SAMRATHBEN MANILAL CHOKSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Letters Patent Appeal is directed against the order of the learned single Judge in Special Civil Application No. 1735 of 1984. The petitioners in the Special Civil Application are the appellants in this Letters Patent Appeal. The respondents in the Special Civil Application are the respondents in this Letters Patent Appeal. Proceedings got prosecuted against the appellants under the Urban Land (Ceiling and Regulation) Act, 1976, hereinafter referred to as the Act. Such proceedings have come up to the stage of taking possession of the surplus land, declared under the Act, as per Sec. 10(5) of the Act. There is no dispute that the appellants have moved the process under Sec. 21 of the Act desiring not to treat the excess vacant land as excess. The appellants challenged the proceedings under the Act by preferring the Special Civil Application. The primary contention that was placed for consideration before the learned single Judge who dealt with the Special Civil Application was that the application under Sec. 21 of the Act is pending and without disposing of the said application, there ought not be prosecution of further process under the Act. On behalf of the appellants herein, the petitioners in the Special Civil Application, reliance was placed on a pronouncement of a Bench of this Court in Nirmalaben v. State of Gujarat, 1984 (1) GLR 322, to state that it is the duty of the State to deal with the application for exemption first and then only proceed to resort to the other provisions of the Act. The learned single Judge opined that the decision of the Bench related to the provisions of Sec. 20 of the Act and hence the ratio of the decision could not be invoked and applied to a case where there is only an application under Sec. 21 of the Act. In this view, the learned single Judge did not countenance this contention and repelling the other contention that the excess is a very small piece of land, and hence there has got to be exclusion of this piece of land from the purview of the Act, rejected the Special Civil Application.

(2.) Mr. G. N. Desai, learned Counsel appearing for the appellants submits that the concept entertained by the learned single Judge that the ratio of the Bench in Nirmalaben v. State of Gujarat, 1984(1) GLR 322 could not be invoked in respect of an application under Sec. 21, is not a sound one and both Secs. 20 and 21 in substance only deal with the question of taking away the concerned extent of the land from the purview of the Act and when that question is subjudice by the application for reliefs under either of the provisions pending, there ought not have been further prosecution of the other processes under the Act. It is true that the Bench in Nirmalaben v. State of Gujarat, 1984(1) GLR 322 was concerned with the case where an application under Sec. 20 of the Act for exemption was taken and was pending at the time when the further processes under the Act were prosecuted. But we find that there is no warrant to make a distinction between a case where an application under Sec. 20 is pending and a case where an application under Sec. 21 is pending. Section 20 deals with the general power to exempt. Section 21 deals with the power to treat and declare as not excess land even though the person holds the land in excess of the Ceiling limit, in the contingencies set forth therein. The provisions of Sees. 20 and 21 of the Act stand extracted below :

(3.) If the power to exempt is exercised under Sec. 20 of the Act, the land does not come within the purview of Chapter III of the Act. The implication of an order, if that comes to be made under Sec. 21 of the Act, is that though there is vacant land in excess of the ceiling limit, yet it would not be treated as excess, for the purposes of Chapter III of the Act. That chapter is the blood stream of the Act and it contains the operative provisions for ceiling on vacant land. The result of the order under either of the Sees. 20 or 21 is the land goes out of the mischief of Chapter III of the Act. The result is one and the same though the process and the scope of the consideration may be different. The opinion of ours has got a limited scope to answer the present question as to whether there could be prosecution of further processes under the Act, when an application under either of the provisions is pending and is awaiting decision. Otherwise there is bound to be difference with regard to the scope of the consideration of the matter under the provisions.