STATE OF GUJARAT Vs. RAMAGAURI HARKISHANDAS

JUDGEMENT

(1.) This petition has been filed by State of Gujarat, challenging the order made by the Urban Land Ceiling Tribunal, Ahmedabad on 16-3-1992 allowing (1) Spl. C.A. No. 12390 of 1994 decided on 12-7-1995 by G.H.C. the appeal of the respondent by which the determination of surplus vacant land situated in the Urban Agglomeration of Rajkot vide order dated 27-5-1986 was set aside. The State Government also challenges the consequential final order made by the competent authority under the Urban Land Ceiling Act giving effect to the order of the Tribunal.

(2.) In brief, the facts which led to this petition may be noticed. The Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as "the U.L.C. Act") came into force with effect from 17-2-1976, and was made applicable to State of Gujarat since its inception. On 15-9-1976. Gokuldas Kalyanji filed a statement in respect of vacant land in Urban Agglomeration. Another statement in respect of the part of the very same land was filed by Prabhudas Gokuldas, son of Gokuldas Kalyanji also on 15-9-1976. The said Prabhudas claimed the land to be ancestral property of Hindu Undivided Family of which Gokuldas was Karta and he has interest in the land as coparcener by birth. It was also claimed that partition of the ancestral property also took place on 17-2-1995. Said Gokuldas died on 20-10-1977. On 5-10-1982, the competent authority published draft statement under Sec. 8(3) of the U.L.C. Act. While publishing draft statement, the competent authority has clubbed together the Statements filed by Gokuldas and Prabhudas. The properties in question were land comprised in Survey No. 170 and a constructed house. While the land covered by Survey No. 170 was situated in village Kotharia and was entered into as agricultural land in the revenue records, the house was situated at Raghuvirpara, Rajkot. The statement of Prabhudas included only half of Survey No. 170, Kotharia (village). After publishing of draft statement, objections were filed to the same. Objections inter alia included the land covered by Survey No. 170 is an ancestral property of the Hindu Undivided Family and was held by Gokuldas as Karta of Hindu Undivided Family and members of the family have in their own right a share in the said property, and Gokuldas's family members including major daughters were entitled to be considered qua the said property as a separate unit. A part of the said land being adjacent to Railway line, within the prescribed distance from railway line is not constructible and the land to that extent cannot be considered to be a vacant land and that the land in question is an agricultural land, which is mainly used for agricultural purposes which does not fall within the definition of urban land and vacant land.

(3.) The competent officer rejected the plea of the objectors about the nonapplicability of the U.L.C. Act. It held that land is agricultural land recorded in the name of Gokuldas but referring to decision of the Government by which in the first instance the land was exempted in 1979 under Sec. 20(1)(a) of the Act which was withdrawn on 1-2-1984 and held that since exemption has been withdrawn, the land in question is to be taken into account for calculation of vacant land under the Act. The competent officer rejected the plea of the objectors as to the nature of property being ancestral and coparcenary property on the ground that land has been recorded in the name of Gokuldas alone and that Gokuldas has filed the return under the Act as an individual person. He also held that in the return filed by Gokuldas only other interested person in the land is stated to be Prabhudas and even in the return of Prabhudas no other name of the heirs of Gokuldas finds place, therefore, no person other than Gokuldas and Prabhudas can be considered for entitlement to unit as holders of the land. As per his findings the competent officer declared 37,414.20 sq.mts. as surplus vacant land in the case of the petitioners. In calculating the surplus vacant land, the competent officer found that the entire area held by Gokuldas measured 43,605 sq.mts. to be considered for the purposes of the Act. He did not give any deduction for land situated appurtenant to Railway line which under the Railways Act and Building Regulations could not be subjected to any construction to the extent provided under the Act and Rules as on the appointed day. According to learned Counsel he has also not taken into account the land acquired for national highway prior to the appointed day which could not have been included in the holdings of the Gokuldas as the land has already been acquired and vested in the Government prior to appointed day. In appeal before the Urban Land Ceiling Tribunal, manifold contentions were raised before the Tribunal as were raised before the competent authority. Particular note may be taken of objections about the properties in question being ancestral, right of daughters to share in the ancestral property entitling them to a separate unit, the nature of land being agriculture, which is not subject to U.L.C. Act, wrongful consideration of land acquired prior to appointed day, for road widening and construction of national high way by-pass and over bridge, and non-consideration of the fact that as per the by-laws of the Building Regulations and Railway Administration it was compulsory to keep 30 metres land open from Railway track and that much land being not constructible cannot be calculated in the "holding" of the appellant, and that the built up property at Raghuvirpara could not have been included in the total holding for the purposes of U.L.C. Act. The petitioner in his appeal also gave the measurement of land held by the holder after deducting the land acquired for national high way, overbridge by-pass and not non-builtable land due to construction of overbridge. showing that remainder of 22,516 sq.mts. land can only be said to be held by Gokuldas's Hindu Undivided Family on the appointed day. From this land further deduction was claimed on the ground of it being unconstructible to the extent construction is prohibited as per the Building Regulations under Railway Administration Rules.