{"id":11543,"date":"2008-06-17T00:00:00","date_gmt":"2008-06-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gyanba-vs-state-on-17-june-2008"},"modified":"2017-07-21T23:42:45","modified_gmt":"2017-07-21T18:12:45","slug":"gyanba-vs-state-on-17-june-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gyanba-vs-state-on-17-june-2008","title":{"rendered":"Gyanba vs State on 17 June, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Gyanba vs State on 17 June, 2008<\/div>\n
Bench: Y.R.Meena And J.C.Upadhyaya, J.C.Upadhyaya<\/div>\n
  \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n \n \n\n\n\t \n\nLPA\/225\/1994\t 3\/ 11\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nLETTERS\nPATENT APPEAL No. 225 of 1994\n \n\nWith\n\n\n \n\nCIVIL\nAPPLICATION No. 1336 of 1994\n \n\nWith\n\n\n \n\nCIVIL\nAPPLICATION No. 12808 of 2005\n \n\nIn\nLETTERS PATENT APPEAL No. 225 of 1994\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nTHE CHIEF JUSTICE Y.R.MEENA\n \n\n  \nHONOURABLE\nMR.JUSTICE J.C.UPADHYAYA\n \n======================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n======================================\n \n\nGYANBA\nDILAVARSINH JADEJA W\/O DILAVARSINH KHODUBHA - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 28 - Respondent(s)\n \n\n====================================== \nAppearance\n: \nMR MC BHATT with MR YN RAVANI\nfor Appellant(s) : 1,1.2.1 \n\n \n\nMR\nBD DATTA for Appellant(s) : 1.2.1  \nMR MAULIK NANAVATI, AGP for\nRespondent(s) : 1 \u00fd  3,\n \n\nRULE\nSERVED for Respondents : 6 - 29. \nMR JR NANAVATI for Respondent(s)\n: 4, \nMR YOGESH S LAKHANI for Respondent(s) :\n5, \n======================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tTHE CHIEF JUSTICE Y.R.MEENA\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE J.C.UPADHYAYA\n\t\t\n\t\n\n \n\n \n\n\n \n\nDate\n: 17\/06\/2008 \n\n \n\n \n \nCAV\nJUDGMENT :\n<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)<\/p>\n
\t\tSpecial
\nCivil Application No. 2339 of 1990 filed by the appellant herein was
\nrejected by the Leaned Single Judge by impugned order dated
\n28.4.1994. The said impugned order is challenged in this Letters
\nPatent Appeal. In the Special Civil Application No. 2339 of 1990 the
\nappellant \u00fd  petitioner had questioned the correctness of the order
\npassed by and on behalf of the State Government \u00fd  respondent no. 1
\nherein on 23.8.1984 rejecting her application for exemption under
\nsection 20(2) of the Urban Land [Ceiling and Regulation] Act, 1976
\n[‘the Act’ for brief] with respect to survey nos. 17 and 59 situated
\nat village Nana Mauva, District Rajkot within the urban agglomeration
\nof Rajkot district [‘the disputed land’ for convenience] and also of
\nthe order passed by the competent authority of Rajkot on 23.2.1986 in
\nULC Case No. 1731, as affirmed in appeal by the order passed by the
\nUrban Lands Tribunal at Ahmedabad  – respondent no. 3 herein on
\n28.12.1988. By  his impugned order the competent authority declared
\nthe holding of the appellant to be in excess of the ceiling limit by
\n54,886.44 sq. mtrs.\n<\/p>\n
2.\t\tAs
\nper the case of the appellant \u00fd  petitioner, she was holding certain
\nproperties within the urban agglomeration of Rajkot as on 17.2.1976.
\nHusband of the appellant filled in the prescribed form under section
\n6 of the Act with respect to the aforesaid holding. The holding
\nincluded the disputed land. An application was moved under section
\n20(1) of the Act for grant of exemption with respect to the disputed
\nland. By order passed by and on behalf of the respondent no. 1 on
\n15.12.1983  the application came to be rejected. Said order was
\nchallenged before this Court by means of Special Civil Application
\nNo. 1145 of 1984. This Court accepted the petition and set aside the
\norder dated 15.12.1983 and remanded the matter to respondent no. 1
\nfor its fresh decision according to law with respect to the
\nappellant’s claim for exemption under section 20(1) of the Act qua
\nthe disputed land. After giving an opportunity of hearing by an order
\npassed by and on behalf of respondent no. 1 on 23.8.1984  the
\nappellant’s application for exemption under section 20(1) of the Act
\nwith respect to the disputed land came to be rejected. The appellant
\n\u00fd  petitioner questioned its correctness in Special Civil
\nApplication No. 2339 of 1990.\n<\/p>\n
2.1.\t\tIn
\nthe aforesaid Special Civil Application  the appellant \u00fd  petitioner
\ncontended that the application for exemption under section 20 of the
\nAct was filed on the ground of hardship as well as on the ground of
\nequity as all the surrounding land owners of village Nana Mauva
\nhaving lands bearing survey nos. 42, 64, 57, 56, 41, 40, 39, 38, 37
\nand 36 were given exemption. That thus there was violation of
\nfundamental right under Article 14 of the Constitution of India in as
\nmuch as all the above surrounding land owners were granted exemption;
\nwhereas the appellant was not  granted such agriculture exemption.
\nThe appellant had also claimed exemption qua constructed property as
\nwell as of Vada land, which was meant for keeping animals. The
\nlearned Single Judge rejected the petition of the petitioner mainly
\non the ground that the appellant \u00fd  petitioner has failed in
\ndisclosing important fact of allotment of land to Nidhi Cooperative
\nHousing Society Ltd., respondent no. 4 herein [respondent no. 4 in
\nthe petition]. That thus the appellant suppressed material facts. The
\nLearned Single Judge further observed that the petition was suffering
\nfrom delay and laches and, therefore,  the appellant was not entitled
\nto get equitable relief. It was further observed that the fact of
\nallotment of land to the extent of 10,000 sq. mtrs., out of total
\nland admeasuring 54,886.44 sq. mtrs., to the respondent no. 4 herein
\nhas created irreversible situation. Therefore, the Learned Single
\nJudge held that it was not necessary to examine the merits of the
\nimpugned order challenged in the petition  though the said order
\nmight not be according to law. Ultimately it was observed that the
\nappellant deserved no relief from this Court in the petition and
\nconsequently the petition came to be rejected.\n<\/p>\n
3.\t\tLearned
\ncounsel Mr. Bhatt for the appellant argued that the Learned Single
\nJudge has committed serious error in not appreciating the aspect that
\nthe appellant had disclosed all the material facts in the petition
\nand even while admitting the petition and granting interim relief,
\nthe learned Single Judge had considered that 10,000 sq. mtrs of land
\nhave already been allotted to respondent no. 4 and accordingly
\ninterim order dated 18.1.1991 was passed. Even the Learned Single
\nJudge did not deal with the argument of the appellant as regards
\nviolation of fundamental right  under Article 14 of the Constitution
\nof India in as much as all surrounding land owners were granted
\nexemption; whereas the appellant was denied the same. That the
\nLearned Single Judge erred in coming to the conclusion that the
\npetition was suffering from delay and laches. That as a matter of
\nfact, by letter dated 01.06.1990 written by the Revenue Department,
\nGovernment of Gujarat to the appellant informing the appellant that
\nher applications under section 20 dated 20.03.1990 and 09.10.1989 are
\nunder process. Due to such reply of the ULC Department, the appellant
\nwas supposed to wait for outcome of the exemption applications.
\nTherefore, there was justifiable reason to wait and there was no
\ndelay on the part of the appellant. That the appellant is an old lady
\naged about 93 years. That the respondent no. 4 \u00fd  Nidhi Cooperative
\nHousing Society was formed on 02.01.1990, the caveat was filed by it
\non 29.01.1990 and in between  time,  hurriedly 10,000 sq. mtrs of
\nland were allotted to the society. Learned Counsel Mr. Bhatt for the
\nappellant, however, submitted that at this stage, the appellant
\nwaives her right qua that land allotted to the society. It was
\nsubmitted that though as per the impugned orders, the competent
\nauthority declared the holding of the appellant to be in excess of
\nthe ceiling limit by 54,886.44 sq. mtrs., and out of the same, only
\n10,000 sq. mtrs., of land has been allotted to the respondent no. 4 \u00fd
\nsociety, yet Learned Single Judge erred in holding that due to the
\nallotment of 10,000 sq. mtrs., of land to the respondent no. 4 \u00fd
\nsociety  irreversible situation has arisen, though in this appeal
\nthe appellant waives her right and claim qua 10,000 sq. mtrs of land.\n<\/p>\n
3.1.\t\tMr.\n<\/p>\n
Bhatt further submitted that the application under section 20 of the
\nAct was rejected by the authority contrary to the policy of the
\nGovernment itself, in view of the notification of the State of
\nGujarat dated 6.10.1997, which was clarificatory of Circular dated
\n01.10.1997 issued by the State Government and in pursuance of letter
\nNo. 2\/31\/77-ULC(1) dated 19.12.1977 of the Government of India.  It
\nprescribed that on the ground of hardship where agriculture operation
\nis actually going on, exemption ought to have been granted. That as
\nper the circulars of the Government and the decisions of the Hon’ble
\nApex Court as well as of this Court, only exemption under sections 20
\nand 21 is decided, no further proceedings pursuant to section 10(2)
\ncan be undertaken. Thus, committing breach of such provisions, the
\ncompetent authorities have initiated proceedings under section 10(3)
\nand 10(5) of the Act for taking possession. That the possession
\nalleged to have been taken is only a paper possession and actual
\npossession is with the appellant.\n<\/p>\n
3.2.\t\tMr.\n<\/p>\n
Bhatt further submitted that in the petition, no affidavit-in-reply
\nwas filed either by the competent authority or by the Secretary,
\nRevenue Department on behalf of the State of Gujarat. That in
\npursuance of the last circular issued by the Government of Gujarat
\ndated 06.10.1997, the appellant has filed an undertaking on her
\naffidavit dated 19.5.2008. Therefore, learned counsel Mr.  Bhatt for
\nthe appellant submitted that the orders of the authorities are
\ndiscriminatory for non-granting exemption and not excluding the
\nconstruction portion and that there was no intentional delay on the
\npart of the appellant in filing the petition. That still however,
\nnecessary amendment in the petition was sought for by the appellant
\nand the same was allowed and was accordingly carried out in the
\npetition.  That at the time of admission of the petition,  the
\nLearned Single Judge took into consideration, while granting interim
\nrelief,  all  the developments occurred after the date of the
\nimpugned order passed by the concerned authority till the filing of
\nthe petition.  Therefore, it was submitted that the appeal be allowed
\nand the impugned order passed by the learned Single Judge be set
\naside by quashing and setting aside the orders passed by the
\ncompetent authority and Additional Deputy Collector, Rajkot as well
\nas Urban Land Tribunal, Ahmedabad.\n<\/p>\n
3.3.\t\tLearned
\ncounsel Mr. Bhatt further submitted that there were huge constructed
\nportion on the land in question. It is settled  law by the Hon’ble
\nSupreme Court that the lands which are constructed are required to be
\nexcluded while calculating the units. There were total 10 properties.
\nFollowing constructions were available :\n<\/p>\n
Property
\n\tNo. 8 \t\t202.90 Square metres<\/p>\n
Property
\n\tNo. 9\t\t143.90 Square metres<\/p>\n
Property
\n\tNo. 10\t\t306.58 Square metres.\n<\/p>\n
The
\nabove properties are residential properties and, therefore, total
\n[202.90 + 500 square metres] + [143.90 + 500 square metres] + [306.58
\n+ 500 square metres] should have been exempted as residential
\nproperties. In fact, while calculating, 1500 square metres of lands
\nshould have been declared as holding of the petitioner. Thus, these
\nconstructed properties are required to be exempted along with
\nappurtenant lands.\n<\/p>\n
Property
\n\tNo. 3 Well of\t506.00 Square metres<\/p>\n
\t\t\t\t\t\t\t\t+
\n\t\t\t\t\t\t\t\t500.00 Square metres<\/p>\n
\t\t\t\t\t\t\t\t   ————\n<\/p>\n
\t\t\t\t\t\t\t\t   1006.00
\n\t\t\t\t\t\t\t\tSquare metres.\n<\/p>\n
Along
\nwith above four properties, 500 square metres land appurtenant ought
\nto have been granted. The same is not granted. The law is settled by
\nthe Hon’ble Supreme Court reported in AIR 1992 SC 1367 that the
\nconstructed property is required to be exempted.\n<\/p>\n
4.\t\tLearned
\ncounsel for the  State Mr. Nanavati, supporting the impugned order
\npassed by the Learned Single Judge, submitted that the Learned Single
\nJudge rightly observed that the petition was suffering from delay and
\nlaches. That there was material suppressions of facts in the
\npetition. Because of the allotment of 10,000 sq. mtrs., of land to
\nthe respondent no. 4 \u00fd  society   irreversible situation had arisen.
\n It is further submitted that the suppression of material facts
\nitself is a ground to deny the remedy under Article 226 of the
\nConstitution of India to the petitioner. That till the date  the
\npetitioner filed the petition   all the developments which took place
\nafter the date of the impugned order and till the filing of the
\npetition, were within the knowledge of the petitioner; yet those
\nfacts were suppressed.\n<\/p>\n
4.1.\t\tLd.\n<\/p>\n
AGP Mr. Nanavati for the State drawing our attention to certain
\namended portion in the copy of the memo of petition produced in this
\nappeal, submitted that the amendment was carried out as per the
\nCourt’s order dated 23.6.1994 passed in Civil Application No. 1431 of
\n1994. That according to such endorsement, necessary amendment was
\ncarried out as per order dated 23.6.1994 in Special Civil Application
\nNo. 2339 of 1990. That as a matter of fact, the learned Single Judge
\npassed the impugned order on 28.4.1994. That therefore, the entire
\npetition stood disposed of on 28.4.1994; whereas as per the
\nendorsement in the copy of memo of petition, the so called amendments
\nwere carried out in pursuance of certain order which was passed on
\n23.6.1994 i.e., after the date of final disposal of the petition
\nitself. That thus, in the impugned order passed by the learned Single
\nJudge  when a specific observation is made regarding suppression of
\nmaterial facts and not availed opportunity of amendment of a petition
\nby the petitioner, such observations and findings arrived at by the
\nlearned Single Judge cannot be said to be erroneous. That, therefore,
\nthere was no reason whatsoever for the learned Single Judge to
\ndispose of the petition on merits. Therefore, it is submitted that
\nthe appeal be rejected.\n<\/p>\n
5.\t\tAt
\nthe outset, it is pertinent to note that the learned Single Judge did
\nnot dispose of the petition on merits. The petition came to be
\nrejected by virtue of the impugned order solely on the ground that
\nthe petitioner suppressed material facts and that the petition was
\nsuffering from delay and laches. It is further observed in the
\nimpugned order that even the petitioner did not choose to suitably
\namend the petition regarding the developments which took place after
\nthe impugned order challenged in the petition was passed by the
\nconcerned authority  till the filing of the petition.   In this
\nrespect, first of all considering the copy of memo of the petition
\nproduced in this appeal and the amendments carried out in it, it is
\ntrue that as per the endorsement  original petition was amended as
\nper certain order passed in Civil Application No. 1431 of 1994 dated
\n23.6.1994; whereas the impugned order disposing of the petition came
\nto be passed by the learned Single  Judge on 28.4.1994. However, in
\nthis appeal at page 42   copy of order passed in Civil Application
\nNo. 678 of 1993 in Special Civil Application No. 2339 of 1990 dated
\n28.4.1994 is produced. Considering the same, the respondents nos. 4
\nto 29 came to be impleaded in the writ petition, who are Nidhi
\nKarmachari Coop. Housing Society and its members. Therefore, such
\namendment was carried out in the petition on 28.4.1994 i.e., on the
\nsame day when the impugned order in the main petition was passed. In
\nthe impugned order itself, by which the writ petition came to be
\ndisposed of, there is a reference of respondent no. 4 – Nidhi
\nKarmachari Coop. Housing Society and its members \u00fd  respondents nos.
\n 5 to 29. At the time when the petition was admitted and the interim
\norder was passed, the learned Single Judge directed that as regards
\nportion of land which is not allotted to Nidhi Karmachari Coop.
\nHousing Society, the respondents shall maintain status-quo. Even said
\nsociety was also directed to maintain status-quo. Said interim order
\nwas passed on 18.6.1991. Under such circumstances, the developments
\nwhich took place after the date of the impugned order till the filing
\nof the petition  were not only considered at the time of passing
\ninterim order in Special Civil Application No. 2339 of 1990, but
\nsuitable amendment was carried out in pursuance of order passed in
\nCivil Application No. 678 of 1993.\n<\/p>\n
6.\t\tIt
\nis pertinent to note that so far as 10,000 sq. mtrs., of land
\nallotted to the society is concerned, the learned counsel Mr. Bhatt
\nfor the appellant original petitioner submitted that at this stage
\nthe  appellant \u00fd  petitioner waives her right qua that land allotted
\nto the society.  The total area of land declared in excess of ceiling
\nlimit by 54,886.44 sq. mtrs. Out of the same, 10,000 sq. mtrs., of
\nland was allotted to the society. It comes approximately 1\/6th
\nof the land declared excess of ceiling limit. The remaining land can
\nbe said to be 44,886.44 sq. mtrs.  Under such circumstances, we do
\nnot agree with the finding arrived at by the learned Single Judge
\nthat 10,000 sq. mtrs., of land out of the total area of land declared
\nexcess of the ceiling limit was allotted to the society, any
\nirreversible situation can be said to have arisen. Further it is
\npertinent to note that in this appeal, the appellant petitioner
\nrelied upon a notification issued by the State of Gujarat dated
\n6.10.1997 which was clarificatory of circular dated 1.10.1997 issued
\nby the State Government and in pursuance of a letter no.
\n2\/31\/77-ULC-(1) dated 19.12.1977 of the Government of India. The
\nnotification further clarifies the above referred circular issued by
\nthe Government of India dated 19.12.1977. It pertains  to the
\nexemption under section 20 of the Act. In pursuance of said
\nnotification, learned counsel Mr. Bhatt submitted that the petitioner
\nhas filed an undertaking in the form of her affidavit.  We are of the
\nopinion that let the competent authority to examine the case of the
\nappellant petitioner in light of the notification dated 6.10.1997,
\nwhich is clarificatory in nature of the circular dated 1.10.1997
\nissued by the State Government in pursuance of the above referred
\nletter dated 19.12.1977 of the Government of India.  Ld. AGP Mr.
\nNanavati for the State submitted that after abolition of the Act, the
\ncompetent authority dealing with such matters, arose under the Act,
\nmay not be available, but we send back the case for appropriate
\ndecision as directed above to the competent authority or in the
\nalternative to the District Collector, Rajkot within the urban
\nagglomeration of Rajkot district.\n<\/p>\n
7.\t\tIn
\nthe result, we allow this appeal and quash and set aside the impugned
\norder passed by the learned Single Judge and remit the matter for
\nappropriate decision regarding the request of the appellant
\npetitioner for exemption to the competent concerned authority, who
\nshall decide the application of exemption of the appellant petitioner
\nin light of the notification of the State of Gujarat dated 6.10.1997
\ndiscussed above in this judgment.\n<\/p>\n
\t\tCivil
\nApplications stand disposed of accordingly.\n<\/p>\n
\t\t\t(
\nY. R. MEENA,  C.J.)<\/p>\n
(
\nJ .C. UPADHYAYA, J. )<\/p>\n
*Pansala.<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Gyanba vs State on 17 June, 2008 Bench: Y.R.Meena And J.C.Upadhyaya, J.C.Upadhyaya LPA\/225\/1994 3\/ 11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 225 of 1994 With CIVIL APPLICATION No. 1336 of 1994 With CIVIL APPLICATION No. 12808 of 2005 In LETTERS PATENT APPEAL No. 225 of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-11543","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nGyanba vs State on 17 June, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gyanba-vs-state-on-17-june-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gyanba vs State on 17 June, 2008 - 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