SCA/5500/2002 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5500 of 2002 For Approval and Signature: 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 ? ========================================= = ZAVERBHAI NANJIBHAI CHAUHAN & 3 - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================= = Appearance : MR AJ PATEL for Petitioner(s) : 1 - 4. MR APURVA DAVE, ASSTT. GOVERNMENT PLEADER for Respondent(s) : 1 - 2. ========================================= = CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 27/11/2008 ORAL JUDGMENT 1. By this petition under Article 226 of the Constitution of SCA/5500/2002 2/15 JUDGMENT India, the petitioners have challenged the communication dated 29th December 2001 (Annexure “K” to the petition), whereby the petitioners' application for issuance of “No Objection Certificate”, has been rejected, and further seek a direction against the respondent No.1 – State to issue “No Objection Certificate” in respect of the lands held by the petitioners in view of the Repeal Act. 2. The facts of the case stated briefly are that the petitioners own and possess land bearing Survey No.433/1, admeasuring 22,865 sq. mtrs. of Village Vejalpur, Taluka City, District Ahmedabad. The petitioners filed Form No.1 under Section 6(1) of the Urban Land (Ceiling & Regulations) Act, 1976 (the Act) in respect of their holdings. The Competent Authority vide order dated 21st December 1986 held that the petitioners were entitled to retain 10,000 sq. mtrs. of land and declared 12,793 sq. mtrs. of land as excess vacant. Being aggrieved by the aforesaid order of the Competent Authority, the sons of petitioners No.3 and 4 preferred an appeal before the Urban Land Tribunal, Ahmedabad (the Tribunal). The Tribunal, by its order dated 31st August, 1990, partly allowed the appeal and held that the petitioners were entitled to retain 12,000 sq. mtrs. of land, and that land admeasuring 10793 sq. mtrs. was excess vacant in the hands of the petitioners. The aforesaid order subsequently came to be modified by the Tribunal and by order dated 27th May 1991, it was held that the land holders are entitled to retain 11,000 sq. mtrs. of land, and 11,793 sq. mtrs. of land was held to be excess vacant. Pursuant to the aforesaid order passed by SCA/5500/2002 3/15 JUDGMENT the Tribunal, further proceedings under the Act came to be taken and notification under Section 10(1) and 10(3) of the Act came to be published in respect of the lands declared excess vacant. Notice under Section 10(5) of the Act came to be issued on 6th February, 1993 calling upon the petitioners to hand over possession of the excess vacant land within the time stipulated therein. It is the case of the respondent State authorities that on 18th March, 1993, possession of the lands declared excess vacant in terms of the order dated 27th May 1991 passed by the Urban Land Tribunal was taken over on behalf of the State Government. 3. Subsequently, two sisters of the petitioners challenged the order dated 21st December, 1986 of the Competent Authority before the Urban Land Tribunal, who vide its order dated 15th December, 1993, held that the land holders were entitled to retain 13,000 sq. mtrs. of land and 9,793 sq. mtrs. of land was held to be excess vacant. In the meanwhile, the lands in question were subjected to a Town Planning Scheme and while implementing the Town Planning Scheme, the lands originally held by the petitioners i.e. 27,665 sq. mtrs. came to be reduced to 16,480 sq. mtrs. The petitioners, therefore, made an application to the Competent Authority on 17th April, 1995 and requested him to consider the reduced area while declaring the lands to be excess vacant in the hands of the petitioners. By order dated 19th April 1995, the Competent Authority held that out of 16,480 sq. mtrs. of land of final plots No.19 and 271 held by the land holders, the land holders were entitled to hold 1,778 sq. mtrs. of SCA/5500/2002 4/15 JUDGMENT land from final plot No.19 and 11,222 sq. mtrs. of land from final plot No.271. It was held that 3,480 sq. mtrs. of land out of final plot No.271 was excess vacant and it was directed that further proceedings in connection with the same be taken. 4. It appears that after the passing of the aforesaid order dated 19th April 1995, no further proceedings had been taken. 5. On 30th March 1999, the Urban Land (Ceiling & Regulation) Act, 1976 came to be repealed by the Urban Land (Ceiling & Regulation) Repeal Act, 1999 (the Repeal Act). On 15th April 1999, the State Government issued a circular laying down certain administrative instructions in view of the repeal of the Urban Land (Ceiling & Regulation) Act, 1976, the penultimate paragraph of which, as translated in English reads as under: “Thus at present, in those six big urban agglomerations to which the Urban Land Ceiling Act, 1976 was applicable, when any document in relation to any property situated in those areas is required to be registered, in that context in respect of the land in question a certificate shall be required to be obtained from the Competent Authority of the concerned urban agglomeration to the effect that under the provisions of the Urban Land Ceiling Act, 1976 possession of the said land has not been taken over by the State Government after the land has been declared as excess vacant and vested in the SCA/5500/2002 5/15 JUDGMENT State Government. Meanwhile from the Competent Authority in every urban agglomeration, in respect of those lands which have vested in the State Government and possession has been taken over by the State Government under the provisions of the Urban land Ceiling Act, 1976 a list of the details each of such lands shall be prepared and the details shall be sent to each registration office. Thus till such list is prepared, as an interim arrangement the practice of obtaining certificates from the Competent authority as stated hereinabove shall be followed.” 6. In the light of the above referred Circular, the petitioners made an application dated 16th January, 2001 seeking “No Objection Certificate” from the State Government in respect of the lands in question. By the impugned communication dated 29th December 2001, the respondents declined to grant “No Objection Certificate” stating that prior to coming into force of the Repeal Act, 1999, the Government had taken possession of the lands in question, and that, no fresh procedure was required to be taken in that regard. That the provisions of Section 4 of the Repeal Act would not be applicable to the facts of the present case and that, the provisions of Section 3(1) (a) of the Repeal Act would be applicable and as such, the request of the petitioner is not accepted. 7. Being aggrieved by the decision contained in the communication dated 29th December 2001, the petitioners have filed the present petition challenging the SCA/5500/2002 6/15 JUDGMENT same and praying for a direction against the respondent No.1 State to issue “No Objection Certificate” in respect of the lands held by the petitioners. 8. Heard Mr.A.J.Patel, learned advocate for the petitioners and Mr.Apurva Dave, learned Assistant Government Pleader for the respondent – State authorities. 9. The learned advocate for the petitioners has challenged the impugned communication on various grounds. It is submitted that the possession taken by the State Government vide panchnama dated 18th March 1993 is not in accordance with law, inasmuch as the same has been taken over by the Maintenance Surveyor, who is not an authorized person, as defined under Section 2(d) of the Act. It is submitted that possession of the lands in question having been taken over without following due procedure prescribed under Section 10 of the Act, is illegal and violative of the petitioners' fundamental rights. It is further submitted that after the so-called possession was taken over on behalf of the State Government, subsequent orders have been passed by the Urban Land Tribunal in December 1993, reducing the extent of excess vacant land. That by order dated 19th April 1995, the Competent Authority and Additional Collector, Urban Land Ceiling, Ahmedabad has further reduced the extent of excess vacant land to 3,480 sq. mtrs. However, no proceedings have been taken under Section 10 of the Act pursuant to the said order. It is submitted that once the order pursuant to which possession had initially been taken came to be modified under the provisions of the SCA/5500/2002 7/15 JUDGMENT Act, procedure under Section 10 of the Act was required to be followed afresh and as such, it was not permissible for the respondent authorities to rely upon the possession taken by them way back on 18th March 1993, after which the extent of excess vacant lands held by the petitioners came to be modified on several occasions. It is, accordingly, submitted that it cannot be said that the respondent authorities have taken possession of the lands in question in accordance with the provisions of the Act prior to the coming into force of the Repeal Act and as such, the proceedings under the Act are deemed to have abated and therefore, the respondents were not justified in rejecting the petitioners' application seeking “No Objection” in respect of the lands in question. 10.In support of his submissions, the learned advocate has placed reliance upon the following decisions of this Court: (i) Chunilal Chhaganlal Pandya v. Competent Authority, 1992 (2) GLR 861. (ii) Judgement and order dated 9th November, 2006 rendered in Special Civil Application No.5324 of 1995 in the case of Bharatkumar Lalbhai Vasa v. State of Gujarat. (iii) Judgement and order dated 26th August, 2008 rendered in Letters Patent Appeal No.1132 of 2007 whereby the aforesaid judgement and order has been affirmed by a Division Bench of this Court. (iv) State of Gujarat v. Gordhanbhai Becharbhai Patel and others, 1996 A.I.H.C. 657. (v) Dahyabhai Manorbhai Patel v. The Competent SCA/5500/2002 8/15 JUDGMENT Authority & Additional Collector, Unit No.2, Vadodara and another, 1987 (2) GLR 1396. (vi) D.S Patel & Construction C. v. Competent authority & Deputy Collector (U.L.C.), Rajkot & Another, 1997 (3) GLR 2375. 11.On the other hand, Mr.Apurva Dave, learned Assistant Government Pleader has vehemently opposed the petition. It is submitted that possession of the lands in question had already been taken over on behalf of the State Government under the provisions of the Act way back on 18th March, 1993. It is contended that reduction of the excess vacant land held by the petitioner, would not render the possession taken earlier nugatory. It is submitted that to the extent the excess vacant land was reduced, the petitioners would be entitled to release of such land in their favour, however, no further procedure is required to be taken for taking possession of the lands in question. It is submitted that the possession having been taken much prior to the coming into force of the Repeal Act, the lands in question stood vested in the State Government and as such, the petitioners are not entitled to “No Objection Certificate” as prayed for and that the respondent authorities were justified in rejecting the same. 12.From the facts noted above, it is apparent that initially, vide order dated 11th December 1996, the Competent Authority had held that the petitioners were entitled to retain 10,000 sq. mtrs. of land and had declared 12,793 sq. mtrs. of land held by the petitioners to be excess SCA/5500/2002 9/15 JUDGMENT vacant under the provisions of the Act. The said order came to be challenged by the petitioners before the Urban Land Tribunal who vide order dated 31st August 1990 held that the petitioners are entitled to hold 12,000 sq. mtrs. of land and declared 10,793 sq. mtrs. of land from holding of the petitioners to be excess vacant. Subsequently, by order dated 27th May 1991, the order dated 31st August 1990 came to be amended by the Urban Land Tribunal, and it was held that the petitioners are entitled to retain 11,000 sq. mtrs. of land and 11,793 sq. mtrs. of land was held to be excess vacant. Pursuant to the order passed by the Urban Land Tribunal, notifications under Section 10(1) and 10(3) of the Act came to be published in the Official Gazette on 26th March 1987 and 20th June 1988 respectively. Notice under Section 10(5) of the Act came to be issued on 6th February 1993 and possession of the lands, admeasuring 11,793 sq. mtrs. from the holding of the petitioners came to be taken over vide panchnama dated 18th March 1993. However, after possession was taken over on 18th March, 1993, the order pursuant to which possession was taken over came to be modified twice, once by the Urban Land Tribunal vide order dated 15th December, 1993 whereby it was held that the landholders were entitled to retain 13,000 sq. mts of land and 9793 sq. mts of land was held to be excess vacant and thereafter by the Competent Authority who vide order dated 19th April, 1995 held that the petitioners were entitled to retain 1778 sq. mts of land from Final Plot No.19 and 11222 sq. mts from Final Plot No. 271 and declared 3480 sq. mts of land forming part of Final Plot No.271 as excess vacant. A perusal of SCA/5500/2002 10/15 JUDGMENT the panchnama dated 18th March, 1993 shows that possession of 11793 sq. mts of land from Final Plot No.271 had been taken over on behalf of the State Government. However, once the order of the Competent Authority as well as the order of the Tribunal, based on which possession of excess vacant land was taken over was modified by subsequent orders of the Tribunal and the Competent Authority, it was incumbent on the respondent authorities to give effect to the said orders in accordance with the provisions of law, by issuing fresh Notifications under section 10(1) and 10(3) of the Act and take possession of the lands to the extent they were declared excess vacant. Possession taken pursuant to earlier orders would enure only till the subsistence of the said orders. However, once the orders are modified, the entire process for vesting the lands in the State Government and taking over possession would be required to be followed. However, in the facts of the present case after the order of the Competent Authority came to be modified no steps appear to have been taken under the provisions of the Act asking the land holders to give their choice of retainable land nor have fresh notifications under section 10(1) and 10(3) of the Act been issued indicating the extent of land vesting in the State Government. 13.It has been contended on behalf of the State Government that as possession had already been taken prior to the coming into force of the repeal Act, no fresh procedure was required to be followed. The said contention is fallacious, inasmuch as earlier possession of 11793 sq. SCA/5500/2002 11/15 JUDGMENT mts of land had been taken over whereas ultimately vide order dated 19th April, 1995 of the Competent Authority, 3480 sq. mts of land has been held to be excess vacant and it has been ordered that further steps be taken in this regard. The order passed by the Competent Authority is an order under section 8(4) of the Act; consequently a final statement under section 9 of the Act is required to be issued. Thereafter, the procedure laid down under section 10 of the Act is required to be followed and notifications under section 10(1) and 10(3) are required to be published in the Official Gazette vesting the lands declared as excess vacant in the State Government. Thereafter notice under section 10(5) of the Act is required to be issued calling upon the person who is in possession of the land to deliver possession thereof to the State Government and in case such person fails or refuses to comply with an order made under section 10(5) of the Act, possession can be taken over on behalf of the State Government and such force as may be necessary may be used for that purpose. In the present case, though initially possession was taken over on behalf of the State Government, the same would enure till the subsistence of order on the basis of which the same was taken. Once the said order is modified, possession would be required to be taken afresh in terms of the modified order, as otherwise it would not be possible to demarcate as to which land possession has been taken over. The situation today is that possession of 11793 sq. mts of land from Final Plot No.271 had been taken over at the relevant time, however the area of excess vacant land has been reduced by subsequent orders, and lastly by SCA/5500/2002 12/15 JUDGMENT order dated 19th April 1995, only 3480 sq. mts of land have been declared as excess vacant and it has been ordered that further proceedings be taken in accordance with law. However, in absence of any further proceedings having been taken it is well nigh impossible for the respondent authorities to state as to which 3480 sq. mts of land possession has been taken over. In the meanwhile the Urban Land Ceiling and Regulation Act, 1976 has been repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 and as per the provisions of the Repeal Act, if the land has not been vested in the State Government under section 10(3) of the Act or possession has not been taken over, the same would not be saved and the proceedings under the Act of 1976 would abate. In these circumstances, it would not be possible for the State authorities to take any further action under the provisions of the repealed Act and all proceedings under the Act after the passing of the order dated 19th April 1995 of the Competent Authority would abate. In the circumstances, it cannot be stated that possession of the subject lands has been taken over on behalf of the State Government in accordance with the provisions of the Act, prior to the coming into force of the Repeal Act. 14.The view taken by this Court is reinforced by a decision of a learned Single Judge this Court in the case of Bharatkumar Lalbhai Vasa v. State of Gujarat, rendered on 9th November, 2006 in Special Civil Application No.5324 of 1995 which has been affirmed by a Division Bench of this Court by judgement and order dated 26th August, 2008 rendered in Letters Patent SCA/5500/2002 13/15 JUDGMENT Appeal No.1132 of 2007. The said view also finds support in a decision rendered by a learned Single Judge of this Court in the case of State of Gujarat v. Gordhanbhai Becharbhai Patel and others, 1996 A.I.H.C. 657 wherein it has been held that “when the order of the Competent Authority has been quashed and set aside, all consequential actions, which have been taken in the meantime, have to be reversed and the functionaries under the Act have to abide by the order passed by the Appellate Authority and if any authority has taken steps on the basis of an order which is subsequently set aside, those steps deserve to be reversed and the process of reversal must be followed so as to take the order of the Appellate Authority to its logical end.” Of course in the said cases the order passed by the Competent Authority had been reversed by the Tribunal, whereas in the present case the order passed by the Tribunal has been subsequently modified by the Tribunal and then by the Competent Authority. Nonetheless the modification would be required to be given effect in accordance with law by following the procedure prescribed under the Act. 15.This Court in the case of Dahyabhai Manorbhai Patel v. The Competent Authority & Additional Collector, Unit No.2, Vadodara and another, 1987 (2) GLR 1396 has held that “in cases where an aggrieved party may succeed in appeal and the final order passed by the Competent Authority under section 9 is set aside (or varied or modified), the further consequential steps under section 10 will also have to be taken by the Government so as to bring the same in conformity with SCA/5500/2002 14/15 JUDGMENT the final order under section 9 of the Act. Just as the order under section 9 is set aside (or varied or modified) by the Urban Land Tribunal similarly the subsequent steps under section 10 of the Act will have to be taken by the Government and it will have either to set aside (or vary or modify) its earlier actions.” Admittedly in the present case, despite the specific order passed by the Competent Authority on 19th April, 1995, to take further steps in accordance with law, no action has been taken pursuant thereto nor has any action been taken pursuant to the order passed by the Tribunal subsequent to taking over possession in terms of the earlier order. In the circumstances, as of today, the State Government is not in a position to state as to which part of final plot No.271 possession has been taken and in view of the coming into force of the Repeal Act, no further action is permissible pursuant to the order dated 19th April, 1995 and the proceedings would therefore, abate at that stage, namely at the stage when 3840 sq. mts of land had been declared excess vacant from final plot No.271. In absence of any further proceedings having been taken under section 10 of the Act, the said lands would not vest in the State Government and as such the petitioners would be entitled to issuance of a No-objection Certificate in terms of the circulars issued by the State Government. 16.Considering the view taken by the Court, the Court is not inclined to enter into the merits of the other submissions advanced by the learned Advocate for the petitioners in respect of the validity and legality of the possession taken by the State Government on 18th March, 1993. SCA/5500/2002 15/15 JUDGMENT 17.For the foregoing reasons, the petition succeeds and is, accordingly, allowed. It is held that the respondent authorities had not taken over possession of the lands in question in accordance with the provisions of the Act prior to the commencement of the Repeal Act and as such, the respondent authorities are not justified in rejecting the petitioners' application seeking “No Objection” in respect of the lands in question. The impugned communication dated 29th December, 2001 is hereby quashed and set aside. Consequentially, the respondents are directed to issue “No Objection Certificate” to the petitioners in respect of the lands in question. Rule is made absolute accordingly, with no order as to costs. [HARSHA DEVANI, J.] parmar*