LPA/6720/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 67 of 2008 In SPECIAL CIVIL APPLICATION No. 4770 of 1992 With CIVIL APPLICATION No. 808 of 2008 In LETTERS PATENT APPEAL No. 67 of 2008 For Approval and Signature: HONOURABLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH HONOURABLE MR.JUSTICE D.H.WAGHELA ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 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 ? No 5 Whether it is to be circulated to the civil judge ? No ================================================= COMPETENT AUTHORITY & ADDITIONAL COLLECTOR (ULC) - Appellant(s) Versus LAXMANBHAI K CHOKSHI - Respondent(s) ================================================= Appearance : MR DIPEN DESAI AGP for Appellant M/S. MB GANDHI, MS RUMI M GANDHI & CHINMAY M GANDHI, Advocates for the Respondent ================================================= CORAM : HONOURABLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 05/08/2008 ORAL JUDGMENT (Per : HONOURABLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH) This appeal, under clause 15 of the Letters Patent, is directed against the judgment and order dated 3rd March 2007 of learned Single Judge, allowing the petition filed by respondent no.1 herein, LPA/6720/2008 2/8 JUDGMENT whose land, admeasuring 1464 sqm. in Rakhial in Ahmedabad City, was declared as excess vacant land by the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976 (for short `the Act'). The appeal filed by the landholder was dismissed by the Urban Land Tribunal by order dated 13.09.1991. By the judgment and order under appeal, learned Single Judge has set aside both the orders. 2 The broad facts leading to this appeal are not in dispute. The respondent filed a declaration of his holding under Section 6 of the Act. As per the declaration, the respondent had two parcels of land, one at Rakhial bearing Survey No.466A, admeasuring 2428 sqm. and the other at Kalupur bearing Survey No.2069/6, admeasuring 42 sq. yds. and that construction was put up on both the parcels of land. The competent authority as well as the Urban Land Tribunal accepted the landholder's case that construction was put up on the lands in question. However, the authorities did not accept the landholder's submission that the land could not be considered to be excess vacant land because construction was put up on the land in question. The authorities held that the landholder had failed to show that the construction was put up with the approval of the appropriate authority. On that basis, the authorities declared 1464 sqm. of land as excess vacant land liable to be acquired under the Act. Aggrieved by the order of the competent authority, the appellant preferred appeal before the Urban Land Tribunal, which came to be dismissed as indicated above. 3 Learned Single Judge held that the landholder had produced the registered sale deed dated 08.05.1943, under which the respondent-landholder's father had purchased the property bearing Survey No.466A with construction. Learned Single Judge further held that the registered sale deed indicated that the constructed LPA/6720/2008 3/8 JUDGMENT property is a chawl, parts of which are also occupied by several persons, each such unit had been given separate municipal number and that the property including construction was purchased by the respondent-landholder's father in the year 1943 and in fact the properties were also let out. In view of these factual findings, learned Single Judge held that there was no justification for the competent authority to hold that the entire land bearing Survey No.466A was vacant land or for the Tribunal to hold that the construction on the land was not legal and valid and it was occupied without obtaining B.U. Permission. After giving the above findings on merits in favour of the landholder, learned Single Judge further held that the State Government had not taken over the possession of the land in question in accordance with the provisions of sub-section (5) of Section 10 of the Act because the persons in possession of the property, i.e., the tenants, were not given any notice by the authority. The notice was given only to the landholder and not to the tenants, who were in possession of the constructed properties. Learned Single Judge, therefore, held that the State Government cannot be said to have legally taken over possession of the said excess vacant land, that possession of the land continued with the landholder and, therefore, by virtue of the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for short `the Repeal Act'), the proceedings in respect of the said vacant land stood abated. 4 Mr. Dipen Desai, learned A.G.P., submitted that when the definition of `vacant land' given in Section 2(q) of the Act is clear and the landholder did not produce any sanctioned building plans or Building Use permission granted by the local authority, learned Single Judge erred in holding that the land was not excess vacant land. He also submitted that the State Government had, after LPA/6720/2008 4/8 JUDGMENT giving notice under Section 10(5) of the Act, taken over possession after drawing panchnama. 5 So far as the first contention is concerned, strong reliance is placed on the definition of vacant land given in Section 2(q) of the Act, which reads as under: “2. Definitions. - In this Act, unless the context otherwise requires, - (a) to (p) xx xx (q) “vacant land” means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration, but does not include, - (i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated; (ii) in an area where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed on the appointed day with the approval of the appropriate authority and the land appurtenant to such building, and (iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such building;” (emphasis supplied) It is submitted by learned A.G.P. that the land in question is within the Ahmedabad municipal limits. Therefore, the landholder or the predecessor-in-title could not have constructed the building without obtaining prior permission of the local authority. Hence, the landholder was bound to produce sanctioned building plans or Building Use permission to satisfy the authorities that the construction was made with the approval of the appropriate authority. 6 We may first note the object for which the Urban Land (Ceiling & Regulation) Act, 1976, was enacted. As indicated in the Preamble, the Act was made to provide for the imposition of a ceiling on vacant land in urban agglomerations, for acquisition of such land in excess of the ceiling limit, to regulate construction of LPA/6720/2008 5/8 JUDGMENT buildings on such land and for matters connected therewith, with a view to preventing concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the common good. It is thus clear that prime object of the Act was to acquire vacant land without construction and to prevent concentration of such vacant urban land in the hands of a few persons and bringing about an equitable distribution of vacant land in urban agglomerations to subserve the common good and to encourage landholders to construct dwelling units for people belonging to weaker sections of society, under the scheme to be sanctioned under Section 21 of the Act. The purpose of the enactment was not to make a survey whether existing constructions on the lands were put up with the approval of the appropriate authority or not. 7 In K.P. Varghese Vs. I.T.O., Ernakulam (1981) 131 ITR 597 and in C.B. Gautam v. Union of India 1993(1) SCC 78, the Apex Court observed that the task of interpretation of a statutory enactment is not a mechanical task. The Court then quoted with approval the famous words of Judge Learned Hand of the United States of America that “.... it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary: but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” 8 The part of definition of `vacant land' in sub-clause (ii) and (iii) of Clause (q) in Section 2, which is underlined, shows that the LPA/6720/2008 6/8 JUDGMENT focus of inquiry is about occupation of the land by the building which has been constructed before, or is being constructed on the appointed day and therefore the Legislature contemplated an inquiry to be made with reference to construction put up in the recent past or being put up as on the appointed date. Since the extent of holding of vacant land in urban agglomeration was to be ascertained with reference to the appointed date, which was 18.02.1976, it would be obvious that there may be some doubts and disputes as to whether there was existing construction on the appointed date and the best way of removing such doubts would be to require the landholder to produce the approval of the appropriate authority for construction and use of the superstructure. If such approval was obtained prior to the appointed date, the finding would be in favour of the landholder and if such approval was obtained after the appointed date, it would be clear that there was no existing construction on the appointed date. The requirement of satisfying the authority that the existing construction was with approval was with reference to the appointed date. As observed in Salmond on Jurisprudence, `the doubt about dusk is not the doubt about noon'. The requirement for showing the approval of the appropriate authority cannot, therefore, be applied to a case like the present one where the construction was admittedly put up prior to 1943 and the registered sale deed clearly indicated that the landholder's father had purchased the land with construction thereon. 9 In view of the above discussion, it is clear that when the construction in question was put up prior to 1943 and when the question was to be considered whether the land in question was vacant as on 18.02.1976, there could be no doubt or dispute about the existence of the construction as on the appointed date. By filing an affidavit the respondent has described in detail as to why and how the plans and approvals, if any, of the 75 years old LPA/6720/2008 7/8 JUDGMENT property were not available and traceable and transfers were made by registered sale deeds in the years 1913 and 1943. We are, therefore, in agreement with the view taken by the learned Single Judge that there was no justification for the competent authority to hold that the land in question was excess vacant land or for the Tribunal to hold that the construction made was not legal and valid. In 1976, the landholder could not be expected to produce the permission of the appropriate authority for construction put up prior to 1943. Apart from the above finding on the merits of the controversy, the view expressed by the learned Single Judge that the possession of the land in question was not taken over in accordance with law because the persons in possession of the constructed property were not given any notice under Section 10(5) and only the landholder was given notice is also unexceptionable. 10 As regards the contention that the persons in possession of the constructed property have not complained and, therefore, the respondent-landholder has no right to make any such grievance, the occasion for the tenants occupying the units would only arise when they are to be evicted. Since it is the respondent-landholder who was served with the order, he was aggrieved with the decision of the respondent-authorities declaring the land in question as excess vacant land, naturally, it would be the landholder who would first come to the Court. Hence, the submission of the learned A.G.P. cannot be accepted. 11 We, therefore, find no merit in any of the contentions raised by the learned A.G.P. 12 The Appeal is dismissed accordingly. Consequently, the Civil Application also stands rejected. LPA/6720/2008 8/8 JUDGMENT (M.S. SHAH, Actg. C.J.) (D.H. WAGHELA, J.) [sn devu] pps