SCA/5324/1995 1/40 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5324 of 1995 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 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 ? ========================================================= BHARATKUMAR LALBHAI VASA & 2 - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR AJ PATEL for Petitioner(s) : 1 - 3. MR SR GORI, AGP for Respondent(s) : 1 - 2. MR Y.N.OZA WITH APURVA R KAPADIA for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 09/11/2006 ORAL JUDGMENT 1. The short facts of the case are that the SCA/5324/1995 2/40 JUDGMENT petitioners were holding different parcels of land at Kalupur and village Maktampur, which fall under urban agglomeration as per the provisions of the Urban Land(Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Act of 1976'). Of course there is the contention of the petitioners that the master plan showing the urban agglomeration was not in accordance with the provisions of the Act of 1976 which shall be dealt with at a later stage. The fact remains that in view of the Act of 1976 and the location of the land and as the land held by petitioners, who are the legal heirs of Lalbhai Vasa (for the sake of convenience, shall be referred as the petitioners), were exceeding the ceiling limit, form under Section 6 of the Act was filed. It appears that pending the consideration of the form, Lalbhai Vasa expired and therefore the draft statement was served upon the petitioners and ultimately on 10.01.1984, following lands were declared as surplus land. SCA/5324/1995 3/40 JUDGMENT Sr. No. Village Name Survey No. Area 1. Maktampur 15/1 2855-00 2. “ 15/3 4658-00 3. “ 15/4 3946-00 4. “ 17/1 7790-00 5. “ 17/2 8498-00 Therefore, agricultural land bearing City Survey No. 1319, 1400 and 1401 admeasuring 110 sq. mtr. situated at Kalupur, the land bearing Survey No. 15/1 admeasuring 586 sq. mtr. and survey No. 15/2 admeasuring 304 sq. mtr. both situated at Maktampur were permitted as retainable land. 2. It appears that the appeal was preferred against the said order dated 10.01.1984 of the competent authority before the Urban Land Tribunal being Appeal No. 3/90. In the said Appeal, the Urban Land Tribunal observed that whether the property situated at Kalupur was constructed property or not is not considered properly by the competent authority and therefore, ultimately the Urban Land Tribunal passed the Judgment and Order dated 30.01.1992, whereby the order of the competent authority dated 10.01.1984 was set SCA/5324/1995 4/40 JUDGMENT aside and the matter was remanded to the competent authority for disposal in accordance with law as well as in light of the observations made in the Judgment of the Urban Land Tribunal. It appears that thereafter, pursuant to the order passed by the Urban Land Tribunal in Appeal, the competent authority once again considered the matter and found that exemption application has been cancelled and no documentary evidence is produced to show the authorised construction over the property so as to exclude it for the purpose of computation and therefore, in absence of any documentary evidence, the land was to be treated as vacant land and therefore, the order dated 25.08.1992 was passed by the competent authority declaring the retainable land of 1000 sq. mtr. comprising of the land situated at Kalupur admeasuring 110 sq. mtr. and the land bearing Survey No. 15/1 at Maktampur admeasuring 890 sq. mtr. and the remaining lands were declared as surplus land. It appears that thereafter, there was also correction order dated 30.02.1993 for proper SCA/5324/1995 5/40 JUDGMENT description of the land bearing Survey No. 17/2 at village Maktampur, which was also declared as surplus land. The petitioners further carried the matter before the Urban Land Tribunal against the order dated 25.08.1992 of the competent authority being Appeal No. 182/93 and the said appeal for the reasons stated in the order, was dismissed as per the Judgment dated 29.03.1995. It is under these circumstances, the petitioners have approached to this Court by preferring the the petition for challenging the orders passed by the competent authority and its confirmation thereof by the Urban Land Tribunal declaring the land as mentioned in the order as surplus land. 3. Heard Mr. A.J. Patel for the petitioners and Mr. Gori, learned AGP for the State Authorities. 4. For the sake of convenience, the contentions raised on behalf of either side shall be dealt to the extent found relevant by this Court hereinafter. SCA/5324/1995 6/40 JUDGMENT 5. Mr. Patel, learned counsel appearing for the petitioners raised the contention that the land in question at Maktampur was outside the master plan, inasmuch as, on the date when the Act came into force, the master plan was not in existence and he alternatively submitted that such master plan, if any, was not providing for stagewise development of the area and therefore, is not master plan to meet with the requirement of the law as per Section 2(h) of the Act of 1976. In support of his submission, he relied upon the decision of the Division Bench of Bombay High Court in case of Udhav Tatya Bhopale Vs. State of Maharashtra & Ors. in Writ Petition No. 539 of 1983 decided on 10/13.04.1992 for contending that the master plan as required to meet with the conditions of Section 2(h) of the Act of 1976 must provide for stagewise development of the area and in absence thereof, the same cannot be treated as master plan satisfying the conditions of Section 2(h) of the Act, 1976. He also relied upon the decision of the Apex Court in case of Smt. Atia Mohammadi Begum, v. State SCA/5324/1995 7/40 JUDGMENT of U.P. and others reported at AIR 1993 SC 2465 read with the subsequent decision of the Apex Court in case of State of A.P. & Ors. Vs. N. Audikesava Reddy & Ors. reported at AIR 2002 SC 5 for contending that on the relevant date, for applying the provisions of the Act, there has to be master plan for the land in question and he further submitted that in case if there is no master plan for the land in question so as to meet with the requirement under Section 2(h) of the Act of 1976, the provisions of the Act would not be applicable nor the land can be declared as surplus land irrespective of the conduct of the petitioners of having filled form under Section 6 of the Act on the impression that the land is falling within the urban agglomeration and the Act of 1976 is applicable. 6. Mr. Gori, learned AGP on the other hand submitted that no such contention was ever raised before the lower authority by the petitioner at any point of time and he further submitted that the petitioners have accepted the SCA/5324/1995 8/40 JUDGMENT said position as if the land falls within the urban agglomeration in view of the master plan as it then was in existence and therefore, now the petitioners cannot be allowed to raise such contention. He also submitted that the observations made by the Urban Land Tribunal in the order dated 30.01.1992 in appeal proceedings are to the extent that the Suit land has been included in the non-agricultural zone in the master plan and the petitioners have not challenged the said order at any point of time earlier and therefore, the petitioners are precluded from raising such contention. He submitted that as such, the petition is under Article 227 of the Constitution, but even if it is treated as under Article 226 of the Constitution, then also, in view of the aforesaid conduct of the petitioners, such a contention may not be allowed to be raised and therefore, this Court may not entertain such contention raised on behalf of the petitioners qua existence of master plan or the master plan not in accordance with the provisions of Section SCA/5324/1995 9/40 JUDGMENT 2(h) of the Act of 1976. 7. It is not in dispute that the petitioners have proceeded on the basis that the land falls under the urban agglomeration as per the provisions of the Act of 1976. Urban agglomeration came to be identified at the relevant point of time on account of the then master plan in existence on the appointed day, when the Act of 1976 came into force. The father of the petitioners has proceeded on the basis that as the land is under urban agglomeration, the provisions of the Act are to apply and therefore, form No.6 has been filled. It is true that the principles of estoppel would not operate against the statute but, it appears that whether master plan was in existence or not and whether master plan was meeting with the requirement of Section 2(h) of the Act of 1976 or not, as such are the mixed question of law and fact both. If at any point of time, had the petitioners raised objection against the draft statement before the competent authority or even before the Urban Land Tribunal SCA/5324/1995 10/40 JUDGMENT that the master plan was not available or if available, not in accordance with the provisions of Section 2(h) of the Act of 1976, the matter could have been examined by the lower authorities. It is an admitted position that no such contention was raised before the competent authority in response to the draft statement received by the petitioners. So is the position before the appellate Tribunal. Mr. Gori, is right in submitting that the order dated 30.01.1992 of the Urban Land Tribunal is accepted by the petitioners and not challenged before the higher forum. It has been inter alia observed at paragraph 3 of the said order of the Urban Land Tribunal as under : “The effect of the said explanation is that even if a land fulfils the above conditions of agricultural land it would be deemed to be vacant land if such land has been specified in the master plan for a purpose other than agriculture. Thus, when a land is specified in the Master Plan for a purpose other than agriculture, the present user of such land or its classification in the revenue or land records would become irrelevant. In the instant case, the suit land has been included in the non- agricultural zone in the master plan.” SCA/5324/1995 11/40 JUDGMENT Therefore, the aforesaid observations of the Tribunal not only stands on the face of the contentions of the petitioners, but it further appears that the petitioners themselves proceeded on the basis that the master plan is in existence, the land shown in the master plan of the petitioners is included in the master plan and is for the use other than agricultural. Further, even after the Judgment of the Tribunal dated 30.01.1992, when the matter came to be considered after remand, no such contention is raised on behalf of the petitioners before the competent authority. Even before the Urban Land Tribunal, neither any such ground is contended in the memo of the appeal, which is produced by the petitioners themselves at Annexure-E, nor such contention appears to have been raised before the Urban Land Tribunal at the time of hearing of the Appeal. Therefore, it appears that the contention that the master plan either not in existence or if in existence, not in accordance with the provisions of Section 2(h) of the Act of 1976, is by way of an afterthought SCA/5324/1995 12/40 JUDGMENT and possibly with a view to reopen the question which stood concluded earlier as per the decision of the Tribunal dated 30.01.1992. 8. Even if the petition is treated as under Article 226 & 227 of the Constitution, when the challenge is to the order passed by the lower authority in exercise of their statutory power as quasi judicial authority and when it is a mixed question of law and facts both, in normal circumstances, in the petition under Article 226 of the Constitution, arising from the order of the lower authority, this Court would not permit the petitioners to raise the contention for the first time, which is a mixed question of law and facts. This Court may not upset an order of the lower authority on the question of law raised for the first time for which the lower authority had no opportunity to examine such question after considering the the relevant facts. The aforesaid is coupled with the circumstance that the observations of the Tribunal as per the Judgment dated 30.01.1992 for existence of the SCA/5324/1995 13/40 JUDGMENT mater plan and the land having been included in the master plan, are not challenged by the petitioners before the higher forum. 9. Further, the finding of the Tribunal to that extent in the Judgement dated 30.01.1992 cannot be set at naught in view of the subsequent view of the Apex Court in case of Smt. Atia Mohammadi Begum (Supra) which has been decided on 15.03.1993 and thereafter, in view of the later decision of the Apex Court in case of State of A.P. (Supra). On the same premises, the decision of Bombay High Court upon which the reliance is placed by Mr. Patel in case of Udhav Tatya Bhopale (Supra) cannot be made applicable qua the facts of the present case. Therefore the said contention raised by Mr. Patel on behalf of the petitioners is rejected. 10.It was next contended on behalf of the petitioners by Mr.Patel that the order of the competent authority dated 10.11.1984 was set aside by the Urban Land Tribunal as per the SCA/5324/1995 14/40 JUDGMENT Judgment dated 30.01.1992 and thereafter, a fresh order was passed by the competent authority on 25.08.1992 read with the correction order dated 30.02.1993 and pending the appeal and even thereafter, there is no fresh procedure or notification issued under Section 10(1) onwards either for vesting of the land, fixation of compensation etc. prior to the date of the petition and even thereafter. It was submitted that in the meantime, pending the petition, Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as 'the Repeal Act') has come into force and as per the provisions of the Repeal Act, if the land is not vested to the Government under Section 10(3) of the Act or the possession is not taken over, the same is not saved and the proceedings under the Act of 1976 would abate. He submitted that even on the aspects of possession, the same is actually not taken over, inasmuch as, the petitioners were in actual physical possession when the petition came to be filed and this Court when issued rule on 28.07.1995, while SCA/5324/1995 15/40 JUDGMENT directing the maintenance of status quo also ordered that the petitioners will not make non- agricultural use of the land in question and therefore, it was submitted that the aforesaid was sufficient circumstance to show that the petitioners were in actual physical position of the land in question. He alternatively submitted that in absence of no fresh procedure undertaken after the second order of the competent authority under Section 10(1) of the Act of 1976 onwards, the possession is even if shown as having taken, the same is an unlawful action and therefore, if the authority has illegally or unlawfully taken over the possession, it may be held by the Court that the possession is not lawfully taken over and consequently, the petitioners would be entitled to the benefit of the Repeal Act and the proceedings under Urban Land Ceiling Act would abate and therefore, now the respondent authority cannot insist for enforcement of the order under the Act of 1976 in view of the Repeal Act and therefore, this Court may declare SCA/5324/1995 16/40 JUDGMENT that the proceedings under the Urban Land Ceiling Act have abated and may grant consequential relief. 11.Mr. Gori, learned AGP vehemently contended that even prior to the filing of the present petition, the petitioners had already transferred the possession to one Mr. Momin in contravention to the provisions of the Act of 1976. He submitted that in the affidavit-in- reply filed by Shri R.K. Rathod, competent authority, dated 13.07.2006, it has been stated that the possession is taken over in pursuance of the earlier notification under Section 10(1) to 10(5) of the Act during the period of 1984- 1985. He further submitted that as per the panchnama produced on record, the possession was taken over on 28.06.1995 by the competent authority and the authorities were compelled to take such action because it was learnt by the authority that the petitioners have unauthorizedly transferred the possession of the land and the construction was going on over such SCA/5324/1995 17/40 JUDGMENT land. Upon the verification of the said aspects, the statements were recorded on 27.06.1995 and it was found that as the possession of the land is transferred by the petitioners to one Mr. Momin and there was also construction made of one bungalow and the plottings were being made, the authority had no option but to immediately take possession of the land in question. He submitted that the action was taken by the authority under the Act of 1976 for taking over of the possession not only for protecting the land which vests to the Government, but also with a view to see that innocent citizens may not be duped by the petitioners or the persons to whom the possession was transferred on the alleged ground of development agreement. He therefore, submitted that the possession of the land is with the Government and even the Division Bench of this Court has also accepted the said position while allowing Letters Patent Appeal No.814 of 2000 which was preferred against the earlier order dated 28.06.1999 passed by this SCA/5324/1995 18/40 JUDGMENT Court (Coram : Y.B. Bhatt) in Special Civil Application No. 5324 of 1995. He therefore, submitted that as the possession of the land in question is with the Government, the proceedings under the Act of 1976 would not abate in view of the Repeal Act and, therefore, this Court may examine the merits of the petition as if the action is saved and the legality and validity of the order passed by the Competent authority and its confirmation thereof by the Urban Land Tribunal may be upheld. 12.Mr. Gori, Learned AGP also strenuously contended that the petitioners are the persons who have openly defied the law i.e. the Act of 1976. He submitted that if the petitioners were holding the surplus land unless the land is declared as retainable land, the transfer even of the possession could not have been made. He submitted that as per the authority as such, the land is transferred after receipt of consideration, but as there is no record except the statement, the fact gets established to the SCA/5324/1995 19/40 JUDGMENT extent of transferring the possession of the land. Such transfer of possession was expressly prohibited by the Act of 1976 and the petitioners having defied the law openly by transferring the possession to the headstrong persons, the petitioners should not be allowed to invoke the equitable jurisdiction of this Court under Article 226 of the Constitution for challenging the orders passed by the competent authority or the Urban Land Tribunal as the case may be. He therefore, submitted that this Court while examining the legality and validity of the orders passed by the lower authority, may reject the petition outright in view of the aforesaid conduct of the petitioner having defied the law. 13.It is not in dispute that the earlier proceedings under Sections 10(1) to 10(5) for the declaration of the land as surplus land and for vesting and for fixing the compensation were issued in pursuance to the order of the competent authority dated 10.01.1984, which was set aside by the Urban Land Tribunal as per the SCA/5324/1995 20/40 JUDGMENT judgement dated 30.01.1992 in Appeal No. 3/1990. The basis of the notification under Sections 10(1) to 10(5) of the Act of 1976 for the various stages including for vesting and compensation was the first order of the competent authority dated 10.01.1984. If the basis or the order on the basis of which the action is taken under section 10(1) to 10(5), is set aside by the Urban Land Tribunal, it cannot be said that the action continues to remain in existence. The Urban Land Tribunal in its judgement dated 30-1-1999 at paragraph 4 issued the operative direction, relevant of which is as under : “Therefore, the impugned order has to be set aside. Accordingly, the impugned order dated 10-1-1984 is hereby quashed and the matter is remanded to the Court below for disposal in accordance with law as well as in light of the observations made in the forgoing paragraphs.” 14.Therefore, when the Urban Land Tribunal in its judgement dated 30.01.1992 has expressly quashed the order passed by the competent authority SCA/5324/1995 21/40 JUDGMENT dated 10.01.1984, the life of the said order of the competent authority would end and if any order is to prevail, even as per the principles of Doctrine of Merger, the same would be the order of the Urban Land Tribunal. If the foundation of the action under section 10(1) to 10(5) has gone or the life thereof has ended or terminated, the only consequence would be that the life of the action based thereof which in the present case is under section 10(1) to 10(5) would automatically come to an end. 15.Further, even after the remand, the competent authority has passed a fresh order on 25.08.1992, read with the correction order dated 30.02.1993, therefore, if the further actions were to be taken under section 10(3) to 10(5) of the Act, the same were required to be taken pursuant to the second order passed by the competent authority after remand. It is an admitted position that there is no notification issued or any action taken by the competent authority under section 10(1) to 10(5) on the SCA/5324/1995 22/40 JUDGMENT basis of the order dated 25.08.1992 read with the order dated 30.02.1993 passed by the Competent authority for declaration of certain lands as surplus. It is not the case where the very land which were ordered to be declared as the surplus land pursuant to the first order of 10.01.1984 declared as surplus land in the second order passed by the competent authority dated 25.08.1992 read with order dated 30.02.1993. But the retainable land as per both the orders are different and consequently, the land declared as surplus land in both the orders are different. The aforesaid aspect is narrated earlier while recording the facts and therefore, no detailed repetition may be required but suffice it to say that as per the first order, in view of the lands bearing Survey No.15/1 admeasuring 586 sq. mtrs., and bearing Survey No.15/2 admeasuring 304 sq. mtrs., both situated at Maktampur and the lands situated at Kalpur admeasuring 110 sq. mtrs., total 1000 sq. mtrs., held as retainable land, the remaining lands were declared as surplus land, whereas as per SCA/5324/1995 23/40 JUDGMENT the second order of the competent authority dated 25.8.1992 read with the correction order the land bearing Survey No.15/1 admeasuring 890 sq. mtrs., and the land situated at Kalpur admeasuring 110 sq. mtrs., total 100 sq. mtrs., were declared as retainable land, the remaining lands were declared as surplus lands. Consequently, the land bearing Survey No.15/2, which was earlier declared as retainable land, in view of the second order is delcared as surplus land and qua Survey No.15/1 the area of the surplus land is