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SCA/6941/1996 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6941 of 1996
=========================================================
PATEL
KHODABHAI KABABHAI - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
ASHISH H SHAH for
Petitioner(s) : 1,
MS SACHI MATHUR, AGP for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 06/09/2011
ORAL
ORDER
1. Heard
learned advocate Mr. Ashish H. Shah appearing for petitioner and
learned AGP Ms. Sachi Mathur appearing for respondent state
authority.
2. In
present petition, petitioner has challenged order dated 27/6/1996
passed by respondent no.2 confirming order passed by respondent no.3
dated 29/9/1993. Pending petition, a further prayer has been made to
grant interim relief in terms of para-25(C) and 25(D) of the
petition.
3. In
this matter, notice has been issued by this Court on 24/10/1996 but
no interim relief has been granted except to direction to parties to
maintain status quo till the notice made returnable. That status quo
which was granted on 24/10/1996 remained continue accordingly. The
Court passed an order dated 27/6/1996 wherein earlier order passed by
the competent authority on 29/9/1993 has been confirmed and interim
relief which was granted on 4/11/1993 has been vacated. Annexures-H,
Appeal No.22 of 1993 has been decided wherein order passed by
competent authority Additional Collector under ULC Act dated
29/9/1993 was challenged against that appeal has been dismissed and
aforesaid order by Additional Collector has been confirmed.
Affidavit-in-reply has been filed by respondent competent authority
Additional Collector ULC Rajkot. Relevant averments are made in
para-5 to 14 of affidavit-in-reply which are quoted as under:
“5.
I say and submit that the petitioner was in the possession of the
land bearing survey No.248 admeasuring 04 acres and 02 gunthas
situated as Rajkot.
6.
I say and submit that the Urban Land Ceiling and Regulation Act 1976
(hereinafter referred as the said Act) came into the force therefore
the petitioner has filed the form No.6(1) which was registered as
case No. ULC/6(1)1583/76 at Rajkot as well as another form which was
registered as ULC/6(1)3918/81. The petitioner has made an
application for granting the agricultural exemption in survey no.248
admeasuring 16795 sq. m. On dated 3-11-1979 exemption was granted by
the Revenue Department under section 20(1) of the said Act with some
terms and conditions.
7.
I say and submit that Village form no.8-A shows only the name of the
petitioner as an owner of the land therefore on dated 21-10-86 the
show cause notice issued by the respondent No.1 for the reason that,
why the exemption order granting agricultural exemption should not be
revoked on the ground that the land in question was not being
cultivated. The petitioner has filed his reply and objection before
the concerned authority. The State of Gujarat on dated 17-6-87
passed an order ULC/2083/130790-V-1 for withdrawing the exemption of
the land u/s.20(2) of the Act.
8.
I say and submit that in pursuant to the said order the petitioner
can entitle only 1500 Sq. Mt. land and 14981.97 Sq. Mt. Land declared
as excess land. The draft Statement u/s.8(3) sent to the petitioner
by RPAD on dated 21-7-82. The petitioner has not send any objections
in time therefore draft statement of u/s8(3) was considered as a
final statement u/s.9 on dated 30-8-82. The said copy of the annexed
is the copy of Annexure-R1. The notifications u/s 10(1) was issued
on dated 13-8-87 that was published in Gazette on 3-9-87. The said
copy of the annexed here to and marked as Annexure-R2.
9.
I say and submit that the notification u/s 10(3) was issued on dated
12-10-87. which was published in Gazette on dated 3-12-87. The same
is annexed here to and marked as an Annexure-R3 in this reply. The
notice u/s 10(5) was issued to the petitioner on dated 4-12-87, that
was sent to him by the RPAD and same was survived. As the land
holder had not handed over the possession within the stipulated
period of 30 days the possession was duly taken U/S 10(6) of the act
on dated 26-10-88 by prepare panchanama evidencing taking of the
possession of the said land. The land holder also informed about the
factum of having taken possession of the land U/S 10(6) in accordance
with the procedure prescribed under the Act which is Annexued here to
mark as an Annexure- R4.
10.
I say and submit that the petitioner has challenge the order passed
by the competent authority and Deputy collector, Rajkot before the
ULT Ahmedabad by way of Appeal No. Rajkot 181/87. The ULT Ahmedabd
on dated 17-1-91 remanded the matter before the competent authority
Rajkot without quashed and set aside the earlier proceedings copy of
the same is annexed here to and marked as an Annexure- R5 to
this reply.
11.
I say and submit that in the said remand case the competent authority
has passed an order on dated 29-9-1993. In the same order it was
clearly mentioned that the petitioner has already sold the same land
in the year 1982 to the Sitaram Coop housing Society by way of the
satakhat and the construction also made on the same land. A copy of
the Village Extract 7/12 is annexed here to and marked as an
Annexure-R6. Therefore there is breach of the condition of
the section 20(1).
12.
I say and submit that, the competent authority Rajkot passed the
order that petitioner was entitled to keep only 1500 Sq.mt of land
and 14981.97 sq.mt land declare as a excess land, therefore, final
statement u/s.9 was issued to the petitioner copy of the said order
is annexed here to and marked as an Annexure-R7. In pursuant
to the said order the respondent has issued the final statement on
dated 29-9-1993. Copy of the said final statement is annexed here to
and mark as an Annexure-R8. The respondent authority has not
done any further proceedings because they have already taken
possession on dated 26-10-1988 and that proceeding was nto challenged
by the petitioner.
13. I
say and submit that being aggrieved by the said order the petitioner
has preferred an appeal no. Rajkot/22/93 before the ULT Ahmedabad.
The ULT Ahmedabad has granted the stay on dated 4-11-1993 in his stay
the procedure u/s. 10(1) and u/s. 10(2) was allowed and stay was
granted only on the procedure of 10(3). The petitioner not come with
clean hand before the ULT Ahmedabad, he has not stated that the
respondent authority has already taken the possession on dated
26-10-1988. The ULT Ahmedabad has passed the order on dated
27-3-1996 to confirm the earlier order and status quo granted on
dated 4-1-1993 was vacated. Against that order the petitioner has
preferred the Special Civil application no.6941 of 1996 before this
Hon’ble Court and this Hon’ble Court has granted status quo from the
year 1996.
14. I
say and submit that the respondent authority has already taken the
possession on dated 26-10-1988 in the presence of the panch therefore
there is no questions arise to do the same proceedings again. The
same possession was not challenged by the petitioner and the
petitioner has not mentioned this facts before this Hon’ble Court.
The Repeal Act came in to force on 30-3-1999 according to that the
possession remain with the Government.”
4. In
view of aforesaid averments made in affidavit-in-reply in para-14
that possession of land in question is already taken by State
Government on 26/10/1988 in presence of panchas. Therefore, question
does not arise to initiate same proceedings again. According to
respondents, the same possession was not challenged by petitioner and
petitioner has not mentioned this fact before this Court. The Repeal
Act came into force with effect from 30/3/1999. Therefore, according
to State Government the possession is remained with State Government
and this proceeding is required to be abated. The further averments
made in para-12 in affidavit-in-reply that respondent authority has
not done any further proceeding because they have already taken
possession on 26/10/1988 and that proceeding was not challenged by
petitioner. Against present affidavit-in-reply, no rejoinder is
filed by petitioner before this Court and averments made in
affidavit-in-reply by respondent has not been challenged and no
counter is filed. Therefore, the averments made in
affidavit-in-reply as referred above and there is no counter to it
filed by petitioner, therefore, considering the Urban Land (Ceiling
and Regulation) Repeal Act, 1999 which came into force with effect
from 30/3/1999 by notification dated 18/3/1999 as per Section-3
which is quoted as under:
“3. Savings:–
(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 or
any person duly authorised by the State Government in this behalf or
by the competent authority;
(b)
the validity of any order granting exemption under sub-section (1) of
section 20 or any action taken thereunder, notwithstanding 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 91) 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 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.”
before
Repeal Act, 1999 came into effect, a possession of land in question
has been taken over by respondent competent authority and
notification Section 10(3) has been already issued. Now possession
is with the State Government. Therefore, as per Section-3
sub-section 2 any land wherein possession is taken by State
Government after issuing Section-10 sub-section 3 notification then,
land in question is vested with State Government as per Section-3 (a)
and Repeal Act, 1999 is not having any adverse effect to the right of
State Government of having vested land in State Government. The
provision of Section-4 of Repeal Act, 1999 is quoted as under:
“4.
Abatement of legal proceedings. – 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 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 authorised by the State
Government in this behalf or by the competent authority.”
5. Accordingly,
in view of above provisions of Section-4 of Repeal Act, 1999, this
proceeding is abated.
6. Present
petition is accordingly disposed of. Rule is discharged. Interim
relief, if any, stands vacated immediately.
(H.K.RATHOD,
J.)
(ila)
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