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[Cites 6, Cited by 1]

Gujarat High Court

Valiben Wd/O Shakarabhai Alias ... vs State Of Gujarat And 3 Ors. on 16 January, 2007

Equivalent citations: (2007)2GLR1278

Author: Jayant Patel

Bench: Jayant Patel

JUDGMENT
 

Jayant Patel, J.

Page 0551

1. The short facts of the case are that as per the petitioners, petitioner Nos. 1 & 2 are the owners of the land bearing Survey No. 622 admeasuring 16390 sq.mtr. & land bearing Survey No. 503 admeasuring 15985 sq. mtr. 503 at village Ishanpur in Ahmedabad district. As the Urban Land(Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the ULC Act'), came into force, the petitioner Nos. 1 & 2 filed separate forms under Section 6 of the Act and as per the petitioners, their shares in the land bearing Survey No. 622 inter alia with the other land were declared. On 05.10.1989, the petitioner Nos.1 & 2 entered into an Agreement with petitioner No. 3 which is a Cooperative Housing Society for purchase of the land. As per the petitioners, an application for exemption was made under Section 20 of the ULC Act on 07.10.1989. However on 02/22.11.1989, the order came to be passed by the ULC Authority under the ULC Act for declaring 50% of the land bearing Survey No. 622 admeasuring 8888.75 sq. mtr. together with the other land as excess land. It may be recorded that in the said order passed under Section 8(4) of the ULC Act by the Authority, it was found that in the land bearing Survey No. 622, there is equal share of Shakrabhai @ Shankersing and Galalben. However, the form of Shankersing was processed but the Page 0552 form of Galalben remained pending. It appears that on 17.12.1989, the final statement came to be issued under Section 9 of the Act so far as holding of the land by Shakrabhai is concerned declaring various lands as excess land including the land bearing Survey No. 622(hereinafter referred to as 'the land in question'). The notification under Section 10(1) of the ULC Act came to be issued on 25.10.1990 qua excess land and on 24.01.1991, notification under Section 10(3) of the Act was issued for vesting of the excess land including the land in question in the Government. Thereafter, it appears that as per the State Government, on 18.12.1991, action under Section 10(5) of the Act was taken for the possession and the possession also came to be taken over on 18.12.1991.

2. As per the Government, the whole Survey No. 622 was comprising of the larger area, but the Government has taken possession of the land, which is declared as surplus land on 18.12.1991, pursuant to the order passed by the ULC Authority.

3. In the year 1995, Shakrabhai @ Shankersing together with others preferred Special Civil Application No. 2211 of 1995 for the relief inter alia to quash and set aside the order dated 22.11.1989 passed by the ULC Authority declaring surplus lands including the land in question as excess land and it was also prayed in the said petition to declare that the petitioners were having no excess land. In the said petition, on 04.05.1995, this Court (Coram:A.N.Divecha,J.) in the petition passed the following order:

It is not in dispute that the declaration in the prescribed form filed by petitioner No. 4 herein is pending for disposal by the Competent Authority at Ahmedabad. It also pertains to some portion of the subject-matter of this petition. Learned Assistant Government Pleader Shri D.C.Dave informs me that the said declaration in the prescribed form filed by petitioner No. 4 herein will be disposed of as expeditiously as possible preferably by 31st July 1995. Petitioner No. 4 through her learned Advocate agrees to co-operate in its expeditious disposal.
2. In view of the aforesaid observation, this petition stands disposed of as withdrawn at the instance of learned Advocate Shri Y.N.Oza for the petitioners. It is clarified that the petitioners are divested of all interests in the subject-matter of this petition except to the extent they are permitted to retain the land within the ceiling limit waived the impugned orders and to the extent the declaration in the prescribed form filled in by petitioner No. 4 is pending for disposal. It is further clarified that the first three petitioners will not be permitted to deal with the subject matter of this petition in any manner whatsoever except to the extent they have been permitted to retain the land within the ceiling limit under the impugned orders. Petitioner No. 4 is also directed to maintain status quo with respect to the subject-matter of this petition till her declaration in the prescribed form is finally disposed of. The respondents may dispose of the surplus land as declared under the impugned orders but may not hand over the Page 0553 possession thereof in favour of its allottee or allottees till the declaration made by petitioner No. 4 is finally processes and disposed.
3. Subject to the aforesaid directions, this petition stands disposed of. Notice is discharged. The ad-interim relief stands vacated.
4. Therefore, by virtue of the said order, first three petitioners therein, viz. Shakrabhai @ Shankersing and his both sons whose land were declared as surplus land were divested of all interest in the subject matter of the petition except to the extent of retainable land and except to the extent of declaration in the prescribed form filed by petitioner No. 4, pending the disposal. The aforesaid was in view of the circumstance that the form filed by petitioner No. 4 therein, Galalben, was pending and was yet not finalised. It was further ordered by the Court that first three petitioners will not be permitted to deal with the subject matter of the petition except to the extent of retainable land, but the pertinent aspect is that the retainable land did not include the land in question bearing Survey No. 622 and the land in question was declared as the surplus land. It was further ordered by this Court that petitioner No. 4 Galalben shall also maintain status quo with respect to the subject matter of the petition till her declaration in the prescribed form is finally disposed of. The Court further observed that the respondent authority may dispose of the surplus land as declared under the impugned order but may not hand over the possession thereof in favour of the allotee or the allotees till the declaration made by the petitioner No. 4 is finally processed and disposed of.
5. The aforesaid order came to be passed by the Court in view of two circumstances, one being that two co-owners of the land bearing Survey No. 622 had separately filed form under the ULC Act and the second was that qua one of the co-owner viz. Shakrabhai @ Shankersing, the form was processed and the land in question to the extent of share of Shakrabhai @ Shankersing was declared as excess land and vested to the Government, whereas qua share of Galalben, the form was not finalised and the matter continued as pending proceedings under the ULC Act. Since it was a matter pertaining to the declaration of the land as surplus land of two co-owners and as the aspect of possession vis-a-vis the right of the other co-owner viz. Galalben was yet to be finalised, the Court permitted the allotment but did not permit the entrustment of possession to the allottee. It appears that the Court while passing the said order, intended to permit for allotment but the possession to the allotee was not to be given till the form of petitioner No. 4 therein Galalben, petitioner No. 2 herein is finally processed and disposed of.
6. On 27.11.1997, the State Government passed the order for allotting the portion of the land under Section 23 of the ULC Act to respondent No. 3 Society. It appears that thereafter, on 19/24.03.1998, form of Galalben was processed under Section 8 of the ULC Act and various lands including the land in question bearing Survey No. 622 admeasuring 8195 sq. mtr. was declared as excess land. It deserves to be recorded that it was observed by the competent authority under the Page 0554 ULC Act in the said order that the exemption application is referred to but, no material is produced for taking any decision under Section 20 of the ULC Act and therefore, the pendency of the said application is not required to be taken into consideration.
7. It appears that thereafter, the petitioner No. 3 herein viz. Nikunj Cooperative Housing Society, preferred Special Civil Application No. 2637 of 1998 for directing the State Government to decide the exemption application under Section 20(1) of the ULC Act dated 07.10.1989 and also for challenging the allotment made to the respondent No. 3 herein by the State Government vide order dated 17.11.1997. This Court (Coram:M.S.Shah, J.) in the said petition, on 24.06.1998, did record that a portion of the land is allotted to respondent No. 5 therein (respondent No. 3 herein) and the another portion of the land has also been allotted by the State Government to the Dasa Modh Vanik Gnyati Mandal pending the application for exemption under Section 20(1) of the ULC Act. This Court ultimately directed the State Government to hear and decide the application for exemption dated 07.10.1989 within stipulated time limit after giving opportunity of hearing to the allottees , viz. respondent No. 3 herein as well as respondent No. 4 herein. It appears that thereafter, on 31.12.1998, the State Government passed the order in the application for exemption under Section 20(1) of the ULC Act made by the land holders and the Society, petitioner No. 3 herein. It was observed by the State Government that there is a case to be considered for exemption. However, keeping in view the two circumstances, i.e. one of the allotment of the land to respondent No. 3 society for weaker sections and the allotment of the land to respondent No. 4 Society for construction of old age home (vrudh ashram) and with the circumstances of availability of the land, it was ultimately ordered by the State Government to grant exemption for the land admeasuring 10,390 sq. mtr. out of the total area of 16,390 sq. mtrs. which included the land admeasuring 8195 sq. mtr. of Galalben bearing Survey No. 622 and land admeasuring 2195 sq. mtr. of Shakrabhai @ Shankersing bearing Survey No. 622 whereas qua the land bearing Survey No. 503, the exemption came to be granted for the land admeasuring 15,985 sq. mtrs. To say in other words, the allotment made of the land bearing Survey No. 622 was maintained to the extent of 4,500 sq.mtr. for respondent No. 3 Society as against the original allotment of 5245 sq. mtrs. and the allotment was maintained for 1500 sq. mtrs. for respondent No. 4 Society as against the original allotment of 2230 sq. mtrs.
8. It may be stated that as per the affidavit filed on behalf of the respondent No. 2 by Shri J.B. Solanki, competent authority under the ULC Act vide para 9, it has been stated that after the order dated 19.03.1998 passed by the competent authority, declaring the land of petitioner No. 2 viz. Galalben as excess land, appeal was preferred before the Urban Land Tribunal and by interim order, it was directed by the Tribunal that till the appeal is finally disposed of, the Notice under Section 10(3) of the ULC Act shall not be published. Therefore, it is not in dispute that the land of Page 0555 Galalben which has been declared as surplus/excess land, more particularly qua the land bearing Survey No. 622, neither has vested to the Government nor the possession is taken over by the authority under the ULC Act atleast during the period when the ULC Act was in force and even after the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as 'the Repeal Act').
9. Under the circumstances, the petitioners namely Shakrabhai @ Shankersing, through his legal heirs, Galalbhai, petitioner No. 2 herein, and the Society, petitioner No. 3 herein, have approached to this Court for challenging the order passed by the State Government for grant of exemption in part and have prayed to grant exemption in respect of the entire land bearing Survey No. 622.
10. It may be recorded that initially this petition came to be disposed of by this Court (Coram: A.L. Dave, J.) as per the order dated 16.03.2002 mainly on the ground that in view of the order passed by this Court in Special Civil Application No. 2211 of 1995 and thereafter, in Special Civil Application No. 2637 of 1998, the present petition is barred and therefore, the Court ultimately did not entertain the petition. The matter was carried before LPA Bench being Letters Patent Appeal No. 768 of 2002 in Special Civil Application No. 156 of 1999 and vide order dated 13.07.2005, the Division Bench of this Court observed inter alia that the Special Civil Application filed by the appellants therein who are the petitioners herein questioning the legality of a part of the order dated 31.12.1998 could not have been dismissed as not maintainable or barred by res judicata by assuming that the issue stands finally adjudicated in the earlier litigation and therefore, the Division Bench by setting aside the order remanded the petition for fresh adjudication and hence before this Court.
11. I have heard Mr. A.J. Patel, learned Counsel for the petitioners, Mr. Chayya, learned AGP for the ULC and State Authorities, Mr. Parikh for respondent No. 3 and Mr. Shah for respondent No. 4.
12. The matter as such can be segregated into three parts; one for the rights of Shakrabhai @ Shankersing; the another qua the rights of Galalben and the third for petitioner No. 3 Society viz. Nikunj Cooperative Housing Society. In light of the rights of the respective petitioners as may be construed hereinafter, the matter can further be examined also vis-a-vis the power of the State Government coupled with the rights of the allottees, i.e. respondent Nos.3 & 4 herein.
13. If the first aspect is examined qua the rights of Shakrabhai @ Shankersing, hardly any challenge can be sustained to the extent of declaration of the land to the Government and also for the action of the Government to take over the possession except to the extent of the rights so connected of the co-owner by Galalben which shall be dealt hereinafter separately.
14. However, the challenge may be sustained to the limited extent of seeking exemption under Section 20 of the ULC Act on the premise that the land is Page 0556 declared as excess/surplus land having vested to the Government and the possession is also taken over.
15. It is not in dispute that the order dated 04.05.1995 passed by this Court in Special Civil Application No. 2211 of 1995 is not carried before any higher forum and the order is holding the field. Qua the rights of the petitioner No. 1, who was also petitioner No. 1 in Special Civil Application No. 2211 of 1995 and the sons of Shakrabhai @ Shankersing namely Kishansing and Harising are concerned, while concluding the challenge, the Court expressly divested them from all interest in the subject matter of the petition to the extent of excess land declared by the Government. Therefore, such divesting of all interest would include of challenging the legality and validity of the order for a declaration of the land as excess land, challenging the action of the Government for vesting of the land to it and also for challenging the action of the Government for taking over of the possession under Section 10(5) of the ULC Act. All such challenge came to be concluded after the order dated 04.05.1995 was passed by this Court. Therefore, the contention as sought to be canvassed on behalf of the petitioners by Mr. Patel that there is no proper action as contemplated under Section 10(5) of the ULC Act for taking over of the possession and that even if the land is vested to the Government under Section 10(3) of the Act, if the possession is not taken over in accordance with law, the matter would be covered by the Repeal Act and the proceedings would abate, cannot be entertained and deserves to be rejected outright.
16. The petitioner No. 1 herein who accepted the order dated 04.05.1995 cannot be heard to make any grievance which were expressly or by necessary implication negatived by the Court while passing the order in Special Civil Application No. 2211 of 1995.
17. Mr. Patel, learned Counsel appearing for the petitioners attempted to submit that the question of action of the Government for taking possession was not finalised by this Court in the proceedings of Special Civil Application No. 2211 of 1995, more particularly because, the Court permitted allotment but prohibited the entrustment of the possession and therefore, he submitted that it cannot be said that the petitioner No. 1 was divested on the aspects of possession.
18. In my view, so far as the petitioner No. 1 or his legal representatives are concerned, the Court expressly divested them from all interest which would include the interest to claim possession and merely because the allotees were not to be entrusted possession or that the Government was prohibited from entrusting the possession to the allottees, cannot be read as nullifying the specific observations and directions of the Court directing the petitioners to divest all interest in the subject matter of the petition. Such may at the most, require consideration for petitioner No. 4 therein who is petitioner No. 2 herein namely Galalben whose right shall be separately examined, but not in any case for petitioner Nos. 1 to 3 therein and the petitioner No. 1 herein. Hence, the said contention of Mr.Patel cannot be accepted.

Page 0557

19. The examination of the rights of Galalben qua the land in question deserves consideration. It is not in dispute that the order was passed under the ULC Act and the land in question held by Galalben was also declared as excess land. However, as recorded hereinabove, from the affidavit of the State Authorities, the respondent No. 2 herein, since there was prohibitory for not to publish notification under Section 10(3) of the ULC Act, the land in question has not vested to the State Government and in any case, it is not even the case of respondent No. 2 that the possession is taken over qua the land, which were declared as excess land in the form processed of Galalben. Therefore, the case of Galalben would fall within the scope and ambit of the Repeal Act and as a consequence of the Repeal Act, the proceedings vis-a-vis the rights of the land in question of Galalben, shall stand abated. Under the circumstances, petitioner No. 2 Galalben would be entitled to claim her rights over the land in question in absolute, subject to the restriction as co-owner of the land bearing Survey No. 622.

20. It is not in dispute that petitioner No. 1 and petitioner No. 2 were not co-owner of the land in question. Even if there was vesting of the land in question of the Government under Section 10(3) of the Act, the Government would step into the shoes of Shakrabhai @ Shankersing as co-owner of the land bearing Survey No. 622 and therefore, the interest of the Government with Galalben, petitioner No. 2 herein, shall remain as co-owner. Even on the aspects of possession taken over by the Maintenance Surveyor on behalf of the ULC Authority on 18.12.1991, Shakrabhai @ Shankersing was divested of all interest and as a consequence thereof, as observed hereinabove, he may not be heard to make any grievance after the order passed by this Court in the year 1995, but this Court in the very order did not divest Galalben from her right or interest in the land and the rights of Galalben were protected to that extent. Therefore, when the land in question belonging to Galalben is not declared as excess/surplus land and Galalben continues to claim right over the whole parcel of the lands as co-owner of Survey No. 622, subject to 50% of the share of the Government being acquired of Shakrabhai @ Shankersing, the action of taking over of the possession by the ULC Authority of the land in question in the Form filed by Sakrabhai cannot be said as binding to Galalben.

21. Mr. Parikh for respondent No. 3 as well as Mr. Chayya, learned AGP attempted to submit that Galalben was one of the petitioner No. 4 in the petition of 1995 and therefore, all such actions of the ULC Authority are binding to petitioner No. 4 also in view of the order dated 04.05.1995 passed by this Court in Special Civil Application No. 2211 of 1995 and it was contended that therefore, the action of taking over of the possession of a part of the land bearing Survey No. 622 cannot be validly challenged by Galalben or is binding to Galalben. In my view, such contention is based on not only wrong interpretation of the order dated 04.05.1995, but is also contrary to the basic scheme of the ULC Act and also the provisions to the Transfer of Properties Act. The rights in the property of all co-owners unless divided by metes and bounds by partition continues to operate over Page 0558 the whole parcel of land. Further, it was required for the ULC Authority to simultaneously process the form of Galalben who was one of the co-sharer and since the same was not undertaken, this Court in its order dated 04.05.1995, did not passed order qua divesting of the interest in the subject matter for Galalben since Form of Galalben was yet to be finalised at that stage. Therefore, the action of taking over of the possession by the ULC Authority upon the form processed by the ULC Authority of Shakrabhai @ Shankersing cannot be said as binding to Galalben to the extent of taking over of the possession by making the division themselves (ULC authority) for a part of the land which was declared as excess land from the whole parcel of land bearing Survey No. 622. Therefore, such attempt on the part of the learned Counsel appearing for respondent Nos. 3, 4 and the learned AGP for respondent No. 2 fails.

22. If Galalben is to hold the property as co-owner with the Government, and if either of the party desires to get his or her share in the property which is of co-ownership, the normal mode may be to file a Suit for partition. It does not mean that such Suit for partition may be required even in cases where two co-owner inter se decides by their volition to get a particular share being identified to the extent of his/her right. In my view, if in cases where the Government is to co-own the property with the other citizen, whose land is not declared as excess land and if the Government in such cases, is relegated to the remedy of filing Suit for partition, may be on account of the resistance by the other co-owner or otherwise, it might frustrate the proper implementation of the ULC Act, more particularly after the stage of declaration of the land as excess land for acquiring the property through the process of taking over of the possession. Therefore, under such circumstances, when the land of one of the co-owner is declared as excess land and the Government has stepped into the shoes of such co-owner and the land of other person, who is also a co-owner is not declared as excess land, the option can be given to the other person whose land is not declared as excess land to choose a particular parcel of land to the extent of share in the land as co-owner. Even otherwise also, as per the Scheme of Section 6, while filling up the form, the option is available to the holder of the land to describe the particulars of the vacant/excess land which such person is desirous to retain within the ceiling limit.

23. It is true that there is no express provision for choosing option for the land which is to be declared as excess land but, if for retention of the land upto the ceiling limit, the option is available as per Section 8(2)(iii) of the Act, it would mean that from amongst the total holding, the holder can decide a particular portion or the land to be retained by him upto the ceiling limit and therefore, consequently, the remaining land may be opted by the holder for surrender in the event such land is declared as excess land. In my view, such option available to the holder of the land can be termed as a valuable right which, if allowed to be invoked, would resultantly cause lesser hardship to the holder of the land whose excess land otherwise is to be acquired by paying the compensation subject to the maximum as prescribed Page 0559 in the ULC Act. Therefore, when the State is to acquire the property of the citizen under enforcement of any statutory law consequently resulting into deprivation of the property, if such option is read in view of the provisions of Section 8(2)(iii) of the ULC Act, qua the holder of the land, the same would not cause serious prejudice to the State and the reason being that the State even after acquisition of the land under the ULC Act, is not normally to retain itself, but to distribute such lands to the weaker section or for a particular class of the Society as per Section 23 and other relevant provisions of the Act. Therefore, if the holder of the land is having option to the extent of making declaration of the retainable portion, consequently, such option would stand extended to the land which is to be declared as excess land and if such option is permitted to be maintained in cases where the Government is co-owner of the land with other citizens, the same would lessen the long procedure of filing Suit for partition as per normal law and the proper effect of the object and mechanisms of the Act can be given. Therefore, if Galalben, who is to hold 50% interest/share in the land bearing Survey No. 622 with the Government who is also to hold 50% interest/share in the land acquired from Shakrabhai @ Shankersing and consequently, if option is made available to Galalben whose land is not in any case declared as excess land, to choose a parcel of land as against the share of the Government in the land bearing Survey No. 622, the same would not cause any serious prejudice to the interest of the State Government and would meet with the option available to the person concerned for choosing the land to the extent of retainable portion and consequently qua the land to be declared as surplus land. It may be recorded that though the form of Galalben was finalised, and but for Repeal Act, the proceedings have abated under ULC Act, and the fact remains that the Galalben was holding the land as co-owner, which was subjected to the ULC Act and for such land, the form was also filed by her. Therefore, when the action of taking over of the possession was effected in the year 1991, the whole portion of the land bearing Survey No. 622 was not out of the net of the ULC Act. Therefore, such option could be made available to Galalben at the time when the possession was taken of the land held by Shakrabhai @ Shankersing. Since at that time, the form of Galalben was yet to be finalised and nobody conceived the enactment of the Repeal Act, in the year 1995, the Court only observed to the extent of preserving the rights of Galalben. After the Repeal Act, as such, in view of the observations made hereinabove, proceedings under ULC Act have abated, but such abatement cannot be read as frustrating the rights of Galalben over the whole portion of the land bearing Survey No. 622 as co-owner. Hence, I find that if the option is made available to Galalben for whole of the portion of the land, which is not declared as excess or rather the proceedings have abated, the same would not cause any serious prejudice to the Government. As regards the rights of allottees are concerned, they are in any case, through the State Government and on the premise that possession is with the State Government. Further, as ordered by this Court on 04.05.1995, the allotment was only to be made and the possession was not to be handed Page 0560 over and therefore, in any event, the allottees cannot peach their case beyond the allotment and they cannot assert the possession over a particular portion of the land as of right and therefore, if such an option is made available for identifying the share of Galalben and the declaration of the land as excess/surplus land held by Shakrabhai @ Shankersing is maintained, coupled with the allotment being maintained in favour of respondent Nos. 4 & 5, the same also would in my view, be just and proper.

24. It may be recorded that learned Counsel for the petitioners, during the course of the argument did submit alternatively that in any case, the option may be available to the petitioners and Mr. Patel, during the course of hearing has also produced on record the communication by his client dated 16.01.2004 that the statement made by him for choosing the option is binding to all the petitioners. It may also be recorded that in the affidavit-in-reply, filed on behalf of respondent No. 3 Society who is one of the allottee of the land, at para 6, declared inter alia that if the land at Ghodasar bearing Survey Nos. 277 and 331 is allotted under Section 23 of the ULC Act then, the respondent No. 3 Society is ready to let go the demand for the disputed land. However, respondent No. 4, as declared by Mr. Shah, learned Counsel, has shown unwillingness to permit such option to the petitioners for choosing the land. In my view, as such, the matter is not dependent upon the wish and desire of the allottee, whose rights are in any case, through the Government. If this Court in view of the reasons recorded hereinabove finds that with a view to give proper effect to the object and mechanism and the Scheme of the ULC Act, the option can be made available to the holder of the land, such option can be so ordered by this Court. The aforesaid declaration made on behalf of the petitioners as well as respondent No. 3 are recorded only with a view to observe that it remained as an alternative submission on behalf of the petitioners and respondent No. 3, one of the allottee who has deposited the amount, is agreeable for the other land, but respondent No. 4 whose money is not even accepted by the Government, has shown unwillingness to accept any other portion of the land.

25. The aforesaid takes me to examine the aspects for exercise of the power by the State Government for grant of exemption under Section 20 of the ULC Act. In the cases where the holder of the land is desirous to sell the land to a Cooperative Housing Society, the right remains with the holder of the land to make an application for exemption.

26. The reference may be made to the decision of the Apex Court in case of SSpecial Recovery Officer and Competent Authority v. P.S.Rao and more particularly, the observations made by the Apex Court at para 6 of the said decision, which reads as under:

Page 0561
6. In our view, it is only after the excess land is actually determined under Section 10 that a person can know the exact extent of excess land in his holding and think of asking for exemption. There may, of course, be some cases where the extent is so large that a claimant may be able to seek exemption even at the time of filing the declaration but even in those cases, he cannot be define about the actual extent of excess land.
The Apex Court thereafter further concluded at para 9 relevant of which reads as under:
9...As stated by us, before the excess is determined, a person will not be able to seek exemption because he does not know what is the actual excess land held and once the excess is determined, he cannot apply because he is not holding the excess land. Thus, the entire object of Section 20 will be frustrated. That is why we say that the definition of the words 'to hold' in Section 2(1) cannot be applied in the context of Section 20(1)(a) or Section 20(1)(b).

It was further observed by the Appex Court at para 10, inter alia, as under:

We are, therefore, unable to accept the contention of the learned Counsel for the State that an application for exemption can be maintained only before the excess is determined under Section 10. In our view, the Scheme of the Act is to the contrary.
24. Therefore, even if the holding is determined qua Shakrabhai @ Shankersing to the extent of surplus land, and even if Shankersing and his legal heirs are divested from the rights and interest over the land, the same would not operate as a bar to them to either apply for exemption qua the excess land declared, including the land in question, nor the same would preclude them from pursuing the application for exemption. Therefore, the order dated 4.5.1995 passed by this Court in Special Civil Application No. 2211 of 1995 cannot be read as foreclosing the right of Shankersing for applying or for pursuing the application for exemption under Section 20 of the ULC Act and in the event such application for exemption is not properly decided and the challenge is brought to this Court such challenge cannot be said as barred by the principles of res judicata in view of the decision of this Court dated 4th May, 1995 in SCA No. 2211 of 1995.
25. So far as Galalben is concerned, as observed earlier, though under ULC Act the land came to be declared as excess land, but on account of the interim stay granted by the Appellate Tribunal, the matter did not proceed further and, therefore, she, in any case, will have right to apply for exemption. Of course, in view of the Repealing Act, the proceedings under ULC Act for declaration of the land as surplus land may be abated, but when the State Government decided the application for exemption, the ULC Act was in operation. Therefore, under these circumstances, in any case, Galalben will have right to pursue the application for exemption and such application was required to be considered by the State Government in accordance with law.

Page 0562

26. If the position of petitioner No. 3 Society is examined, it appears that it was in capacity as a housing cooperative society desirous to purchase the land from the person, who is having excess land or whose land may be declared as excess. Principally the rights for seeking exemption as such vests to the land holder and the proposed purchaser may be housing cooperative society, will have the role to play in the matter of exemption to the extent of the utilization of the land for providing houses to the members of its society as the same is one of the relevant circumstances for considering the application for exemption under Section 20(1(a) read with Section 20(1)(b). Therefore, such right so far as it relates to the society, which is to purchase the land, is concerned, can be pressed in association with the rights of the land holder and not independently in in absolute, unless the society itself has already purchased the property prior to the ULC Act came into force.

27. Mr.Chhaya, learned AGP by relying upon the decision of this Court (Coram: R.S.Garg, J.) dated 20.12.2006 in SCA No. 3915 of 1992 attempted to submit that the undue hardship as per Section 20(1)(b) is to be considered for the owner/holder of the land and not for the proposed transferee and, therefore, he submitted that the hardship to the Society is not relevant circumstance for the Government to exercise the power under Section 20(1)(b) of the Act.

28. In my view, even if such principles are read under Section 20(1)(b) of the Act, the State Government itself in the impugned order has considered the ground of hardship to the holder of the land observing, inter alia, that if the permission is not granted, the holders are unable to refund the amount and, therefore, may cause hardship. Therefore, such principles, even if read would not alter the rights, if any, of the holder of the land, keeping aside the question of hardship to the Society, which is to purchase the land.

29. In view of the aforesaid discussion, all the petitioners were well within their rights to pursue the application for exemption under Section 20(1) of the Act to the extent of their respective rights as found hereinabove. As such, the Government has considered the application as being maintainable. Not only that, but the government while exercising the power under Section 20 of the ULC Act has granted exemption to the extent of permissibility of exercise of power. If the allotment is already made pending the proceedings of exemption and if the Government has denied the exemption on the ground that a portion of the land is already allotted under Section 23 of the ULC Act to a particular class of the society or for betterment of the society and the exemption is denied to that extent, such a ground cannot be said to be absolutely extraneous to the exercise of power by the State Government under Section 20 of the ULC Act. Even otherwise also, the power of exemption is to be exercised on various considerations and if the Government has denied the exemption to the holder of the land in association with the proposed purchaser housing society on the ground that the portion of the land is already allotted under Section 23 of the ULC Act to another housing cooperative society of the weaker section and a portion is allotted and to be entrusted for establishing of old-age home Page 0563 (vruddh ashram), such cannot be said as irrelevant circumstances, nor can it be said as a ground non-germane to the exercise of the power. Further, the perusal of the order passed by the State Government shows that the attempt is made for the purpose of identifying or considering the rights of the holder of the land in association with the desire for exemption to the extent inasmuch as the allotment made to respondent No. 3 society is reduced from 5245 to 4500 sq. mtrs., and even for respondent No. 4 whose allotment is for establishing old-age home, it has been reduced from 2230 sq. mtrs., to 1500 sq. mtrs., and the exemption is granted to the fullest extent so far as the land bearing Survey No. 503 is concerned and to the maximum possible extent so far as the land bearing Survey No. 622 is concerned. Therefore, such an exercise of the power by the State Government for grant of exemption to the extent of the land admeasuring 1039 bearing Survey No. 622 cannot be said as unreasonable or arbitrary or with extraneous consideration, save and except to the extent that as observed earlier, the opportunity was required to be given by the State Government to the holder of the land namely; Galalben to choose the area of a parcel of the land bearing Survey No. 622 in capacity as the co-owner, in any case.

30. The learned Counsel appearing for the petitioner as well as for respondents No. 3 and 4 did submit that pending the aforesaid proceedings and on account of subsequent inclusion of the area in the T.P. Scheme, the holding of the person concerned namely of the Government in capacity as having acquired the right of co-owner which was originally held by Shankersing and of Galalben so far as they pertain to the land bearing Survey No. 622, are further reduced and the whole area of Survey No. 622 of the land in question admeasuring 16392.90 sq. mtrs., is reduced to 12226 sq. mtrs., and out of the said area, there is reservation by the T.P. Authority for commercial purpose over the land admeasuring 1500 sq. mtrs. It was also submitted by the learned Counsel appearing for the petitioner and respondents No. 3 and 4 that the holding as per the T.P. Scheme of the petitioners would be reduced to 6798 sq. mtrs., whereas of respondent No. 3 would be reduced to 2946 sq. mtrs., whereas of respondent No. 4 would be reduced to 982 sq. mtrs., and, therefore, a very limited area is now available to the petitioner as well as to respondent Nos.3 and 4 for their future use. In my view, as such, if the T.P. Authority has included the area in the T.P. Scheme and the deduction is made it has to be in proportion with the original area held by the person concerned, including the adjustment of the area reserved for commercial purpose. For the remaining area the holder or the allottee, as the case may be, at the most would be entitled to the compensation as per the provisions of the Gujarat Town Planning and Urban Development Act, but such aspect can be finalized only after the option is given to petitioner No. 2 to choose her share as against the share of the Government and, thereafter the allottee would hold the property in furtherance thereof, through the State Government, but such inclusion of area in the T.P. Scheme and thereby getting a lesser area than the original holder or allottee, cannot be termed as a valid ground for assailing the order of exemption passed by the State Government.

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31. Under the above circumstances, in view of the aforesaid observations and discussions the impugned order passed by the State Government dated 31.12.1998 so far as it relates to granting exemption for the area admeasuring 10390 bearing Survey No. 622, does not deserve to be interfered with, since the challenge to the said order of grant of exemption only up to that area and not for the whole area is meritless, save and except to the extent that in view of the reasons recorded hereinabove, Galalben would be entitled to exercise option for whole for the land admeasuring 8195 sq. mtrs., (original measurement) or in proportion to the net amount as may be available in the T.P. Scheme and from the remaining area, which goes to the share of the Government, the State Government may identify the portion to be allotted to respondent No. 3 admeasuring 4500 sq. mtrs. (original measurement) or in proportion to the net area as may be available in the T.P. Scheme in proportion thereto and the area admeasuring 1500 sq. mtrs. (original measurement) to respondent No. 4 Society or the proportionate net area in the T.P. Scheme and the further remaining area admeasuring 2195 sq. mtrs. (original measurement) (in which the exemption is granted) in proportion to the next area as may be available in T.P. Scheme will be identified by the State Government. It is clarified that the reservation for commercial purpose over the land bearing Survey No. 622 in the T.P. Scheme shall remain as it is and shall not be disturbed by the present order and each holder namely; petitioner No. 2, the petitioner No. 1 and petitioner No. 3 in association with petitioner No. 1 and petitioners No. 2 as well as respondent Nos.3 and 4 society may be entitled to the actual area in proportion to the original holding also after adjustment of the area reserved for commercial purpose of admeasuring 1500 sq. mtrs.

32. It is also clarified that the present order shall not be read as investing any right with the respondent Nos.3 or 4 society to get the refund of the amount from the Government on account of the deduction in the T.P. Scheme and availability of the net area in the T.P. Scheme as against the original holding or allotment and the rights for proportionate compensation as may be available as per the provisions of the Gujarat Town Planning and Urban Development Act may be pursued in accordance with law separately.

33. The State Government in consultation with the concerned T.P. Authority and/or the ULC Authority and/or the Land Record Autority (DILR) shall get the option finalized and the area identified of the land bearing Survey No. 622 by giving effect to the present judgement as early as possible, preferably within a period of six months from the date of receipt of the order of this Court. All parties are also directed to cooperate the State Government, in complaince to the aforesaid directions.

34. The petition is partly allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and circumstances, there shall be no order as to costs.