Gujarat High Court
P.J. Sachinwala vs Competent Authority And Additional ... on 11 February, 1992
Equivalent citations: (1992)1GLR583
JUDGMENT A.N. Divecha, J.
1. Do the provisions of the Urban Land (Ceiling & Regulation) Act, 1976 (the 'Act' for brief) automatically apply on extension of the municipal limits of a Municipal Corporation under the relevant provisions contained in the Bombay Provincial Municipal Corporations Act, 1949? This is the main question arising in these two petitions under Article 226 of the Constitution of India.
2. It may be stated that the facts stated in these two petitions are different. The question of law for the purpose of application of law is common in both these petitions. Besides, at the time of issuing Rule on Special Civil Application No. 7293 of 1990 on 21st March, 1991, it was ordered to be heard with Spl. Civil Application No. 6494 of 1990. I have therefore thought it fit to dispose of both these petitions by this common judgment of mine.
3. The petitioner in Special Civil Application No. 6494 of 1990 claims to be in possession of lands bearing Survey Nos. 493, 494, 496, 497, 510, and Block No. 185 situated in village Sachin, Taluka Choryasi, District Surat. He obtained permission from the Senior Town Planner of the Surat Urban Development Authority (the 'SUDA' for convenience) at Surat for construction thereon of residential units. Such permission was granted to the petitioner by the order passed on 27th December, 1985. Its copy is at Annexure 'A' to this petition. Such permission was made subject to certain terms and conditions. Condition No. 2 required the petitioner to obtain the necessary permission under Section 65 of the Bombay Land Revenue Code, 1879 (the 'Code' for brief) before using the lands in question for non-agricultural purposes. It appears that the petitioner wanted the permission for non-agricultural use of the entire area of the lands in question. He thereupon made one application to the District Development Officer on 15th January, 1990. Its copy is at Annexure 'B' to this petition. It appears to have been sent to the Taluka Development Officer of the Choryasi Taluka Panchayat for the necessary action. He wanted to seek regularisation of the construction of residential units made on the lands in question pursuant to the permission granted by the Authority of the SUDA at Annexure 'A' to this petition. In the meantime the Municipal limits of the Surat Municipal Corporation (the 'Corporation' for brief) came to be extended by one notification of 15th March, 1986 issued by the Government of Gujarat in its Urban Development and Urban Housing Department. The extended areas were to be included in the Municipal limits with effect from 1st April, 1986. At Annexure 'C' to the petition is a copy of the list of villages falling within the periphery of 5 Kms. of the extended Municipal limits of the Corporation. In view of this position, the Taluka Development Officer of the Choryasi Taluka Panchayat wrote a letter to respondent No. 1 being the Competent Authority under the Act to clarify whether No Objection Certificate was necessary for granting the permission for non-agricultural use of any land and/or to regularise such non-agricultural use as applied by the petitioner. A copy of the communication of 12th March, 1990 written by the Taluka Development Officer to respondent No. 1 herein is at Annexure 'D' to this petition. It is the grievance of the petitioner that respondent No. 1 caused no reply to the communication at Annexure 'E' to this petition. He thereupon preferred this petition in this Court on 29th August, 1990 for declaration that the Act is not applicable to the lands in question in possession of the petitioner.
4. So far as the Special Civil Application No. 7293 of 1990 is concerned, the first petitioner is a co-operative society registered under the Gujarat Co-operative Societies Act, 1961 and the second petitioner is its Chairman and Member. According to it, it purchased various plots of land situated in villages Sachin, Vanz, Lajpore, Popada and Bhatiya. When the sale deeds representing purchase of those lands were presented to the Sub-Registrar at Surat for registration in accordance with the relevant provisions contained in the Indian Registration Act, 1908, the registering authority did not register the sale deeds for want of the No Objection Certificate from the Competent Authority under the Act. It may be mentioned that the Competent Authority under the Act is impleaded as respondent No. 2 and the registering authority as respondent No. 3 in this petition. The petitioner thereupon approached respondent No. 2 for clarification in that regard. By his reply of 19th April, 1990, respondent No. 2 informed the petitioner that the Act was made applicable to the areas falling within the extended limits of the Surat Municipal Corporation with effect from 1st April, 1986. The petitioners have thereupon approached this Court by way of this petition under Article 226 of the Constitution of India for declaration that the Act will not apply to the lands represented by the sale deeds presented for registration before respondent No. 2.
5. It would be quite proper to look at certain provisions of the Act to the extent necessary for the purpose of understanding and appreciating the rival contention urged before me. The term 'urban agglomeration' has been defined in Section 2(n) of the Act. It reads:
Urban agglomerations-
(A) In relation to any State or Union Territory specified in Col. (1) of Schedule I, means-(i) the urban agglomeration specified in the corresponding in entry in Col. (2) thereof and includes the peripheral area specified in the corresponding entry in Col. (3) thereof; and
(ii) any other area which the State Government may, with the previous approval of the Central Government, having regard to its location, population (population being more than one lakh) and to such other relevant factors as the circumstances of the case may require, by notification in the Official Gazette, declared to be an urban agglomeration and any agglomeration so declared shall be deemed to belong to category D in that Schedule and the peripheral area therefor shall be one kilometre;
(B) In relation to any other State or Union Territory, means any area which the State Government may, with the previous approval of the Central Government, having regard to its location, population (population being more than one lakh and such other relevant factors as the circumstances of the case may require, by notification in the Official Gazette, declare to be an urban agglomeration and any agglomeration so declared shall be deemed to belong to category D in Schedule I and the peripheral area therefor shall be one kilometre.
The term "urban land" has been defined in Section 2(o) thereof. To the extent necessary it is reproduced as under:
Urban land" means (1) any land situated within the limits of an urban agglomeration and referred to as such in the master plan, or
(iii) in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of a Municipality (by whatever name called), a notified area committee, a town area committee, a City and town committee, a small town committee, a cantonment Board or Panchayat, but does not include any such land which is mainly used for the purpose of agriculture.
The term "vacant land" has been defined in Section 2(q) thereof. To the extent necessary it is reproduced as under:
Vacant land' means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration.
Section 4 thereof prescribes the ceiling limit for the purposes of the Act. Its relevant provisions read:
(1) Subject to the other provisions of this section, in the case of every person, the ceiling limit shall be,
(a) where the vacant land is situated in an urban agglomeration falling within category A specified in Schedule I, five hundred square metres;
(b) where such land is situated in an urban agglomeration falling within category B specified in Schedule I, one thousand square metres;
(c) where such land is situated in an urban agglomeration falling within category C specified in Schedule I, one thousand five hundred square metres.
(d) Where such land is situated in an urban agglomeration falling within category D specified in Schedule I, two thousand square metres.
(2) Where any person holds vacant land situated in two or more categories of urban agglomerations specified in Schedule I then, for the purpose of calculating the except of vacant land held by him.
(a) one square metre of vacant land situated in an urban agglomeration falling within category A shall be deemed to be equal to two square metres of vacant land situated in an urban agglomeration falling within category B, three square metres of vacant land situated in an urban agglomeration falling within category C and four square metres of vacant land situated in an urban agglomeration falling within category D:
(b) one square metre of vacant land situated in an urban agglomeration falling within category B shall be deemed to be equal to one and one-half square metres of vacant land situated in an urban agglomeration falling within category C and two square metres of vacant land situated in an urban agglomeration falling within category D; and
(c) one square metre of vacant land situated in an urban agglomeration falling within category C shall be deemed to be equal to one and one-third square metres of vacant land situated in an urban agglomeration falling within category D. Section 6 thereof requires every person holding vacant land in excess of the ceiling limit at the commencement of the Act to file a statement before the Competent Authority giving certain particulars specified therein. The relevant provisions contained therein read:
(1) Every person holding vacant land in excess of the Ceiling limit at the commencement of this Act shall, within such period as may be prescribed, file a statement before the competent authority having jurisdiction specifying the location, extent, value and such other particulars as may be prescribed of all vacant lands and of any other land on which there is a building, whether or not with a dwelling unit therein, held by him (including the nature of his right, title or interest therein) and also specifying the vacant lands within the ceiling limit which he desires to retain: Provided that in relation to any State to which this Act applies in the first instance, the provisions of this Sub-section shall have effect as if for the words "Every person holding vacant land in excess of the ceiling limit at the commencement of this Act", the words, figures and letters "Every person who held vacant land in excess of the ceiling limit on or after the 17th day of February, 1975 and before the commencement of this Act and every person holding vacant land in excess of the ceiling limit at such commencement" had been substituted.
Explanation: In this section, "cosnmencement of this Act" means, (i) the date on which this Act comes into force in any State;
(ii) where any land, not being vacant land, situated in a State in which this Act is in force has become vacant land by any reason whatsoever, the date on which such land becomes vacant land;
(iii) where any notification has been issued under Clause (n) of Section 2 in respect of any area in a State in which this Act is in force, the date of publication.
Section 26 thereof requires a notice in writing of the intended transfer to be given to the Competent Authority before transfer of vacant lands. Section 27 thereof puts an embargo on transfer of any urban property except with the previous permission in writing of the Competent Authority. Section 28 thereof requires the registering authority not to register any document under the relevant provisions contained in the Registration Act, 1908 unless the relevant provisions contained in Sections 26 or 27 as the case may be, are complied with. Section 38 of the Act inter alia makes contravention of Section 6 thereof to be an offence for which punishment of imprisonment for a term which may extend to two years or of fine which may extend to Rs. 5,000/- or of both is prescribed. The controversy raised in these two petitions will have to be resolved in the light of the aforesaid relevant provisions contained in the Act.
6. It thus becomes clear from the definition of the term 'urban agglomeration' contained in Section (2)(n) of the Act that any area other than that specified in Schedule I of the Act can be declared to be an urban agglomeration. It means addition to the urban agglomeration specified in Schedule I thereof can be made by the State Government. Two conditions are prescribed for such addition to the urban agglomeration by the State Government. The first condition is that it should be done with the previous approval of the Central Government. The second condition is that a notification in the Official Gazette should be issued. It appears that the idea behind seeking the previous approval of the Central Government could be that the Central Government should be consulted before any addition to the urban agglomeration specified in Schedule I of the Act is made because it is a piece of legislation enacted by the Central Legislature, that is, Parliament. Parliament in its wisdom might have specified a particular area to be the urban agglomeration. As aforesaid, power to add to it has been given to the State Government. In order to prevent any unwarranted exercise of such power by the State Government with relation to a piece of legislation made by the Central Legislature, the condition of the previous approval of the Central Government appears to have been prescribed. The prescription of the second condition of publication of the notification in the Official Gazette in that regard is to inform the public likely to be affected by such addition to the urban agglomeration specified in Schedule I of the Act. Both these conditions have to be fulfilled in order to exercise the power conferred upon the State Government by Clause (ii) of Clause (A) of Clause (n) of Section 2 of the Act. It may be mentioned that, under Clause (B) thereof, the State Government is empowered to declare any area outside what is specified in Schedule I thereof to be an urban agglomeration on fulfilment of these very two conditions of the previous approval of the Central Government and publication of the notification in that regard in the Official Gazette. The power conferred on the State Government under Clause (B) of Clause (n) of Section 2 does not call for any detailed discussion thereon. The controversy raised in this petition centers round the agglomeration area pertaining to the city of Surat. It figures at Serial No. 4.6 in Schedule I of the Act. Any addition to the urban agglomeration specified with respect to the city of Surat will have to be in accordance with the power conferred upon on the State Government under Clause (ii) of Clause (A) of Clause (n) of Section 2 of the Act.
7. It is a settled principle of law that when a statutory provision circumscribes the exercise of a power conferred on a person or a body in a particular manner, such power has to be exercised by that person or body only in that manner and in no other manner. I am fortified in my view by the binding ruling of the Supreme Court in the case of Ramachandra Keshav Adke v. Gavind Joti Chavake and Ors., . II has been held therein:
Where a power is given to do certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden.
8. In that view of the matter, no addition to the urban agglomeration can be made except in accordance with the relevant provisions contained in Section 2(n) of the Act. It is an admitted position on record that the municipal limits of the Surat Municipal Corporation have come to be extended by the notification issued on 15th March, 1986 to be effective from 1st April, 1986 under the relevant provisions contained in the Bombay Provincial Municipal Corporations Act, 1949 (the 'BPMC Act' for brief). It is again an admitted position on record that no notification for any addition to the urban agglomeration specified in the corresponding entry at Serial No. 4.6 in Schedule I of the Act has been issued. However, in view of my aforesaid discussion, in absence of issuance of any notification as contemplated under Section 2(n) thereof, the Act will have no automatic application to the extended area on expansion of the municipal limits of the Surat Municipal Corporation. The relevant provisions contained in Section 2(n) of the Act rule out any possibility of such automatic application of the Act to the extended municipal limits of Surat Municipal Corporation by a notification issued under the relevant provisions contained in the BPMC Act.
9. Clause (iii) in the Explanation given below, Section 6(1) of the Act also furnishes a clue in that regard. As pointed out hereinabove, thereunder every person holding vacant land in excess of the ceiling limit at the commencement of this Act is required to file before the Competent Authority a statement giving particulars as mentioned therein. The expression "at the commencement of this Act" occurring therein has been explained in Clause (iii) of the explanation appearing therebelow as "where any notification has been issued under Clause (n) of Section 2 in respect of any area in a State in which this Act is in force, the date of publication". It thus becomes clear that the obligation to file a statement under Section 6(1) of the Act would arise with respect to the added area in the urban agglomeration only on publication of the notification under Section 2(n) of the Act. If automatic application of the Act was contemplated on extension of the municipal limits of the Corporation, the person on whom such obligation is cast under Section 6 of the Act will remain non-plussed as to when he should file his statement thereunder. In order to enable such person to discharge his obligation under Section 6 thereof, it is necessary for the State Government to issue a notification if any area is sought to be added to the urban agglomeration.
10. The same result would be obtained on examination of this question from a different angle. As pointed out hereinabove, omission to discharge the obligation cast on a person under Section 6 of the Act would visit him with a penalty under Section 38 thereof. It is an admitted position that the municipal limits of the Corporation have come to be extended by the notification issued under the relevant provisions contained in the BPMC Act on 15th March, 1986 to be effective from 1st April, 1986. The Act was not applicable to the extended Municipal Limits of the Corporation prior to issue of the said Notification of 15th March, 1986. If automatic application of the Act as contended by and on behalf of the respondents is accepted, the Act would be applicable in that area on extension of the municipal limits. In that case the expression "at the commencement of this Act" occurring in Section 6(1) thereof will have to be assigned a meaning different from what is explained in the Explanation occurring therebelow. In that case such expression will have to be meant as from the date of publication of the notification extending the municipal limits of the concerned Corporation. It would amount to re-writing or adding to the Explanation given below Section 6(1) thereof. It cannot be gainsaid that it is not open to this Court to re-write any statutory provision or to add anything thereto when the meaning thereof is otherwise quite clear. I think on examining this question from this angle also, there is no escape from the conclusion that the automatic application of the Act on account of extension of the municipal limits of the Corporation involved in this case is clearly ruled out.
11. Again, we may not overlook the drastic consequences that might follow on acceptance of the theory of automatic application of the Act to the extended municipal limits of the Corporation in question. It would tantamount to visiting the person on whom some obligation is cast under Section 6 thereof with the penal consequences specified in Section 38 thereof, retrospectively. Such construction of this enactment would offend the relevant provisions contained in Article 20(1) of the Constitution of India. It needs no telling that this salutary constitutional provision prohibits enactment of any ex post facto penal provision. It militates against enforcement of any penal provision ex post facto. In that view of the matter, there is no escape from the conclusion that no automatic application of this Act is contemplated to the extended limits of the Corporation involved in this case by virtue of the Notification of 15th March, 1986 issued under the BPMC Act.
12. Besides, Clause (ii) of Clause (A) of Clause (n) of Section 2 provides for consequences on declaration of certain areas to be an urban agglomeration on issue of the notification contemplated thereunder. Two consequences are specified therein. In the first place, the added area would fall within category D in Schedule I of the Act and, in the second place, the peripheral area thereof shall be 1 kilometer. It thus becomes clear that category D will be assigned to the added area in the urban agglomeration for the purposes of Section 4 of the Act. Besides, the peripheral area with respect to the added area in the urban agglomeration is limited to only 1 kilometer. If we turn to Serial No. 4.6 in Schedule I of the Act, category C is specified with respect to urban agglomeration for the City of Surat. Again, the peripheral area prescribed against that entry is 5 kilometers. If the theory of automatic application of the Act to the extended municipal limits of the city of Surat is accepted, the added area in the urban agglomeration of Surat would continue to remain in category C for the purposes of Section 4 of the Act and its peripheral area would continue to remain 5 kms. This would run counter to the relevant provisions contained in Section 2(n) thereof. This is one more reason why the theory of automatic application of the Act to the extended municipal limits of the city of Surat has to be ruled out.
13. In view of my aforesaid discussion, I am of the opinion that the concerned authorities in each of these two petitions has entertained an erroneous belief and impression that the Act would automatically be applicable to the extended municipal limits of the city of Surat by virtue of the Notification of 15th March, 1986 issued under the BPMC Act. They deserve to be directed to act according to law in the light of this judgment with respect to the grievances of the petitioners voiced in each of these two petitions.
14. In the result, both these petitions are accepted.
15. The Competent Authorities in both these petitions are directed to act according to law in the light of this judgment with respect to the contemplated actions for the petitioners in each case. In other words, the concerned authorities involved in Special Civil Application No. 6494 of 1990 are directed to deal with the application made by the petitioner under Section 66 of the Code according to law in the light of this judgment and the concerned authorities in Special Civil Application No. 7293 of 1990 are directed to act according to law in the light of this judgment with respect to presentation of the sale deeds for registration. Rule is accordingly made absolute, however, with no order as to costs.