Gujarat High Court
Maganji Govindji (Since Decd.) Through ... vs Competent Officer And Dy. Collector, ... on 1 May, 1992
Equivalent citations: (1993)2GLR1808
JUDGMENT S.D. Shah, J.
1. Rule. Mr. R.M. Chhaya, learned A.G.R waives service of rule. With the consent of the parties the matter is finally heard.
2. By this petition the petitioners who are the heirs and legal representatives of deceased Maganji Govindji are challenging the order passed by Urban Land Ceiling Tribunal dated 5th July, 1989 in Ceiling Appeal No. 51 of 1988 confirming the order passed by Competent Authority, Surat dated 5th April, 1988.
3. The facts giving rise to the present petition are as under:
Deceased Maganji Govindji was the holder of parcels of land bearing Survey No. 68 admeasuring 4654 sq mtrs. and Survey No. 73 admeasuring 2934 sq. mtrs. at Jahangirabad and Rander of District Surat. He purchased the said parcels of land in the year 1938 by Registered Sale Deed. On coming into force of Urban Land (Ceiling and Regulation) Act, 1976 he filed statement under Section 6(1) of the said Act. In the said form he described the property as his own property and mentioned that no one else had any right, title or interest in the said property.
4. The Competent Authority thereupon issued Draft statement under Section 8(3) of the said Act calling upon deceased Maganji Govindji to file his objection to the said Draft statement. Deceased Maganji Govindji filed his objection and after taking into consideration such objection, the Competent Authority was pleased to pass order dated 9th January, 1984 holding that deceased Maganji was holding excess vacant land to the extent of 6088 sq. mtrs.
5. Being aggrieved by the said order passed by Competent Authority, deceased Maganji Govindji preferred Appeal to the Urban Land Ceiling Tribunal. Such Appeal being Appeal No. Surat 478 of 1984 was allowed by the Tribunal by judgment and order dated 18th September, 1987 by quashing and setting aside the order of Competent Authority. The matter was remanded to the Competent Authority to hear the holder of the land and to provide him an opportunity of being heard and to produce whatever evidence he wanted to produce and to decide the matter afresh in accordance with law.
6. After remand before the Competent Authority, the matter was heard afresh. During the pendency of Appeal before the Appellant Tribunal the holder of the land Maganji Govindji expired and present petitioners came to he impleaded as heirs and legal representatives. They appeared before the Tribunal as well as before the Competent Authority and contended that the parcels of land were the property of H.U.F. and as such all sons of deceased Maganji Govindji has equal interest and therefore seven ceiling units ought to have been granted to the petitioners. They were also permitted to produce whatever evidence they wanted to produce and they were also heard. After taking into consideration their submissions the Competent Authority by judgment and order dated 29th March, 1988 was pleased to hold that deceased Maganji Govindji was entitled to hold one ceiling unit, i.e., 1500 sq. mtrs. of land and that 6088 sq. mtrs. of land was excess vacant land.
7. Being aggrieved by the said judgment and order the petitioners preferred Special Civil Application No. 3903 of 1988 in This Court and they also filed Appeal being Appeal No. 51 of 1988 before the Urban Land Ceiling Tribunal. The learned single Judge of This Court (M.B. Shah, J.) by order dated 6th April, 1989 rejected the Special Civil Application on the ground that -petitioners have already filed Appeal before the Urban Land Ceiling Tribunal and therefore the petitioners should not be permitted to resort to the remedy under Article 227 of the Constitution of India. Appeal No. 51 of 1988 was heard and decided by the Tribunal by judgment and order dated 5th July, 1989. The Tribunal in terms held that the land in question was acquired by deceased Maganji Govindji by Registered Sale Deed dated 15th September, 1938 and therefore it was the self-acquired property of deceased Maganji Govindji. The Tribunal found that deceased Maganji Govindji had filed Declaration under Section 6(1) after coming into force of the said Act and he has expired on 4th December, 1986. The land was therefore self-acquired property on the day on which the Act came into force and holder of the land was deceased Maganji Govindji on the date on which Form under Section 6(1) was filed. As regards theory of alleged partition the Competent Authority as well as Tribunal did not accept the same holding that there was no contemporaneous evidence to accept that partition has taken place between Maganji Govindji and his six sons in the year 1971. It was found that even in village record no mutation entry was posted. Even in the Form filed under Section 6(1) it was not mentioned that the property was already partitioned and that sons of deceased Maganji Govirdji had equal share in the said property. The Tribunal, therefore, came to the conclusion that the property was self-acquired properly of deceased Maganji Govindji and his heirs and legal representatives were not entitled to separate ceiling unit in the said parcel of land. The Tribunal, therefore, dismissed the Appeal.
8. Being aggrieved by the said Judgment and order of Urban Land Ceiling Tribunal and Competent Authority the petitioners have approached This Court under Article 227 of the Constitution of India.
9. Mr. J.M. Patel, Learned Counsel appearing for the petitioner has raised following submissions for my consideration:
1. Both the Authorities were not justified in holding that the land in question was held by deceased Maganji Govindji as self-acquired property and not as H.U.F. property.
2. Heirs of deceased Maganji Govindji were entitled to file statement before the Competent Authority under Section 15(1) of the said Act inasmuch as they acquired by inheritance the said parcels of land and since such land exceeded the ceiling limit they were entitled to file Form under Section 15(1) afresh within three months, and therefore the Appeal of deceased Maganji Govindji should not have been dismissed and their claim to hold one ceiling unit each should not have been denied.
The first submission need not detain This Court and the same is required to be rejected for the simple reason that it involves re-appreciation of evidence. This Court under Article 227 of the Constitution of India would not undertake that exercise when two Authorities have concurrently reached finding of facts based on evidence before them. Firstly, it is required to be noted that the land is acquired by deceased Maganji Govindji by Registered Sale Deed on 16th Sept, 1938. Secondly, in the Revenue Record the lands in question are shown in the name of deceased Maganji Govindji. Thirdly, on coming into force of the said Act, Form under Section 6(1) was filed by deceased Maganji Govindji wherein he described the property as his self-acquired property and he has stated that no one else has any interest in the said parcels of land. Taking into consideration the totality of facts and circumstances, in my opinion, the Competent Authority and the Tribunal were justified in reaching the finding of fact which they have reached and I do not see any justifiable reasons to upset such concurrent findings of facts. The first submission of Mr. Patel, therefore, shall have to be subjected.
In order to answer second submission it shall have to be ascertained as to who was the holder of the land on the date of commencement of the Act and as to with respect to which date and vis-a-vis which holder the ceiling limit is to be fixed. For this purpose a close look to the Preamble of the Urban Land (Ceiling and Regulation) Act, 1976. its statement of objects and reasons and to some of the provisions is necessary.
10. There has been demand for imposing a ceiling on urban property also, especially after the imposition of ceiling on agricultural lands by the State Governments. With the growth of population and increasing urbanisation need for orderly development of urban areas has also been felt. It was, therefore considered necessary by some State Governments to take measures for exercising social control over the scarce recourse of urban land with a view to ensuring its equitable distribution. With this end in view the Parliament enacted the said Act to provide for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit to regulate the construction of building on such land, with a view to preventing the concentration of urban land in the hands of a few persons. With this end in view the Act inter alia provides for the following:
(i) Imposition of a ceiling on both ownership and possession of vacant land in urban agglomerations;
(ii) Acquisition of the excess vacant land by the State Government with powers to dispose of the vacant land to subserve the common good;
(iii) Payment of an amount for the acquisition of the excess vacant land in cash and in bonds
(iv) Granting exemptions in respect of certain specific categories of vacant land; and
(v) Regulating the transfer of vacant land within the ceiling limit.
11. The said Act applied in the first instance to eleven States including State of Gujarat. Section 2 of the said Act contains definition Clause. Section 2(a) defines 'appointed day' to mean the date of introduction of the Urban Land (Ceiling and Regulation) Bill, 1976, in Parliament. The Bill was introduced in Parliament on 17th February, 1975. It was passed by Parliament and published in the Gazette of India dated 28th January, 1976. Section 3 of the Act enacts an embargo prohibiting any person from holding any vacant land in excess of ceiling limit in the territories to which the Act applies, on and from the cummencement of this Act. The word 'person' as defined in Section 2(i) includes an individual, a family, a firm, a company or all association or body of individuals. Section 4(i) prescribes the ceiling limit in different categories of urban agglomerations. Section 5 of the Act prohibits certain transfers of vacant land. Under Sub-section (3) of Section 5, in any State to which the proposed law applies in the first instance and in any State which may adopt the law subsequently, no person holding vacant land in excess of the ceiling limit immediately before the commencement of the Saw shall transfer such land by way of sale, etc., until he has furnished a statement under Section 6. Section 6 of the Act enjoins upon every person holding vacant land in excess of ceiling limit at the commencement of the Act to file a statement of all vacant lands held by him in the prescribed form and within the prescribed period before the Competent Authority. On receipt of such statements Section 8 of the Act requires the Competent Authority to prepare a Draft statement in respect of the person who has filed the statement under Section 6. Such Draft statement shall thereupon be served upon the person concerned together with notice inviting objection to the Draft statement. The holder of the vacant land or the person who has filed tile statement is thus called upon to file his objections to the Draft statement within thirty days thereof. The Competent Authority is, therefore, required to consider the objections received from the person and after giving the objector a reasonable opportunity of being heard, he is required to pass order. After disposal of objections under Section 9 the Competent Authority is required to make necessary alteration in the Draft statement in accordance with the order passed by him and then to determine the vacant land held by the person concerned in excess of the ceiling limit. This final statement of excess land is required to be served on the person concerned. Once such final statement is served, the Competent Authority is required to issue notification under Section 10(1) notifying the excess land held by the person concerned and further stating that such land is to be acquired by the State Government, calling upon all persons interested in such vacant land to lodge their claims. The Competent Authority is thereafter required to consider and determine such claims. Once that determination of claims is over, under Sub-section (3) of Section 10 the Competent Authority may by notification published in the Official Gazette declare that the excess vacant land stated in the Official Gazette shall be deemed to be acquired by the State Government. On issuance of notification the excess vacant land vests absolutely in the Government free from all encumbrances.
12. From the aforesaid resume of the relevant provisions of the Act it becomes clear that the Act was passed for the purpose of imposing a ceiling on the holding of urban land and to provide for the acquisition and distribution of such excess vacant land. The Act was initially passed at the instance of Legislatures of 11 States. On Resolution having been passed by such States under Article 252(1) of the Constitution of India requesting the Union Parliament empowering the Parliament to undertake legislation for the said purpose so that uniform provisions can be made and measures can be taken for exercising social control over the scares resource of urban land with a view to ensuring equitable distribution amongst the various societies. The intention of the Parliament was to bring the stature in force immediately in relation to the said 11 States and therefore while defining the words "appointed day" the Parliament has stated that the appointed day shall be the date of introduction of the Urban Land (Ceiling & Regulation) Bill in Parliament. The entitlement to hold the land is also to be determined by reference to the any use in Section 3. No person shall be entitled to hold any vacant land in excess of ceiling limit on and from the commencement of this Act. The words "On and from the commencement of this Act" make it clear that on the date of commencement of the Act if the holder of land is holding vacant land in excess of ceiling limit he is required to undergo the process prescribed by Sections 6 to 9. Immediately on the date of the commencement of the Act if the holder of vacant land was holding excess vacant land, he was required to file a Statement under Section 6(1) before the Competent Authority specifying therein the particulars of the vacant lands held by him. The words "commencement of the Act" are defined for the purposes of Section 6 by Explanation to Section 6(1) to mean the date on which the Act comes into force in any State. Since the Act has come into force on 28th January, 1976 the liability of the holder of the vacant land to file a Statement under Section 6(1) arises and as such he is not entitled to hold land in excess of the ceiling limit. By filing the statement the proceedings are initiated and after undergoing the process prescribed by Sections 6 to 9 the Competent Authority is required to determine the excess vacant land. This determination of excess vacant land in the hands of the holder is referrable to the appointed day. The Competent Authority is required to determine the holding of the person as on the appointed day and subject to the ban on transfer prior to appointed day under certain circumstances, the Competent Authority shall decide the holding of the person by reference to that date only. Therefore, once the statement under Section 6(1) is filed by the holder of the land proceedings are initiated and they are required to be continued till his holding as on the appointed day is determined. In case such holder of land dies after the proceedings have begun but before a decision is reached by the Competent Authority, two options are available to the heirs and legal representatives of the said holder. Firstly the heirs and legal representatives of the holder who have filed statement under Section 6(1) of the said Act may prosecute the proceedings by being impleaded as heirs and legal representatives and the Competent Authority may decide the entitlement of the deceased holder as on the appointed day. The second option arises because of the provisions of Section 15 of the said Act to which a reference shall be made hereafter.
13. It is, therefore, clear that on the death of the holder of the land who has filed statement under Section 6(1) before the Competent Authority declaring his holding, the proceedings do not necessarily come to an end nor are they required to be dropped. The heirs of the holder are entitled to participate in the proceeding representing the estate of the holder. They would be entitled as heirs at law only to such land as may be declared to be legitimate holding within the ceiling limit by the holder of the land. In fact the liability to surrender the excess vacant land has arisen on the appointed date when the Act came into force. Such liability to surrender excess vacant land is not abolished by reason of the death of the holder before the actual extent of the excess land is determined and is notified under Section 10(1) of the said Act. It is undoubtedly true that actual vesting of the property in the State Government takes place only after the determination of excess vacant land by the Competent Authority by issuance of final statement under Section 9 and by subsequent issuance of notice under Section 10(1) of the said Act, but this fact of actual vesting would not in any way affect the liability of the holder of the excess vacant land to surrender such land. In my opinion such liability relates back to the appointed day. Once it is found that the holder of the land was holding excess vacant land his liability to surrender such land must relate back to the dale on which the Act came into force. Simply because such person dies before final determination by Competent Authority of excess vacant land, it cannot be said that the proceeding would become infructuous or that the same are required to be dropped. In fact such an interpretation would adversely affect the very object of the Act inasmuch as on death of the holder of the land proceeding initiated by him by filing statement under Section 6(1) would come to an end and heirs would claim separate share so as to defeat the very object of declaring excess vacant land on the date on which the Act has come into force. The excess vacant land in the case of person who on the appointed day held any vacant land in excess of the ceiling limit has got to be determined as on the appointed day even though such person may the before the actual extent of excess vacant land is determined and notified under Section 10 of the said Act. The person on whom the lands devolves on his death would be liable to surrender the surplus land as on the appointed day because the liability attached to the holding of the deceased would not come to an end on his death. The heirs of the deceased cannot be permitted to contend to the contrary and allowed to get more land by way of inheritance than what they would have if the death of the person had taken place after the publication of the notification under Section 10.
14. Section 15 of the said Act however makes a provision which is pressed into service by Mr. J.M. Patel, Learned Counsel appearing for the petitioner and the same is required to be reproduced hereunder:
15. Ceiling limit on future acquisition by inheritance, bequest or by sale in execution of decrees, etc. - (1) If, on or after the commencement of this Act, any person acquires by inheritance, settlement or bequest from any other person or by sale in execution of a decree or order of Civil Court or of an award or order of any other authority or by purchase or otherwise, any vacant land the extent of which together with the extent of the vacant land, if any, already held by him exceeds in the aggregate the Ceiling limit, then he shall within three months of the date of such acquisition, file a statement before the competent authority having jurisdiction specifying the location, value and such other particulars as may be prescribed of all the vacant lands held by him and also specifying the vacant lands within the Ceiling limit which he desires to retain. (2) The provisions of Sections 6 to 14 (both inclusive) shall, so far as may be, apply to the statement filed under this section and to the vacant land held by such person in excess of the Ceiling limit.
15. From the close analysis of the aforesaid provision it becomes clear that in order to attract Section 15 following ingredients are required to be satisfied:
1. on or after the commencement of the Act the person must have acquired by inheritance, the settlement or bequest from any other person or by sale in execution of a decree or order of Civil Court or of award any vacant land;
2. excess of such vacant land acquired in any of the modes stated in Condition No. 1 together with the extent of any vacant land already held by such parson exceeds in the aggregate ceiling limit;
3. even if such person has no vacant land and the vacant land acquired by him by any of the modes aforesaid exceeds the ceiling limit, he shall be entitled to protection of Section 15;
4. such person shall within three months of the date of acquisition file statement before the Competent Authority specifying the location and other particulars of all the vacant lands held by him; and
5. on such statement being filed by such person provisions of Sections 6 to 14 shall apply to the statement filed by him and to the vacant land held by such person in excess of the ceiling limit.
16. The aforesaid provision was interpreted by learned single Judge of Allahabad High Court in the case of M.C. Sanyal v. District Judge, Dehradun . On the appointed day one D. Sanyal was holding certain properties and he filed statement under Section 6(1). After filing his statement he executed a will bequeathing his property to his three grandsons. He thereafter died on 21st April, 1977. The legatees filed statement thereafter under Section 15 of the Act. The Competent Authority was of the view that the shares of these legatees under "will" could not be taken into account inasmuch as the determination of the extent of the vacant land in excess of the ceiling limit was to be made in reference to the date of the commencement of the Act and not by reference to the period subsequent thereto. This view was also affirmed in Appeal. Based on Section 15 it was contended before the learned single Judge of Allahabad High Court that the determination of the vacant land in relation to the legatees shall have to be by reference to the date on which the decision is taken as regards excess vacant land and not by reference to 17th February, 1976, the date on which the said Act came into force. The learned single Judge negatived the said arguments and held that Section 15 of the Act was not applicable for the following reasons:
Section 15 is in reference to a case where a person already held vacant land and on the commencement of the Act he acquires by inheritance, bequest, or sale in execution of decree or order of a Civil Court or an award or order of any authority or by purchase or otherwise some other vacant land subsequent to the commencement of the Act. In that event the determination of the vacant land in excess of the Ceiling limit held by such a person is to be made in accordance with the procedure laid herein. The underlying requisite to invoke Section 15(1) is that thereby vacant land in excess of the Ceiling limit at the commencement of the Act and there is addition over the same by virtue of some subsequent event as narrated therein. The instant, on the contrary, is a case where admittedly none of the legatees of the objector held any land of their own on the commencement of the Act. The case set up on the petitioners side has throughout been that the only property, which the legatees own, is that which was bequeathed on March 25, 1977, in their favour by the objector. It follows clearly, therefore, that Section 15(1) is inapplicable.
17. For the aforesaid reasoning the Allahabad High Court did not permit the legatees to claim any share in the properties bequeathed to them. In my opinion Section 15 of the Act is not correctly read by the learned single Judge. With utmost respect to the learned single Judge I am of the opinion that he has ignored the words "if any" occurring in Section 15(1). The learned single Judge took a view that the underlying question invoked in Section 15(1) is that there is vacant land in excess of the ceiling limit at the commencement of the Act and there is addition over the same by virtue of some subsequent event. Since none of the legatees held any vacant land of their own on the commencement of the Act, the learned single Judge took a view that provision of Section 15(1) were not applicable. In my opinion the aforesaid interpretation is not correct. From the ingredients of Section 15(1) set out by the hereinabove in order to earn the benefit of Section 15(1) it is not necessary for person acquiring the land on or after the commencement of the said Act by any of the modes stated therein that he should own/possess some vacant land and to such land other land acquired by him is required to be added. If the vacant land acquired by him itself is above the ceiling limit and if he does not hold any vacant land of his own it cannot be said that he cannot file statement under Section 15(1) of the said Act. If such person acquires vacant land which exceeds the ceiling limit and if he does not possess any vacant land he can still file statement under Section 15(1) before the Competent Authority within three months from the date of such acquisition. In order to be eligible to apply under Section 15(1) it is not necessary that the person acquiring the vacant land by any of the mode stated in Section 15(1) must own or possess other vacant land and mat aggregate of such vacant land exceeds the ceiling limit. The words "if any" immediately succeed the phrase "any vacant land the extent of which together with the extent of the vacant land", leave no room for doubt that even if he does not hold any vacant laud of his own if the vacant land acquired by him exceeds the ceiling limit he can still claim the protection of Sep. 15(1) by filing the statement before the Competent Authority within three months.
18. However, in my opinion such statement is required to be filed by the person who has acquired the land under Section 15(1) within a period of three months from the date of acquisition. If he docs not file such statement within three months and if he proceeds to prosecute the proceedings already initiated pursuant to the statement filed under Section 6(1) by the original holder of the land, he is not claiming the benefit of Section 15(1), but he is prosecuting the proceeding initiated by the holder and as such the entitlement of the holder to hold land on the date on which the Act came into force is required to be determined and not the entitlement of the person acquiring the land by inheritance. In the present case it is required to be noted that the present petitioners have not filed statement under Section 6(1) immediately within a period of three months from the date of their acquisition under Section 15(1) of the said Act. In fact they have applied for being impleaded as heirs and legal representatives of the deceased in the proceedings which were already pending before the Urban Land Ceiling Tribunal and therefore benefit of Section 15 cannot be granted to the petitioner.
19. On the date on which the Act came into force and when the Statement under Section 6(1) was filed by Maganji Govindji he was the holder of the excess vacant land. The said statement under Section 6(1) was processed and draft statement under Section 8(3) was issued to deceased Maganji Govindji. He even filed his objections to the draft statement. After hearing him initially the order was passed by Competent Authority on 9th January, 1984 holding that he was holding 6088 sq. mtrs. of excess vacant land. He even preferred appeal to the Urban Land Ceiling Tribunal being Appeal No. 478 of 1984, however, he expired during the pendency of Appeal on 4th February, 1986 and present petitioners were impleaded as heirs and legal representative who prosecuted the said Appeal further. The said Appeal was allowed by Judgment and order dated 8th September, 1987 and the matter was remanded to the Competent Authority. It may be mentioned that the present petitioners never filed Statement under Section 6(1) within a period of three months from the date of the death of deceased Maganji Govindji. In fact they have never invoked benefit of Section 15(1) nor have they followed the procedure prescribed by Section 15(1).
20. Even after remand the present petitioners submitted their case and produced their evidence before the Competent Authority and Competent Authority has rightly processed the statement under Section 6(1) as if the entitlement of Maganji Govindji to hold land on the date on which the Act came into force was to be determined. Keeping the said position in mind the Competent Authority has thereafter passed the order declaring 6088 sq. mtrs. of land as excess vacant land. In my opinion the Competent Authority was justified in not regarding the claim of the present petitioners as independent claim under Section 6(1) of the said Act by virtue of operation of Section 15. In fact the present petitioners have never invoked Section 15. The petitioners have not filed statement under Section 6(1) within the period of three months from the date of their alleged acquisition of interest in the property. They have on the contrary applied for being implead as party in the Appeal which was filed by deceased Maganji Govindji. In this view of the matter petitioners arc not entitled to prey into service the provision of Section 15 of the Act and submission of Mr. J.M. Patel cannot be accepted.
21. It is required to be noted that Section 3 lays down that no person shall/be entitled to hold any vacant land in excess of the ceiling limit on and from the commencement of the Act. The said Act has come into force from the date of the commencement of the Act in the State of Gujarat which is one of the States to which the Act has been applied in the first instance, the operation of the Act is retrospective with effect from 17th February, 1975 though the date of commencement of the Act is 17th February, 1976. The relevant date being the date of the commencement of the Act, entitlement of the person to hold the land on that date shall have to be determined. Who was holding the land on that date and whether he was entitled to hold vacant land. By virtue of Section 3 no person was entitled to hold any vacant land in excess of the ceiling limit. Therefore it is clear that on the date on which the Act came into force deceased Maganji Govindji was the holder of the land and he filed Statement under Section 6(1) of the said Act and draft statement under Section 8(3) was also served on him and he also filed objection to the draft statement. It was his entitlement to hold the land which was to be determined. In such fact situation recourse to Section 15 of the Act was not permissible at all.
22. Section 15 of the Act was not intended to apply in a case where person who held vacant land in excess of a ceiling limit on the commencement of the Act, dies after filing statement under Section 6 but before notification under Section 10(4). In such a case vacant land held by the deceased on the date of the commencement of the Act shall have to be determined and the excess vacant land is required to be acquired under the Act as if he had not died. His heirs at law will inherit only such property as is left after acquisition of the excess vacant land. Section 15 is intended to bring within the purview of the Act those cases where on the date previous to or on 17th February, 1976 in the case of State to which the Act applied at the first instance, a person may be holding vacant land within ceiling limit and there may not be any excess land which is liable to be acquired under Section 10. Sub-section (1) of Section 15 therefore provides that if a person comes to hold vacant land in any manner on or after 17th February, 1976 and the extent of the vacant land already held by him taken together with the vacant land which he comes to hold on or after the commencement of the Act exceeds in the aggregate of the ceiling limit, then the excess vacant land becomes liable for acquisition. Such excess will be determined with reference to the date on which the vacant land held by him exceeds the ceiling limit applicable to him. This section thus effectively prevents all persons from holding vacant land in excess of the ceiling limit. Neither the Act nor the policy behind the Act permit reduction in the area declared surplus or liable to be declared excess, on account of death of a person holding it. Whatever is held in excess is liable to be declared as excess vacant land. The heirs of the deceased cannot be permitted to contend to the contrary and cannot be allowed to get more land by way of inheritance then what they would have received at the death of the parson after publication of the notification under Section 10(4) of the Act.
23. Reference may also be nude to the decision of the Supreme Court of India in the case of Bhikoba Sharker Dhumal v. Mohan Lal Punchand Tathed and Ors. . That was a case under the Maharashtra Agricultural Land (Ceiling & Holdings) Act. The question before the Supreme Court was as to what would happen to proceeding commenced with the filing of return by a person holding on the appointed day land in excess of the ceiling area prescribed by the said Act. The question was as to whether such proceedings would become infructuous and would have to be dropped or as to whether such proceedings shall have to be continued and the surplus land in the hands of the tenure-holder as on the appointed day should be determined and taken possession of in accordance with law.
24. The Supreme Court held that the Act has to be construed in accordance with its scheme and object which is equitable distribution of land amongst the landless by taking over surplus land in the hands of those who held land in excess of the ceiling limit on the appointed day, or those who would acquire subsequently land in excess of the ceiling. The Court after examining the scheme of Maharashtra Agricultural Lands (Ceiling & Holidings) Act, 196). found that in order to achieve the aforesaid object the Legislature has enacted Sections 3 & 4 of the Act declaring that no person could on or after the appointed day hold land in excess of the ceiling area and compelling every person acquiring or coming into possession of any land in excess of the ceiling area on or after the appointed day to file return before the competent authority. The scheme of Urban Land (Ceiling & Regulation) Act, 1976 upto that stage appears to be identical. In the Maharashtra Act the Collector was required to hold enquiry into several matters set out in Section 18. After necessary enquiry under Section 21 of said Act he was required to make declaration stating therein his decision the total area of land which the person was entitled to hold as the ceiling area and the total area and particulars of land which were in excess of ceiling area. This provision is also comparable to provisions of Section 8(4) read with Section 9 of Urban Land (Ceiling & Regulation) Act. Under the said Act before the Supreme Court after declaration was made by the Collector under Section 20(1) the Collector was required to notify in the prescribed form in the official gazette the area, description and full particulars of the land which is de-limited as surplus land. The said provision of Section 21(1) in Maharashtra Act is comparable to Section 10(1) of Urban Land (Ceiling & Regulation) Act, 1976.
25. The Court also came to conclusion that on close reading of the provisions of the Act it was clear that the determination of the extent of surplus land of a holder has to be made as on the appointed day. If any person has at any time before the appointed day held any land in excess of the ceiling area such person should file return within prescribed period from the appointed day furnishing to the authority such particulars of land held by him as prescribed. Similarly, if any person acquires, holds or comes into possession of such land in excess of ceiling area on or after appointed day such person has to furnish a return within prescribed period from the date of classification of excess of ceiling area. The Court, therefore, found that under the scheme of the said Act, the crucial date with reference to which surplus land held by a person is to be determined is the appointed day and in the case of those persons acquiring said excess land on or after the appointed day, the day on which they acquire possession of any land in excess of ceiling area. If a person is found to be in possession of land in excess of ceiling area at any time after the Act has come into force, he incurs liability to surrender such surplus land as on the appointed day even though the actual extent of such surplus land is determined on subsequent date. Having so found the Supreme Court made following pertinent observations:
This liability to surrender surplus land would not in any way come to an end by reason of the death of such holder before the actual extent of surplus land is determined and notified under Section 24 of the Act. It is no doubt true that Section 21 of the Act states that the title of the holder in the surplus land would become vested in the State Government only on such land being taken possession of after a declaration regarding the surplus land is published in the Official Gazette But the liability to surrender the surplus land, however, relates back to the appointed day in the case of those who fall under Section 12(1)(a) of the Act, to the date of taking possession of any land in excess of the Ceiling area in the case of those who come under Section 12(1)(b) of the Act and to the date of conversion of land into a different class in the case of those who come under Section 12(2) of the Act. Any other construction would make the Act unworkable and the determination of the extent of surplus land of a holder ambulatory and indefinite.
26. After making reference to another decision in the case of Raghunath Laxman Wani v. State of Maharashtra , the Supreme Court observed as under:
The aforesaid view supports our conclusion that the surplus land in the ease of a person who at any time after the fourth day of August, 1959 but before the appointed day held any land (including any exempted land) in excess of the Ceiling area has got to be determined as on appointed day even though such person may the before the actual extent of surplus land is determined and notified under Section 21 of the Act. The persons on whom his "holding" devolves on his death would be liable to surrender the surplus land as on the appointed day because the liability attached to the holding of the deceased cannot be permitted to contend to the contrary and allowed to get more land by way of inheritance than what they would have got if the death of the person had taken place after the publications of the notification under Section 21.
27. From the aforesaid reasoning the Supreme Court in the case of Bhikoba Shankerdhunal (supra) while dealing with the identical statute providing for surrender of excess vacant land with a view to distributing said vacant land to the landless persons the Supreme Court ruled the scheme of the Act seems to be to determine the ceiling area of each person with reference to the appointed day. In the context of Urban Land (Ceiling & Regulation) Act, I am of the opinion the object of the Parliament was to determine the ceiling area of each person with reference to appointed day. The policy of the Act appears to be that on and after the appointed day no person in the State should be permitted to hold land in excess of ceiling area determined under the Act and that ceiling area should be that which is determined as on the appointed day. On death of holder of the land the proceedings would not lapse and they shall have to be carried forward so as to determine the holding of the aforesaid person on the appointed day. The excess of the ceiling area has got to be determined on the appointed day even though such holder of the land may the before the actual extent of surplus land is determined under Section 9 and notified under Section 10(1) of the said Act. The person on whom his "holding" devolves on his death would be liable to surrender the surplus land as on the appointed day because the liability attached to the holding of deceased would not come to an end on his death. The persons who acquire interest by inheritance shall have to follow the procedure of Section 15 and if the procedure under Section 15 is not followed statement filed under Section 6(1) by the original holder of the land shall have to be adjudicated upon and order shall have to be passed by the competent authority. Therefore, the second submission of Mr. Patel that the heirs of deceased Maganji Govindji were entitled to file statement before the Competent Authority under Section 15(1) of the said Act cannot be accepted. They having in fact not filed any statement under Section 15(1) within prescribed period of time and under prescribed form, the petitioners cannot be permitted to claim their separate right of holding, separate ceiling unit and this submission also must fail.
28. In the result, I do not find any substance in the submission of Mr. Patel, learned Advocate for petitioners.
No other submission is made by Mr. Patel.
29. In the result, petition is dismissed. Rule is discharged with no order s to costs.