SCA/52220/2001 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 522 of 2001 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 ? ========================================================= SAKARLAL MAGANLAL & 1 - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MRS KETTY A MEHTA for Petitioner(s) : 1 - 2. MRS MANISHA L SHAH ASST. GOVERNMENT PLEADER for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 15/12/2008 ORAL JUDGMENT 1.0 The petitioners have challenged the action of the respondents of taking over possession of 5217.44 sq. mts. of land from the Final Plot No.167 of Town Planning Scheme (Anjana) as excess land vested in the government. They have also prayed for SCA/52220/2001 2/7 JUDGMENT consequential reliefs. 2.0 Short facts of the present petition are as follows, 2.1 The petitioners held certain lands in the urban agglomeration. Upon introduction of the Urban Land (Ceiling & Regulation) Act, 1976 ('U.L.C.' for short), the petitioners filed a declaration under Section-6 in August, 1976, declaring that they are holding 25,293 sq. mts. of land situated in Survey No.27/2 out of which 84.00 sq. mts. of the land was constructed upon. 2.2 When the U.L.C. proceedings were going on, Town Planning Scheme No.7 was finalized and against the petitioners' holding of Survey No.27/2, Final Plot No.167 of the reduced area of 18,660 sq. mts. was allotted to them. The petitioners had applied and were granted permission for construction of residential units for the weaker sections under Section 21 of the U.L.C. Act. It is the case of the petitioners that in terms of the said Scheme, petitioners' plans for construction were approved by Surat Municipal Corporation on 04.06.1998 on Final Plot No. 167. It is further the case of the petitioners that the plot is fully developed, residential houses have been constructed and sold, and units are SCA/52220/2001 3/7 JUDGMENT occupied by the purchasers. 2.3 The Competent Authority by an order dated 27th June, 1998 declared an area of 6633 sq. mts. as excess land in the hands of the petitioners. This area was arrived at by deducting 18,666 sq. mts. from the original Plot area of 25,293 sq. mts.. Permitting the petitioners to retain 1500 sq. mts., out of the said open land, the competent authority declared 5217.44 sq. mts. as access vacant land. It is the case of the respondents that all steps under Section 10 of the U.L.C. Act were, thereafter, undertaken and after issuing due notices, possession of the excess land was taken over. The ownership of the said land vests with the Government. 3.0 On behalf of the petitioners, learned Advocate Ms. Mehta submitted that the original Plot ad-measuring 25,293 sq. mts. was reduced to 18660 sq. mts. during the implementation of the Town Planning Scheme. On this plot of land, scheme for construction of residential units forweaker sections under Section 21 of the U.L.C. was sanctioned and implemented. There was, thereafter, no scope of declaring any other land as excess land. She drew my attention to the G.R. dated 10th June, 1980 wherein it SCA/52220/2001 4/7 JUDGMENT is stated that after filling up Form No.1 under U.L.C. Act, if under the Town Planning Scheme, the land holding is reduced, such reduced land holding should be taken into account while processing application submitted under the U.L.C. Act. 4.0 Learned AGP Ms. M.L. Shah for the state submitted that after due consideration, the competent authority had passed the order declaring certain areas as excess vacant land and after issuing notices possession thereof was also taken over. 5.0 Having heard learned Advocates for the parties and having perused the material on record, it appears clearly that though at the outset the petitioners declared a total holding of 25,293 sq. mts. in Survey No.27/2, after filling up the Form No.1 under Section 6 of the U.L.C., the Town Planning Scheme was implemented and against the said Survey No.27/2, Final Plot No.167 was allotted to the petitioners of the reduced size i.e. 18,660 sq. mts.. The competent Authority, therefore, erred in holding that the Scheme Weaker Sections 21 operated for 18,660 sq. mts leaving an excess land of 6633 sq. mts when the plot area itself had shrunk upon the implementation of the Town Planning Scheme. The petitioners held no further land than that covered SCA/52220/2001 5/7 JUDGMENT under the Weaker Sections Scheme. The action of the competent Authority was, thus, impermissible. It eventually amounted to reducing the area covered under Section 21 Scheme and was also opposed to the G.R. dated 10th June, 1980. The action of the respondent taking over possession of the 5217.44 sq. mts. land pursuant to the said order of the competent authority is, therefore, erroneous and would lead to anomalous situation. In this case, the government took possession, after the Scheme under Section 21 was sanctioned. As per the petitioners, the same was fully implemented and land was constructed upon. Respondents, however, dispute this aspect. Be that as it may be, admittedly, Section 21 permission was never canceled before the U.L.C. Act was repealed. On all these grounds, therefore, I find that the action of the respondents is wholly unauthorized. The petition, therefore, requires to be allowed. 5.1 However, two points need to be dealt with. First, there is considerable delay in approaching the Court. Ordinarily, I would have confronted the petitioners with this aspect, however, allowing the order of the competent Authority and to stand and permit the government to continue to hold the so called taking over the possession of the excess land would result into great injustice and SCA/52220/2001 6/7 JUDGMENT prejudice to those members of the weaker sections who might have purchased the units from the petitioners under the scheme sanctioned by the Government. Despite considerable delay, I have, therefore, entertained the petition. 6.0 Second aspect is that, it cannot be disputed that entire impasse was created on account of non participation of the petitioners at all stages i.e. when the Competent Authority was processing the declaration of the petitioner, when notice for taking over the possession of excess vacant land was issued and when the possession was actually taken over, the petitioners chose not to participate. If the petitioners had pointed out correct facts before the Competent Authority, then, perhaps this result would not have been reached. Under the circumstances, therefore, while allowing the petition and setting aside the order passed by the Competent Authority under the U.L.C. Act dated 27.06.1998 and declaring the action of the Government in taking over the possession of the 5217.44 sq. mts. of land as illegal, I direct the petitioners to deposit Rs.10,000/- with the Legal Aid Committee towards costs within a period of FOUR WEEKS from today. Rule is made absolute. (AKIL KURESHI, J.) SCA/52220/2001 7/7 JUDGMENT Umesh/