Gujarat High Court
Girish Mangalal Mitra & vs Urban Land Ceiling Tribunal & on 13 February, 2017
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/4156/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4156 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of
the judgment ? YES
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of NO
India or any order made thereunder ?
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GIRISH MANGALAL MITRA & 1....Petitioner(s)
Versus
URBAN LAND CEILING TRIBUNAL & 1....Respondent(s)
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Appearance:
MR AR MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1 - 2
MR VENUGOPAL PATEL, AGP for the Respondent(s) No. 1 - 2
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
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Date : 13/02/2017
ORAL JUDGMENT
1. The present petition has been filed by the petitioners Girish Mangalal Mitra and Nitinbhai Chhotubhai Desai through their power-of-attorney holder Haribhai Bhimbhai Naik, seeking protection in respect of the possession of their lands bearing Survey Nos.534, 535, 536 and 537/1 of Village Jambuva, District Vadodara and seeking direction against the respondents to treat the entire ULC proceedings as abated in view of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as "the Repeal Act").
2. As per the case of the petitioners, they had jointly purchased the lands bearing Survey Nos.534, 535, 536 and 537/1 of the Village Jambuva, District Vadodara. On coming into force the Urban Land (Ceiling and Regulation) Act, 1999 (hereinafter referred to as "the ULC Act"), the petitioners had filled in the Form No.1 under Section 6(1) of the said Act and also put up a Scheme under Section 21 of the said Act for the purpose of constructing residential units for the weaker section of the Society. The competent authority after processing the form declared 12057 sq. mtrs., of the land, out of the said lands, as excess vacant land vide the order dated 12.8.1983 (Annexure-A). Being aggrieved by the said order, the petitioners had preferred an Page 2 of 9 HC-NIC Page 2 of 9 Created On Sat Aug 12 15:43:35 IST 2017 C/SCA/4156/2000 JUDGMENT appeal being No.244/1983 before the ULC Tribunal, who vide the order dated 30.1.1988 dismissed the said appeal (Annexure-B).
3. It is further case of the petitioners that the competent authority vide the order dated 9.8.1979 (Annexure-C) had rejected their application under Section 21 of the said Act for putting up construction of the residential units for the weaker section of the society on the ground that the scheme was not in consonance with the master plan. The petitioners being aggrieved by the said order had preferred an appeal before the ULC Tribunal, however, the said appeal also came to be dismissed by the Tribunal vide the order dated 21.5.1980 (Annexure-D). In the meanwhile, the lands in question were covered under residential zone in the master plan, and therefore, the petitioners again gave an application to the competent authority on 27.9.1980 for reconsideration of their application made under Section 21 of the Act. According to the petitioners, they had kept on sending reminders to the competent authority to reconsider the said application, however, no decision was taken by the respondent authority. The petitioners thereafter filed the Special Civil Application No.2377/1988, however, the same was also rejected by the High Court. It is also the case of the petitioners that the possession of the lands in question declared as excess vacant lands was not taken over from the petitioners, and therefore, Page 3 of 9 HC-NIC Page 3 of 9 Created On Sat Aug 12 15:43:35 IST 2017 C/SCA/4156/2000 JUDGMENT on the ULC Act having been repealed by the ULC Repeal Act, the entire proceedings had stood abated, and therefore, the respondent authority could not take the possession of the said lands. Apprehending that the possession would be disturbed, the petitioners had filed the present petition.
4. The petition has been resisted by the respondents by filing the affidavit-in-reply contending, inter alia, that the Special Civil Application No.2377 of 1988 was filed by the petitioners, challenging the order dated 12.8.1983 passed by the competent authority and the order dated 30.1.1988 passed by the ULC Tribunal in the appeal, which petition was dismissed on 26.3.1996, and the Letters Patent Appeal No.464 of 1996 filed against the said order was also dismissed on 24.8.2007. It is further stated that the notice under Section 10(5) was issued on 24.2.1988, calling upon the petitioners to hand over the possession of the lands in question and thereafter the Mamlatdar was appointed on 28.3.1988 to take over the possession of the said lands. It is further contended that after the repeal of ULC Act, the Government had issued the Government Resolution dated 20th October 2015 constituting the Committee to look into the issues with regard to the possession of the lands declared as excess vacant lands, and therefore, the petitioners should be relegated to the said Committee.
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5. After having heard the learned Advocates for the parties and on perusal of the original records of the case, it is required to be noted that the petitioners have filed the present petition after the repeal of the ULC Act seeking protection, apprehending dispossession of the lands in question on the ground that the possession of the said lands was not taken over by the State Government even after the repeal of the ULC Act. However, it appears that the petitioners have not disclosed the correct facts in this petition. It transpires from the record that the petitioners through their power-of-attorney holder had earlier filed Special Civil Application No.2375 of 1988 challenging the order dated 30.1.1988 passed by the ULC Tribunal, as also the order dated 12.8.1983 passed by the competent authority, declaring the lands in question as excess vacant land and had also sought direction to consider the scheme of the petitioners under Section 21 of the ULC Act. The said petition came to be dismissed vide the order dated 21.10.1999, on the ULC Act having been repealed by the ULC Repeal Act 1999. It further transpires that the petitioners, through their power-of-attorney holder had also filed the petition being Special Civil Application No.2377 of 1988, challenging the same orders of the Tribunal and the competent authority passed on 30.1.1988 and 12.8.1983 respectively. In the said petition the petitioners had also prayed Page 5 of 9 HC-NIC Page 5 of 9 Created On Sat Aug 12 15:43:35 IST 2017 C/SCA/4156/2000 JUDGMENT for the consideration of their scheme under Section 21 of the ULC Act. The said petition being SCA No.2377 of 1988 also came to be dismissed as per the order dated 26.3.1996 on merits. The LPA No.464 of 1996 preferred against the said order passed in SCA No.2377 of 1988 also came to be dismissed for default on 24.8.2007.
6. Now from the afore-stated orders passed in SCA No.2375 of 1988 and SCA No.2377 of 1988 it transpires that though the orders passed by the competent authority and the ULC Tribunal had become final so far as the declaration of the excess vacant land in question was concerned, no actual physical possession of the said lands was taken over by the respondent authorities. The Special Civil Application No.2375 of 1988 was dismissed by the Court on the ground that the said petition had stood abated in view of the fact that the petitioners were in possession of the lands in dispute on the date of repeal of the ULC Act. In the reply filed in the present petition also, the respondents have not made any positive statement as to how and when the possession of the subject lands was taken over by the respondent authorities. On the contrary it has been stated in the reply that the matter should be relegated to the Committee appointed by the Government to decide as to whether the possession of the lands in question was taken over or not. In the opinion of the Court, when Page 6 of 9 HC-NIC Page 6 of 9 Created On Sat Aug 12 15:43:35 IST 2017 C/SCA/4156/2000 JUDGMENT the earlier petition being SCA No.2375 of 1988 was dismissed on the ground of having been abated with the observation that the possession of the lands in question was not taken over, and in absence of any positive statement in the affidavit-in-reply filed in the present petition that the possession was taken over after following due process of law, it is required to be held that the possession of the lands in question was not taken over by the respondent authorities on the date of the repeal of the ULC Act, and therefore, all the proceedings had stood abated.
7. It is further required to be noted that the petitioners had filed two petitions being SCA No.2375 of 1988 and SCA No.2377 of 1988 seeking almost the same reliefs and though both the petitions were dismissed by separate orders, the respondent authorities had not preferred any LPA against the order dated 21.10.1999 passed in SCA No.2375 of 1988, though the Court had made specific observation that the possession of the lands in question was not taken over. It is true that the application of the petitioners under Section 21 of the said Act was already rejected by the competent authority and the said order was also confirmed by the ULC Tribunal, and that pending the SCA No.2375 of 1988 and SCA No.2377 of 1988, the ULC Repeal Act having come into force, the proceedings in respect of the application under Section 21 of the said Act had Page 7 of 9 HC-NIC Page 7 of 9 Created On Sat Aug 12 15:43:35 IST 2017 C/SCA/4156/2000 JUDGMENT also stood abated, however, as stated herein above, the respondent authorities have failed to point out as to when the possession of the said lands was taken over, and hence the only inference which deserves to be drawn would be that the possession of the lands in question was not taken over by the respondent authorities on the date of the repeal of the ULC Act. Hence, the present petition deserves to be allowed to that extent.
8. The petitioners have sought direction seeking protection against the possession of the said lands, however, the learned Advocate for the petitioners has failed to point out as to how the petitioners were in possession of the lands in question. The learned AGP has placed on record one panchnama carried out by the panch witnesses in presence of the Talati of Jambuva, which shows that on the lands in question some 169 residential units have been constructed in the township named Sanidhya. Under the circumstances, it could not be said that the petitioners are in possession of the lands in question.
9. In the aforesaid premises, the petitioners would be entitled to the relief only to the extent of the declaration that the proceedings under ULC Act had stood abated on the respondents having failed to point out that the possession was taken over before the repeal of the ULC Act. In that view of the Page 8 of 9 HC-NIC Page 8 of 9 Created On Sat Aug 12 15:43:35 IST 2017 C/SCA/4156/2000 JUDGMENT matter, the petition is partly allowed. It is held that the ULC proceedings in respect of the lands in question had stood abated in view of the Repeal Act 1999. The Rule is made absolute to the above extent.
(BELA M. TRIVEDI, J.) vinod Page 9 of 9 HC-NIC Page 9 of 9 Created On Sat Aug 12 15:43:35 IST 2017