Manilal Shivlal and Others vs State of Gujarat

Kundan Singh, J.—By means of this petition, the petitioner has sought for quashing the order dated 6-6-92 of the State Government at

Annexure ""B"", passed u/s 34 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act). The following items of the

properly of the petitioner have been considered u/s 6(1) of the Act.

Surat City

(1) Survey No. 3/4806/A

(2) Survey No. 3098/A

(3) Survey No. 3096/A

(4) Survey No. 4413

Total . . . 10069 sq.mtrs.

Property in Surat City.

(1) Survey No. 3/2322 140 sq. mtrs.

(2) Survey No. 3/2323-176 sq. mtrs.

Property of village Piplod -- Survey No. 84, admeasuring 2428 sq. mtrs.

Property in village Piplod bearing Survey No. 69/2- admeasuring 5058 sq. mtrs. -

The petitioner''s case before the Competent Authority regarding item Nos. (i) and (ii) was that the property was fully constructed for residential

and commercial purpose. Regarding item No. 3 of the property, wife of the petitioner executed a Will in favour of three daughters and regarding

property No. 4, it was said that it was an agricultural land and it was sold in 1975 after obtaining necessary permission from the competent

authority. By its order dated 24-3-86, the Competent Authority held that item Nos. I and 2 of the property in Surat city were residential properties

and they were partitioned by three equal shares of three daughters on the basis of the Will. The property shown at item No. 2 was a constructed

property used for residential purpose which is eligible to be calculated to be retained by the petitioner. Regarding property shown at serial No. 3,

the competent authority held that three daughters had equal shares 604 sq. mtrs. each which is eligible to be calculated as retainable by the

petitioner. So far as the property shown at item Nos. 4 is concerned, three daughters have equal shares and that comes to 1264 sq. mtrs. which

was within the ceiling limits and that property was sold to one Maganbhai Dayalbhai and Keshabhai Limbabhai by a registered sale deed dated

26th May, 1976 after obtaining necessary permission of the Collector, Surat. Thus, the petitioner was not holding any excess land. The

Government exercising powers u/s 34 of the Act, held that the petitioner was holding 7296.36 sq. mtrs. of land as excess land. The Competent

Authority and Additional Collector. Surat was directed to take further aclion for taking possession of the excess land. While exercising the powers

u/s 34 of the Act. the Government considered the written statement and additional written statement filed in reply to the show cause notice dated

18-6-90 and it is stated that the notice was issued after inordinate delay of 4 years and 3 months. The competent authority passed the order on

24-3-86 and the show cause notice was issued on 18-6-90 i.e. after about for years. In the meantime, interest of third party had accrued. Having

regard to the ratio laid down in the case of Vasantlal Chhotalal v. Slate of Gujarat, reported in 1984 GLH 775, Review is unwarranted, (ii) The

order passed by the competent authority was just, proper and legal and based on the evidence on record and that order cannot be reviewed after

a period of four years, (iii) The computation made by the Government is erroneous. The property shown at Sr. No. 3 was absolutely holding of

Nirmalaben, wife of the petitioner. The property was acquired by her from her father after permission was obtained for non-agricultural land under

the Will of Nirmalaben and her three daughters. As such each of them acquired only 809.36 sq. mtrs. (iv) Pravinaben sold the land by a registered

sale deed dated 10-6-88 her share to M/s, Grover Udyog, a partnership firm and the same was entered in entry No. 769 of village form No. VI

on 7-10-88 and that was certified by Mamlatdar. Madhukantaben and Niranjanaben also sold their shares by sale deeds dated 10-6-88 to S. M.

Hotels Pvt. Ltd. and J. S. M. Hotels Pvt. Ltd. Entry Nos. 767 and 768 were made in village form No. VI on 7-10-88 and those entries were

certified by the Mamlatdar on 7-12-88 of village Piplod. (6) The property of village Piplod shown at Sr.No. 3 was not held by the petitioner as it

was the property of his wife and that property was not the property of the family and that property had already been sold after obtaining non-

agricultural permission by registered sale deed in favour of the third parties. The petitioner also filed an additional written statement raised points as

under:

(1) In the property of survey No. 69/2 of village Rundh, the petitioner had half share and the holder of the property has already sold 5058 sq.

mtrs. to Maganbhai Dahyabhai and Keshabhai Limbabhai by a registered sale deed dated 26-5-75 after obtaining necessary permission from the

competent Court. The competent authority passed an order holding that there was no excess vacant land. The holder also made an application to

Surat Urban Development Authority for obtaining certificate to show that about 800 sq. mtrs. of land was acquired for highway from survey No.

84 of village Piplod and that certificate has not been received. Thus, the petitioner has no excess vacant land under the Ceiling Act.

The Government considered the written statement filed on behalf of the petitioner and came to the Conclusion that (sic) regarding property of

Surat city No. 3/3806/A, 3/3098A, 3/ 3096A and survey No. 3/4413. As stated above, the petitioner has not filed any objection as he was

admittedly holding that property, So far as the property shown at Sr. No. 2 bearing Nos. 3/ 2322 and 3/2323, the land holder has made no

submission regarding averments also and that issue was admitted by him.

As regards property shown at Sr. No. (sic) as item No. 3 of village Piplod, it was stated that the property was held by his wife and, therefore, it

wax not to be computed in his holding, but according to the provisions of Section 2(f) of the Act, a separate unit is not retainable by a wife.

Therefore, it is eligible to be computed in holding of the husband. Regarding land, scheme u/s 21 was withdrawn and the land was lying vacant.

There was a share of Nirmalaben along with her three daughters in the land in question. But during the lifetime of father, separate share is not

retainable by daughters and as the property of wife is computable in the holding of husband, the Will by which the share is given to daughters and

the entries made in respect thereof on 16-1-85 which is after the appointed day. Hence, the property will be deemed to be property of father and

it is not eligible to be separately retainable. Therefore, full holding of 2428 sq. mtrs. of the land of the holder is eligible to be computed. So far as

the land shown at Sr. No. 4 property at village Rundh which was admeasuring 10177 sq. mtrs.. the petitioner had half share to the extent of 5058

sq. mtrs. which is eligible to be computed in the holding of the petitioner. The property Nos. 1 to 4 was admeasuring 8796.36 sq. mtrs. and the

petitioner was entitled to retain 1500 sq. mtrs. of land. The remaining 7296.36 sq. mtrs. of the petitioner was declared as excess vacant land by

the order dated 6-6-92.

5 to 7. The learned counsel for the petitioner has mainly raised the following three contentions.

The order of the Government has been passed after lapse of about four years. Hence, inordinate delay in exercise of power u/s 34 of the Act by

the impugned order is unreasonable and bad in law and for this purpose he relied on the following two cases.

(i) Judgment of the Division Bench in the case of Jayantilal Kasalchand Shah Vs. State of Gujarat and Another,

(ii) Kavita Benefit Pvt. Ltd. Vs. Joint Secretary, Revenue Department and Another, , wherein it is held that the revisional power u/s 34 of the Act

is to be exercised in reasonable manner and within reasonable time. This Court laid down seven guidelines as under:

(i) A large number of officers working as Competent Authority all throughout the State exercise power u/s 9 at different points of time and large

number of orders are passed day in and day out. As against large number of officers who pass the orders and large number of orders which are

passed, the revisional authority is one, namely, the State Government, or responsible officers of the State Government and therefore, exercise of

revisional power should not be curtailed to a unreasonably short period. Some concessions for a large period would have to be made in favour of

State Government.

(ii) It would be advisable for the State Government to issue general instruction to all Competent Authorities to send their orders within stipulated

period to the State Government so that the State Government can decide as to whether the orders passed by various Competent Authorities with

respect to various parcels of land were required to be revised or not. If such orders are directed to be sent to the State Government within period

of three months from the date the orders are passed, period of one year from the date of receipt thereof by the State Government would be a

reasonable period within which revisional power can be exercised by the State Government.

(iii) In a given case, the State Government may justify invocation of revisional power even beyond period of one year from the date of the receipt

of the order of Competent Authority, if the facts and circumstances demand such revisional exercise of power even beyond said period.

(iv) In cases where the order of the Competent Authority is in favour of the holder of land and the same is operated for a period of about 15 to 18

months, the holder of the land is justified in assuming that the order of the Competent Authority holds the field, and is also further justified in dealing

with his/her properties on the supposition that the order of the Competent Authority has become final.

(v) He may either himself develop the property and put the property for his own use Dr he may transfer or alienate the same to third parties. The

third parties as bona fide purchasers may make necessary enquiries and such enquiries would reveal that the Competent Authority has by a final

order found that the land was not held in excess and that the holder of the land was holding land within permissible limits. On such enquiry a bona

fide purchaser would be emboldened and justified to purchase the said land for his own use or for putting up construction thereon. When the third

parties come in the picture and acquire right, title and interest in the parcels of land based on the order passed by the Competent Authority,

exercise of revisional power after expiry of unreasonably long period would, not only affect the holder of the land but would adversely affect the

third parties who have purchased such parcel of land from the holder of the land.

(vi) It is also not advisable to keep the right, title and interest of the holder of the land in abeyance or under suspension for indefinitely long period.

If he is entitled to hold the land he should be permitted to deal with the land in the manner he likes and his right and title over the land cannot be

kept under eclipse for all time to come because the State Government may think to exercise its revisional power at any point of time.

(vii) However, when the holder of the land has not changed his position or has not acted to his detriment and the properties remained in the same

condition in which they were on the date on which the Competent Authority passed the order, even late exercise of power by the revisional

authority cannot be invalidated especially when the holder of land is got changed. Even in such a case it would be necessary for the State

Government to satisfy the Court as to why it did not exercise its revisional power within reasonable period. On proper explanation being given by

the State Government e''xercise of revisional power even after lapse of long period may be accepted in a given case.

I have considered the submissions made on behalf of the petitioner in respect of the delay in exercising revisional jurisdiction u/s 34 of the Act.

The Legislature has not prescribed any time limit for exercising such power u/s 34 of the Act. The object of the Legislature in not prescribing any

limitation of time is that there may be various reasons i.e. collusion, fraud of the parties, arbitrariness, negligence of the authority in passing the

order. As soon as the State Government comes to know that some illegal order has been passed by the prescribed authority, erroneously in not

declaring excess land, the State Government could be able to pass correct orders for exercising revisional powers suo motu u/s 34 of the Act at

any time. It is not a lacunae to be filled in by the Court to circumvent it by reasonable time which may be several years.

The Division Bench of this Court in the case of Haresh Kantilal Vora Vs. The Competent Authority and Additional Collector, Rajkot and

Another, , has held as under (at page 46 of AIR) :

In view of the aforesaid legal position, the question which is required to be examined and answered is -- is the exercise of power genuine? Is it

reasonable? There is nothing on record to show that simply because the power is exercised after a period of about three years, the exercise of

power has become unreasonable. Mere lapse of time, without any thing more, would not make the exercise of power unreasonable. Therefore, the

argument that there was inordinate delay in issuing show cause notice and, therefore, the Government could not have exercised powers cannot be

accepted.

The Urban Land (Ceiling and Regulation) Act, 1976 is under a protective umbrella of Article 31-B of the Constitution of India and it has been

placed in IXth Schedule to the Constitution at serial No. 132. As such, the purpose of the Act should not be defeated merely on the ground that

the powers exercised u/s 34 of the Act have been exercised after inordinate delay. Delay depends upon different facts and circumstances of each

case.,

The learned Assistant Government Pleader submitted that the prescribed authority sends the papers to the Government for consideration about

Revision and those papers were placed before the Review Committee. Whether the facts and circumstances are such so as to- exercise powers

u/s 34 of the Act should be invoked suo motu. it is possible that there may be a delay in placing papers before the Review Committee and the

Review Committee after considering the facts and circumstances of the case, recommends to the Government to take further proceedings u/s 34 of

the Act. Thousands of cases are received by the Government from Prescribed Authority of different cities. They are considered, then they are sent

to Review Committee which again considers carefully and if it comes to the conclusion that Prescribed Authority has taken erroneous view in not

declaring excess land then it recommends to the Government for the exercise of powers u/s 34 of the Act, this process is not a stereotype process

and it is not a single case for which the whole process can be taken within a few months. In reply to the above submission of the learned AGP, the

learned counsel for the petitioner submitted that ratio has been laid down in the guideline No. 4 in the case of M/s. Kavita Benefits Pvt. Ltd.

(supra) wherein the maximum time has been fixed 15 to 18 months for exercising that power u/s 34 of the Act. As such, the exercise of the

Revisional power depends upon facts and circumstances of each case and it would be for the authority to decide as to whether exercise of

revisional power can be said to be within reasonable period? While exercising such powers, a number of factors can enter into consideration. We

should not lose sight of socialistic pattern of society adopted by the Constitution, object and reasons of the Act. The object of the Act is, inter alia

(i) to prevent concentration of urban property in the hands of a few persons and speculation and profiteering therein, (ii) to bring about socialisation

of urban land in urban agglomeration to subserve the common good by ensuring its equitable distribution, (iii) to discourage construction of

luxurious housing leading to conspicuous consumption of scarce building material and to ensure the equitable utilisation of such materials, (iv) to

secure orderly urbanisation. In case the time-limit which is not prescribed by the Legislature for declaring the excess land by correct orders of the

Government exercising the powers u/s 34 of the Act, is provided by Courts, the very object of the Act would be frustrated and-defeated.

Considering the intention of the legislature in not prescribing time-limit, heavy responsibility and burden of the Government in processing for

exercise of the powers u/s 34 of the Act, object and reasons of the Act, socialistic pattern of society adopted by the Constitution and the view

taken by the Division Bench of this Court in the case of Haresh Kanti Lal Vora (supra), I am of the opinion that mere delay in exercising the

powers cannot be a sole ground for brushing aside the powers of the Government exercised u/s 34 of the Act.

The second submission of the learned counsel for the petitioner is that after the order passed by the competent authority, several transactions

have taken place and the parties have entered into agreements and sale deeds and the properties have been sold away to other persons. The

affected persons"" in the proviso to Section 34 are required to be given reasonable opportunity of being heard in the matter.

I have carefully considered the arguments raised by the learned counsel for the petitioner. The affected persons include owner or holder of the

properly. If the property has been transferred to any other person, he or she shall be included in the word ""affected person"". The interpretation of

reasonable opportunity of being heard means notice to be issued to him and he should be afforded a reasonable opportunity of leading evidence

and of hearing and the authority is also required to consider after giving proper weightage of evidence and arguments to decide the matter in

dispute in accordance with law. In the present case, the property shown at item No. 4 is stated to have been sold by a registered sale deed dated

26-5-76 to Maganbhai and Keshabhai after obtaining the requisite permission. It is also stated that this land is an agricultural land as it appears

from the order dated 21 -4-76 passed by the Additional Collector, Surat and in case this property is agricultural land, it cannot be said to be

vacant land under the provisions of Section 2(q) of the Act. The vacant land is defined u/s 2(q) of the Act. Vacant land means not being land

mainly used for purpose of agriculture in an urban agglomeration. If the land is used for agricultural purpose, it is not a vacant land under the

provisions of Section 2(q) which is defined in Explanation to Section 2(o) of the Act. The Government has not considered whether it is an

agricultural land being not vacant land under the provisions of Section 2(q) of the Act or it does not fall within the meaning of agricultural land in the

Explanation to Section 2(o) or it has been converted into non-agricultural land and it has been sold to some other persons. If it has been sold and

transferred to some other person, rights of the persons holding that property would be affected. From the order of the Government, it does not

appear that the notices were issued to the transferees, being affected persons. Thus, regarding property of sufvey No. 69/2, the order of the

Government is not sustainable.

The third point raised by the learned counsel for the petitioner is that the property shown as item Nos. 1 and 2 in Surat city is a constructed

building and used for commercial purpose which cannot be said to be vacant land u/s 2(q)(ii) of the Act. It has not been touched by the authority

below regarding this property whether area is wholly constructed or any part of that area is constructed and the remaining land is left out as open

land as there is no clear evidence on record in respect thereof.

In view of Section 2(q)(ii), the constructed area is not held as vacant land at all. By Section 2(g), the Legislature has provided land appurtenant

to the maximum limit of 500 sq. mtrs. and 500 sq. mtrs. as additional open land in accordance with the provisions of building operation. In case

constructed area is 4000 sq. mtrs. the maximum land appurtenant land will be provided to the extent of 500 sq. mtrs. In case, constructed area is

admeasuring 500 sq. mtrs., according to the provisions of building regulations, 25% of the constructed area is required to be left out as open land

and 25% as additional open land. None of the authorities has considered the factual aspect regarding constructed area and appurtenant land under

the provisions of Sections 2(q)(ii) and 2(g)(i)(ii) of the Act regarding property shown at item Nos. 1 and 2.

So far as the property of village Piplod survey No. 84 admeasuring 2428 sq. mtrs. is concerned, according to petitioner, this property was

also sold to S. M. Hotels Pvt. Ltd. and J.S.M. Hotels Pvt. Ltd. It is also slated that JSM Hotels Pvt. Ltd. has sold the property to respondent

Nos. 2 and 3 and they are also affected persons but no notice has been issued to the respondent Nos. 2 and 3 regarding ceiling proceedings in

respect of Piplod property as part of this land has already taken by Surat Municipal Corporation under Town Planning Scheme No. 6, Piplod.

As affected persons have not been issued any notice nor have they been given any opportunity of leading their evidence as the Government has

passed the orders without giving an opportunity of hearing. On this ground, the order of the Government is also not sustainable.

On the whole, the order under challenge is not sustainable in the eye of law and in the interest of justice, the affected persons should have been

given an opportunity of hearing so that bona fide purchasers or their defence can be considered so required under the proviso to Section 34 of the

Act.

Accordingly, the petition is allowed and the order dated 6-6-1992 passed by the Joint Secretary, Government of Gujarat is hereby quashed

and set aside. In the facts and circumstances of the case, it would be just and proper to remand the matter to the State Government with a

direction to give reasonable opportunity of hearing to the affected persons by issuing a show cause notice and giving them an opportunity of leading

evidence in respect of their rights and claims after considering the evidence on record, the State Government would pass an appropriate order in

the light of above observations, in accordance with law as expeditiously as possible preferably within a period of four months from the date of the

production of a certified copy of this judgment. Rule is made absolute accordingly with no order as to costs.