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SCA/1153/1997 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1153 of 1997
=========================================================
BALDEVPRASAD
GOVINDBHAI SADHU & 3 - Petitioner(s)
Versus
COMPETENT
AUTHORITY AND DEPUTYCOLLECTOR & 1 - Respondent(s)
=========================================================
Appearance
:
MR
BS PATEL for
Petitioner(s) : 1 - 4.MRS RANJAN B PATEL for Petitioner(s) : 1 -
4.
GOVERNMENT PLEADER for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 05/09/2011
ORAL
ORDER
1. Heard
learned advocate Mr. Chirag Patel appearing for petitioner and
learned AGP Ms. Sachi Mathur appearing for respondent state
authority.
2. In
present petition, petitioner has challenged order dated 23/9/1988
passed by respondent no.1 Annexure-A and order dated 30/12/1996
passed by respondent no.2 Annexure-B. In para-10(B) interim relief
has been prayed to stay further operation and implementation of order
dated 23/9/1988 Annexure-A and order dated 30/12/1996 Annexure-B.
Accordingly, this Court has passed following order on 6/2/1997
admitting the matter:
“Rule.
To
be heard with Spl. C. A. No.2872 of 1996. Ad interim relief in terms
of para-10(B). Notice as to interim relief returnable on 17th
February, 1997. D. S. permitted.”
3. Thereafter
ad interim relief which has been granted ex parte is confirmed by
this Court on 4/3/1997 till present Special Civil Application is
finally decided by this Court. The Special Civil Application No.2872
of 1996 which is to be heard along with present Special Civil
Application has been disposed of only on ground that petitioner no.1
of that petition has expired and though notice has been served to
petitioner nos.2 to 4 of that petition, they remained absent and none
appears on behalf of petitioners. Therefore, that petition was
disposed of and rule has been discharged and interim relief has been
stands vacated.
4. Learned
advocate Mr. Chirag Patel raised contention before this Court that
affidavit-in-reply has been filed by respondent competent authority
under Land Ceiling Act and Additional Collector Shri Ashok Mehta on
20/11/2010 wherein he relied upon averments made in para-5 of said
reply which is quoted as under:
“I
respectfully say that notification under section 10(1) was prepared
and published on 15.10.1988 and no further proceedings after 10(1)
have been carried out. I further say that the petitioner had
approached the Urban Land Tribunal against the order of the competent
authority dated 23.09.1988 which came to be rejected by the Tribunal
on 30.12.1996, against which the petitioner has preferred the
captioned writ petition. I further say that this Hon’ble Court
(Coram: Hon’ble Mr. Justice S. D. Dave) vide order dated 06.02.1997
had issued Rule as well as granted ad interim relief in terms of para
10(B). A copy of the order dated 06.02.1997 is annexed hereto and
marked as Annexure-VI to this affidavit.”
5. Learned
advocate Mr. Chirag Patel submitted that during the pendency of this
petition, considering the provisions under old Act, the Urban Land
(Ceiling and Regulation) Act, 1976, no further proceedings have been
initiated by respondent authority under Section-10 Sub-Section-3.
Relevant Section of old Act Repeal Act Section-10 Sub Section 1 to 6
are quoted as under:
“10.
Acquisition of vacant land in excess of ceiling limit.-
(1)
As soon as may be after the service of the statement under section 9
on the person concerned, the competent authority shall cause a
notification giving the particulars of the vacant land held by such
person in excess of the ceiling limit and stating that-
such
vacant land is to be acquired by the concerned State Government; and
the
claims of all person interested in such vacant land may be made by
them personally or by their agents giving particulars of the nature
of their interests in such land, to be published for the information
of the general public in the Official Gazette of the State concerned
and in such other manner as may be prescribed.
(2) After
considering the claims of the persons interested in the vacant land,
made to the competent authority in pursuance of the notification
published under sub-section (1), the competent authority shall
determine the nature and extent of such claims and pass such orders
as it deems fit.
(3) At
any time after the publication of the notification under sub-section
(1) the competent authority may, by notification published in the
Official Gazette of the State concerned, declare that the excess
vacant land referred to in the notification published under
sub-section (1) shall, with effect from such date as may be
specified in the declaration, be deemed to have been acquired by the
State Government and upon the publication of such declaration, such
land shall be deemed to have vested absolutely in the State
Government free from all encumbrances with effect from the date so
specified.
(4) During
the period commencing on the date of publication of the notification
under sub-section (1) and ending with the date specified in the
declaration made under sub-section (3) –
(i) no
person shall transfer by way of sale, mortgage, gift, lease or
otherwise any excess vacant land (including any part thereof)
specified in the notification aforesaid and any such transfer made
in contravention of this provision shall be deemed to be null and
void; and
(5) where
any vacant land is vested in the State Government under sub-section
(3), the competent authority may, by notice in writing, order any
person who may be in possession of it to surrender or deliver
possession thereof to the State Government or to any person duly
authorised by the State Government in this behalf within thirty days
of the service of the notice.
(6) If
any person refuses or fails to comply with an order made under
sub-section (5), the competent authority may take possession of the
vacant land or cause it to be given to the concerned State
Government or to any person duly authrorised by such State
Government in this behalf and may for that purpose use such force as
may be necessary.
Explanation:-In
this section, in sub-section (1) of sec.11 and in sections 14 and
23, “State Government”, in relation to-
(a) any
vacant land owned by the Central Government, means the Central
Government;
(b) any
vacant land owned by any State Government and situated in the Union
territory or within the local limits of a cantonment declared as
such under section 3 of the Cantonments Act, 1924, means that State
Government.”
6. In
view of aforesaid provisions of Repeal Act, after issuance of
notification under Section-10(1), no further proceedings have been
initiated by respondent authority and no notification has been issued
under Section-10(3) and possession of excess vacant land referred in
Section-10(1) notification has not been acquired or taken by State
Government. Therefore, land in question is not vested in the State
Government under Sub Section-3 because no such notification is issued
by respondent authority because of interim relief granted by this
Court.
7. Learned
advocate Mr. Chirag Patel brought to the notice of this Court amended
Act, the Urban Land (Ceiling and Regulation) Repeal Act, 1999
Section-2, wherein the Urban Land Ceiling and Regulation, 1976 being
a principal Act is hereby repealed which shall not effect certain
contingency as describe in Section-3 and 4 of Repeal Act which is
quoted as under:
“3.(1)
The repeal of the principal Act shall not affect:-
(a) the
vesting of any vacant land under sub-section (3) of section 10,
possession of which has been taken over by the State Government in
this behalf or the competent authority;
(b) the
validity of any order granting exemption under sub-section (1) of
section 20 or any action taken there under, not withstanding any
judgment of any court to the contrary;
(c) any
payment made To the State Government as a condition for granting
exemption under sub-section (1) of section 20.
(2) Where
–
(a) any
land is deemed to have vested in the State Government under
sub-section (3) of Section 10 of the principal Act but possession of
which has not been taken over by the State Government or any person
duly authorized by the State Government in this behalf or by the
competent authority; and
(b) any
amount has been paid by the State government with respect to such
land,
then,
such land shall not be restored unless the amount paid, if any, has
been refunded to the State Government.
4. All
proceedings relating to any order made or purported to be made under
the principal Act pending immediately before the commencement of this
Act, before any court, tribunal or other authority shall abate:
Provided
that this section shall not apply to the proceedings relating to
sections 11, 12, 13 and 14 of the principal Act in so far as such
proceedings are relatable to the land, possession of which has been
taken over by the State Government or any person duly authorized by
the State Government in this behalf or by the competent authority.”
8. In
view of aforesaid provisions made in Repeal Act, Section-3 Sub
Section-2 wherein land is deemed to have vested under Section 10(3)
of Principal Act but possession of which has not been taken over by
respondent duly authorised by state government in this behalf or by
competent authority and all proceedings which are relating to any
order made or purported to be made under the principal Act pending
immediately before the commencement of Repeal Act before any Court,
Tribunal or other authority that shall abate but this is not made
applicable to proceedings relating to Section-11, 12, 13 and 14 of
Principal Act.
9. In
view of above provisions made in Repeal Act and fact finding as per
affidavit-in-reply of respondent authority as per averments made in
para-5 possession of land in question has not been taken over by
respondent authority because no principal act Section-10 Sub
Section-3 notification is not at all issued and no further
proceedings has been initiated by respondent. Therefore,
accordingly, present proceedings are abated as per Section-4 of
Repeal Act. Rule is made absolute to the aforesaid extent. (See:
Recent decision of Apex Court on identical issue relating to land
acquisition act in case of Prahlad Singh & Ors. vs. Union of
India & Ors. reported in 2011 (5) SCALE 296).
(H.K.RATHOD,
J.)
(ila)
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