KANTIBHAI NANUBHAI PATEL Vs. URBAN LAND TRIBUNAL

JUDGEMENT

(1.) In this petition, since the original record of the writ petition was not traceable, the record has been reconstructed with the assistance of the learned Government Pleader, pursuant to the direction issued by this Court on 19th August, 1997 and the matter has been heard.

(2.) The petitioners seek to challenge order of the Urban Land Ceiling Tribunal dated 14th December, 1989 at Annexure "F" to the petition dismissing the Appeal of the petitioners (Appeal No. 164 of 1987) and confirming the order dated 27- 8-1987 of the Competent Authority declaring 26,432 sq. mtrs. of land of the petitioners as excess vacant land, and the notice dated 21-2-1994 at Annexure "G" to the petition issued under S.10(5) by the respondent No. 2 seeking to take possession on 28-2-1994, claiming that they are not holding any excess land and that they are entitled to exemption under S.20 of the Urban Land (Ceiling and Regulation) Act, 1976 in respect of Revenue Survey Nos. 80/2 and 91/1 of village Nana Varachha, Tal. Choryasi, Dist. Surat. A direction is also sought that the scheme put by the petitioners under S.21(1) for the land bearing survey No. 71 should not be cancelled and that the said land ought not to be considered in the holding of the petitioners.

(3.) At the hearing of this petition, the learned Counsel Mr. Jariwala, who alongwith learned Counsel Mr. Bachani had filed this petition, has submitted that the papers were taken away from him by the petitioners. The learned Counsel Mr. Bachani had, on an earlier occasion when the matter was called out on 27-8-1997 stated that he had appeared at notice stage and thereafter, his junior Mr. K. K. Trivedi had appeared at the time when Rule was issued and then the papers were taken away by Mr. K. K. Trivedi, which fact is recorded in the order dated 27-8-1997. An affidavit dated 12-9-1997 has been filed by Mr. Bachani to this effect, in which it is stated that the papers were handed over to Shri Jariwala, the other Advocate on record. Mr. Jariwala has filed an affidavit stating that the papers were taken away from him as stated by him in his telegram dated 20th August, 1997 about one and a half years back, with a view to engage Mr. P. M. Thakker. Mr. P. M. Thakker, on being required by order dated 27-8-1997, has filed a note dated 16-9-1997, stating that having gone through his office record, he is unable to find any such matter in which he is said to have been engaged by the petitioners of this petition. The petitioner No. 2 is present and states that the other petitioner Kantilal has gone abroad. He has stated that he leaves the matter on the Court to render decision in this petition. Therefore, Mr. M. C. Shah, who was present representing Mr. Jariwala, was requested to assist the Court in the hearing of this petition and he has been good enough to argue the petition for the petitioners. It is contended for the petitioners that on survey No. 71, already construction has taken place and 350 persons are at present residing. There is nothing on record to show that any such construction exists there. The learned Counsel is not in a position to show as to when such construction took place. The question involved in this petition is whether that land was rightly treated as part of the holding of the petitioners while computing vacant land at the relevant time and that cannot be decided on the basis of any subsequent unauthorised constructions. It is contended by the learned Counsel for the petitioners that if the other two survey Nos. 80/2 and 91/2 were to be treated as agricultural land, then the question of obtaining any exemption under S.20 in respect thereof would not arise. It is contended that these two parcels of land could not have been treated as vacant land since they were predominantly used for agricultural purposes.