Gyanba Dilavarsinh Jadeja vs State of Gujarat and Others

J.C. Upadhyaya, J.—Special Civil Application No. 2339 of 1990 filed by the appellant herein was rejected by the Leaned Single Judge by impugned order dated 28.4.1994. The said impugned order is challenged in this Letters Patent Appeal. In the Special Civil Application No. 2339 of 1990 the appellant - petitioner had questioned the correctness of the order passed by and on behalf of the State Government - respondent No. 1 herein on 23.8.1984 rejecting her application for exemption u/s 20(2) of the Urban Land [Ceiling and Regulation] Act, 1976 [''the Act'' for brief] with respect to survey Nos. 17 and 59 situated at village Nana Mauva, District Rajkot within the urban agglomeration of Rajkot district [''the disputed land'' for convenience] and also of the order passed by the competent authority of Rajkot on 23.2.1986 in ULC Case No. 1731, as affirmed in appeal by the order passed by the Urban Lands Tribunal at Ahmedabad - respondent No. 3 herein on 28.12.1988. By his impugned order the competent authority declared the holding of the appellant to be in excess of the ceiling limit by 54,886.44 sq. mtrs.

As per the case of the appellant - petitioner, she was holding certain properties within the urban agglomeration of Rajkot as on 17.2.1976. Husband of the appellant filled in the prescribed form u/s 6 of the Act with respect to the aforesaid holding. The holding included the disputed land. An application was moved u/s 20(1) of the Act for grant of exemption with respect to the disputed land. By order passed by and on behalf of the respondent No. 1 on 15.12.1983 the application came to be rejected. Said order was challenged before this Court by means of Special Civil Application No. 1145 of 1984. This Court accepted the petition and set aside the order dated 15.12.1983 and remanded the matter to respondent No. 1 for its fresh decision according to law with respect to the appellant''s claim for exemption u/s 20(1) of the Act qua the disputed land. After giving an opportunity of hearing by an order passed by and on behalf of respondent No. 1 on 23.8.1984 the appellant''s application for exemption u/s 20(1) of the Act with respect to the disputed land came to be rejected. The appellant - petitioner questioned its correctness in Special Civil Application No. 2339 of 1990.

2.1. In the aforesaid Special Civil Application the appellant - petitioner contended that the application for exemption u/s 20 of the Act was filed on the ground of hardship as well as on the ground of equity as all the surrounding land owners of village Nana Mauva having lands bearing survey Nos. 42, 64, 57, 56, 41, 40, 39, 38, 37 and 36 were given exemption. That thus there was violation of fundamental right under Article 14 of the Constitution of India in as much as all the above surrounding land owners were granted exemption; whereas the appellant was not granted such agriculture exemption. The appellant had also claimed exemption qua constructed property as well as of Vada land, which was meant for keeping animals. The learned Single Judge rejected the petition of the petitioner mainly on the ground that the appellant - petitioner has failed in disclosing important fact of allotment of land to Nidhi Cooperative Housing Society Ltd., respondent No. 4 herein [respondent No. 4 in the petition]. That thus the appellant suppressed material facts. The Learned Single Judge further observed that the petition was suffering from delay and laches and, therefore, the appellant was not entitled to get equitable relief. It was further observed that the fact of allotment of land to the extent of 10,000 sq. mtrs., out of total land admeasuring 54,886.44 sq. mtrs., to the respondent No. 4 herein has created irreversible situation. Therefore, the Learned Single Judge held that it was not necessary to examine the merits of the impugned order challenged in the petition though the said order might not be according to law. Ultimately it was observed that the appellant deserved no relief from this Court in the petition and consequently the petition came to be rejected.

Learned Counsel Mr. Bhatt for the appellant argued that the Learned Single Judge has committed serious error in not appreciating the aspect that the appellant had disclosed all the material facts in the petition and even while admitting the petition and granting interim relief, the learned Single Judge had considered that 10,000 sq. mtrs of land have already been allotted to respondent No. 4 and accordingly interim order dated 18.1.1991 was passed. Even the Learned Single Judge did not deal with the argument of the appellant as regards violation of fundamental right under Article 14 of the Constitution of India in as much as all surrounding land owners were granted exemption; whereas the appellant was denied the same. That the Learned Single Judge erred in coming to the conclusion that the petition was suffering from delay and laches. That as a matter of fact, by letter dated 01.06.1990 written by the Revenue Department, Government of Gujarat to the appellant informing the appellant that her applications u/s 20 dated 20.03.1990 and 09.10.1989 are under process. Due to such reply of the ULC Department, the appellant was supposed to wait for outcome of the exemption applications. Therefore, there was justifiable reason to wait and there was no delay on the part of the appellant. That the appellant is an old lady aged about 93 years. That the respondent No. 4 - Nidhi Cooperative Housing Society was formed on 02.01.1990, the caveat was filed by it on 29.01.1990 and in between time, hurriedly 10,000 sq. mtrs of land were allotted to the society. Learned Counsel Mr. Bhatt for the appellant, however, submitted that at this stage, the appellant waives her right qua that land allotted to the society. It was submitted that though as per the impugned orders, the competent authority declared the holding of the appellant to be in excess of the ceiling limit by 54,886.44 sq. mtrs., and out of the same, only 10,000 sq. mtrs., of land has been allotted to the respondent No. 4 - society, yet Learned Single Judge erred in holding that due to the allotment of 10,000 sq. mtrs., of land to the respondent No. 4 - society irreversible situation has arisen, though in this appeal the appellant waives her right and claim qua 10,000 sq. mtrs of land.

3.1. Mr. Bhatt further submitted that the application u/s 20 of the Act was rejected by the authority contrary to the policy of the Government itself, in view of the notification of the State of Gujarat dated 6.10.1997, which was clarificatory of Circular dated 01.10.1997 issued by the State Government and in pursuance of letter No. 2/31/77-ULC(1) dated 19.12.1977 of the Government of India. It prescribed that on the ground of hardship where agriculture operation is actually going on, exemption ought to have been granted. That as per the circulars of the Government and the decisions of the Hon''ble Apex Court as well as of this Court, only exemption under Sections 20 and 21 is decided, no further proceedings pursuant to Section 10(2) can be undertaken. Thus, committing breach of such provisions, the competent authorities have initiated proceedings u/s 10(3) and 10(5) of the Act for taking possession. That the possession alleged to have been taken is only a paper possession and actual possession is with the appellant.

3.2. Mr. Bhatt further submitted that in the petition, no affidavit-in-reply was filed either by the competent authority or by the Secretary, Revenue Department on behalf of the State of Gujarat. That in pursuance of the last circular issued by the Government of Gujarat dated 06.10.1997, the appellant has filed an undertaking on her affidavit dated 19.5.2008. Therefore, learned Counsel Mr. Bhatt for the appellant submitted that the orders of the authorities are discriminatory for non-granting exemption and not excluding the construction portion and that there was no intentional delay on the part of the appellant in filing the petition. That still however, necessary amendment in the petition was sought for by the appellant and the same was allowed and was accordingly carried out in the petition. That at the time of admission of the petition, the Learned Single Judge took into consideration, while granting interim relief, all the developments occurred after the date of the impugned order passed by the concerned authority till the filing of the petition. Therefore, it was submitted that the appeal be allowed and the impugned order passed by the learned Single Judge be set aside by quashing and setting aside the orders passed by the competent authority and Additional Deputy Collector, Rajkot as well as Urban Land Tribunal, Ahmedabad.

3.3. Learned Counsel Mr. Bhatt further submitted that there were huge constructed portion on the land in question. It is settled law by the Hon''ble Supreme Court that the lands which are constructed are required to be excluded while calculating the units. There were total 10 properties. Following constructions were available :

Property No. 8 202.90 Square metres

Property No. 9 143.90 Square metres

Property No. 10 306.58 Square metres.

The above properties are residential properties and, therefore, total [202.90 + 500 square metres] + [143.90 + 500 square metres] + [306.58 + 500 square metres] should have been exempted as residential properties. In fact, while calculating, 1500 square metres of lands should have been declared as holding of the petitioner. Thus, these constructed properties are required to be exempted along with appurtenant lands.

Property No. 3 Well of 506.00 Square metres

+ 500.00 Square metres

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1006.00 Square metres.

Along with above four properties, 500 square metres land appurtenant ought to have been granted. The same is not granted. The law is settled by the Hon''ble Supreme Court reported in AIR 1992 SC 1367 that the constructed property is required to be exempted.

Learned Counsel for the State Mr. Nanavati, supporting the impugned order passed by the Learned Single Judge, submitted that the Learned Single Judge rightly observed that the petition was suffering from delay and laches. That there was material suppressions of facts in the petition. Because of the allotment of 10,000 sq. mtrs., of land to the respondent No. 4 - society irreversible situation had arisen. It is further submitted that the suppression of material facts itself is a ground to deny the remedy under Article 226 of the Constitution of India to the petitioner. That till the date the petitioner filed the petition all the developments which took place after the date of the impugned order and till the filing of the petition, were within the knowledge of the petitioner; yet those facts were suppressed.

4.1. Ld. AGP Mr. Nanavati for the State drawing our attention to certain amended portion in the copy of the memo of petition produced in this appeal, submitted that the amendment was carried out as per the Court''s order dated 23.6.1994 passed in Civil Application No. 1431 of 1994. That according to such endorsement, necessary amendment was carried out as per order dated 23.6.1994 in Special Civil Application No. 2339 of 1990. That as a matter of fact, the learned Single Judge passed the impugned order on 28.4.1994. That therefore, the entire petition stood disposed of on 28.4.1994; whereas as per the endorsement in the copy of memo of petition, the so called amendments were carried out in pursuance of certain order which was passed on 23.6.1994 i.e., after the date of final disposal of the petition itself. That thus, in the impugned order passed by the learned Single Judge when a specific observation is made regarding suppression of material facts and not availed opportunity of amendment of a petition by the petitioner, such observations and findings arrived at by the learned Single Judge cannot be said to be erroneous. That, therefore, there was no reason whatsoever for the learned Single Judge to dispose of the petition on merits. Therefore, it is submitted that the appeal be rejected.

At the outset, it is pertinent to note that the learned Single Judge did not dispose of the petition on merits. The petition came to be rejected by virtue of the impugned order solely on the ground that the petitioner suppressed material facts and that the petition was suffering from delay and laches. It is further observed in the impugned order that even the petitioner did not choose to suitably amend the petition regarding the developments which took place after the impugned order challenged in the petition was passed by the concerned authority till the filing of the petition. In this respect, first of all considering the copy of memo of the petition produced in this appeal and the amendments carried out in it, it is true that as per the endorsement original petition was amended as per certain order passed in Civil Application No. 1431 of 1994 dated 23.6.1994; whereas the impugned order disposing of the petition came to be passed by the learned Single Judge on 28.4.1994. However, in this appeal at page 42 copy of order passed in Civil Application No. 678 of 1993 in Special Civil Application No. 2339 of 1990 dated 28.4.1994 is produced. Considering the same, the respondents Nos. 4 to 29 came to be impleaded in the writ petition, who are Nidhi Karmachari Coop. Housing Society and its members. Therefore, such amendment was carried out in the petition on 28.4.1994 i.e., on the same day when the impugned order in the main petition was passed. In the impugned order itself, by which the writ petition came to be disposed of, there is a reference of respondent No. 4 - Nidhi Karmachari Coop. Housing Society and its members - respondents Nos. 5 to 29. At the time when the petition was admitted and the interim order was passed, the learned Single Judge directed that as regards portion of land which is not allotted to Nidhi Karmachari Coop. Housing Society, the respondents shall maintain status-quo. Even said society was also directed to maintain status-quo. Said interim order was passed on 18.6.1991. Under such circumstances, the developments which took place after the date of the impugned order till the filing of the petition were not only considered at the time of passing interim order in Special Civil Application No. 2339 of 1990, but suitable amendment was carried out in pursuance of order passed in Civil Application No. 678 of 1993.

It is pertinent to note that so far as 10,000 sq. mtrs., of land allotted to the society is concerned, the learned Counsel Mr. Bhatt for the appellant original petitioner submitted that at this stage the appellant - petitioner waives her right qua that land allotted to the society. The total area of land declared in excess of ceiling limit by 54,886.44 sq. mtrs. Out of the same, 10,000 sq. mtrs., of land was allotted to the society. It comes approximately 1/6th of the land declared excess of ceiling limit. The remaining land can be said to be 44,886.44 sq. mtrs. Under such circumstances, we do not agree with the finding arrived at by the learned Single Judge that 10,000 sq. mtrs., of land out of the total area of land declared excess of the ceiling limit was allotted to the society, any irreversible situation can be said to have arisen. Further it is pertinent to note that in this appeal, the appellant petitioner relied upon a notification issued by the State of Gujarat dated 6.10.1997 which was clarificatory of circular dated 1.10.1997 issued by the State Government and in pursuance of a letter No. 2/31/77-ULC-(1) dated 19.12.1977 of the Government of India. The notification further clarifies the above referred circular issued by the Government of India dated 19.12.1977. It pertains to the exemption u/s 20 of the Act. In pursuance of said notification, learned Counsel Mr. Bhatt submitted that the petitioner has filed an undertaking in the form of her affidavit. We are of the opinion that let the competent authority to examine the case of the appellant petitioner in light of the notification dated 6.10.1997, which is clarificatory in nature of the circular dated 1.10.1997 issued by the State Government in pursuance of the above referred letter dated 19.12.1977 of the Government of India. Ld. AGP Mr. Nanavati for the State submitted that after abolition of the Act, the competent authority dealing with such matters, arose under the Act, may not be available, but we send back the case for appropriate decision as directed above to the competent authority or in the alternative to the District Collector, Rajkot within the urban agglomeration of Rajkot district.

In the result, we allow this appeal and quash and set aside the impugned order passed by the learned Single Judge and remit the matter for appropriate decision regarding the request of the appellant petitioner for exemption to the competent concerned authority, who shall decide the application of exemption of the appellant petitioner in light of the notification of the State of Gujarat dated 6.10.1997 discussed above in this judgment.

Civil Applications stand disposed of accordingly.