Gujarat High Court
Pujaji Dhulaji Thakor vs State Of Gujarat And Anr. on 23 September, 1987
Equivalent citations: (1988)1GLR89
JUDGMENT A.P. Ravani, J.
1. The petitioner is a holder of vacant land situated within the urban agglomeration area of Ahmedabad. The petitioner's application under Section 20 for exemption from operation of certain provisions of the Urban Land (Ceiling & Regulation) Act, 1976 has been rejected as per order dated August 21 1986 Annexure-B to the petition. The petitioner challenges the legality and validity of this order. The petitioner holds land of Survey No. 458 of village Vejalpur which admeasures 15730 sq. yds. On May 26, 1976 the petitioner applied for exemption in respect of 10,000 sq. yds. of land. It appears that the application was submitted because the petitioner had entered into an agreement to sell the land to New Jalaram Co-operative Housing Society. (This society is petitioner No. 1 in Special Civil Application No. 5597 of 1986. Therein the order passed by the Competent Authority under Section 9 of the Act is challenged inter alia on the ground that no notice as required under Rule 5 of the Urban Land (Ceiling & Regulation) Rules, 1976 is served upon the Society. That petition is being disposed of by a separate judgment). The Government partially granted the application as per order dated January 10, 1979 (Annexure-A to the petition). Thereafter the aforesaid Co-operative Housing Society submitted another application for exemption under Section 20 of the Act. That application was rejected by the Government on January 15, 1985. Thereafter the petitioner again applied on July 13, 1986 and prayed that exemption from operation of certain provisions of the Act be granted in respect of 6000 sq. yds. of land. This application has been rejected as per order dated August 21, 1986 copy of which is produced at Annexure-B to the petition. This order is challenged by way of this petition.
2. The petitioner submits that the society, was registered on May 26, 1976 and the application for registration was submitted even before the Act come into force. There was delay on the part of the Government authorities for registering the society. Had the society been registered earlier, the document of sale would have been executed even before the Act came into force. Therefore, on account of delay on the part of the Government authorities, the land-holder should not suffer. It is further submitted that when the application for registration was made, it was mentioned that there were in all 30 members enrolled by the society but as per the Rules and Regulations of the Co-operative Society, fees of only 10 members were accepted and therefore the names of 10 members were only shown initially. But as a matter of fact, in the application for registration names of 30 members have been mentioned. Therefore, the application should have been granted by considering that initially there were 30 members. The earlier application has been decided on January 10, 1979 on the basis that there were only 10 members.
3. Be it noted that when the application dated January 10, 1979 was decided, both the aspects narrated herein above were very much present before the authority exercising powers under Section 20 of the Act. The order dated January 10, 1979 passed by the Government has not been challenged either by the land holder or by the society. Therefore, that order has become final. By that order the Government thought it fit to grant the application only partially. Exemption sought for was in respect of 10,000 sq. yds. of land. The Government thought it fit to grant exemption in respect of 4000 sq. yds. of land only. The order passed by the Government dated January 10, 1979 has become final. It has not been challenged before any authority whatsoever. This being the position, fresh challenge by resorting to review application is not maintainable. If that is done, it would amount to reversing and or modifying the order dated January 10, 1979 which has become final. This would amount to circumventing the provisions of law. The order dated January 10, 1979 is not revisable. The order has been acquiesced into by the parties. The parties have taken advantage under the order, i.e., 4000 sq. yds. of land which has been exempted from operation of the provisions of the Act has been utilised by the parties for the purpose for which it has been exempted. If this order is permitted to be challenged on the grounds which were very much available to the land-holder at the time of consideration of application it would amount to reopening the entire application. It is doubtful that such an order can be reopened even if there be any fresh material. If such a course is permitted it would amount to circumventing the provisions of law and such a course cannot be permitted to be taken in a petition under Article 226/227 of the Constitution of India.
4. It may also be noted that the Co-operative Housing Society in whose favour the agreement to sell has been executed (petitioner No. 1 in cognate matter i.e., Special Civil Application No. 5597 of 1986) had also prayed for exemption under Section 20 of the Act in respect of this very land. That has also been rejected by the Government by order dated January 15, 1985. That order was also challenged by the Society by filing Special Civil Application No. 873 of 1985 and that petition has also been rejected by this Court. Of course, as stated in the petition. Letters Patent Appeal has been filed against that order and the same is pending, Be that as it may. The fact remains that two orders have been passed in respect of this very land, (1) dated January 10, 1979 and (2) dated January 15, 1986. Thereafter this third attempt is made by the land-holder by filing a review application on July 13, 1986. As disclosed (See: page 35 of the petition) in the order rejecting the application, this application has been rightly treated as review application by the Government.
5. The application has been rejected inter alia on the ground that the land in respect of which exemption is sought for has been utilised for construction purposes. It is observed that on the land in question 48 tenements have been constructed. Out of these 48 tenements 44 tenements have already been completely constructed while construction of 4 tenements is incomplete. This application is rejected on the ground that construction has been made on the land in question unlawfully without obtaining permission or exemption as required under the provisions of the Act. Be it noted that earlier on January 10, 1979 the application of the petitioner was rejected. The petitioner knew that the provisions of the Act were applicable to the land held by him. Even so the petitioner parted with the possession of the land in the year 1980. This is an admitted position. The society also knew that the provisions of the Act were applicable to the land. Despite this position the society obtained possession and put up construction on the land in question. Thus, both the land-holder as well as the society have acted in clear contravention of the provisions of law. Therefore, if the application is rejected on the ground that the construction has been put up unlawfully without obtaining requisite permission or exemption it can never be said that the application is rejected arbitrarily and/or on unreasonable grounds.
6. The learned Counsel for the petitioner submitted that the petitioner should have been given the benefit of Government Resolution dated March 13, 1984. The relevant part of the circular reads as under :
Even if it is assumed that this circular was required to be taken into consideration by the authorities concerned, then also the petitioner would not be entitled to claim the benefit of the circular. The circular requires the State Government to taken into consideration the following factors :
(1) Place and situation of the land. (2) Intended use of the land. (3) Other relevant considerations.
All the aforesaid aspects should be taken into consideration and necessary investigation should be made by the Government and thereafter the application should be decided. In the instant case, the State Government has taken into consideration the place and situation of the land. It is found that on the land in question unlawful construction has been put up. It is also disclosed by the petitioner himself that he parted with the possession of the land in the year 1980. These are unlawful actions. Therefore, taking these facts into consideration if the Government has not granted exemption it cannot be said that the Government has acted arbitrarily or unreasonably. Moreover it cannot be said that the Government has not taken into consideration the resolution dated March 13, 1984. In fact as per this very resolution the petitioner would not be entitled to claim exemption from the operation of the Act. There is no error, much less an error apparent on the face of the record.
7. The learned Counsel for the petitioner submitted that pursuant to Government Resolution dated 20-6-1979 Shwetakunj Co-operative Housing Society and Sputnik Co-operative Housing Society were granted exemption on June 28, 1979 and January 25, 1980 respectively. In those cases also unlawful construction has been made and same has been regularised on the terms and conditions mentioned in the order. It is not disputed that the circulars on the basis of which the exemptions were granted to the aforesaid societies were no more in force, when the application of the petitioner society has been considered and decided. Therefore the guidelines set out in the aforesaid circular would not be applicable to the case of the petitioner. The position of law is elucidated by this Court in the case of Narayanbhai Ramabhai v. State of Gujarat 26(1) GLR 531. In para 1 of the judgment it is inter alia observed that the authority while deciding the question for granting exemption under Section 20(1) has to keep in view all the relevant guidelines applicable at the time the question comes up for consideration. If the earlier guidelines have been uniformly withdrawn all pending applications are to be decided in the light of the fresh guidelines which may be holding the field on the date of the decision. If that is not done, the authority exercising powers under the Act would be exposed to the charge of considering old and State guidelines ignoring the current and applicable guidelines and its decision would be rendered arbitrary and illegal. I am in respectful agreement with the aforesaid observations made by my learned brother, Majmudar, J. It is not even the case of the petitioner that the guidelines under which the aforesaid Co-operative Housing Societies were granted exemption were in force on the date when the application was submitted on July 13, 1986. Thereafter the application has been decided on August 21, 1986. Thus neither on the date of submission of application, nor on the date of consideration thereof the aforesaid guidelines were in force.
8. The learned Counsel for the petitioner submitted that in view of the decision of this High Court in the case of Nirmalaben v. State of Gujarat 25(1) GLR 322, the authorities exercising powers under Section 20 of the Act are not bound by the guidelines issued by the Government and the authorities should pass order of granting or rejecting the exemption application by keeping in view the provisions of the Act. There cannot be any quarrel with the aforesaid principles. In fact it is a division bench judgment and so long as it holds the field I am bound by it. In this view of the matter, if one examines the guidelines dated March 20, 1979 under which Shwetakunj Co-operative Housing Society and Sputnik Cooperative Housing Society were granted exemption, it would be clear that those guidelines were not in accordance with the provisions of the Act. Guidelines issued by resolution dated March 20, 1979 inter alia provide that in the case where construction had come up, even unlawfully, the same may be taken into consideration and be regularised. Such guidelines can never be said to be in conformity with the provisions of the Act. Therefore, having regard to the provisions of the Act also the Government could not have resorted to the guidelines contained in Government resolution dated March 20, 1979. However, this question does not arise before me because it is not shown by the petitioner that rejection of the review application by the impugned order is in any way in contravention of the provisions of the Act or the Rules framed thereunder. The impugned order is neither arbitrary nor-unreasonable nor illegal. It is perfectly in conformity with the law.
9. Therefore, reliance placed on this decision also does not help the petitioner.
10. In above view of the matter, the impugned order passed by the Competent Authority rejecting the application for exemption cannot be in any way held to be illegal or void. There is no error, much less an error apparent on the face of the record. Hence the petition fails and the same is rejected. Notice discharged.