were excluded from computation of vacant land. As regards property at Sl. No. 8 being parcel of land at Memnagar the competent authority found that all the three brothers including the petitioner have 1/3rd equal share in the said property and therefore only 2427 sq.mts.of land was required to be treated as vacant land falling to the share of the present petitioner. Similarly, with respect to Item No. 8 being land at Ghatlodia the competent authority found that all the three brothers have equal 1/3rd share in the said parcel of land and held that of the petitioner from the said parcel of land shall be treated as 429 sq. mts. which was required to be included in the vacant land. Accordingly the competent authority had found that following properties were to be treated as vacant land held by the petitioner. 1. S. No. 442-B of Jamalpur - 20.60. sq. mts. (residence) 2. S. No. 4521 of Shahpur admeasuring 30.29 sq. mts. (residence) 3. S. No. 1419 Shahpur 48.49 sq. mts. (residence) 4. S. No. 138 Memnagar 1/3rd share of the petitioner therein admeasuring 2429 sq. mts. 5. S. No. 40 of Ghatlodia 1/3rd share admeasuring 429 sq. mts. Total = 2932.62 sq. mts. It appears that the aforesaid order passed by the competent authorities was not challenged by the petitioner by preferring appeal to the Urban Land Ceiling Tribunal under Sec. 33 of the said Act. (v) Thereafter, the State Government has in exercise of its revisional powers under Sec. 34 of the said Act decided to revise the order passed by the competent authority by issuing notice to show cause, dated 16-2-1984 and after taking into consideration the objections filed by the petitioner the State Government passed the final order dated 22/01/1985, whereby the State Government has declared 3688.39 sq. mts. of land as total holding of the petitioner and has further declared that 2688.39 sq. mts. of land as excess vacant land. The State Government thus revised the order of the competent authority and instead of 1932.62 sq. mts. of land which was declared excess vacant land by the competent authority and declared 2688.39 sq. mts. of land as excess vacant land held by the petitioner. ... ... ... ... ... ... ... ...

(3.) Mr. Mohit Shah, learned Advocate for petitioner has made following submissions to challenge the aforesaid order of the State Govt. : (a) The State Govt. has exercised its powers under Sec. 34 of the said Act after a period of more than two years which can be said to be unreasonably long and exercise of such power after lapse of long period of more than two years was unreasonable and not permissible and therefore the order of the revisional authority is required to be quashed and set aside. (b) Two parcels of land, namely, land at Memnagar and Ghatlodia which are at Item Nos. 8 and 9 of the order of the competent authority are agricultural lands and were mainly used for agricultural purposes and therefore they were liable to be excluded from the purview of ''vacant land" as defined by Sec. 2(q) of the said Act. (c) The State Govt. has erred in computing excess vacant land so far as lands at Memnagar and Ghatlodia are concerned and finding of the revisional authority is contrary to the actual fact on record and therefore same is require to be quashed and set aside. (d) As per the recent decision of the Supreme Court in the case of Mira Gupta v. State of West Bengal, reported in 1991 (4) JT 162 the competent authority was not justified in treating the land bearing S. Nos. 442-B at Jamalpur, 4521 at Shahpur, 1427 to 1430 at Shahpur and 1419 of Shahpur as vacant land even for the purpose of Sec. 4(11) of the said Act and therefore the order of competent authority was liable to be quashed and set aside with respect to the said properties.