JUDGMENT
H.N. Devani, J.
1. By this petition under Article 226 and 227 of the Constitution of India, the petitioner challenges the order dated October 1984 passed by the Competent Authority and Deputy Collector, Urban Land Ceiling, Ahmedabad, in exercise of powers under Section 8(4) of the Urban Land (Ceiling and Regulation) Act, 1976 (the Act) as well as the order dated 30th June 1989 passed by the Urban Land Tribunal and Ex-Officio Secretary to the Government Revenue Department (Tribunal) under Section 33 of the Act in Appeal No. AHMEDABAD-129/87.
2. The facts involved in the present petition move in a very narrow compass. The petitioner along with his wife is the owner and occupant of land of sub plots No. 7 and 8 of Final Plot No. 472 of Paldi, Ahmedabad. The petitioner had submitted Form No. 1 under the provisions of Section 6(1) of the Act on 24.5.1976, pursuant to which the Competent Authority issued a draft statement dated 11.10.1972 along with a notice under Section 8(3) of the Act. In the draft statement, the total holding of the petitioner was shown to be 1096 sq. mts., out of which 96 sq. mts. of land was held to be excess vacant land liable to be handed over to the State Government. Pursuant to the said draft statement, reply of the petitioner was recorded on 7.12.1983 and 22.12.1983. It appears that the petitioner did not raise any objection against the draft statement, but submitted that he had made an application under Section 20 of the Act to the State Government seeking exemption from the provisions of Chapter III of the Act. Subsequently, it appears that by notice dated 3.3.1984, the petitioner was called upon to show cause as to why his holding should not be held to be 1346.16.12 sq. mts. and as to why 346.16.12 sq. mts. of land from his holding should not be declared as excess vacant land. Pursuant to the aforesaid notice, the petitioner appeared through an advocate and it was submitted that the petitioner was not the owner of the land forming part of the road, hence, the same cannot be considered as part of his holding and that land which admittedly formed part of a road cannot be said to be vacant land.
3. By the impugned order dated October, 1984, the Competent Authority in exercise of powers under Section 8(4) of the Act declared the total holding of the petitioner to be 1346.16.22 sq. mts. out of which 346.16.22 sq. mts. of land was held to be excess vacant.
4. Against the aforesaid order of the Competent Authority, the petitioner preferred an appeal under Section 33 of the Act before the Urban Land Tribunal, Ahmedabad. The Tribunal, by its impugned order dated 30th June 1989, dismissed the appeal and confirmed the order passed by the Competent Authority. Hence, this petition.
5. Heard Mr. P.G. Desai, learned advocate for the petitioner and Ms. Chandarana, learned Assistant Government Pleader on behalf of the respondents.
6. The learned advocate for the petitioner submitted that the impugned order passed by the Competent Authority is contrary to the provisions of Section 8 of the Act. It was submitted that the petitioner was owner of only sub plots No. 7 and 8 of Final Plot No. 472 admeasuring 1096 sq. mts. and that the petitioner was not the owner of the common approach road forming part of the said final plot. It was submitted that the Competent Authority has exceeded his jurisdiction in including land, not owned by the petitioner within his holding.
7. Drawing attention to the provisions of Section 8 of the Act, it was pointed out that the draft statement prepared by the the competent authority was required to contain all the particulars prescribed under Sub-section (2) of the said section. It was contended that upon service of draft statement, the person concerned was required to prefer his objection thereto within the prescribed time limit. It was submitted that once draft statement was over, no further stage of show cause notice in relation to the declaration filed by the landholder was contemplated. It was urged that the competent authority was not authorized to go beyond the draft statement issued by him, and as such the subsequent notice dated 3rd March 1984 was without authority of law, hence, the impugned order taking into consideration the subsequent notice and enlarging the scope of proceeding under Section 8 of the Act was vitiated on the ground of being violative of the provisions of Section 8 of the Act.
8. The learned advocate referred to the Sale Deed, Annexure-A to the petition, and pointed out that the Competent Authority had wrongly construed the clauses therein to come to the conclusion that the petitioner was also the owner of the land forming part of the internal roads of Final Plot No. 472. It was submitted that such construction of the sale deed on the part of the Competent Authority was misconceived and there was no warrant for the Competent Authority to go beyond the draft statement and include additional lands in the holding of the petitioner.
9. It was also submitted that under the provisions of Section 8 of the Act, the Competent Authority is required to give the land holder an opportunity to state the particulars of the vacant land which he desires to retain within the ceiling limit. Referring to the operative part of the impugned order, it was pointed out that in the present case, the competent authority had demarcated the lands held by the petitioner into two parts: one being 1095.33.13 sq. mts. of sub-plots 7 and 8 of Final Plot No. 472 out of which he had held 749.1691 sq. mts. to be retainable by the petitioner and had declared 346.16.22 sq. mts. out of said lands to be excess vacant; and the other being 250.83.09 sq. mts. of land of Final Plot No. 472 forming part of the private approach road which was part of the land held to be retainable by the petitioner. It was submitted that on a plain reading of the aforesaid order, it is clear that the petitioner has not been permitted to exercise his right to choose the lands which he would like to retain from his holding.
10. It was submitted that in the circumstances the impugned order clearly suffers from the vice of being violative of the provisions of Section 8 of the Act and as such cannot be sustained. It was submitted that the Tribunal has also merely confirmed the order of the Competent Authority hence, the impugned order dated 30.6.1989 passed by the Tribunal also suffers from the same infirmity.
11. The learned Assistant Government Pleader supported the reasoning adopted by the competent authority and submitted that from perusal of the clauses of the sale deed, it was evident that the same contemplated transfer of the lands forming part of the approach road.
12. Section 2(l) of the Act which defines the expression “to hold” reads as under:
“to hold” with its grammatical variations, in relation to any vacant land, means-
(i) to own such land; or
(ii) to possess such land as owner or as tenant or as mortgagee or under an irrevocable power of attorney or under a hire-purchase agreement or partly in one of the said capacities and partly in any other of the said capacity or capacities.
Explanation-Where the same vacant land is held by one person in one capacity and by another person in another capacity, then, for the purpose of this Act, such land shall be deemed to be held by both such persons.
13. A plain reading of the aforesaid provision shows that “to hold” under the Act would mean to hold such land in the capacity of owner or in the manner provided under Sub-clause (ii) thereof. On a perusal of the sale deed in question, it is apparent that the petitioner has purchased land admeasuring 1300 sq. yards which is equivalent to 1096 sq. mts. The reference to internal roads in the sale deed in more in the nature of easementary rights over the said roads, and no right of ownership can be read into it. While determining the holding of a person under the Act, one has to keep in view the definition of “to hold” under Section 2(1) of the Act in mind, accordingly, lands actually held by a person as envisaged under the said provision has to be taken into consideration. In the present case the competent authority has calculated the holding of the petitioner on a hypothetical basis. On the facts of the present case it certainly cannot be said that the petitioner holds lands forming part of the approach road, as envisaged under Section 2(1) of the Act. Hence, the land forming part of the approach road could not have been included in the holding of the petitioner. The competent authority was, therefore, not justified in holding that the petitioner was holding 1346.12.22 sq. mts. of land as against 1096 sq. mts. as declared by the petitioner.
14. Section 8 of the Act which is relevant for the purpose of present petition reads as under:
8. Preparation of draft statement as regards vacant land held in excess of ceiling limit.-
(1) On the basis of the statement filed under Section 6 and after such inquiry as the competent authority may deem fit to make the competent authority shall prepare a draft statement in respect of the person who has filed the statement under Section 6.
(2) Every statement prepared under Sub-section (1) shall contain the following particulars, namely:
(i) the name and address of the person;
(ii) the particulars of all vacant lands and of any other land on which there is a building, whether or not with a dwelling unit therein, held by such person;
(iii) the particulars of the vacant lands which such person desires to retain within the ceiling limit;
(iv) the particulars of the right, title or interest of the person in the vacant land; and
(v) such other particulars as may be prescribed.
(3) The draft statement shall be served in such manner as may be prescribed on the person concerned together with a notice stating the any objection to the draft statement shall be preferred within thirty days of the service thereof.
(4) The competent authority shall duly consider any objection received, within the period specified in the notice referred to in Sub-section (3) or within such further period as may be specified by the competent authority for any good and sufficient reason, from the person on whom a copy of the draft statement has been served under that Sub-section and the competent authority shall, after giving the objector a reasonable opportunity of being heard, pass such orders as it deems fit.
15. Under the provisions of Sub-section (1) of Section 8 of the Act, the Competent Authority is required to prepare a draft statement on the basis of the statement filed by the land holder under Section 6 of the Act, and after making such inquiry as he deems fit. Thus, prior to preparing the draft statement, the competent authority is required to make proper inquiry. The section does not envisage any inquiry subsequent to the preparation of the draft statement as has been done in the present case. In the present case, it is apparent from paragraph 2 of the order dated October 1984, that the Competent Authority while framing the draft statement and issuing notice under Section 8(3) of the Act on 11.10.1982, has considered the holding of the petitioner to be 1096 sq. mts. and has declared 96 sq. mts. of land to be excess vacant land. However, subsequently by a notice dated 3.3.1984, the petitioner was called upon to show cause as to why his holding should not be held to be 1346 sq. mts. Such notice is beyond the authority of the competent authority under Section 8 of the Act. The statute envisages inquiry only prior to the issuance of draft statement, it does not envisage any inquiry subsequent thereto. Once the draft statement is served upon the landholder, all that he is required to meet with is the particulars set out in the draft statement and lodge his objections thereto. Once that stage is over, there is no authority with the competent authority to take steps that would amount to changing the contents of the draft statement to the detriment of the landholder. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner alone. The authority acting under the Act is only creature of statute. He must act within the corners thereof.
16. In the instant case, under the draft statement the holding of the petitioner was held to be 1096 sq. mts. as declared by the petitioner. The petitioner did not raise objection against the draft statement as he was under the impression that the land declared as excess vacant land being marginal land, his application under Section 20 of the Act would be granted. Thus, when the petitioner had accepted the draft statement subject to the application under Section 20 of the Act, all that the competent authority was empowered to do was to make an order under Section 8(4) of the Act in terms of the draft statement. It was not within the power or authority of the competent authority to go beyond the draft statement and include more land within the holding of the petitioner. Thus the impugned order dated October 1984 is clearly beyond the bounds of authority of the competent authority.
17. Sub-section (2) of Section 8 mandates that the statement prepared under Sub-section (1) shall contain the particulars enumerated therein. It may be pertinent to note that clause (iii) thereof requires such statement to contain particulars of vacant lands which such person desires to retain within the ceiling limit. In the instant case, undisputedly the petitioner has not been given an opportunity to state his choice of retainable land as is apparent from the fact that whereas in the draft statement the holding of the petitioner was declared to be 1096 sq. mts., subsequently the competent authority has included lands forming part of the approach road within the holding of the petitioner and declared his holding to be 1346.16.12 sq. mts. Moreover, curiously the Competent Authority has, in the impugned order, bifurcated the holding of the petitioner into two categories:(i) the lands admeasuring 1095.33.13 sq. mts. as per original draft statement and (ii) lands purportedly coming to the share of the petitioner from the lands forming part of the private approach road jointly held by the petitioner with 14 plot holders, admeasuring 250.83.09 sq. mts. Thereafter, he has unilaterally considered lands forming part of the approach road to be lands retainable by the petitioner within the ceiling limit, and declared 346.16.22 sq. mts. from the plot of land admeasuring 1095.33.13 sq. mts. as excess vacant land. The requirement of giving the petitioner an opportunity to state his choice of retainable lands has been done away with in the most arbitrary manner.
18. Sub-section (4) of Section 8 of the Act provides that the Competent Authority shall duly consider any objection received from the person on whom a copy of the draft statement is served and shall after giving the objector a reasonable opportunity of being heard, pass such order as it deems fit. The words “pass such orders as it deems fit” after hearing the related objections to the draft statement means that the only order to be passed by the Competent Authority is to evaluate the material before it and to uphold or reject the objections. It is not open to the Competent Authority to travel beyond the draft statement and bring any new material after the stage of filing objections, as has been done in the present case.
19. A decision of the Competent Authority under the provisions of the Act is fraught with serious consequences in respect of valuable urban property. Rights in immovable properties cannot be allowed to be adjudicated by quasi judicial authorities like the Competent Authority in such a casual and per-functionary manner. The Act provides the procedure to be adopted by the Competent Authority and any deviation in this regard has to be viewed seriously.
20. In the circumstance, for the reasons stated above, the impugned order dated October 1984, passed by the competent authority suffers from the infirmity of being violative of the provisions of Section 8 of the Act and as such is ex-facie illegal, resulting in serious injustice to the petitioner. The same is, therefore, required to be quashed and set aside. The impugned order of the Tribunal, which merely confirms the view taken by the competent authority, deserves the same fate.
21. For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned orders dated October, 1984 and 30th June 1989 passed by the Competent Authority and the Urban Land Tribunal respectively, are hereby quashed and set aside. Rule is made absolute accordingly, with no order as to costs.
22. It is needless to observe that the consequential proceedings including the Notifications issued under Section 10(1) and Section 10(3) of the Act, as well as the purported possession taken under Section 10(6) of the Act are of no consequence and consequently they are declared non-est.