Gujarat High Court
Karmyogi Society vs State Of Gujarat & 2 on 19 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/9155/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9155 of 2017
==========================================================
KARMYOGI SOCIETY, THROUGH ITS PRESIDENT UMESHBHAI
NATWARLAL BAMAN....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
==========================================================
Appearance:
MR DAIFRAZ HAVEWALLA, ADVOCATE for the Petitioner(s) No. 1
MS NISHA THAKORE, AGP ADVANCE COPY SERVED TO GP/PP for the
Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1 - 3
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 19/09/2017
ORAL ORDER
1. By this writapplication under Article 226 of the Constitution of India, the writapplicant - a Society through its President has prayed for the following reliefs: 8(A) to admit and allow the present petition;
(B) to issue a writ of mandamus or any other appropriate writ, order or direction to the Respondents to Grant the benefit of the Gujarat Ordinance No.6 of 2016, issued by the Revenue Department Sachivalaya, Gandhinagar on 15th December, 2016 to the petitioner in accordance with law by accepting the application/form of the petitioner along with the prescribed occupancy price;
(C) to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the Respondents to accept the Application/form of the petitioner along with prescribed occupancy price and thereafter to act in accordance with law, Page 1 of 12 HC-NIC Page 1 of 12 Created On Mon Oct 02 00:45:32 IST 2017 C/SCA/9155/2017 ORDER (D) pending the admission and/or final hearing of the present application be pleased to direct the Respondents Accept the Application/form of the petitioner along with prescribed occupancy price and thereafter to act in accordance with law, (E) any other relief that may be deemed just, proper and necessary may also be kindly granted.
2. It appears from the materials on record that one Babubhai Jhalabhai Aahir was the original owner of the land bearing Revenue Survey No.10/12/1 paiki, situated at Village mouje Umra, TalukaCity and District - Surat. This land came to be developed. The land was divided in 51 plots. The case of the petitioner is that almost 25 years back, the members of the society purchased the plots and have put up the construction of residential house. The plots were allotted by Babubhai Aahir by issue of allotment letters and the possession receipts. The total land admeasures 7945 sq.mtrs. The construction was to be carried out in accordance with Section 21(1) of the ULC Act.
3. It appears that the Competent Court and the Additional Collector, ULC, Surat, in accordance with the Section21(1) of the Act set aside the scheme vide order dated 30/11/1987. The land in question was declared as Excess Vacant Land and was ordered to be vested with the State Government by order dated 09/01/1986. As the land stood vested with the State Government, the original owner initiated proceedings for getting the land back. It appears that the original owner has not succeeded in the legal proceedings right upto this Court.
4. I am informed by both the learned counsel appearing for the respective parties that the Letters Patent Appeal has also been disposed of. Indisputably, as on date, the construction is standing on the land in question. The members of the society would like to seek the benefit of Page 2 of 12 HC-NIC Page 2 of 12 Created On Mon Oct 02 00:45:32 IST 2017 C/SCA/9155/2017 ORDER the Ordinance issued by the Government of Gujarat, dated 15/12/2016. This Ordinance has been issued by the State Government to provide for validation of the occupancy and allotment of certain lands of excess vacant land vested in the State Government under Subsection (3) of Section 10 of the Urban Land (Ceiling and Regulation) Act, 1976 and whose possession had been taken over by the State Government prior to 30th March, 1999 and for the matters connected therewith or incidental thereto. The Ordinance reads thus: REVENUE DEPARTMENT Sachivalaya, Gandhinagar, Dated the 15th December, 2016.
GUJARAT ORDINANCE NO.6 OF 2016.
AN ORDINANCE to provide for validation of occupancy and allotment of certain lands of excess vacant land vested in the State Government under sub section (3) of section 10 of the Urban Land (Ceiling and Regulation) Act, 1976 and whose possession had been taken over by the State Government prior to the 30th March, 1999 and for the matters connected therewith or incidental thereto.
WHEREAS the Government of India had enacted the Urban Land (Ceiling and Regulation) Act, 1976 to provide for the imposition of a ceiling on vacant land in urban agglomerations and for the acquisition of such land in excess of the ceiling limit;
AND WHEREAS in view of subsection (2) of section 1 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, the said Repealing Act shall apply to any other State from the date on which the Legislature of the State adopts the Act by passing a resolution in that behalf under clause (2) of article 252 of the Constitution of India;
AND WHEREAS the Gujarat State Legislature had adopted the said Repealing Act, 1999 by resolution on the 30th March, 1999 and thus it has come into force in the State of Gujarat with effect from the 30th March, 1999;
AND WHEREAS the Urban Land (Ceiling and Regulation) Act, 1976 Act has thus been repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 with effect from the 30th March, 1999;
AND WHEREAS before the repeal of the said Act of 1976, certain Page 3 of 12 HC-NIC Page 3 of 12 Created On Mon Oct 02 00:45:32 IST 2017 C/SCA/9155/2017 ORDER excess vacant lands have been vested in the State Government under the provisions of the said repealed Act;
AND WHEREAS the State Government is required to allot such surplus excess land vested in it in the manner as provided in the said repealed Act;
AND WHEREAS the residential structures had already come up on such excess vacant land the possession of which had been taken over by the State Government prior to the 30th March, 1999;
AND WHEREAS the persons belonging to the lower economic strata of the society in the urban agglomerations have been in occupancy of the residential structures and as such are in the occupation of such excess vacant lands;
AND WHEREAS the State Government is of the view that it will cause great hardships to such occupants if steps are taken to remove them from such occupancy;
AND WHEREAS the State Government is committed to furthering equitable distribution of land in the urban agglomerations for the benefit of the economically weaker sections of the society;
AND WHEREAS the Legislative Assembly of the State of Gujarat is not in session;
AND WHEREAS the Governor of Gujarat is satisfied that circumstances exist which render it necessary for him to take immediate action to validate possession of such occupancies and allot to such occupants certain excess vacant land vested in the State Government;
NOW THEREFORE, in exercise of the powers conferred on him by clause (1) of article 213 of the Constitution of India, the Governor of Gujarat is hereby pleased to make and promulgate the following Ordinance, namely:
1. Short title and title and commencement - (1) This Ordinance may be called the Gujarat Validation of Occupancy and Allotment of Certain Lands of Excess Vacant Land Vested in the State Government (under the Urban Land (Ceiling and Regulation) Act, 1976) Ordinance, 2016.
(2) It shall come into force at once.
2. Definitions. In this Ordinance, unless the context otherwise requires, Page 4 of 12 HC-NIC Page 4 of 12 Created On Mon Oct 02 00:45:32 IST 2017 C/SCA/9155/2017 ORDER
(a) "Corporation" means the Municipal Corporation as defined by clause (10) of section 2 of the Gujarat Provincial Municipal Corporations Act, 1949;
(b) "excess vacant land" means the land vested in the State Government the possession of which has been taken over by the State Government under the repealed Act before the 30th March, 1999;
(c) "occupant" means the person who is in occupation of the residential structure constructed on the excess vacant land from or prior to 1st January, 2011 till the date of coming into force of this Ordinance and includes such person who as a result of a transaction or transactions during the period commencing from 1st January, 2011 and ending on 31st May, 2016 is in occupation of such structure on the date of coming into force of this Ordinance;
(d) "occupancy price" means such sum of money as notified by the State Government which the occupant is obliged to pay for validating the occupancy;
(e) "prescribed" means prescribed by rules made under section 15;
(f) "repealed Act" means the Urban Land (Ceiling and Regulation) Act 1976;
(g) "residential structure" means an abode of any type on the excess vacant land used by the occupant for the purpose of personal habituation and includes any appurtenant livelihood activities within the said structure;
(h) "State Government" means the Government of Gujarat.
3. Validation of Occupancy and Allotment of Excess Vacant Land, Notwithstanding anything contained in any other law or in any judgment, decree or order of any competent Court, the State Government may validate the occupancy and allot certain lands of the excess vacant land vested in it, whose possession was taken over under the repealed Act in the manner as provided hereinafter.
4. Application for Validation of Occupancy of Land and Allotment thereof - The occupant of the residential structure shall, for the purpose of validation of his occupancy of land and allotment thereof, make an application, in the prescribed form along with such fee as may be prescribed towards the occupancy price as may be determined by the State Government in this behalf, to the Mamlatdar within a period of three months from the date of coming into force of this Ordinance or within such time as may be extended by the State Page 5 of 12 HC-NIC Page 5 of 12 Created On Mon Oct 02 00:45:32 IST 2017 C/SCA/9155/2017 ORDER Government by an order, from time to time.
5. Documents to be Submitted with Application. (1) The occupant shall, along with his application shall submit a copy of notice given to him under sections 61 and 202 of the Gujarat Land Revenue Code, 1879 and the orders thereunder, if any.
(2) The occupant shall in order to claim the occupancy, submit alongwith his application of the oldest possible origin, any one or more of the following documents, namely:
(i) Ration Card;
(ii) Aadhar Card;
(iii) Passport;
(iv) Driving Licence;
(v) Voter ID card;
(vi) Electricity Bill;
(vii) Property tax bill;
(viii) Water Charges bill;
Provided that the occupant, may in support of his claim of his occupancy, also submit the copy of the sale deed or agreement for sale or an instrument for possession, if any.
(3) The occupant shall, for the purpose of his identity, submit alongwith his application any one or more of the following documents, namely:
(i) PAN Card;
(ii) Aadhar Card;
(iii) Passport;
(iv) Driving License;
(v) Voter ID Card
6. Notice for Inviting Objections by Mamlatdar. The Mamlatdar shall, after receiving the application under section 4, issue a notice in such form as may be prescribed inviting thereby the objections from any person within a period of one month from the date of such notice with regard to the claim of occupancy made by the occupant.
7. Decision of the Mamlatdar. (1) In case where the objections have been received pursuant to the notice under section 6, the Mamlatdar shall consider the same and after giving an opportunity of being heard to all concerned and considering the claims made by them, may either grant the application of the occupant or reject the same.
(2) In case where the occupant's application is not rejected under sub Page 6 of 12 HC-NIC Page 6 of 12 Created On Mon Oct 02 00:45:32 IST 2017 C/SCA/9155/2017 ORDER section (1) and the Mamlatdar is satisfied about the genuineness of the claim of the occupant in respect of the residential structure taking into consideration the relevant documents, he shall issue a notice to the occupant directing thereby him to make the remaining payment towards the occupancy price for the purpose of validation of occupancy and allotment of the excess vacant land;
Provided that for arriving at such satisfaction as referred to above, the Mamlatdar may also take into consideration any data of house to house survey carried out by either the Central Government or the state Government, as the came may be, old records of Ration card and Electoral roll or any other document or documents, as he deems fit, which may be available in his office or in any other public office.
(3) The occupant shall, within a period of one month of the receipt of the notive under subsection (2), make the necessary payment as envisaged in the notice, failing which his application shall be deemed to have been rejecte.
(4) After the necessary payment as provided under subsection (3) is mad,e the Mamlatdar shall pass an order, in such form as may be prescribed, of validation of occupancy and allotment of the excess vacant land in the manner and subject to such condition as the State Government may prescribe.
8. Bard of transfer of Allotted Land. No occupant in whose favour an order is made under subsection (4) of section 7 for allotment of land or his heirs shall transfer such land before the expiry of fifteen years from the date of such order.
9. Consequences in the event of failing to make an application. In case where the occupant of any residential structure fails to make an application as provided under section 4 within the prescribed time limit, the occupant shall be removed from such residential structure and the Mamlatdar shall take the possession of the same treating the residential structure as the encroachment on the excess vacant land in the manner as laid down under the provisions of the Gujarat Land Revenue Code, 1879.
10. Appeal. (1) Any person making a claim including the occupant, being aggrieved by any order of the Mamlatdar under section 7, may prefer an appeal before the Appellate Officer within a period of sixty days from the receipt of such order;
Provided that if the Appellate Officer is satisfied that such person was prevented from preferring an appeal within the prescribed time limit for sufficient cause, he may entertain the appeal even after such Page 7 of 12 HC-NIC Page 7 of 12 Created On Mon Oct 02 00:45:32 IST 2017 C/SCA/9155/2017 ORDER prescribed time limit but not exceeding six months;
Provided further that in case where appeal is preferred by any person or the occupant, the same shall not be entertained unless the payment is made as is determined by the State Government under section 4 while making an application by the occupant.
(2) That State Government may appoint, by notification in the Official Gazette, as many Deputy Collectors as the Appellate Officers for different areas or for part of any area.
(3) The Appellate Officer shall, after affording an opportunity of being heard to such person, may confirm, revise or dismiss the order against which the appeal is preferred.
11. Revision. (1) any person, including the occupant, being aggrieved by any order of the Appellate Officer made under section 10, may prefer revision application before the Special Secretary, Revenue Department (Appeal) within a period of sixty days of such order and his decision shall be final;
Provided that in case where the revision application is preferred by any person or the occupant, the same shall not be entertained unless the payment is made as is determined by the State Government under section 4 while making an application by the occupant.
(2) The Special Secretary, Revenue Department (Appeal) may constitute the special benches at Surat, Vadodara and Rajkot for entertaining the applications made under subsections (1).
12. Bar of Jurisdiction of Civil Court. No Civil Court shall have any jurisdiction to deal with or decide any question which the Mamlatdar, the Appellate Officer or the Revision Authority is empowered to deal with or decide by or under this Ordinance and no injunction shall be granted by any Civil Court in respect of any action taken or to be taken in pursuance of any power by or under this Ordinance.
13. Payment Under Sections 4, 10 and 11 to be Refundable. Any payment made as provided under section 4 by the occupant along with the application or any payment made under section 10 for preferring an appeal or for preferring revision application under section 11 shall be refundable in case where the application, or the appeal or the revision application is rejected or dismissed, as the case may be.
14. Indemnity. No suit or other legal proceedings shall lie against Page 8 of 12 HC-NIC Page 8 of 12 Created On Mon Oct 02 00:45:32 IST 2017 C/SCA/9155/2017 ORDER the State Government or any officer of the State Government in respect of anything which is in good faith done or intended to be done by or under this Ordinance.
15. Power to make rules. (1) The State Government may, by notification in the official Gazette, make rules for carying out all or any of the purposes of this Ordinance.
(2) All rules made under this section shall be laid for not less than thirty days before the State Legislature as soon as may be they are made and shall be subject to the recession by the State Legislature or to such modification as the State Legislature may make during the session in which they are so laid or the session immediately following.
(3) Any recession or modification so made by the State Legislature shall be published in the Official Gazette, and shall thereupon take effect.
16. Power to remove difficulties. If any difficulty arises in giving effect to the provisions of this Ordinance, the State Government may, by an order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Ordinance as may appear to be necessary for removing the difficulty:
Provided that no such order shall be made after the expiry of the period of two years from the commencement of this Ordinance.
STATEMENT The Government of India had enacted the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976) to provide for the imposition of a ceiling on vacant land in urban agglomerations and for the acquisition of such land in excess of the ceiling limit. In view of sub section (2) of section 1 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, the said Repealing Act shall apply to any other State from the date on which the Legislature of the State adopts the Act by passing the resolution in that behalf under clause (2) of article 252 of the Constitution of India. The Gujarat State Lagislature has adopted the said Repealing Act, 1999 by a resolution on the 30 th March, 1999 and thus it has come into force in the State of Gujarat with effect from the 30th March, 1999. The Urban Land (Ceiling And Regulation) Repeal Act, 1999 with effect from the 30th March, 1999.
Before the repeal of the said Act of 1976, certain excess vacant lands had vested in the State Government under the provisions of the said repealed Act, the possession of which had been taken over by the State Government. The State Government is required to allot such Page 9 of 12 HC-NIC Page 9 of 12 Created On Mon Oct 02 00:45:32 IST 2017 C/SCA/9155/2017 ORDER surplus excess land vested in it in the manner as provided in the said repealed Act. However, in certain cases, the residential structures had already come up before the 30th March, 1999 on such excess vacant land the possession of which had been taken over by the State Government. The average holding size of the excess land occupeid by the person concerned is in the range of twentyfive sq.mtrs. to seventy sq.mtrs. which itself suggests that most of the said persons belong to the weaker sections of the society in the urban agglomerations who have been in occupancy of the residential structures and as such are in the occupation of such excess vacant lands.
The State Government has been allotting the excess vacant land for the intended purpose particularly for housing for the economically weaker sections of the society. However, some of the excess vacant land had constructions, and therefore, the possession of such lands was taken alongwith constructions, such lands could not be allotted for the intended purpose since the said lands had constructions mostly residential and in some cases industrial and commercial in nature.
The said occupants, particularly residential occupants have an infirm title over these lands and hence are unable to access the formal financial system, for the purpose of credit, upgradation and expansion of their housing requirements. Therefore, this form of residential housing is slowly dilapidating over the time and this is causing a grave risk to public health. In addition, the occupants are also living under the threat of dispossession furthering deepening sense of vulnerability among the lower economic strata.
On the other hand, the State Government has adopted a policy of providing housing at affordable prices for the lower and middle class of the society so as to bring about an overall improvement in the standard of living and for rehabilitation of slums and poor housing stock in urban areas. While the encroachment for residential purposes on Government and private lands classified as slums have the benefit of the slum rehabilitation policy, residents on excess vacant lands could not benefit from the policies for upgradation of housing for the urban poor and lower middle class. It is therefore necessary to afford an opportunity to these residents to validate their occupancy and thus enable them to enjoy the benefit of housing as part of the overall policy to provide housing for all.
The State Government is of the view that it will cause great hardship to such occupants if steps are taken to remove them from such occupancy. The State Government is committed to furthering equitable distribution of land in the urban agglomerations for the benefit of the economically weaker sections of the society.Page 10 of 12
HC-NIC Page 10 of 12 Created On Mon Oct 02 00:45:32 IST 2017 C/SCA/9155/2017 ORDER The State Government has, therefore, decided to validate the occupancy and allot certain lands of these excess vacant land whereon the residential structures have been constructed by the occupants who are in possession of such excess vacant land on the date of coming into force of this Ordinance in order to mitigate the grave hardships which they may have to otherwise face. Occupancy shall be validated in case where a person who is in occupation of the residential structure constructed on the excess vacant land from or prior to 1st January, 2011 till the date of coming into force of this Ordinance or who as a result of a transaction or transactions during the period commencing from 1st January, 2011 and ending on 31st May, 2016 is in occupation of such structure on the date of coming into force of this Ordinance and in view of this, no occupancy shall be validated in case where a person claims to have come into possession of such residential structure on or after 1st June, 2016.
As the Legislative Assembly of the State of Gujarat is not in session, the Gujarat Validation of Occupancy and Allotment of Certain Lands of Excess Vacant Land Vested in the State Government (under the Urban Land (Ceiling and Regulation) Act, 1976) Ordinance, 2016 is promulgated to achieve the aforesaid object.
Dated the 13th December, 2016. O.P.KOHLI Governor of Gujarat.
By order and in the name of the Governor of Gujarat.
HAREET SHUKLA, Secretary to Government.
5. Mr. Havewalla, the learned counsel appearing for the writ applicant submits that the authority concerned is not ready and willing to accept the application on the ground that the legal proceedings are pending before this Court. The authority appears to be in a dilemma.
The dilemma is that if the original owner in the proceedings initiated by him to get the land back succeeds and on the other hand if the benefit of the Ordinance to the occupancy of land in question is given, then there would be clash of interest between the two. The apprehension of the authority does not appear to be wellfounded because it is made clear that there is no proceeding pending in this Court as on date as regards the restoration of the possession of the land to the original owner.
Page 11 of 12HC-NIC Page 11 of 12 Created On Mon Oct 02 00:45:32 IST 2017 C/SCA/9155/2017 ORDER
6. In such circumstances, the competent authority is directed to accept the application of the writapplicant herein and take an appropriate decision as regards the grant of the benefit of the Ordinance referred to above. The competent authority shall also take into consideration the representation, which has been filed by the Society in this regard at the earliest. Let the needful be done as early as possible in accordance with law.
7. With the above, this petition is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) aruna Page 12 of 12 HC-NIC Page 12 of 12 Created On Mon Oct 02 00:45:32 IST 2017