ORDER
A.N. Divecha, J.
1. The main question arising Sri all these petitions is common and it is to the effect as to what conditions can be imposed by the Competent Authority while approving the Scheme under Section 21(1) of the Urban Land (Ceiling and Regulation) Act, 1976 (the Act for brief). Since common questions of law and fact arise in all these four petitions, I have thought it fit to dispose of all these four petitions by this common judgment of mine.
2. The facts giving rise to these petitions move in a narrow compass. Each petitioner applied for permission under Section 21(1) of the Act in the prescribed form. By his order passed on 30th October 1979 in each case, respondent No. 1 granted such permission to each petitioner. Its copy is at Annexure-A to each petition. It was accompanied by certain conditions separately annexed therewith. Condition No. 3 thereof inter alia required the petitioner in each petition to commence construction within one year from the date of the order and to give intimation regarding commencement of the construction work to the concerned Superintending Engineer. It appears that no intimation regarding commencement of the construction work was given to the concerned Superintending Engineer. Thereupon it was presumed that the construction work was not commenced within the stipulated period of one year from the date of the order at Annexure-A to each petition. Thereupon respondent No. 1 issued one show cause notice of 8th/9th July 1981 calling upon each petitioner to show cause why the permission granted to him by the order at Annexure-A to each petition should not be cancelled. A copy of the show cause notice is at Annexure-B to each petition. Each petitioner filed his reply thereto on 23rd July 1981. Its copy is at Annexure-C to each petition. After hearing the parties, by his order passed on 7th/9th December 1982 pursuant to the aforesaid show cause notice, respondent No. 1 cancelled the permission at
Annexure-A to each petition, A copy of the
aforesaid order passed by respondent No. 1
on 7th/9th December 1982 is at Annexure-G
to each petition. That aggrieved each petitioner. Each one carried the matter in appeal
before the Appellate Authority (respondent
No. 2 herein) as provided in Section 33 of the
Act. A copy of the memo of appeal in each
case is at Annexure-H to each petition. It
appears that all the appeals preferred by all
the four petitioners came to be heard together
and by his common order passed on 11th
March 1986 in the aforesaid four appeals,
respondent No. 2 dismissed them; Its copy is
at Annexure-I to each petition. That again
aggrieved each petitioner. Each one has
thereupon moved this Court by means of his
respective petition under Article 226 of the
Constitution of India for questioning the
correctness of the impugned order at Annexure-G to each petition as affirmed in appeal
by the appellate order at Annexure-I to each
petition.
3. Shri Nanavaty for the petitioner has urged that respondent No. 1 had no authority or power to impose any condition with respect to the time-limit for commencement of the construction work in terms of the approved Scheme in view of the relevant provisions contained in Section 21(1) of the Act. Shri Bhatt and Shri Shah as Interveners have reiterated the very submission with further elaboration. Shri Dave for the respondents has contended to the contrary. Shri Champaneri as an Intervener has followed the line of arguments drawn on behalf of the respondents.
4. In order to appreciate rival submissions urged before me, it would be quite proper to look at Section 21 of the Act. It reads :
“21. (1) Notwithstanding anything contained in any of the foregoing provisions of this Chapter, where a person holds any vacant land in excess of the ceiling limit and such person declares within such time, in such form and in such manner as may be prescribed before the competent authority that such land is to be utilised for the construction of dwelling-units (each such dwelling-unit having a plinth area not exceeding eighty square meters) for the accommodation of the weaker sections of the society, in accordance with any scheme approved by such authority as the State Government may, by notification in the Official Gazette, specify in this behalf, then, the competent authority may, after making such inquiry as it deems fit, declare such land not to be excess land for the purposes of this Chapter and permit such person to continue to hold such land for the aforesaid purpose, subject to such terms and condition’s as, may be prescribed, including a condition as to the time-limit within which such buildings are to be constructed.
(2) Where any person contravenes any of
the conditions subject to which the permission has been granted under Sub-section (1),
the competent authority shall, by order, and
after giving such person an opportunity of
being heard, declare such land to be excess
land and thereupon all the provisions of this
Chapter shall apply accordingly.”
A bare perusal of the aforesaid statutory provisions makes it clear that the Competent Authority functioning thereunder has a power to impose such terms and conditions as may be prescribed, including a condition as to the time-limit within which such buildings are to be constructed. The word “prescribed” is defined in Section 2(j) of the Act to mean prescribed by rules under the Act. Section 46(2) of the Act empowers the Central Government inter alia to frame rules with respect to the terms and conditions subject to which a person permitted under Sub-section (1) of Section 21 may hold land in excess of the ceiling limit. It has further been provided therein that; as soon as such rules are made, they have to be placed before each House of Parliament, while it is in session, for a total period of thirty days. It has further been provided therein that, if both Houses agree in making any modification in such rule or both Houses agree that such rule should not be made, such rule shall thereafter have effect only in such modified form or be of no effect, as the case may be. If it is not so done, the rules would obviously come into force on expiry of the period specified therein.
5. In exercise of its powers under Section 46 of the Act, the Urban Land (Ceiling and Regulation) Rules, 1976 (the Rules for brief) have come to be framed. Rule 11-A came to be introduced in the Rules by virtue of the Urban Land (Ceiling and Regulation) 8th Amendment Rules, 1977 with effect from 19th December 1977. It reads :
“Rule 11-A — Terms and conditions subject to which a person may be permitted to continue to hold excess vacant land under Sub-section (1) of Section 21.
The terms and conditions subject to which the Competent Authority may permit a person to continue to hold vacant land, in excess of the ceiling limit, under Sub-section (1) of Section 21, for the construction of dwelling-units for the accommodation of the weaker sections of the society, in accordance with any Scheme shall be the terms and conditions specified in Schedule I-A.”
A bate perusal of Rule 11-A of the Rules would require reference to Schedule I-A. It lays down the terms and conditions for the purposes of Section 21(1) of the Act. Condition No. 3 therein is relevant for the purposes of these petitions. It reads:
“3. The construction of the dwelling-units shall be completed within five years from the date on which the declaration is made by the Competent Authority under Sub-section (1) of Section 21, permitting the person concerned to continue to hold the vacant land for the purpose specified in that Sub-section.”
6. The contention urged on behalf of the landholders like the petitioners is to the effect that no condition other than the conditions specified in Schedule I-A appended to the Rules can be imposed by the Competent Authority while granting permission under Section 21(1) of the Act. According to the learned Advocates appearing on behalf of the landholders, the permission thereunder could be subject to such terms and conditions as may be prescribed, including a condition as to the time-limit within which such buildings are to be constructed. It has been urged that a condition as to the time-limit within which such buildings are to be constructed will have to be in accordance with the prescribed condition in that regard and no other time-limit can be imposed like the time-limit for commencement of the construction work in accordance with the Scheme approved under Section 21(1) of the Act. On behalf of the respondents, the submission is to the effect that a condition as to the time-limit within which such buildings are to be constructed can be imposed irrespective of the condition in that regard is prescribed by or under the Rules. Even if no such condition regarding the time-limit within which such buildings are to be constructed is prescribed in the Rules, runs the submission urged before me by the learned Assistant Government Pleaders, the Competent Authority is empowered to impose a condition in that regard while granting permission under Section 21(1) of the Act, It has been urged on behalf of the respondents that a condition as to the time-limit within which such buildings are to be constructed occurring in the aforesaid statutory provision has to be interpreted to mean a condition to complete the work in a stipulated phased manner and it would include a condition regarding the time-limit within which the construction work has to be commenced.
7. Shri Dave and Shri Champaneri are somewhat right in their submission that the use of the word “include” in a statutory provision is designed to expand its scope. This is however not a universal rule of interpretation. The use of the word “include” may also connote the meaning of the expression used preceding it as submitted by the learned Advocate appearing on behalf of the landholders. In this connection, a reference deserves to be made to the ruling of the Supreme Court in the case of Section G.R, Tiles Manufacturers v. State of Gujarat reported in (1977) 18 Guj LR 688 : AIR 1977 SC 90 : (1976 Lab IC 1778). In that case, the Supreme Court was concerned with interpretation of Entry No. 22 in Part I of the Schedule to: the Minimum Wages Act, 1948. It is with respect to “Employment in potteries industry”. It is followed by one Explanation. It has been provided therein, “For the purpose of this Entry, potteries industry includes the manufacture of the following articles of pottery, namely, xxx xxx xxx”. The question before the Supreme Court was whether the use of the word “includes” was designed to expand the scope of the Entry or to restrict its meaning with respect to manufacture of the enumerated articles. In that context it has been held :
“It is true that the word ‘includes’ is generally used as a word of extension, but the meaning of a word or phrase is extended when it is said to include things that would not properly fall within its ordinary connotation. Thus where ‘includes’ has an extending force, it adds to the word or phrase a meaning which does not naturally belong to it. But it is difficult to agree that ‘includes’ as used in the Explanation to Entry 22 has that extending force. For, if the objects specified are also “articles of pottery”, then these objects are already comprised in the expression “potteries industry”. Nor can it be agreed that the articles specified in the Explanation may have been mentioned out of abundant caution to emphasize the comprehensive character of the entry, to indicate that all varieties of pottery are included therein. The inclusion in the list of objects which are well-recognised articles of pottery makes it plain that the Explanation was added to the entry not by way of abundant caution.
XXX XXX XXX
Further, there cannot be any inflexible rule that the word “include” should be read always as a word of extension without reference to the context, though ‘include’ is generally used in interpretation clauses as a word of enlargement, in some cases the context might suggest a different intention. The word ‘includes’ has been used in Entry 22 in the sense of ‘means’. In that sense it is not a word of extension, but limitation; it is exhaustive of the meaning which must be given to potteries industry for the purpose of Entry 22.” .
It thus becomes clear that the word “includes” cannot always be read as a word of extension without reference to the context.
8. It cannot be gainsaid that the Rules had not seen the light of the day when the Act came to be enacted by Parliament. The Rules were obviously framed subsequently as the source of power to frame them was derived from the Act itself. The Legislature while enacting the statutory provision contained in Section 21(1) of the Act was conscious of the fact that it had to confer power on the rule-making authority to work out details regarding conditions to be imposed while granting the permission thereunder. It appears that in its wisdom it has indicated to the rule-making authority that whatever conditions are to be prescribed one condition to be prescribed should be regarding the time-limit within which such buildings are to be constructed. That explains why the relevant portion of the aforesaid statutory provision reads : “Subject to such terms and conditions as may be prescribed, including a condition as to the time-limit within which such buildings are to be constructed” . The word “including” in the context is a direction to the rule-making authority to keep in mind that a condition as to the time-limit within, which such buildings are to be constructed has to be prescribed. The inclusive portion of the statutory provision was in the nature of a guideline given to the rule-making authority while exercising the power inter alia under Section 46(2)(j) of the Act. The idea appears to be that the rule-making authority need not overlook a condition in that regard while prescribing other necessary conditions.
9. Shri Dave and Shri Champaneri are right in their submission that the avowed object of the enactment has been to prevent concentration of properties in individuals and to ensure equitable distribution thereof among the weaker sections of the society. It has been enacted keeping in mind the Directive Principles of State Policy as set out in Article 39 of the Constitution of India. Shri Nanavaty, Shri Bhatt and Shri Shah for the landholders do not dispute this proposition canvassed by the learned Assistant Government Pleaders. It is true that this Court cannot remain oblivious to the avowed object in bringing the law pertaining to holding of urban land within the ceiling limit on the statute book as rightly submitted by both the learned Assistant Government Pleaders. The question however is whether the avowed object would be materialised by interpreting the relevant provisions contained in Section 21(1) of the Act in the manner canvassed on behalf of the landholders or on behalf of the State Government.
10. The scheme of Section 21 of the Act makes it clear that a landholder would be permitted to retain his excess holding if he undertakes to construct dwelling-units for the weaker sections of the society. This is done because it would be well-nigh impossible for the Government or Governmental instrumentalities like a statutory Housing Board to undertake any construction work of dwelling-units for the weaker sections of the society on a mass scale or on a very large scale. It appears that the Legislature in its wisdom has therefore thought it fit to allow individual landholders to undertake such exercise. It may be noted that the compensation for the excess land declared surplus under the Act is fixed on the basis of capitalisation of the average annual income from such vacant land by the eight and one-third times or, in a case where no such income is derived from such vacant land, an amount calculated at a rate not exceeding ten rupees per square metre in the case of vacant land situated in an urban agglomeration falling within Category A or B specified in Schedule I and five rupees for square metre in the case of vacant land situated in an urban agglomeration falling within Category C or D specified in that Schedule. In order to encourage individual landholders to undertake construction of dwelling-units for the weaker sections of the society, the landholder is not only permitted to retain such land till the construction work is over but he is also allowed either to transfer such dwelling-units by outright sale or on hire-purchases or by letting out on rent to members of the weaker sections of the society. The formula for the sale price of such dwelling-units has been worked out in Condition No. 4 set out in Schedule I-A referred to in Rule 11-A of the Rules. Similarly, the formula for letting out such dwelling-units to members of the weaker sections of the society has also been specified in very Condition No. 4 in that Schedule. In the case of letting out of such dwelling-units to members of the weaker sections of the society, the landholder is allowed to retain the land housing such dwelling-units though it would be in excess of the ceiling limit in his holding. The consideration to be received by such landholder in accordance with aforesaid Condition No. 4 by way of rent appears to be on a substantially higher side compared to the compensation such landholder is likely to get if the land to be used by him for housing such dwelling-units is declared excess under the Act. Similarly, the sale price of such dwelling-units as specified in Schedule I-A referred to in Rule 11-A of the Rules would bring home a substantially higher return compared to the compensation that such landholder is likely to get if the land to be used by him for housing such dwelling-units is declared surplus under the Act. This can be said to have been done with a view to inducing such landholders to undertake construction activities for raising dwelling-units on the excess vacant land for housing the weaker sections of the society. This aspect of the Scheme of Section 21(1) of the Act is to be borne in mind while construing the word “including” occurring in the concluding part of Section 21(1) of the Act.
11. It would be difficult to accept the contrary view urged before me by the learned Assistant Government Pleaders to the effect that, the word “including” used in the concluding part of Section 21(1) of the Act has to be interpreted as expanding the scope of the conditions to be imposed or extending the scope of the power of the Competent Authority to impose a condition as to the time-limit within which such dwelling-units have to be constructed. The reason therefor is quite simple. In the first place, the conditions which could be imposed have to be such as may be prescribed. If a condition regarding the time-limit within which such dwelling-units are to be constructed is prescribed in the Rules, it would not be open to the Competent Authority to prescribe any condition different from the prescribed condition in that regard. Besides, the Legislature while enacting this piece of legislation was conscious that it was leaving to the rule-making authority to ores-cribe the conditions subject to which the Competent Authority could grant permission under Section 21(1) of the Act. In its wisdom the Legislature appears to have thought that it would be desirable for the rule-making authority to prescribe a condition of uniform applicability in that regard rather than leaving it to the discretion of the Competent Authority. As pointed out hereinabove, the rules framed by the rule-making authority have been subjected to the scrutiny of both Houses of Parliament as provided in Section 46(3) of the Act. It can therefore safely be assumed that the Legislature while enacting this piece of legislation wanted to see that the rule-making authority prescribed a condition regarding the time-limit within which the dwelling-units are to be constructed for the purposes of Section 21(1) of the Act. Moreover, if discretion for setting out a time-limit within which such dwelling-units are to be constructed is conferred on the Competent Authority, each Competent Authority may use his discretion differently in cases of different landholders. Again, the Competent Authority for ‘A’ City would prescribe a time-limit different from such time-limit prescribed by the Competent Authority of ‘B’ City. The possibility of prescribing different time-limits by different Competent Authorities in that regard cannot be ruled out. One may go further visualising possibility of prescription of different time-limits by the same Competent Authority for different landholders. It may result into prescription of a particular time-limit for a grey-haired landholder and 3 different time-limit for a black-haired one. It is true that the State Government of each State has been invested with powers under Section 35 of the Act to issue directions to the Competent Authority of general nature. It is however not absolutely free from doubt whether directions can be issued to fetter the discretionary power conferred on an authority by a statutory provision. If exercise of discretion conferred on a statutory authority is said to be fettered, the purpose of conferring such discretionary power on the authority might stand frustrated. In this view of the matter, there is no escape from the conclusion that the context in which the word “including” occurs in the statutory provision of Section 21(1) of the Act, that word has to be interpreted as giving a meaning to the expression rather than as expanding the scope thereof ‘or extending the power of the Competent Authority in that regard.
12. The wordings of Rule 11-A of the Rules buttress the view taken by me with respect to interpretation of the concluding part of Section 21(1) of the Act. It has been clearly provided therein that the terms and conditions which could be imposed while granting permission under Section 21(1) of the Act could be none else but what are specified in Schedule I-A appended to the Rules. As pointed but hereinabove, the Rules have been made subject to the scrutiny of both Houses of Parliament as provided in Section 46(3) of the Act. Nor for a moment it can be doubted that Parliament did scrutinise the Rules for the purpose of finding out whether or not the legislative policy behind the enactment has been carried out therein. ‘If,’ on scrutiny, Parliament had found that the Rules in that regard were not in consonance with the Scheme of Section 21(1) of the Act, it would have suggested modifications therein or it would have indicated that such Rules should not be made in exercise of its power under Section 46(3) of the Act. Nothing of the sort appears to have been done. In this view of the matter also, there is no escape from the conclusion that the conditions to be imposed while granting permission under Section 21(1) of the Act could be none other than the conditions prescribed by the Rules or, in other words, set out in Schedule I-A appended thereto.
13. It is difficult to agree with the Sub-mission urged before me by the learned Assistant Government Pleaders to the effect that, if the Rules had not prescribed any condition with respect to the time-limit within which such dwelling-units were required to be constructed by a landholder obtaining the necessary permission under Section 21(1) of the Act, it would have been open to the Competent Authority to prescribe a condition in that regard: Again, the reason therefor is not far to seek. The intention of the Legislature behind enactment of Section 21(1) of the Act appeears to be manifestly clear. It did not want to leave prescription of a condition as to the time-limit within which such dwelling-units were to come up under Section 21(1) of the Act to the Competent Authority. That appears to be the reason why a guideline was set out in Section 21(1) of the Act itself for the rule-making authority that it has to prescribe a condition with respect to the time-limit within which such construction has to be made. To accept the aforesaid submission urged before me by the learned Assistant Government Pleaders would tantamount to doubting the legislative Wisdom in that regard.
14. Both Shri Champaneri and Shri Dave have urged that imposition of the condition as to the time-limit within which the construction, activity with respect to the permission granted under Section 21(1) of the Act should be commenced would enable the Competent Authority not only to assess the bona fides of the landholder obtaining such permission but also to supervise the construction activity, and it would subserve the avowed object behind the said statutory provision. In a given case, runs their submission, the landholder may obtain such permission and do nothing for five years. According to the learned Assistant Government Pleaders, such land-holder need not be permitted to retain the excess land for a period of five years. The aforesaid submission looks attractive at the first sight. However, on its close examination, it is found quite hollow. The reason therefor is quite simple. A landholder would not be interested in retaining any excess land for any unproductive or useless purpose. If he surrenders the excess land, he gets the minimum compensation somewhat immediately. If he does nothing after obtaining the permission under Section 21(1) of the Act and retains it for five years, he would get the same compensation as he would have got without obtaining such permission. In such a case, he is likely to be a loser in view of the fast erosion of the rupee value. I do not think any landholder worth the name would resort to such tendency. Besides, as pointed out hereinabove, construction of dwelling-units on the excess land by a landholder would be to his advantage as he would get more return for his excess land than what he would have got by way of compensation under Section 11 thereof.
15. I am again not impressed by the submission urged before me by the learned Assistant Government Pleaders to the effect that a time-bound schedule for construction of dwelling-units for the weaker sections of the society would be in the interests of general public. As pointed out hereinabove, it would well-nigh be impossible for the Government or Governmental instrumentalities like a statutory Housing Board to undertake construction of dwelling-units for the weaker sections of the society on a mass scale. The learned Advocates appearing on behalf of the landholders are right in their submission that in these days of advanced technology a high-rise building can come up in a year only. Even if after obtaining permission under Section 21(1) of the Act the landholder is unable to undertake such construction work for a couple of years on account of the circumstances beyond his control or even otherwise, it would be possible for him to complete the construction work within the stipulated time-limit without sacrificing its quality. Again, it often happens that commencement of construction is delayed on account of the circumstances beyond the control of the landholder who has obtained permission under Section 21(1) of the Act. It is obvious that he would not have obtained any non-agricultural-use permission with respect to the vacant land. In order to implement the scheme approved by the Competent Authority under Section 21(1) of the Act, he has to obtain the non-agricultural-use permission with respect to the vacant land in question. That might consume some time. It is possible that such permission might be refused on flimsy grounds. In that case, the landholder might be required to carry the matter in appeal or in revision or might be required to institute some litigation. That could again be a time-consuming process. Moreover, a building permission from the local authority might have also to’be obtained. Some time is bound to be lost in obtaining such building permission. There could be disturbances in the area housing such excess land and no construction activity could be commenced despite the non-agricultural-use permission and the building permission are obtained from the concerned authorities. There could be thousand and one reasons for delay in commencement of the construction work. What is required to be seen is whether or not the scheme is completed within the stipulated, time-limit. In that view of the matter also, I am of the opinion that imposition of such condition as to the time-limit within which the construction activity has to be commenced is not so much in public interests as is sought to be made out.
16. In view of my aforesaid discussion, I am of the opinion that the Competent Authority has no power to prescribe conditions other than what arc set out in Schedule I-A appended to the Rules. This may be subject to the rider that certain conditions in-built in the scheme of Section 21(1) of the Act can or may be prescribed. For example, a condition may be prescribed that not more than one dwelling-unit must be allotted to one family belonging to the weaker sections of the society. This would be in consonance with the binding law declared by the Apex Court in its ruling in the case of Shantistar Builders v. Narayan Khimalal Totame reported in AIR 1990 SC 630 (vide paragraph 17 at page 635). As aforesaid, such conditions as are in consonance with the legislative policy reflected in Section 21(1) of the Act may be imposed, for such conditions would be found in-built thereunder. Except such conditions, the Competent Authority cannot impose any condition other than those prescribed by the Rules or, in other words, those set out in Schedule I-A thereto.
17. Adverting to the cases on hand, each petitioner was subjected inter alia to the condition of the time-limit of one year within which he was required to commence the construction work while issuing the order at Annexure-A to each petition. In view of my aforesaid discussion, this condition could not have been imposed by the Competent Authority. Its breach could not have occasioned any action under Section 21(2) of the Act. I am unable to accept the submission urged before me by both the learned Assistant Government Pleaders to the effect that breach of any condition imposed by the Competent Authority while granting permission under Section 21(1) of the Act would entail the consequences provided in Sub-section (2) thereof. The reason therefor is quite obvious. Sub-section (2) of Section 21 of the Act specifies consequences of contravention by a person of any of the conditions imposed while granting permission under Sub-section (1) thereof. The use of the article “the” before the word “conditions” in Sub-section (2) of Section 21 is referable to the conditions to which the permission can be subjected under Sub-section (1) thereof. As pointed out hereinabove, the conditions that can be imposed while granting the permission thereunder would only be the conditions as set out in Schedule I-A appended to the Rules and such other conditions as are found in-built in the legislative policy reflected therein. As pointed out hereinabove, the Competent Authority had no power to impose any such condition with respect to the time-limit within which the construction work was required to be commenced by the petitioner in each case. In that view of the matter, the petitioner in each case could not be subjected to any action for its breach under Section 21(2) thereof.
18. The fact that each petitioner agreed to abide by the terms and conditions to be imposed by the Competent Authority while making an application under Section 21(1) of the Act is no ground to subject him to abide by any and every condition imposed by the Competent Authority without any authority of law. It is a settled principle of law that there cannot be any estoppel against a statute.
19. Shri Champaneri and Shri Dave for the respondents have then urged that the time-limit for completion of the scheme within five years from the date of the order at Annexure-A to each petition has come to an end by now and no useful purpose will be served in accepting these petitions by setting aside the impugned order at Annexure-G to each petition as affirmed in appeal by the appellate order at Annexure-I to each petition. It is true that the time-limit within which each petitioner was required to complete the construction work has expired long back. The question however is whether or not the petitioner in each case was responsible for it. It is obvious that, once the show cause notice under Section 21(2) of the Act is issued, no prudent landholder would carry on or undertake any construction activity on the land in question. No man of common sense would venture to allow his investment to go to waste. If the permission under Section 21(1) of the Act is cancelled by virtue of the exercise of the power under Sub-section (2) thereof, the land in question will be declare as excess and as such surplus and the compensation under Section 11 of the Act only would be payable. Keeping this situation in mind, it would be difficult to conceive a prudent person to go ahead with his construction activity once the show cause notice under Section 21(2) of the Act is issued and served to him. He would not be sure whether or not the permission under Section 21(1) of the Act would be cancelled in exercise of the power under Sub-section (2) thereof. Even if the power under Section 21(2) of the Act is not exercised by the Competent Authority at that stage, it is possible that the State Government may upset that order in exercise of its suo motu revisional powers under Section 34 of the Act. The order in exercise of the powers under Section 21(2) of the Act can be carried further in appeal but then the litigants by and large and generally treat a litigation as a gamble. Its logical conclusion could be either way. In that view of the matter, pendency of litigation against a so-called illegal order under Section 21(2) of the Act may not come to the rescue of such landholder. I am therefore of the opinion that, if a landholder stops construction activity or does not undertake any construction activity after receipt of the show cause notice under Section 21(2) of the Act, he need not be blamed for it. The time lost till that order is finally set aside will have to be given a set-off. That time will have to be excluded from consideration of the time-limit within which the scheme is required to be completed.
20. At this stage it would be desirable to take note of certain well-known legal maxims. Firstly, no law would compel a person to perform an impossibility. Secondly, no person need be prejudiced by an act of Court. These two legal maxims have been recognised by the Supreme Court in its ruling in the case of Raj Kumar v. Tarapada reported in AIR 1987 SC 2195. In that case, the arbitration award could not be registered within the stipulated time-limit on account of an act of Court. Applying the aforesaid two legal maxims, the Supreme Court directed registration of the arbitration award even after the expiry of the time-limit for the purpose. Keeping in mind the aforesaid binding ruling of the Apex Court in the case of Raj Kumar (supra), the time lost from the date of the show cause notice at Annexure-B to each petition culminating into the impugned order at Annexure-C to each petition as affirmed in appeal by the appellate order at Annexure-I to each petition till the intimation of the decision in all these writ petitions to the concerned authority will have to be excluded.
21. There could be another legal maxim. Law is designed to help people, not to harass them. If each petitioner is not allowed to complete the scheme within the time-limit after excluding the time lost from the service of the show cause notice at Annexure-B to each petition till the intimation of the final decision in these writ petitions is given to the concerned authority, it would mean that any illegal order can come in the way of such petitioner in completing the scheme within the stipulated time-limit. Such a situation can arise in a given case out of a capricious or whimsical order. That cannot certainly be permitted to be done. That would tantamount to harassing a person by illegal process itself. That could not be the object of any law. Again, such a course would not be in furtherance of the avowed object behind bringing on the statute book the statutory provision contained in Section 21(1) of the Act. It is needless to repeat or to reiterate that the avowed object behind its enactment is to provide housing accommodation to as many members of the weaker sections of the society as possible. As pointed out hereinabove, it is well-nigh impossible for the Government or its instrumentalities like a statutory Housing Board to undertake such activity on a mass scale. If such landholder whose permission under Section 21(1) of the Act is cancelled for contravention of a condition which could not be imposed by the Competent Authority is required to surrender the concerned excess vacant land on expiry of the stipulated five-year time-limit, the State Government will not be able to provide dwelling-units to those members of the weaker sections of the society who might have opted for such dwelling-units for which such permission was granted. They would be left at the mercy of the government or the governmental instrumentalities for fulfilment of their dreams of having their own house. Instead, if such landholder is allowed to proceed further with implementation of his scheme, those members of the weaker sections of the society who have opted for such dwelling-units might expect realisation of their dream-house in certain specified time-limit though it could be delayed by some period on account of pendency of the litigation. Besides, the landholder will be bound by the price fixed for sale of such dwelling-units. In these days of soaring, spiralling and sky-rocketing prices of practically all commodities, a dwelling-unit is bound to cost more and more every day. Poor persons who have opted for dwelling-units under the scheme for which permission under Section 21(1) of the Act is granted might expect a dwelling-unit at a cheaper price if the landholder like the petitioner in each case is permitted to go ahead with the scheme rather than any government or governmental instrumentality is undertaking such scheme after taking over the excess land as surplus under the Act by payment of the due compensation therefor.
22. Examining the case from all possible points of view, I am of the opinion that the time lost from the date the show cause notice at Annexure-B to each petition was received by the concerned petitioner till the writ in each case reaches the Competent Authority will have to be excluded from consideration of the time-limit of five years for completion of the construction work as set out as a condition in the order at Annexure-A to each petition.
23. In view of my aforesaid discussion, the impugned order at Annexure-G to each petition as affirmed in appeal by the appellate order at Annexure-I to each petition has to be quashed and set aside.
24. In the result, each petition is accepted. The impugned order passed by the Competent Authority at Rajkot (respondent No. 3 herein) on 7th/8th December, 1982 at Annexure-G to each petition as affirmed in appeal by the common appellate order passed by the Additional Urban Land Tribunal at Ahmedabad (respondent No. 2 herein) on 11th March, 1986 in Appeals Nos. Rajkot-7 to Rajkot-10 of 1983 at Annexure-I to each petition is quashed and set aside. It would be open to each petitioner to start construction activity after complying with all formalities according to law pursuant to this decision after the writ in each case reaches the Competent Authority and be will have to complete the construction work within the balance period of five years starting from the date the writ in each case reaches the Competent Authority. It is clarified that the construction will have to be completed within the stipulated time-limit of five years from the date of the order at Annexure-A to each petition after excluding therefrom the period from the date of receipt of the show cause notice at Annexure-B to each petition till the writ in each case reaches the concerned authority. The Registry is directed to send the writ in each case as expeditiously as possible but in any case latest by 5th April 1994. It would be open to each petitioner to produce a certified copy of, this judgment before the Competent Authority at Rajkot (respondent No. 1 herein) for starting the construction activity. Rule is accordingly made absolute in each petition to the aforesaid extent with the order as to costs.