Bhikhiben Girdharbhai Rathod and Others vs State of Gujarat and Another

J.N. Bhatt, J.—Rule. The service of Rule is waived by the learned Assistant Government Pleader, Mr. T.H. Sompura for respondents Nos.

1 and 2. Upon the joint request made by the Counsel appearing for the parties and considering the urgency in the matter, this petition is taken up

today itself for final hearing on merits.

The petitioners are the owners of agricultural land situated at Village, Utran, Taluka Choryasi, within the urban agglomeration in residential zone

in the city of Surat. The land held by the petitioners are as follows:

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Sl. No. Survey No. Area Sq. mtrs.

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1 6576

163 2529

169/3 7689

178 5969

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Originally the land in question belonged to Girdharbhai Kikabhai Halpati who had applied to the State Government for getting exemption u/s 20

of the Urban Land (Ceiling & Regulation) Act, 1976 (for short ''Act''). The petitioner No. 1 is the widow and the present petitioners Nos. 2 and 3

are sons of the deceased Girdharbhai Kikabhai Halpati.

The State Government had granted exemption certificate in respect of aforesaid four agricultural properties in the name of the original owner,

Girdharbhai Kikabhai Halpati u/s 20(1) of the Act on 4-3-1980 for the purpose of carrying out agricultural operation on certain terms and

conditions.

However, the respondent-State revoked the exemption granted u/s 20 by passing an order on 8-4-1986 in respect of the aforesaid 4

agricultural lands.

Being aggrieved by the said revocation of the exemption u/s 20 by the State Government, the petitioners who are heirs of deceased land owner

have come up before This Court challenging its validity and legality by filing this petition under Article 226 of the Constitution of India.

The Learned Counsel for the petitioners has contended that in so far as the agricultural property bearing survey No. 1, at serial No. 1, as

aforesaid, is concerned, the agricultural operations were not carried out and therefore, there was a breach of terms with which exemption u/s 20

was granted. However, he has contended that in so far as the remaining agricultural properties bearing Survey Nos. 163, 169/3, and 178 are

concerned, there was no breach and the same have been used for agricultural purpose. Therefore, contention of the Learned Counsel for the

petitioner is that mere breach of terms or non-observance of one of the conditions in respect of one survey number which is a separate unit, the

revocation of permission cannot be made in respect of all the agricultural properties. Even in view of the revenue record and particulary 7/12

village forms under the revenue proceedings, clearly, go to show that agricultural properties bearing Survey Nos. 163, 169/3 and 178 have been,

continuously, used for agricultural purposes even during the period from 1974 to 1991. The contention of the Learned Counsel for the petitioner

on this, score is also fortified by the copies of the revenue record produced along with the petition from pages 21 to 31TThus, it appears from the

fact that all the agricultural properties except revenue survey No. 1, as aforesaid, have been used for agricultural purposes and there was no

breach of any one of the conditions of exemption granted u/s 20(1) of the Act. The State Government is empowered to withdraw or revoke the

exemption granted u/s 20(1) provided it is satisfied that one of the conditions subject to which exemption under Clause (a) or (b) of Sub-section

(1) of Section 20 is granted is not complied with by any person Thus, power to withdraw the exemption is given to the State Government.

However, the State Government cannot withdraw or revoke the exemption granted u/s 20(i) of the Act for non-compliance or non-observance of

one of the conditions in respect of one unit of property, to other properties of the parties concerned. No doubt, the exemption was granted jointly

in respect of the 4 properties. However, non-observance of condition as mentioned in the notice also was only in respect of one of the properties

namely, agricultural property bearing survey No. 1. This aspect itself would not empower the State Government to revoke or withdraw the

exemption in respect of other properties wherein no such non-compliance or non-observance of condition is even alleged and found. This aspect is

lost sight by the respondent authorities, which has resulted into miscarriage of justice.

In the facts and circumstances, This Court is of the opinion that the impugned order of withdrawing or revoking exemption order u/s 20(2) of the

Act in respect of agricultural properties bearing Survey No. 163, 169/3 and 178 is illegal and invalid and therefore, the impugned order to that

extent is required to be quashed. In so far as the withdrawal of exemption u/s 20(2) of the Act in respect of agricultural property bearing revenue

survey No. 1 is concerned, it is fully justified and therefore, it is required to be confirmed.

Incidentally, it may be mentioned that the order of the State Government as at Annexure ''B'' dated 8-4-1986 is passed against the original

owner deceased Girdharbhai Kikabhai Halpati who expired on 15-9-1983. Thare is no dispute about this fact that the order passed in favour of a

dead person is nothing but a nullity and proposition of law on this score is very well established and not disputed in this petition. Therefore, in

reality the entire impugned order of the State Government Would be rendered illegal as it is non-est. However, the Learned Counsel for the

petitioner has stated that in so far as the agricultural properties bearing survey No. 1, is concerned there appears to be breach of one of the terms

of the exemption and some constructions are made, the claim for the same is not, therefore, pressed. He also, fairly, contended that it will be open

for the competent authority to deal with the matter in accordance with law as it is not being used for the agricultural purposes for which exemption

was granted.

The effect of quashing of impugned order of the State Government dated 8-4-1986 would be the revival of exemption order granted u/s 20(1)

of the Act in so far as the properties bearing survey Nos. 163, 169/3 and 178 only are concerned in the facts of the case.

In view of the facts and circumstances of the case and the fair statement made by the Learned Counsel for the petitioner, in the result, the

petition is required to be allowed and the impugned order passed by the State Government dated 8-4-1986 produced, at Annexure ''B'', is

quashed except for survey No. 1 as aforesaid. However, it will be open for the competent authority under the Act to deal with and proceed in

accordance with law in so far as the property bearing Survey number 1 aforesaid is concerned as the claim for the same is not pressed in this

petition.

Consequently, the petition is allowed accordingly. Rule made absolute to that extent with no order as to costs.