Gujarat High Court
Urvashiben Kanubhai Shah vs State Of Gujarat on 10 June, 2021
Equivalent citations: AIRONLINE 2021 GUJ 1258
Author: Vineet Kothari
Bench: Vineet Kothari, B.N. Karia
C/LPA/41/2017 JUDGMENT DATED: 10/06/2021
URVASHIBEN KANUBHAI SHAH VS STATE OF GUJARAT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 41 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 11205 of 2000
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
In R/LETTERS PATENT APPEAL NO. 41 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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URVASHIBEN KANUBHAI SHAH
Versus
1, STATE OF GUJARAT
2. COMPETENT AUTHORITY & DY.COLLECTOR
3. DY.SECRETARY, REVENUE DEPARTMENT
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Appearance:
MR NILESH A PANDYA(549) for the Appellant(s) No. 1,1.1,1.2
MR SOAHAM JOSHI, AGP (4) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE B.N. KARIA
Date : 10/06/2021
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C/LPA/41/2017 JUDGMENT DATED: 10/06/2021
URVASHIBEN KANUBHAI SHAH VS STATE OF GUJARAT
ORAL JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. This appeal is directed against the order dated 30.8.2016 passed by learned Single Judge rejecting Special Civil Application No.11205 of 2000 filed by appellant - petitioner Urvashiben Kanubhai Shah now represented by her legal representatives Saileshbhai Kanubhai Shah and Rajeshbhai Kanubhai Shah through Power of Attorney Hasmukhbhai N.Pasari. The observations of the learned Single Judge to the relevant extent are quoted below for ready reference.
"8. In the instant case, the possession of the excess vacant land having been already taken over by the State Government after following the due process of law, after issuing the notification under Section 10(3) of the said Act, and the notice under Section 10(5) and the same having remained unchallenged till the Repeal Act came into force, it was not open for the petitioners to raise the dispute in the present petition that possession of excess vacant land taken over by the State Government was not in accordance with law.
9. In that view of the matter, the Court does not find any substance in the present petition. The petition, therefore, is dismissed. The request of Mr. Pandya, learned counsel for the petitioners to continue the interim relief for some time to enable the petitioners to approach the higher Forum, is rejected for the reasons stated above.
10. Interim relief, if any, stands vacated forthwith. Rule is discharged."Page 2 of 13 Downloaded on : Mon Sep 06 07:33:08 IST 2021
C/LPA/41/2017 JUDGMENT DATED: 10/06/2021 URVASHIBEN KANUBHAI SHAH VS STATE OF GUJARAT
2. Learned counsel for the appellant Mr.Nilesh Pandya submitted that initially declaration under the provisions of the Urban Land (Ceiling & Regulation) Act 1976 (hereinafter referred to as "the Act") was filed by the appellant petitioner in 1983 on which the competent authority passed the order on 27.7.1983 which is placed on record. Against that, appeal was filed by the petitioner appellant before the learned Urban Land Ceiling Tribunal which appeal numbered as Appeal No.167 of 1983 - Urvashiben Kanubhai Shah Vs Competent Authority came to be disposed of by the competent authority on 8.6.1987. Relevant portion of the said order is also quoted below for ready reference.
"3. The appellant's grievances are two fold. The first grievance is that the suit land was held by her as the karta of HUF and therefore other co-parceners in the land should be allowed their due shares. On this point, CA noted in the impugned order, that the suit land was purchased by the appellant herself; it was her self acquired property and there was no question of the land being ancestral or inherited. CA's decision is fully supported by the records and it is proved that the suit land was appellant's self acquired land. The plea of shares of other persons in the land cannot therefore, be allowed.
4. The second contention was that the land was located in green belt/agricultural zone and therefore it was not "vacant land" under the Act. Here again, CA noted that the suit land was not agricultural land; in VF 7/12 it was entered as non agricultural land and plots had already been demarcated. Thus since the land was non agricultural, CA did not agree that the land was non vacant land.
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5. Regarding the plea of the land being of green belt/agricultural zone, in addition to the above said evidence considered by CA, another fact also has come to notice. The certificate from Baroda Urban Development authority submitted by the appellant shows that the suit land was in the agricultural zone as per the Development plan approved on 21.9.1970. However, another certificate dtd. 27.12.1979 at p.177/181 of CAs papers, submitted by the appellant, shows that in the Draft Development plan under consideration of BUDA the suit land was located in the residential zone. According to the provisions of TP Act, draft Development plan, for all practical purposes has the force of development plan. In any case, in the development plan since approved by the Govt., S.No.1001 is located in the residential zone. For this reason also, the appellant's plea that the suit land is non vacant land falling in agricultural zone, cannot be accepted. (As per definition of master plan, the plan "for the time being in force" is to be considered; and there is no doubt therefore that irrespective of the location of the land in the plan of 1970, the suit land has now to be treated as non agricultural, non vacant land.)
6. There is therefore, no valid ground to interfere with orders passed by CA.
ORDER This is appeal is dismissed and the impugned order is upheld.
Parties to be informed.
Pronounced this on the 8th June, 1987 under Page 4 of 13 Downloaded on : Mon Sep 06 07:33:08 IST 2021 C/LPA/41/2017 JUDGMENT DATED: 10/06/2021 URVASHIBEN KANUBHAI SHAH VS STATE OF GUJARAT my hand and seal of office."
3. The appellant approached this Court against this order of Tribunal by way of filing Special Civil Application No.6030 of 1987 which came to be dismissed by the learned Single Judge on 3.4.1989 upholding the acquisition of surplus and excess land determined by the competent authority under the provisions of the Act. The short order dismissing Special Civil Application No.6030 of 1987 is also quoted below for ready reference.
"Special Civil Application No.6030 of 1987.
Coram : M.B.Shah,J.
3.4.1989 Order :
Authorities below have arrived at the conclusion that Survey No.1001 is located in residential zone and therefore there is no question of non-application of the Urban Land (Ceiling & Regulation) act, 1976 on the ground that the said land was situated in Agricultural land and in green belt area. For verification of this finding, record and proceedings of the appellate authority was called for. In the proceedings there is a certificate issued by the Town Planning Office to the effect that S.No.1001 was located in residential zone.
In this view of the matter, there is no substance in this matter. Hence, this petition is rejected. Notice discharged. Ad interim relief stands vacated.
3.4.1989. (M.B.Shah,J)"Page 5 of 13 Downloaded on : Mon Sep 06 07:33:08 IST 2021
C/LPA/41/2017 JUDGMENT DATED: 10/06/2021 URVASHIBEN KANUBHAI SHAH VS STATE OF GUJARAT
4. No Letters Patent Appeal was filed against this order and the decision of the learned Single Judge was accepted by the appellant petitioner. However, again it appears that appellant Urvashiben Kanubhai Shah approached the learned Tribunal vide another Appeal No.23 of 1998 for determining her choice of land to the extent of 1500 square meters which land she was entitled to retain under the provisions of the Act. Though, no such second appeal without any fresh order by the competent authority was maintainable under section 33 of the Act, learned Tribunal somehow appears to have entertained such appeal and passed remand order to the competent authority to determine selection of 1500 square meters of land in question for the appellant petitioner. Relevant portion of the said order of the Tribunal dated 20.8.1998 in vernacular with english translation is quoted below for ready reference.
English translation of the said order is quoted below for ready reference.
Page 6 of 13 Downloaded on : Mon Sep 06 07:33:08 IST 2021C/LPA/41/2017 JUDGMENT DATED: 10/06/2021 URVASHIBEN KANUBHAI SHAH VS STATE OF GUJARAT "Therefore, it appears that the interest of justice would be served if the competent authority is directed to pass necessary rectification order as per the provisions of the law regarding retainable land, after giving an opportunity of selection to the appellant in the interest of justice, and to offer the retainable land from the land owned by the appellant, considering the area as per T.P.Scheme according to the rules prevailing in the government. Hence, I pass following order.
The appeal of the appellant is partly allowed. The competent officer has held land admeasuirng 1500.00 square meters as retainable to the person submitting statement by his order dated 27.7.1983. Considering the area as per the T.P.Scheme as per rules prevailing in the government regarding the said land, after giving an opportunity of selection to the appellant and after giving reasonable opportunity of hearing and to produce sufficient evidence to the appellant for completing the procedure to give the same from the land owned by the appellant, I remand this matter back to the competent officer, Vadodara to pass necessary rectification order after verifying all aforesaid facts.
Orders to be informed to the parties.
Decided today on 20th August 1998. Put my signature and office stamp.
Place : Ahmedabad Sd/- Illegible
(Varesh Sinha)
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C/LPA/41/2017 JUDGMENT DATED: 10/06/2021
URVASHIBEN KANUBHAI SHAH VS STATE OF GUJARAT Urband Land Tribunal & Ex-Officio Secretary, Revenue Department, Gujarat State, Ahmedabad."
5. Before repeal of the ULC Act with effect from 30.3.1999, the competent authority appears to have complied with the said remand directions of learned Tribunal on 30.3.1999 itself and gave 1500 square meters of land to the petitioner to which only she was entitled and that too even after taking into account the deduction of the land which was taken away under the Town Planning Scheme and a map to this effect was prepared, which is placed on record at Annexure-R15 on 30.3.1999 itself i.e. last date of life of the Urban Land (Ceiling & Regulation) Act 1976 in the State of Gujarat.
6. All these positions of facts were explained in the Affidavit filed by the respondent State dated 4.12.2008 before the learned Single Judge. Relevant portion of which is quoted below for ready reference.
"5. I say and submit that my non dealing with parawise may not be construed as admission on my part.
6. I say and submit that on 13.08.1976, the petitioner herein had filed a declaration under section 6(1) of the ULC Act. Thereafter, on the same date which is 13.08.1976, the petitioners herein had filed an application for exemption under section 20 of the ULC Act. I say and submit that on 27.07.1983 under section 8(4) of the said Act, land admeasuring 2428 sq.mtr. of survey No.1001(A) and 64 sq.mtr. of survey No.1001(B) was declared excess by the competent authority. Therefore, in total 2429 sq.mtr. have been declared excess by the competent authority. (Annexure R-I Section 6(1) dated 13.08.1976 and Page 8 of 13 Downloaded on : Mon Sep 06 07:33:08 IST 2021 C/LPA/41/2017 JUDGMENT DATED: 10/06/2021 URVASHIBEN KANUBHAI SHAH VS STATE OF GUJARAT AnnexureR-II Section 8(4) 27.07.1983.)
7. I say and submit that on 31.03.1984, notification under section 10(1) was issued by the Competent Authority and the same was published in the gazette on 07.06.1984. I say and submit that the petitioners herein have preferred an appeal before the Tribunal under section 33 of the ULC Act challenging the order dated 27.07.1983 declaring 2492 sq.mtr. of land as excess. I say and submit that the Hon'ble Tribunal had on 20.09.1983 passed stay order wherein the proceedings under section 10(1) onwards were stayed by the Tribunal. I say and submit that the Hon'ble Tribunal by order dated 08.06.1986 was pleased to upheld the order dated 27.07.1983 declaring 2492 sq.mtr. land as excess land. (R3 20.09.1983, R4 08.06.1986, R5 Sec 10(1)).
8. I say and submit that on 26.06.1987 notification under section 10(3) was issued by the Competent Authority. I further say and submit that order under section 10(5) was issued by the competent authority on 07.11.1987. I further say and submit that the petitioners herein have preferred Special Civil Application being No.6030 of 1987 in the year 1987 challenging the said land being declared as excess. I say and submit that the said Special Civil Application was rejected by this Hon'ble Court on 03.04.1989 on the grounds that the said Special Civil Application is filed without any merits. I further say and submit that notice under section 10(6) was issued by the Competent Authority on 10.05.1989. (R6 26.06.1987, R7 10(5) 07.11.1987, R8 03.04.1989, R9 SEC 10(6) 10.05.1993. (R-X panchnama 16.01.1990, R-11 Section 11dated 24.09.1993).
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9. I say and submit Panchnama was drawn on 16.01.1990, with respect to the possession taken over of the said land. I say and submit that order with respect to compensation was issued by the competent authority on 24.09.1993.
10. I say and submit that the petitioner herein had preferred another appeal under section 33 of the ULC Act challenging the order dated 27.07.1983 declaring 2492 sq.mtrs. as excess land by the Competent Authority, the said appeal was filed on the ground that the town planning area has not been taken into consideration by the authority while declaring excess land and also on the ground that the petitioner would be given a choice of selecting a suitable peace of land. I further say and submit that the said appeal being No.23 of 1997 was partly allowed by the Hon'ble Tribunal on 20.08.1998 and remanded the said matter to the competent authority for considering the said grounds raised by the petitioner in appeal No.23 of 1997. (R-XII 20.08.1998).
11. I say and submit that the competent authority on 23.03.1999 passed a revised order deducting the area falling under the T.P.Scheme and thereafter declared 1927 sq.mtr. of land as excess land. I further say and submit that the competent authority on 24.03.1999 prepared a revised map as per the selected area of land as ordered by the Learned Tribunal dated 23.03.1999. I further say and submit that the competent authority on 30.03.1999 gave the petitioner the said map as prepared on 24.03.1999 taking into consideration the area selected by the petitioner. (R-
Page 10 of 13 Downloaded on : Mon Sep 06 07:33:08 IST 2021C/LPA/41/2017 JUDGMENT DATED: 10/06/2021 URVASHIBEN KANUBHAI SHAH VS STATE OF GUJARAT XIII 23.03.1999, R-XIV 24.03.1999) (R-XV 30.03.1999).
12. I say and submit that out of the said land admeasuring 1927 sq.mtr. being declared as excess by the competent authority land admeasuring 952 sq.mt. has been given by the State Government to a public trust viz. Rangvatika Nandera Bhavan by an order dated 27.06.2000. I further say and submit that on 20.09.2000, the said peace of land admeasuring 952 sq.mtr. was handed over to the said trust. (R-XVI 27.06.2000 and R-XVII 20.09.2000)
13. I say and submit that in view of the facts stated hereinabove, the notifications issued from section 10(1) onwards till section 11 have not been quashed or set aside by neither the Hon'ble Tribunal, nor this Hon'ble High Court at any stage of litigation and therefore it cannot be said that by the revised order dated 23.03.1999 the proceedings stand abated as the said order was merely a correction order and the said order does not quashed or set aside order under section 8(4) not section 10(1), 10(3), 10(5), 10(6) and 11."
6. Learned Assistant Government Pleader Mr.Soaham Joshi submitted that though such second appeal was not maintainable before learned Tribunal, even assuming for the sake of argument that such remand direction could be given for taking into account the deduction on account of the Town Planning Scheme and choice of land indicated by the petitioner, that also stood complied with by the competent authority just before the repeal of the Act and therefore, nothing survives in the present Letters Patent Appeal. He also pointed out that though the prayer was made in Special Civil Application No.11205 of 2000 for even Page 11 of 13 Downloaded on : Mon Sep 06 07:33:08 IST 2021 C/LPA/41/2017 JUDGMENT DATED: 10/06/2021 URVASHIBEN KANUBHAI SHAH VS STATE OF GUJARAT quashing the entire acquisition proceedings to the extent of 3427 square meters for revenue survey No.1001/A but only the prayer made before this Court now by Mr.Pandya, learned counsel for the appellant was that possession and right of the appellant petitioner to the extent of 1500 square meters as per entitlement when the provisions of the Act were available, can be protected which is also beyond the prayer made in the Special Civil Application without seeking any modification of the prayer.
7. Other contentions raised by learned counsel for the appellant petitioner that since the Act stood repealed on 30.3.1999 itself, entire land of 3427 square meters should revert back to the appellant petitioner is misconceived and the said submission cannot be entertained. On this aspect of the matter, controversy involved in this appeal is concluded by several detailed judgments recently decided by this Court under the ULC Act only which are referred herein below.
(i) Letters Patent Appeal No.405 of 2017 (Heirs of Deceased Jethabhai Ishwarbhai Vs State of Gujarat and others) decided on 22.1.2021.
(ii) Letters Patent Appeal No.555 of 2011 (Dalwadi Mujlibhai Mathurbhai Since Deceased Through heirs Vs State of Gujarat through Secretary) decided on 11.2.2021.
(iii) Letters Patent Appeal No.1411 of 2016 (Chandralal Mulchand Ambavani Vs State of Gujarat ) decided on 22.2.2021.
(iv) Letters Patent Appeal No.1281 of 2016 (Prabhatbhai Shivabhai Solanki Through Lrs Vs State of Gujarat ) decided on 23.2.2021.
(v) Letters Patent Appeal No.941 of 2016 (Ravijibhai Page 12 of 13 Downloaded on : Mon Sep 06 07:33:08 IST 2021 C/LPA/41/2017 JUDGMENT DATED: 10/06/2021 URVASHIBEN KANUBHAI SHAH VS STATE OF GUJARAT Chhotabhai Patel Vs Competent Officer and DY Collector) decided on 25.3.2021.
(vi) Letters Patent Appeal No.263 of 2013 (Ganesh Industrial Estate Vs Additional Deputy Collector) decided on 20.4.2021."
8. Since the proceedings under the ULC Act in the first round of litigation stood concluded and even the Notification under section 10(3) of the Act was issued in 1987 vesting the excess land in the State free from any encrumbrance, the contention that with the repeal of law on 30.3.1999, the land should revert back to the petitioner appellant, cannot be sustained.
9. In view of the aforesaid, we do not find any merit in the appeal and as a matter of fact, the prayer even if it is modified as prayed before us by learned counsel for the appellant petitioner, stood granted with the remand direction of the Tribunal, though we find that no such second appeal was maintainable before the Tribunal. Therefore, anything beyond what is already given to the petitioner appellant, who is now represented through her Legal heirs, cannot be granted to the petitioner appellant. Therefore, this appeal is dismissed both as having become infructuous and on merits as well. We do not find any case to grant any further relief to the petitioner appellant. The appeal is accordingly dismissed with no order as to costs.
(DR. VINEET KOTHARI,J) (B.N. KARIA, J) H.M. PATHAN Page 13 of 13 Downloaded on : Mon Sep 06 07:33:08 IST 2021