LPA/873/1996 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 873 of 1996 In SPECIAL CIVIL APPLICATION No. 945 of 1995 For Approval and Signature: HONOURABLE MR. JUSTICE MOHIT S. SHAH HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= = 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 ? ========================================= = STATE OF GUJARAT - Appellant(s) Versus JITENDRA CHHABILDAS DAVE & 3 - Respondent(s) ========================================= Appearance : MR SUNIT SHAH, GOVERNMENT PLEADER with Dipen Desai, AGP for Appellant(s) : 1, MR JC VYAS for Respondent(s) : 1, SERVED BY AFFIX.-(R) for Respondent(s) : 2, RULE SERVED for Respondent(s) : 3 - 4,4.2.2 None for Respondent(s) : 4, ========================================= = CORAM : HONOURABLE MR. JUSTICE MOHIT S. SHAH and HONOURABLE MS.JUSTICE H.N.DEVANI LPA/873/1996 2/5 JUDGMENT Date : 08/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR. JUSTICE MOHIT S. SHAH) 1. This Appeal under Clause 15 of the Letters Patent is directed against the judgment and order dated 15th March, 1996 of the learned Single Judge of this Court, by which the learned Single Judge allowed the writ petition and set aside the order dated 4th September 1993 of the Deputy Collector, Viramgam in Consolidation Case No.39 of 1993, as confirmed in revision by the State Government on 11th January 1995. 2. The respondents No.1 and 2 herein (original petitioners) purchased from the respondents No.3 and 4 herein two pieces of lands, admeasuring 606 sq. yards and 1,000 sq. yards from Survey No.241/3, which was admeasuring 3,743 sq. mtrs., situated in Village Bodakdev within the Urban Agglomeration, Ahmedabad under registered sale deeds dated 29.4.1989. The respondents No.1 and 2 entered into the said transactions after the competent authority under the Urban Land Ceiling Act granted permission by order dated 27/28th February 1989 to respondents No.3 and 4 herein, to sell the said two parcels of lands to respondents No.1 and 2 herein (original petitioners). 3. The respondents No.3 and 4 herein had filed declaration under Section 6(1) of the Urban Land (Ceiling & LPA/873/1996 3/5 JUDGMENT Regulation) Act, 1976 (hereinafter referred to as “the ULC Act” for short), in the prescribed form, with respect to their holdings within the Urban Agglomeration, Ahmedabad, including the lands in question. By order dated 13th December 1985 of the competent authority under the ULC Act, the respondents No.3 and 4 were shown to have excess holding of 9,011 sq. mtrs., including part of the lands in question. 4. The authority under the Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as “the Fragmentation Act” for short) issued show cause notice dated 16th June 1993 calling upon the respondents herein i.e. both the sellers as well as the purchasers, to show cause why the transactions of sale should not be cancelled and why penalty should not be levied by registering Consolidation Case No.38/1993. The respondents No.1 and 2 – purchasers filed reply dated 30th July 1993. However, the authority under the Fragmentation Act passed the order dated 4th September 1993 declaring the aforesaid sale transactions to be invalid and imposed penalty of Rs.250/- and also ordered summary eviction of the occupants from the lands purchased by them. The revision against the said order came to be dismissed by order dated 11th January 1995. Hence, the petition was preferred before the learned Single Judge. 5. The contention urged by the respondents No.1 and 2 herein (original petitioners) before the learned Single Judge was that, once the lands in question were treated LPA/873/1996 4/5 JUDGMENT as vacant urban lands and the authorities under the ULC Act had even granted permission under Section 26(2) of the ULC Act for sale of the lands in question, they could not be considered as agricultural lands and therefore, they could not be covered by the provisions of the Fragmentation Act. The learned Single Judge accepted the said contention and held that once the disputed lands came to be treated as vacant lands under the ULC Act, it would mean that it was not used for agricultural purpose, mainly or otherwise, on the date of coming into force of the ULC Act. The learned Single Judge also relied upon the provisions of Section 42 of the ULC Act, which gives an overriding effect over all other Acts except those specified under Section 42 of the ULC Act. The learned Single Judge, therefore, held that the disputed lands were not fragments and after coming into force of the ULC Act and that the said transactions in question were, therefore, not hit by the Fragmentation Act. 6. Mr.Sunit Shah, learned Government Pleader with Mr.Dipen Desai, learned Assistant Government Pleader has submitted that the learned Single Judge has erred in holding that the Fragmentation Act will not apply once the land was treated as vacant land under the ULC Act. It is submitted that the agricultural lands may still be treated as vacant urban land if it is not used for agricultural purpose, but the agricultural land, even though not used for agricultural purpose, may still be covered by the Fragmentation Act. It is further submitted that the finding of the authority under the ULC Act that the land was not used for agricultural purpose LPA/873/1996 5/5 JUDGMENT cannot bind the authority under the Fragmentation Act. It is submitted that if the land is covered by the Fragmentation Act, the owner of the adjoining land has a right of preemption, as the entire object of the Fragmentation Act is to prevent fragmentation of agricultural lands for more efficient agricultural operations. 7. Having heard the learned Government Pleader, we are not inclined to examine the question raised by the learned Government Pleader because, in the facts of the present case, there is nothing on record to show that the lands adjoining to the lands in question are agricultural lands. Hence, the question of the owner of any adjoining agricultural land getting right of preemption, as contended, does not arise. We are, therefore, not inclined to examine the hypothetical question sought to be raised by the learned Government Pleader. 8. On this ground alone, we dismiss the Appeal. The Appeal is, accordingly, dismissed. [M.S.SHAH, J.] [HARSHA DEVANI, J.] parmar*