LPA/225/1994 3/ 11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 225 of 1994 With CIVIL APPLICATION No. 1336 of 1994 With CIVIL APPLICATION No. 12808 of 2005 In LETTERS PATENT APPEAL No. 225 of 1994 For Approval and Signature: HONOURABLE THE CHIEF JUSTICE Y.R.MEENA HONOURABLE MR.JUSTICE J.C.UPADHYAYA ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== GYANBA DILAVARSINH JADEJA W/O DILAVARSINH KHODUBHA - Appellant(s) Versus STATE OF GUJARAT & 28 - Respondent(s) ====================================== Appearance : MR MC BHATT with MR YN RAVANI for Appellant(s) : 1,1.2.1 MR BD DATTA for Appellant(s) : 1.2.1 MR MAULIK NANAVATI, AGP for Respondent(s) : 1 ý 3, RULE SERVED for Respondents : 6 - 29. MR JR NANAVATI for Respondent(s) : 4, MR YOGESH S LAKHANI for Respondent(s) : 5, ====================================== CORAM : HONOURABLE THE CHIEF JUSTICE Y.R.MEENA and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 17/06/2008 CAV JUDGMENT :
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
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 ý petitioner had questioned the correctness of the order
passed by and on behalf of the State Government ý respondent no. 1
herein on 23.8.1984 rejecting her application for exemption under
section 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.
2. As
per the case of the appellant ý 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 under section
6 of the Act with respect to the aforesaid holding. The holding
included the disputed land. An application was moved under section
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 under section 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 under section 20(1) of the Act
with respect to the disputed land came to be rejected. The appellant
ý petitioner questioned its correctness in Special Civil
Application No. 2339 of 1990.
2.1. In
the aforesaid Special Civil Application the appellant ý petitioner
contended that the application for exemption under section 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 ý 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.
3. 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 under section 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 ý 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 ý
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 ý
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 under section 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 under section 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
————
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.
4. 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 ý 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.
5. 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 ý 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.
6. 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 ý 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 under section 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.
7. 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.
(
Y. R. MEENA, C.J.)
(
J .C. UPADHYAYA, J. )
*Pansala.