KESHAVLAL KHUSHALDAS PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By an order dated July 18 1981 annexure-A under section 9 issuing final statement declaring 2037.36 sq.mts. of land as surplus land the petitioner has preferred this petition directly in the High Court. The petitioner has submitted that when the petitioner received notices dated 4th January and 4th February 1984 under sections 10(3) and 10(5) the petitioner has preferred this petition. Admittedly the petitioner has not challenged the order at annexure-A by filing any appeal within time under section 33 of the Act which requires that any person aggrieved by an order made by the competent authority under the Act may appeal within 30 days of the date on which the order is communicated to him. There is no dispute that the order of July 18 1981 has been communicated to the petitioner in July 1981 itself. There is no explanation for not preferring appeal and no explanation for delay. Therefore the petition deserves to be dismissed on that ground.

(2.) Even on merits also the petition is not tenable. The petitioner submits that the land of survey no.202 at Memnagar admeasuring 2023.36 sq.mts. is joint family land and separate units for the other members of the family are required to be made. Annexure-D at page 24 is the application of the petitioner wherein it is mentioned that the petitioner his son Ishwarbhai and another son Rameshchandra are co-sharers in this land. The learned Counsel for the petitioner has shown a registered partition deed dated 14.4 In para 5(b) this land survey no.202 - Part admeasuring 20 gunthas is shown to have been given to the exclusive share of the petitioner only and other lands have gone to the shares of his son Ishwarbhai and Rameshchandra. Thus there is no HUF and Ishwarbhai and Rameshchandra have no share or interest in the share which has exclusively gone to the petitioner. Therefore this contention has no merit.

(3.) It was submitted that this land is agricultural land and therefore it is not urban land and attention is invited to section 2(o) of the Act which provides that urban land means any land situated within the limits of urban agglomeration but does not include any such land which is mainly used for the purpose of agriculture and it is submitted that on the date of commencement of the Act the land was mainly being used for the purpose of agriculture. However explanation (C) to this definition provides that the land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for the purpose other than agriculture. This explanation (C) clearly shows that the lands in question are urban land within the definition given in section 2 read with explanation (C).