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LPA/1473/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1473 of 2009
In
SPECIAL
CIVIL APPLICATION No. 6255 of 1997
With
CIVIL
APPLICATION No. 8236 of 2009
In
LETTERS PATENT APPEAL No. 1473 of 2009
=================================================
PRAVINBHAI
CHANDULAL PATEL & 1 - Appellant(s)
Versus
COMPETENT
AUTHORITY & ADDL COLLECTOR U.L.C & 7 - Respondent(s)
=================================================
Appearance :
MR
MB GANDHI and MR CHINMAY M GANDHI for the Appellant.
NOTICE
SERVED for Respondent(s) : 1 - 3, 5,
Mr. J.K.Shah, Assistant
GOVERNMENT PLEADER for Respondent nos 1,2 and 3.
MS
AMRITA AJMERA for Respondent nos. (s) : 4,6 - 8, 8.2.2,8.2.3
=========================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 06/08/2010
ORAL
ORDER
(Per
: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
The
married daughters of the original petitioner were substituted as
heirs. One Jashbhai Chaturbhai Patel-original land owner expired on
30th April, 1975, the son who was heir, challenged the proceedings
under Urban Land (Ceiling and Regulation) Act, 1976 in relation to
different lands. Learned Single Judge by the impugned order dated
12th December, 2008, taking into consideration that the land was
declared surplus, without giving proper opportunity to married
daughters, in view of some documents, the sisters have relinquished
their respective shares, observed that it was all the more incumbent
on the competent authority to call upon sisters in light of the
provisions of Section 8(3) of the Act read with Rule 5 of the Rules
to explain and confirm whether indeed any such
relinquishment had taken place. It was noticed that the competent
authority himself having referred to these set of documents cannot
also be heard to state that he was not aware as to the number of
interested persons. While holding that the Tribunal misread itself
in law by not only dismissing the appeal on the ground of limitation
but also on merits and thereby the order dated 17.1.1997 passed by
the Tribunal was set aside. The order of the competent authority
dated 21.5.1986 was also set aside restoring the file before the
competing authority for taking a fresh decision in accordance with
law, after taking into consideration what was observed by the learned
Single Judge by the impugned judgment. The competent authority was
directed to proceed from the state of Section 8(3) of the Act
proceedings by calling upon all the persons interested after issuing
a statutory notice as prescribed in law.
2. The
Appeal has been preferred against the last portion of the order dated
12th December, 2008 by which remand has been made to the competent
authority for a fresh decision in accordance with law from the state
of Section 8(3) of the Act.
3. Learned
counsel for the appellant would contend that the Urban Land (Ceiling
and Regulation) Act, 1976 has been repealed by the Urban Land
(Ceiling and Regulation) Repeal Act,1999 on 1st March, 1999 and thus
the order of remand from the stage of Section 8(3) is futile. The
authority has no jurisdiction to decide the matter.
4. Learned
Assistant Government Pleader on behalf of the State while accepts the
aforesaid position, per contra, submits that even if that last
portion is set aside, the appellants cannot derive any advantage of
the same. The possession of the land was taken over by panchnama
dated 9th February, 1988. He placed reliance on Division Bench
unreported judgment of this Court dated 20th April, 2010 passed in
Muliben Bachubhai Bharwad vs. State of Gujarat in LPA No.2167 of
2009 and the judgment dated 3rd May, 2010 in case of New Shivshakti
Vijay Saw Mills vs. State of Gujarat. In the said cases, the
Division Bench held that “Thus, for the purpose of applicability
of the Repeal Act, crucial question is if the Government by taking
over possession of the vacant land before the Repeal Act but the
declarant re-enters the land, such unauthorised possession on the
date of introduction of the Repeal Act cannot be the basis to hold
that the ULC proceedings have lapsed.”
Per
contra, the aforesaid submission was confronted by the learned
counsel for the appellants and submitted that the appellants are
still in possession of the land.
5. Having
heard learned counsel appearing on behalf of the parties, while we
are not deliberating on the issue whether the appellants can derive
any advantage of the Urban Land (Ceiling and Regulation) Repeal
Act,1999 or not, as it is agreed upon and under the law, the Act
having been repeated, it was not open to the learned Single Judge to
remit the matter for a fresh decision to the competent authority on
the question from the stage of Section 8(3) of the Act. We
accordingly set aside the part of the order dated 12th December, 2008
so far as it relates to remand of the case to the competent
authority from the stage of Section 8(3) of the Act. Special Civil
Application No. 6255 of 1997 is remitted to the learned Single Judge
to decide the issue whether the appellant can derive advantage of the
Repeal Act. Rest of the questions are left open. The Appeal and Civil
Application both stand disposed of. No cost.
(S.J.Mukhopadhaya,C.J.)
(K.M.Thaker,J)
***vcdarji
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