SCA/1359919/1994 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13599 of 1994 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MAKANJIBHAI MURJIBHAI AHIR & 2 - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR YN OZA for Petitioner(s) : 1 - 3. MS MANISHA LAVKUMAR, AGP for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 12/12/2008 ORAL JUDGMENT Heard learned advocates appearing for the parties. SCA/1359919/1994 2/5 JUDGMENT 2. This petition arises out of proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 ('ULC Act' for short). 3. At the outset it may be noted that on 28.12.94, learned single Judge of this Court had granted ad- interim relief in terms of para 8(C) of the petition. In para 8(C), the petitioners have prayed for staying of further implementation of orders Annexure A, B and C and for further direction to the respondents not to proceed to take possession of the land belonging to the petitioner pursuant to order Annexure C. On behalf of the State Government, however, an affidavit dated 17.1.2000 sworn by one Maganbhai Patel, Competent Authority and Additional Collector, ULC, Surat has been filed in which it is stated, inter alia, that after passing of the order declaring 514 sq. mtrs. of land of the petitioners as excess land, notification under section 10(1) of the Act was issued on 3.9.87 which was published on 12.11.87 and notification under section 10(3) was issued on 26.6.90 which was published on 30.8.90. Thus the land vested in the Government. Notice under section 10(5) was issued on 11.3.91 and actual possession of the land was taken over on 10.6.94 in presence of the petitioners. Learned AGP Ms.Shah has also placed on record a panchnama which not only records taking over the possession of the land by the Government, the same was done in presence of petitioner No.1, whose thumb impression said panchnama carries. In that view of the matter, when SCA/1359919/1994 3/5 JUDGMENT this Court granted ex-parte interim relief in terms of para 8(C) of the petition, the possession of the excess land was already taken over. Unfortunately, this was not stated by the petitioners in the petition though as per the panchnana, petitioner No.1 was very much aware about this development. 4. In view of section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 ('Repeal Act' for short), the present proceedings would not abate and I have therefore proceeded to hear the matter on merits. 5. It may be noted that the competent authority under the ULC Act by order dated 6.4.86 declared 443.93 sq.mtrs. of land as excess vacant land. The Government, prima facie, believing that the order of the Competent Authority was not according to law in exercise of power under section 34 of the Act decided to take the order in suo motu revision after issuing notice to the land-owners and granting hearing. The Government by order dated 3.7.87 declared total 514. sq. mtrs as excess vacant land. Pursuant to the said order passed by the Government, Competent Authority passed consequential order dated 31.7.87 declaring 514 sq. mtrs of land of the petitioners as excess. Subsequent to order dated 3.7.87, the Competent Authority passed order on 8.4.93 recording that the petitioners are not interested in pursuing their application under section 212 of the Act and their application was thus closed. Thereafter on SCA/1359919/1994 4/5 JUDGMENT 6.5.93, the Competent Authority issued notice to the petitioners for remaining present to surrender 514 sq. mtrs. of land out of survey No.344 paike. These orders are produced at Annexure A, B and C which are under challenge in this petition. 6. It can thus be noted that the order passed by the competent authority on 6.5.86 declaring 443.93 sq. mtrs. of land of the petitioners as excess vacant land was never challenged by the petitioners. This order thus became final in so far as the petitioners are concerned. It was the Government which took the order in suo motu revision and declared total 514 sq. mtrs. of land as excess land. I have, therefore, examined the legality of the order Annexure A dated 3.7.87 passed by the Government. Orders Annexures B and C are consequential orders to order Annexure A. 7. In so far as order Annexure A is concerned, learned advocate for the petitioners drew my attention to the fact that the Government added 92 sq. mtrs. of built up area as part of the holding of the petitioners to arrive at the calculation of excess land held by the petitioners. She rightly pointed out that as per the decision of the Apex Court in the case of Smt.Meera Gupta v. State of W.B. & ors., AIR 1992 SC 1567, this could not be done. To that extent, the case of the petitioners is required to be accepted. It may, however, be noted that three branches of SCA/1359919/1994 5/5 JUDGMENT the same family held in all 5180 sq. mtrs. of land to which 92 sq. mtrs. were added by the Government to arrive at total 5272 sq. mtrs. This was divided by three branches of the family to arrive at the figure of 1757 sq.mtrs. Deducting 1500 sq. meters as permissible limit, 257 sq. mtrs. of land was found excess in the shares of Valiben and Makanji and that is how total 514 sq. mtrs was declared as excess vacant land. 8. Since 92 sq. mtrs. of land which was built up could not have been considered while computing the vacant land, the actual calculation would be as follows: 5180 sq. mtrs. divided by 3 comes to 1726.66. Deducting 1500 sq.mtrs. of land therefrom, it would come to 226.66 sq. mtrs. multiplied by 2 would make it 453.32 sq. mtrs. Thus, the total excess land of the petitioners would be 453 sq. mtrs. Instead, the Government has taken possession of 514 sq.mtrs. Therefore, the difference of land shall be returned to the petitioners within three months from the date of receipt of a copy of this order. 9. The petition is disposed of accordingly. Rule is made absolute to the above extent. (Akil Kureshi, J.) (vjn)