Gordhanbhai Kashibhai Patel and Others by L.Rs. vs State of Gujarat and Another

A.N. Divecha, J.—The order passed by the competent authority at Vadodara (respondent No. 2 herein) on 24th November, 1985 u/s 8(4) of the Urban Land (Ceiling and Regulation) Act, 1976 (the Act for brief) as affirmed in Appeal by the order passed by the Urban Land Tribunal at Ahmedabad (the appellate authority for convenience) on 30th May, 1994 in Appeal No. Vadodara-5 of 1986 is under challenge in this petition under Articles 226 and 227 of the Constitution of India. By his impugned order, respondent No. 2 declared the holding of the predecessor-in-title of the petitioners to be in excess of the ceiling limit by 62,673 sq. mtrs.

The facts giving rise to this petition move in a narrow compass. The predecessor-in-title (the deceased declarant for convenience) of the present petitioners filed his declaration in the prescribed form u/s 6(1) of the Act with respect to his holding within the urban agglomeration of Vadodara. That form was duly processed by respondent No. 2 herein. After observing the necessary formalities of law, by his order passed on 24th November, 198.5 u/s 8(4) of the Act respondent No. 2 came to the conclusion that the holding of the deceased declarant was in excess of the ceiling limit by 62,673 sq. mtrs. Its copy is at Annexure-C to this petition. The deceased declarant was aggrieved thereby. He therefore carried the matter in appeal before the Appellate authority u/s 33 of the Act. It came to be registered as Appeal No. Vadodara-5 of 1986. By his order passed on 30th May, 1994 in the aforesaid appeal, the appellate authority dismissed it. Its copy is at Annexure-D to this petition. It appears that in the meantime the deceased declarant breathed his last leaving behind him the present petitioners as his heirs and legal representatives. They have therefore moved this Court by means of this petition under Articles 226 and 227 of the Constitution of India for questioning the correctness of the order at Annexure-C to this petition as affirmed in appeal by the appellate order at Annexure-D to this petition.

The holding of the deceased declarant as found by the respondent No. 2 is mentioned at running page 30 of this petition, and at internal page 3 of the order at Annexure-C to this petition. It may be mentioned that in his holding are included some five parcels of land bearing survey Nos. 299, 300, 301, 305 and 391/1 situated at village Gotri. These parcels of land were agreed to be purchased by him from one Ambalal Ravjibhai Brahambhatt. In fact, the deceased declarant was not required to include the aforesaid parcels of land in his holding in his declaration u/s 6(1) of the Act as he was only a Banakhat holder with respect thereto though with possession thereof. He would not therefore answer the definition of the word holder in the context of the definition of the expression "to hold" contained in Section 2(1) of the Act.

It may however be noted that the aforesaid parcels of land enjoy exemption in the hands of said Ambalal Ravjibhai Brahambhatt u/s 20(l)(a) of the Act by virtue of the order passed on 31st May, 1979 by and on behalf of the State of Gujarat (respondent No. 1 herein). Its copy is a Annexure-B to this petition. It cannot be gainsaid that on true interpretation of Section 20(1)(a) of the Act, the exemption would go with the lands and not with the holder. The exempted land thereunder would remain exempted qua the operation of the Act in whomsoever''s holding they are found. I am therefore of the opinion that the aforesaid parcels of land ought to have been excluded from the holding of the deceased declarant as exempted u/s 20(1)(a) of the Act by virtue of the order at Annexure-B to this petition.

Shri Patel for the petitioner, states that for survey Nos. 220 and 221, 224 and 229 situated at Gotri an application for exemption was made by the deceased declarant and it has not come to be disposed of so far. Shri Patel for the petitioners informs me that on inquiry about the fate of the exemption application made by the deceased declarant it was informed on behalf of respondent No. 1 that the original application was misplaced and a fresh application was required to be made. Apropos according to Shri Patel for the petitioners, a fresh application was made on 7th February, 1995. Its copy is at Annexure-F to this petition. It would be desirable that the fate of the aforesaid application at Annexure-F to this petition is decided first. The reason therefore is quite simple. If exemption as prayed for is granted, perhaps the petitioners'' holding will not be found in excess of the ceiling limit. If it is rejected, fresh examination of the matter will have to be made including the order of rejection of the application for exemption if it is also challenged. It cannot be gainsaid that rejection, if any, of the application for exemption would furnish a fresh cause of action to the author of the application if so advised.

It is obvious that so long as the application for exemption u/s 20(1) of the Act remains pending, it would not be open to the authorities to proceed beyond the stage of Section 10(2) of the Act in view of the binding Full Bench Ruling of this Court in the case of Avanti Organisation, Rajkot and etc. Vs. The Competent Authority and Additional Collector, Rajkot and Another, .

In view of my aforesaid discussion, this petition deserves to be accepted only for the limited purpose of directing respondent No. 1 to decide the fate of the application at Annexure-F to this petition as expeditiously as possible without disturbing at present the impugned order at Annexures-C and D to this petition except to the extent indicated hereinabove qua the aforesaid parcels of land enjoying exemption in terms of the order at Annexure-B to this petition. It would however be open to the petitioners to approach this Court if the application for exemption at Annexure-F to this petition is decided against them, if so advised.

In the result, this petition is accepted to the aforesaid limited extent. Respondent No. 1 (State of Gujarat) is directed to dispose of the application at Annexure-F to this petition as expeditiously as possible preferably by 31st August, 1995. The impugned orders at Annexures-C and D to this petition are not disturbed at present except to the extent indicated hereinabove.

Rule is accordingly made absolute to the aforesaid extent with no order as to costs.