SCA/8257/1991 1/28 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8257 of 1991 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 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 ========================================================= NEW SHIVSHAKTI VIJAY SAW MILL - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR M.C. BHATT FOR MR VIKRAM J THAKOR for Petitioner(s) : 1, MR M R MENGDEY ASST.GOVERNMENT PLEADER for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 12/11/2008 C.A.V. JUDGMENT 1. Present petition, under Article 227 of the Constitution of India, is by the petitioner - New Shivshakti Vijay Saw Mill, a Partnership Firm through its one of the partners, for an SCA/8257/1991 2/28 JUDGMENT appropriate writ, order or direction quashing and setting aside the order passed by the Competent Authority and Deputy Collector, Urban Land Ceiling, Ahmedabad dated 10-10-1988 / 5-11-1988 declaring 602 sq.mtrs of land as excess vacant land under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “the Act” for convenience). It is also further prayed for an appropriate writ, order or direction quashing and setting aside the order passed by the Urban Land Tribunal, Ahmedabad in Appeal No.(Ahmedabad) 533 of 1988 dated 30/7/1990 in dismissing the said appeal and confirming the order passed by the competent authority dated 5/11/1988. The petitioner has also prayed for an appropriate writ, order or direction quashing and setting aside the order at Annexure-J passed by the Secretary, Revenue Department and Industrial Commissioner, State of Gujarat, dated 22/2/1991 in rejecting the application of the petitioner for industrial exemption under Section 20 of the Act. 2. It is the case on behalf of the petitioner that by sale deed dated 16/12/1968 land ad-measuring 1602 sq.mtrs of Survey No.2, Hissa Nos.4 and 5 situated at Village Sarkhej SCA/8257/1991 3/28 JUDGMENT was purchased in the name of partnership firm – New Shivshakti Vijay Saw Mill, through its two partners. As per the averments in the petition, the Saw Mill business was being run on the said land and also there were constructions put on the said land before the Act came into force and the said land was required for the purpose of storing of timber and for cutting of wood. The Urban Land (Ceiling & Regulation) Act on being came into force, the Partnership Firm filled Form No.1 under the provisions of the Act and the Rules framed thereunder declaring land bearing Survey No.2 Sub-plot No.4, ad-measuring 998 sq.mtrs Survey No.2 Sub-plot No.5 ad-measuring 614 sq.mtrs., of the land and land ad-measuring 516 sq.mtrs of the land, situated at Final Plot No.22 of Jamalpur in their holding. The said Form was processed by the Competent Authority under the Act. It was contended on behalf of the declarant that, on the land bearing Sub-plot No.4 and 5 of Survey No.2 of Sarkhej, the said factory is constructed and each of the partners of the partnership firm are entitled to 1000 sq.mtrs of land individually and separately, and as they are holding 1602 sq.mtrs of land, they are not holding any excess vacant land. The competent authority under the Urban SCA/8257/1991 4/28 JUDGMENT Land Ceiling Act held that, so far as the property situated at Village Jamalpur is concerned, the same is in the name of one New Shivshakti Saw Mill and they are occupiers and therefore the same cannot be considered in the holding of the original declarant, however, negatived the contention of the declarant of the partnership firm that each partner is entitled to 1000 sq.mtrs of land, and considering the fact that the construction upon the aforesaid two sub-plots are not legal and they are illegal, the land in question shall be considered as vacant land and further holding that partnership firm is entitled to only one unit and each partner is not entitled to a separate unit and thereby holding that the partnership firm is entitled to only 1000 sq.mtrs declared 602 sq.mtrs of land as excess vacant land under the impugned order dated 5/11/1988. 3. Being aggrieved and dissatisfied with the order passed by the competent authority dated 10-10-1988 / 5/11/1988 declaring 602 sq.mtrs of land as excess vacant land under the provisions of the Act, the petitioner preferred appeal under Section 33 of the Act before the Urban Land Tribunal, Ahmedabad, being Appeal (Ahmedabad) No.533 SCA/8257/1991 5/28 JUDGMENT of 1988, and interpreting Section 2(q) of the Act, the Tribunal by judgment and order dated 31/7/1990, dismissed the said appeal. That thereafter, by order dated 22/2/1991, the State Government rejected the application submitted by the petitioner for industrial exemption under Section 20 of the Act. 4. Being aggrieved by and dissatisfied with the aforesaid three orders, the petitioner has preferred the present Special Civil Applications under Article 227 of the Constitution of India. 5. An affidavit-in-reply is filed by the State pointing out that the possession of the property in question is already taken over by them on 10/2/1992 and necessary Panchnama was also drawn. However, it was the contention on behalf of the petitioner that the said possession was merely a notional possession and the physical possession was with the petitioner and therefore by interim order dated 21/2/2003 the learned Single Judge of this Court (Coram: K.A.Puj, J. ) passed an order for appointment of the Court Commissioner to draw Panchnama. The Court Commissioner had submitted his SCA/8257/1991 6/28 JUDGMENT report, after drawing the Panchnama, and as per the said panchnama and the report not only the construction of Shed/Benzo but construction of 11 shops are also found. By way of ad-interim relief, while admitting the present Special Civil Application, this Court directed the parties to maintain status-quo. However, it was the case on behalf of the State that, after the order of status-quo granted by this Court, the petitioners have put up the construction in breach of the interim order of status-quo and they have entered into the land illegally and unauthorisedly, and therefore the State preferred Misc. Civil Application No. 97 of 1996 for contempt before the Division Bench for initiating appropriate proceedings under the Contempt of Courts Act, and as there was some dispute with respect to the construction of the excess vacant land, the Division Bench dismissed the said application. However, having found that there are two different contradictory statements on oath in the petition as well as in the affidavit-in-reply filed in the contempt petition, the Division Bench while disposing of / dismissing the aforesaid contempt petition, directed to tag the papers of said contempt petition along with present Special Civil Application so that at the time of final disposal, this Court SCA/8257/1991 7/28 JUDGMENT can take appropriate suitable action against the petitioner and/or partners for making false statements on oath. The aforesaid aspect will be considered at a later stage while considering the false statements on oath. 6. Shri M.C.Bhatt, learned advocate has appeared on behalf of the petitioner. Mr.Bhatt has firstly submitted that as per the panchnama prepared by the Court Commissioner and the report submitted by the Court Commissioner pursuant to the order passed by this Court, the petitioners are found to be in possession of the land in question and not only construction of shed/Benzo is found but construction of 11 shops are also found and as it is found by the Court Commissioner that the petitioner is in possession of the land, in view of the Repeal Act of Urban Land (Ceiling & Regulation) Act, the proceedings are required to be abated. It is submitted that the contention of the petitioner that only a paper/notional possession was taken over by the State and the actual possession continues with the petitioner, is fortified by the report of the Court Commissioner. SCA/8257/1991 8/28 JUDGMENT 7. It is submitted that even otherwise on merits also both the authorities below have committed an error in holding and declaring that 602 sq.mtrs of land as excess land. It is submitted that both the authorities below have materially erred in ignoring whatever the construction on the land and holding the entire land as vacant land, solely on the ground that construction was not legal and/or not authorised. It is submitted that considering Section 2(q) of the Act, only in a case where construction was in progress on the Appointed Day, the question with regard to sanctioning of the plan and putting of the construction in accordance with the sanctioned plan, will arise. It is submitted that the same would not be required if there is already a construction prior to the Appointed Day. It is further submitted by Mr.M.C.Bhatt, learned advocate appearing on behalf of the petitioner that in the sale deed dated 16/12/1968 with respect to the land in question, the names of two partners were mentioned and only for the sake of convenience the land is purchased in the name of partnership firm and therefore both the partners are entitled to a separate unit i.e. 1000 sq.mtrs and as the declarant was holding only 1602 sq.mtrs of land, they SCA/8257/1991 9/28 JUDGMENT were entitled to 2000 sq.mtrs of land, and therefore, they cannot be said to be holding any excess vacant land under the Act, and therefore, both the authorities below have committed an error in giving only one unit i.e. 1000 sq.mtrs of land and consequently committed an error in declaring 602 sq.mtrs of land as excess vacant land under the Act. 8. it is also further submitted by Mr.M.C.Bhatt, learned advocate appearing on behalf of the petitioner that even the alleged possession have been taken over by the State Government and the Competent Authority on 12/2/1992 and the panchnama drawn is not accordance with law and/or the actual possession is not taken over by the competent authority and the authorised officer. 9. Now so far as the false statements and/or contradictory statements on oath in the Special Civil Application as well as in the affidavit-in-reply with regard to construction on the land in question, Mr.M.C.Bhatt, learned advocate for the petitioner has submitted that the same are not made deliberately. He has tendered unconditional apology for making contradictory statements on oath in the petition SCA/8257/1991 10/28 JUDGMENT as well as in the affidavit-in-reply with regard to existing construction. It is submitted that only in a case where it is found that a false statement on oath is made deliberately or some advantages are taken by making false statements on oath, no serious view should be taken. It is submitted that the aforesaid contradictory statements on oath were not intentional and therefore it is requested to accept the unconditional apology and to drop the proceedings. 10.The petition is strongly opposed by Shri M.R.Mengdey, learned Assistant Government Pleader appearing on behalf of the State. It is submitted that looking to the conduct of the petitioner of entering into the land unauthorisedly during the pendency of present Special Civil Application inspite of the order of status-quo and putting up of the construction illegally in breach of the order of the status-quo, the petitioners are not entitled to any discretionary relief in a petition under Article 227 of the Constitution of India. It is submitted that the possession was already taken over by the competent authority and the officers by drawing necessary panchnama on 10/2/1992 and thereafter the petitioner SCA/8257/1991 11/28 JUDGMENT entered into the land in question after obtaining the order of status-quo from this Court and have constructed 11 shops unauthorisedly and illegally and have tried to make a show that they are in possession of the land in question. It is submitted that the construction of 11 shops and putting up construction was even not mentioned in the Declaration / Form No.1. Even in the Special Civil Application also there was no reference to any other construction much less 11 shops which are found in the report of the Court Commissioner. Therefore, the construction of 11 shops is after filing of the petition and obtaining the order of status-quo. Therefore, it is requested to dismiss the present Special Civil Application with costs. 11.It is further submitted that even otherwise on merits also, the petitioner has no case. It is submitted that whether each partner of the partnership firm are entitled to separate unit and whether the construction is required to be legal after obtaining necessary permission for the purpose of the Urban Land (Ceiling & Regulation) Act are concerned, the same are now not res integra. It is further submitted by Shri M.R.Mengdey, learned AGP appearing SCA/8257/1991 12/28 JUDGMENT on behalf of the State that both the aforesaid questions are answered by the learned Single Judge of this Court in the case of Indequip Engineering Ltd. & Anr. vs. Urban Land Tribunal and Ex-Officio Additional Chief and others reported in (2006) 1 GLR 215. It is submitted that, considering the provisions of the Act, each partnership firm is required to be considered as separate unit and therefore only one unit is permissible. It is further submitted that the contention on behalf of the petitioner that, for the purpose of considering the vacant land under Section 2(q) of the Act, the requirement is that the construction must be after obtaining necessary permission as per the sanctioned plan, would be applicable in a case where the construction is in progress at the time of enforcement of the Act, has also no substance. 12.It is submitted that as such, except small Benzo/machine, there was no construction at all, and in fact, in the Declaration Form, it was not mentioned on how much portion of the land there was a construction. It is submitted that there was only small Benzo and after following due procedure under the Act, the possession of SCA/8257/1991 13/28 JUDGMENT 602 sq.mtrs of land is already taken over by the State on 10/2/1992. It is submitted that as the possession was already taken over by the State Government prior to the Repeal Act came into force, the proceedings are not required to be abated. It is further submitted by Shri Mengdey, learned AGP appearing on behalf of the State that the submissions made on behalf of the petitioner that the possession is not taken over by the competent authorised officer under the Act is concerned, first of all, there are no pleadings in the petition. It is submitted that even after the amendment in the petition, such contention is not raised in writing and therefore it being a question of fact, the petitioner cannot be permitted to raise the same orally for the first time. It is further submitted by him that even otherwise the possession was already taken over by the authorised officer. 13.Mr.Mengdey, learned AGP appearing on behalf of the State has relied upon the decision of the learned Single Judge in the case of reported in Indequip Engineering Ltd., & Anr. (supra) and two unreported decision of learned Single Judge of this Court in the case of Popatji Chhaguji and others vs. Competent Authority and SCA/8257/1991 14/28 JUDGMENT Addl. Collector and others rendered in Special Civil Application No.3915 of 1992 dated 20/12/2006 and another unreported decision of the very learned Single Judge in the case of Shree V.Engineering and Sons vs. Competent Authority and Deputy Collector and another rendered in Special Civil Application No.4093 of 1990 dated 20/12/2006. Therefore, it is requested to dismiss the present Special Civil Application. 14. Now, so far as making of false statements on oath is concerned, Shri Mengdey, learned AGP has submitted that in the petition on oath the petitioner has stated that the land is not used for any other purpose except Saw Mill right from the beginning till date. It is submitted that there appears to be apparent conflict in para 11 of the main petition and para 7 of the affidavit dated 22/3/1996 and para 3 of further affidavit-in-reply dated 20/1/1997 filed by the partner of partnership firm in contempt petition being Misc. Civil Application No.97 of 1996 for contempt and the false statements have been made on oath and therefore strict view should be taken. Whether the said false statement was made deliberately or intentionally and/or whether any undue advantage is SCA/8257/1991 15/28 JUDGMENT taken are all the defences of the petitioner and the persons who has made a false statement and the same is to be considwered in the appropriate proceedings that may be initiated, and therefore, it is requested not to accept the unconditional apology at this stage and to direct to initiate appropriate proceedings under Section 340 of the Code of Criminal Procedure for making false statements on oath. By making above submissions, it is requested to dismiss the present petition with exemplary costs. 15.Heard the learned advocate appearing on behalf of the respective parties. 16.At the outset, it is required to be noted that the present Special Civil Application is under Article 227 of the Constitution of India and it cannot be disputed that the relief under Article 227 is discretionary and equitable. If it is found that the petitioner has not approached the Court with clean hands and has played fraud, the Court may not grant any relief, which is absolutely discretionary and equitable. In the present case, for the reasons recorded hereinafter, it is found that not only the petitioner has not SCA/8257/1991 16/28 JUDGMENT approached the Court with clean hands but has also played a fraud and acted in breach of the order of status- quo granted by this Court in the present Special Civil Application. It is found that after the interim order passed by this Court on 4/3/1992 directing the parties to maintain status-quo, petitioner has again entered into the possession and had put up the construction of 11 shops and other construction, that too, without obtaining any permission from the competent authority and without getting the plan sanctioned. 17.The petitioner herein, a Partnership Firm submitted Declaration / Form No.6/1 of the Act declaring the land bearing Survey No.2 Hissa No.4 and Hissa No.5, ad- measuring 988 sq.mtrs and 614 sq.mtrs, situated at village Sarkhej as well as land bearing Final Plot No.22 ad-measuring 516 sq.mtrs situated at Jamalpur in their holding. The said Declaration Form was processed by the competent authority under the Act and by order dtd.5/11/1988 declared 602 sq.mtrs. from Survey No.2 Village Sarkhej as excess vacant land. The order passed by the competent authority dtd.5/11/1988 declaring 602 sq.mtrs as excess vacant land under the Act, was SCA/8257/1991 17/28 JUDGMENT challenged by the petitioner before the Urban Land Tribunal being Appeal No.533 of 1988 and the same came to be dismissed by the tribunal vide judgement and order dtd.31/7/1990. Notification under sec.10(1) of the Act came to be issued by the competent authority on 22/2/1989 declaring 602 sq.mtrs of land as excess vacant land. That thereafter the order passed by the competent authority came to be confirmed by the Urban Land Tribunal vide judgement and order dtd.30/7/1990 and therefore, Notification under sec.10(3) of the Act came to be published in the Official Gazette on 1/8/1991, whereby the land ad-measuring 602 sq.mtrs of land of Survey No.2 of village Sarkhej had been vested in the Government. That thereafter, notice under sec.10(5) of the Act came to be issued by the petitioner on 30/9/1991, which was served upon the petitioner and thereafter the possession of the aforesaid excess vacant land ad-measuring 602 sq.mtrs. came to be taken over by the authority on 10/2/1992 after preparing Panchnama in accordance with law. That being aggrieved by and dissatisfied with the aforesaid both the orders, the petitioner Partnership Firm had preferred present Special Civil Application under Article 227 of the Constitution of India and the same SCA/8257/1991 18/28 JUDGMENT came came up for hearing before this Court on 4/3/1992 and Rule came to be issued and by interim order the parties were directed to maintain status-quo as on 4/3/1992 with regard to land in dispute. It appears that thereafter it was found by the competent authority that the petitioner and its partners have committed breach of the order of status-quo and they again entered into the possession and had put up illegal construction of shops etc. A Panchnama was drawn on 4/8/1995 and it was found that there is a construction of office building and three rooms on 508.36 sq.mtrs., one Shed for Saw Mill with Pucca Office on the land ad-measuring 280 sq.mtrs. and there are 11 shops, one go-down, one hospital on the first floor on the land ad-measuring 270.41 sq.mtrs. Therefore, it was found that there is a breach of order of status-quo and therefore, the State and the Competent Authority preferred Misc.Civil Appeal No.97 of 1996 in the present Special Civil Application for breach of the interim order under Order 39 Rule 29 of the Code of Civil Procedure. In the said Misc.Civil Appeal Affidavit-in-Reply was filed by the partner of the petitioner Laghabhai Meghjibhai Patel and considering the averments made in para 11 of the main petition as well as the Further SCA/8257/1991 19/28 JUDGMENT Affidavit-in-Reply dtd.20/1/1997 (more particularly para 3), the Division Bench found that there appears to be apparent conflict between the two and therefore, this Court issued the Rule. However, thereafter, at the time of hearing of the aforesaid application, the Division Bench found that there is some confusion about the land on which the construction stands and therefore, the Division Bench disposed of the said application. However, while disposing of the said application, the Division Bench directed that a separate notice should be issued to the deponent who has sworn the aforesaid two affidavits, to show cause as to why a direction for prosecuting him for perjury should not be issued in view of the conflicting affidavits filed by him and that is why the present Special Civil Application is heard by this Court challenging the order passed by both the authorities declaring 602 sq.mtrs. land as excess land and also to consider the proceedings for perjury. 18.It is mainly contended on behalf of the petitioner that the land in question bearing Survey No.2 was purchased by the two individuals but the same was purchased in the name of the Partnership Firm for the sake of convenience. SCA/8257/1991 20/28 JUDGMENT It is also contended on behalf of the petitioner that each partner of the Partnership Firm is having individual one unit and therefore, each partner would be entitled to 1000 sq.mtrs. as retainable land. The said submission has no substance at all. The property in question is purchased by the petitioner Partnership Firm and the sale deed is also executed in favour of the petitioner Partnership Firm. Merely because the names of the partners are mentioned in the sale deed as partners, they do not become individual owners, entitling separate units under the Act. Even it is not the case on behalf of the petitioner and their partners that they have paid the sale consideration individually. When the sale consideration has been paid by the Partnership Firm and sale deed is executed in favour of the Partnership Firm, the Partnership Firm can be said to be owner of the land and its partners cannot be said to be individual owners entitling separate units under the Act. 19.Now, so far as the contention on behalf of the petitioner that each partner of the Partnership Firm will have individual unit is concerned, the question is now not res- integra. In the Case of Indequip Engineering Ltd. SCA/8257/1991 21/28 JUDGMENT (supra), considering the provisions of the Act, it is held that