IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 9032 of 1993
For Approval and Signature:
Hon'ble MR.JUSTICE H.R.SHELAT Sd/-
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1. Whether Reporters of Local Papers may be allowed
to see the judgements? NO
2. To be referred to the Reporter or not? NO
J
3. Whether Their Lordships wish to see the fair copy
of the judgement? NO
4. Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder? NO
5. Whether it is to be circulated to the Civil Judge?
NO
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MOHANSINH HIMATSINH MAHIDA
Versus
STATE OF GUJARAT
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Appearance:
MR MI HAVA for Petitioner
MR.PS PARMAR ADDL GOVERNMENT PLEADER
for Respondent Nos. 1 & 2
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CORAM : MR.JUSTICE H.R.SHELAT
Date of decision: 28/10/96
ORAL JUDGEMENT
The Joint Secretary, Revenue Department,
Gandhinagar, exercising powers under Sec.34 of the Urban
Land Ceiling Act ( for short ‘the Act ‘) on 28th June
1993 reviewed the order dt. 30/11/1987 passed by the
competent authority and declared that in all 5662 sq.mts.
of land was in excess of the ceiling limit. The
petitioner has by this petition called in question the
said orders in question challenging its legality and
propriety.
2.In short the case of the petitioner is that when
the Act came into force, he was holding properties as
follows :-
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Sr.VillageSurveyAreaUse/Zone
No.No.Sq.Mt.
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1.Amreli 6 334Residential
2. -do-Nondh No.70 563 -do- Kotharco
3. -do-77-78123 -do-
4.-do-7991 -do
5.-do- 80117Agricultural
6.-do-S.No.176677-do-
7.Chhapra7487 – -do-
Bhatta
8.-do-S.No.42/ 3137Agri. Zone.
2-3-4
9.-do-S.No.49/2 5665Agri. Zone.
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23182
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He filled the form under Sec.6(1) of the Act declaring
the properties he was having as stated above. The
competent authority, out of all the total areas of the
properties to the tune of 23,182 sq.mts., deducted
18,096.98 sq.mts. In Chhapra Bhatha village, there were
three agricultural lands shown at Sr.Nos.7,8 and 9
hereinabove and those agricultural lands being used as
such and situated in agricultural Zone were also excluded
for computation. Accordingly the competent authority
found that in all the petitioner was having 5085.02
sq.mts. of land to be taken into account. The
petitioner was entitled to three Units as the land was
held by joint family and there were 3 adult members in
the family.. Each Unit was entitled to retain 1500
sq.mts. of land. He, therefore, deducted 4500 sq.mts.
there from and reached the conclusion that the petitioner
was holding 585.02 sq.mts. of land in excess.. The
Government then under Sec. 34 of the Act took up the
matter under review. The Secretary who was reviewing the
order found that the competent authority was not right in
excluding 334 sq.mts. of land covered by the house shown
at Sr.No.1, 91 sq.mts. of land covered by the
construction of the house shown at Sr.No.4 and 60 sq.
mts. out of 117 sq.mts. of land covered by the house
shown at Sr.No.5. The land Survey No.17 shown at Sr.No.6
was at that time shown as agricultural land for which
exemption was sought for. That was granted, but lateron
that exemption was withdrawn. The total area of that
land at that time was 6677 sq.mts. of land and that
total area has been considered while computing ceiling
the limit by the Secretary, Revenue Department, though
the competent authority considered the area of that land
to be of 565 sq.mts. because of the erosion soil and
acquisition of land for the purpose of road construction.
Computing accordingly, the Secretary, Revenue Department
fixed the total holdings of the petitioner at 7162
sq.mts. for the purpose of ceiling limit. Therefrom,
according to him, the petitioner was entitled to 1500
sq.mts. of land retainable by one Unit because, he was
of the view that every adult member in the family was not
separately entitled to unit benefit, but they all were
collectively as one unit entitled to the benefit. He,
therefore, reached the conclusion that in all 5662
sq.mts. of land was in excess of the ceiling limit.
Accordingly he passed the order which is under challenge
in this petition.
3. It was not disputed before me that agricultural land
used as such and falling within the agricultural Zone are
required to be excluded while computing the ceiling
limit. Accordingly the lands shown at S.Nos. 7,8 and 9
hereinabove are required to be excluded. As per decision
in the case of Meera Gupta vs. State of West Bengal and
others AIR 1992 SC 1567, the area of the land covered by
the construction of the building prior to 17th February
1976 has to be excluded. Admittedly the house and cattle
shades shown at Sr.Nos. 1 to 5 were constructed on the
land prior to the Act came into force i.e. 17th February
1976. The area covered by the construction has to be
excluded in toto. Over and above such exclusion, land
appurtenant to the construction and additional
appurtenant land are also required to be excluded from
computation as construction thereon is not permitted.In
view of such law, the computation now centers on the
property at bearing No.S.17 shown at S.No.6, hereinabove.
4. By passage of time, there was gradual erosion of
soil. The Government wanted to construct the road.
Hence certain lands were acquired under Lnd Acquisition
Act. Eventually, therefore, the total area of land
bearing Survey No.17 came to be reduced to 5665 sq.mts.,
and that too before the Act came into force. For the
purposeof computation, the said area has to be made the
base and not the total area viz. 6677 sq.mts. of land.
After the land was acquired, the road has been
constructed and the same passes through the said land.
Owing to the road, certain lands on both the sides
thereof are not permitted to be used for the purpose of
construction. Hence such lands are required to be
excluded under the head Road Margin and Side Margin. The
Surveyor of Land Records Office, producing map before the
competent authority pointed out that the road margin land
was admeasuring 250.70 sq.mts. and side margin land was
admeasuring 864.28 sq.mts. Thus total of both the side
lands comes to 1114.98 sq.mts. The same has to be
excluded, out of the total area of 5665 sq.mts. of land
On doing so, the land admeasuring 4550.02 sq.mts.
remains on hand.
5.The land formerly belonged to Himatsinh Gumansinh
and after his death, it was jointly held by his heirs
namely Mohansinh Himatsinh, Maniben Himatsing and Laduben
Himatsinh. There were thus three members in the family
holding the properties jointly. If the persons are
jointly holding the property, each one adult member is to
be considered as separate Unit independently entitled to
retain 1500 sq.mts. of land and not as single unit being
the members of the joint family. I am fortified by a
decision rendered in the case of Chhaganlal Trikamdas
Thakker & Ors Vs.Competent Authority, Rajkot and Ors.
1994(1) GCD 1. If that land of three Units is deducted,
only 50.02 sq.mts. of land remains on hand which can be
said to be the surplus land, but each of the three Units
is entitled to 10% of 1500 sq.mts. of land retainable as
margin land. If that is considered, no land remains on
hand which can be said to be in excess of the ceiling
limit. Instead of computing in the above stated manner,
the competent authority and thereafter the Secretary,
Revenue Department, fell into error and misdirected
themselves, as a result, the erroneous computation came
into being.
5.Faced with such situated, when a query was made,
Mr. Sompura, learned AGP, could not point out how
computation made by both the authorities below was in
consonance with law. He in his usual acondour conceded
that in fact no land was in excess of the ceiling limit.
6.It has been submitted on behalf of the petitioner
that the land in question i.e. Survey No.17 has been
developed and it is divided into several plots. The
plots are sold to the persons of middle income group.
Those persons have already constructed their dwelling
units wherein they reside since 1993 or prior to it. In
view of the matter, no useful purpose would be served, if
the matter is remanded for a fresh computation and even
if it is remanded, the computation would not be otherwise
than what is hereinabove computed.
7.For the foregoing reasons, the petition is
allowed. The order passed by the competent authority on
30th November, 1987, the copy of which is produced at
Annexure A and the order dt. 20th June, 1993 passed by
the Joint Secretary (Revenue), the copy of which is
produced at Annexure : B are hereby quashed and set
aside, and it is hereby declared that the petitioner does
not hold any portion of land in excess of the ceiling
limit under the Act. No costs in the circumstances of
the case. Rule is made absolute accordingly.
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