SCA/8787/1990 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8787 of 1990 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT ========================================================= 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 Civil judge ? ========================================================= VINUBHAI NATHABHAI PRAJAPATI - Petitioner(s) Versus URBAN LAND TRIBUNAL & EX OFFICIO SECRETARY TO GOVT. & 1 - Respondent(s) ========================================================= Appearance : MR AJ PATEL, Sr Advocate with Mr. HR PRAJAPATI for Petitioners MR SUNIT SHAH, GP with Mrs. Mini Nair AGP for Respondents ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT 16th May, 2008 ORAL JUDGMENT This petition, preferred under Articles 226 & 227 of the Constitution of India, arises from the proceeding under the Urban Land [Ceiling & Regulation] Act, 1976 [hereinafter referred to as, “the Act of 1976”]. The petitioner, the owner of the SCA/8787/1990 2/14 JUDGMENT lands has challenged the Order dated 8th July, 1987 made by the Competent Authority and the judgment and order dated 1st July, 1987 passed by the Urban Land Tribunal in Appeal No. Ahmedabad-151 of 1987. By above referred Order dated 8th July, 1987, the competent authority has held that out of the total holding of the petitioner, lands admeasuring 37546 sq. meters were excess vacant land as envisaged by the Act of 1976 and were liable to be acquired under the said Act. The said order has been confirmed by the Tribunal in Appeal No. Ahmedabad-151/1987. Therefore, the present petition. The petitioner-Sendharam Gopaldas Prajapati, the petitioner has passed away pending this petition. His estate is represented by his heirs and legal representatives. In consonance with Section 6 of the Act of 1976, the petitioner-Sendharam Prajapati made a declaration of his holding in Form-I. According to the said declaration, the said Sendharam Prajapati held lands block nos. 217, 203, 205, 220 of village Chharodi and several pieces of land situated at Vadaj and Jagatpur within the Ahmedabad Urban Agglomeration admeasuring 38546 sq.m. The said declaration was SCA/8787/1990 3/14 JUDGMENT processed by the competent authority. By Order dated 8th July, 1987, the competent authority held that the said Sendharam was entitled to hold land admeasuring 1000 sq.m [equivalent to one ceiling unit] and the lands admeasuring 37546 sq.m were excess vacant land. The competent authority held that the lands – block nos. 211, 203, 205, 220 of village Chharodi and land Survey no. 222/1 of village Nava Vadaj were liable to be acquired by the State Government under the Act of 1976. The said order has been confirmed in Appeal before the Urban Land Tribunal. Pending the above proceeding, the said Sendharam also applied for exemption under Section 20 [1] of the Act of 1976. The said application came to be rejected on 9th January, 1987. The State Government observed that the lands – block nos. 203 & 220 of village-Chharodi were not used for agricultural purposes; land block no. 203 was used for brick kiln; the lands of block nos. 205 & 217 were used for eucalyptus plantation and were not used for agricultural purpose within the meaning of the Act of 1976. Mr. A.J Patel has appeared for the petitioners. He has challenged the order of the competent SCA/8787/1990 4/14 JUDGMENT authority and the Urban Land Tribunal. He has joined the issue in respect of the land Survey No. 222/1 of village Nava Vadaj. He has submitted that the land Survey No. 222/1 never belonged to the aforesaid Sendharam; was not part of the declaration made by the said Sendharam. Nevertheless, the said land has been included in the holding of the said Sendharam. To cover the said error committed by the competent authority, copy of the declaration made by the said Sendharam has been tampered with and the land bearing Survey No. 222/1 has been added subsequently in the declaration made by the said Sendharam. Long drawn arguments are advanced on this issue; several affidavits have been filed and documents are produced to establish that the said land Survey no. 222/1 did not belong to the said Sendharam. The submission is contested by the learned GP Mr. Shah. He has submitted that the declaration in Form No. I was required to be filled in triplicate. Though in Form No. I and the first copy there was no mention about the land Survey No. 222/1, the said land Survey No. 222/1 had been included in the second copy of the declaration made by the said Sendharam. SCA/8787/1990 5/14 JUDGMENT Further, in the proceedings under Section 84 {c} of the Tenancy Act in respect of certain agricultural lands purchased by the said Sendharam in the year 1970, the Mamlatdar & ALT took into consideration the ownership of the aforesaid land Survey No. 222/1 to hold that the said Sendharam was an agriculturist within the meaning of the Tenancy Act. He has submitted that it does not lie in the mouth of the petitioners to disown the said land survey no. 222/1. I believe that this Court is not required to delve upon the said issue for the reasons : [a] In the Appeal preferred before the Urban Land Tribunal, the said Sendharam did not raise the issue of ownership of the land Survey No. 222/1. In other words, he did accept that the said land Survey No. 222/1 belonged to him; [b] there is no reason why this Court should not believe the official record of the State Government; [c] the order dated 9th January, 1987 made in the aforesaid proceeding under the Tenancy Act does refer to the aforesaid land Survey No. 222/1 as of the ownership of the said Sendharam; [d] If the petitioners are not the owners of the said Survey No. 222/1, there is no reason why they should SCA/8787/1990 6/14 JUDGMENT be concerned about any order made in respect of the said land Survey No. 222/1; [e] In any view of the matter, after holding that the land of the said Survey No. 222/1 to the extent of 6284 sq.m was excess vacant land, after vesting the said excess vacant land in the State Government by Notification issued under Section 10 [3] of the Act of 1976, the authorized officer of the State Government did not take over possession of the of the said land survey No. 222/1. In the proceedings dated 29th December, 1992 of taking over possession of the excess vacant land, the authorized officer had made a categorical statement that in view of the discrepancy in the revenue record, the possession be taken over after verification. It is not the case of the State Government that after that date, the possession of the said land Survey No. 222/1 was taken over. I, therefore, believe that the possession of the said land Survey No. 222/1 was not taken over as envisaged by Section 10 [6] of the Act of 1976. In view of Section 4 of the Urban Land [Ceiling & Regulation] Repeal Act, 1999 [hereinafter referred to as, “the Act of 1999”], the proceeding under the Act of 1976 SCA/8787/1990 7/14 JUDGMENT in respect of the said land Survey No. 222/1 stood abated. Mr. Patel has submitted that the above referred declaration was made in the month of August, 1976. At the relevant time, no master plan in respect of the land in question existed. In absence of a master plan, the agricultural lands used for irrigation were not vacant lands within the meaning of the Act of 1976. Further, in view of the judgment of the Hon'ble Supreme Court in the matter of Smt. Atia Mohammadi Begam v. State of U.P & Ors. [AIR 1993 SC 2465], the said land would not become vacant land after preparation of the master plan/development plan on a later date. The holding of the said Sendharam Prajapati was, therefore, neither vacant land nor urban land subject to the rigors of the Act of 1976. He has further submitted that the action of the competent authority in taking over possession of the excess vacant land on 15th December, 1992 was illegal, such action is, therefore, non-est in the eye of law. In other words, the possession of the excess vacant land continued with the said Sendharam and now with the petitioners. In view of the repeal of the Act of SCA/8787/1990 8/14 JUDGMENT 1976, the entire proceedings shall stand abated and the order of the competent authority and the Urban Land Tribunal shall stand obliterated. He has submitted that before the competent authority could validly take over possession of the excess vacant land, it was required to give notice to the persons in possession as envisaged by Section 10 [5] of the Act of 1976. In the present case, the said Sendharam had given his address as that of Vadaj which was later on in the year 1987 shifted to New Vivekanandnagar. Nevertheless, notice to hand over possession under Section 10 [5] of the Act of 1976 was addressed to the said Sendharam Prajapati at Chharodi which was not the place of his residence. The said Sendharam, therefore, did not receive the notice issued under Section 10 [5] of the Act of 1976. In absence of service of the notice under Section 10 [5] of the Act of 1976, the competent authority had no authority to take over possession of the excess vacant land as envisaged by Section 10 [6] of the Act. In support of his submissions, Mr. Patel has relied upon the judgments in the matters of State of Maharashtra & Anr. vs. B.E Billimoria & Ors. SCA/8787/1990 9/14 JUDGMENT [(2003) 7 SCC 336]; of Laxmanbhai K. Chokshi v. Competent Authority & Additional Collector (ULC) [2007 [3] GLR 2231; of Indrajitsing P. Geel v. Competent Authority & Deputy Collector, Ahmedabad & Anr. [2007 (1) GLR 677] and of Rameshchandra Shamjibhai Raniga v. State of Gujarat & Ors. [(2000) 4 GLR 2777]. The petition is contested by the learned GP Mr. Shah. He has supported the order of the competent authority, the judgment of the Tribunal below and the action of the State Government in taking over possession of the excess vacant land. He has placed on record, the master plan in respect of the lands of the villages within the Ahmedabad Urban Agglomeration prepared in the year 1976 and revised from time to time. He has submitted that at all relevant times, the development plan in respect of the lands in question was in existence. The lands of the said Sendharam, therefore, were governed by the Act of 1976. He has also submitted that the said Sendharam did not challenge the finding of the authority below. Challenge to the said finding by the heirs of the said Sendharam is not maintainable. In other words, SCA/8787/1990 10/14 JUDGMENT the present petitioners have no locus standi to challenge the action undertaken under Section 10 [1] to 10 [6] of the Act of 1976. In support of his submissions, he has relied upon the judgments in the matters of Smt. Atia Mohammadi Begam [Supra] and of State of A.P & Ors. vs. N. Audikesava Reddy & Ors. [AIR 2002 SC 5]. In the declaration made by the said Sendharam Prajapati, he included several pieces of lands situated at villages-Chharodi, Vadaj and Jagatpur. The competent authority held that the lands block nos. 211, 203, 205, 220 of village Chharodi and the land survey no. 222/1 of village Nava Vadaj were excess vacant land. It may be noted here that the land block no. 211 of village Chharodi was not included in the holding of the said Sendharam nor it is even now shown to be of the ownership of the said Sendharam. It appears that reference to land block No. 211 was erroneously made in place of the land block no. 217. Be that as it may, the land block no. 211 did not belong to the said Sendharam and the land block no. 217 was not declared to be excess vacant land. As held hereinabove, the proceedings in respect SCA/8787/1990 11/14 JUDGMENT of the land Survey No. 222/1 of Nava Vadaj has abated. I am, therefore, called upon to examine the matter in respect of the lands block nos. 203, 205 & 220 of village Chharodi. In respect of the land block nos. 203 & 220 of village Chharodi, the State Government in its above referred order dated 9th January, 1987 made under Section 20 of the Act of 1976 had categorically observed that the said lands were not used for agricultural purposes but for brick kiln. The claim of the declarant that the said lands were agricultural lands and were not amenable to the jurisdiction of the Act of 1976 is belied. Even in his declaration made in Form No. 6, the declarant Sendharam did refer to the utilization of the land for the purpose of brick kiln. From the record, it is evident that all correspondence was sent to the said Sendharam at his residential address at Vadaj, as mentioned in the declaration made in Form No. I and on later stage, at New Vivekanand Nagar. However, the notice under Section 10 [5] was sent to village Chharodi. No explanation has come forth from the State Government SCA/8787/1990 12/14 JUDGMENT why the said notice had to be sent to Village Chharodi or whether it was duly served upon the declarant Sendharam Prajapati. It is well settled that the procedure set out in Section 10 of the Act of 1976 is mandatory. Any lapse in the said procedure would make the subsequent procedure invalid. In absence of a valid notice under Section 10 [5] of the Act of 1976, the competent authority could not have invoked power under Section 10 [6] of the Act of 1976 to take over possession of the excess vacant land. Further, though the declarant had shown his ownership of six pieces of land at village-Chharodi; including the land block no. 217, the said land block no. 217 was not declared to be excess vacant land. The said land block no. 217 was not referred to in the Notification issued under Section 10 [1] of the Act of 1976 or the Notification issued under Section 10 [3] of the Act of 1976, nor in the Notice issued under Section 10 [5] of the Act of 1976; nor the possession of block no. 217 was taken over by the competent authority. Nevertheless, it has been brought on record by further affidavit that the land block nos. 205, 220 & 217 of village-Chharodi was SCA/8787/1990 13/14 JUDGMENT disposed of for the use by weaker sections of society and that the said lands were sub-plotted and the sub- plots were allotted to several persons named in the list. Evidently, the action of the competent authority and the State Government suffers from the vice of non-application of mind. Though the land block no. 211 did not belong to the said Sendharam, it has been declared to be excess vacant land in the hands of the said Sendharam. The land block no. 217 of the said Sendharam although was not declared to be excess vacant land; was not vested in the State Government, the said land has been sub-plotted and has been distributed for the purpose of construction of houses for weaker section of the society. As a necessary consequence, the State Government cannot be said to have taken over possession of the excess vacant land as contended by the State Government. If the possession of excess vacant land was not taken over by the State Government at the relevant time or until 30th March, 1999, in view of Section 4 of the Act of 1999, the proceedings under the Act of 1976 in respect of the excess vacant land stood abated. SCA/8787/1990 14/14 JUDGMENT The petition is allowed. The Notification dated 22nd May, 1992 issued under Section 10 [3] of the Act of 1976 and the notice dated 1st September, 1992 issued under Section 10 [5] of the Act of 1976, and the action in taking over possession of the excess vacant land under Section 10 [6] of the Act of 1976 are set-aside. In view of section 4 of the Act of 1999, the proceedings under the Act of 1976 stand abated. Rule is made absolute. The parties shall bear their own cost. {Miss R.M Doshit, J.} Prakash*