SCA/5307/1987 of PATEL JINA SAVDAS Vs COMPETENT AUTHORITY & DY COLLECTOR, ULC & 1 on 16 October 1995

ORAL JUDGMENT

The order passed by the Competent Authority at Rajkot(respondent No. 1 herein) on 26th November 1986 under sec.8(4) of the Urban Land (Ceiling and Regulation) Act, 1976 ('theAct' for brief) as affirmed in appeal by the order passed by theUrban Land Tribunal at Ahmedabad (respondent No.2 herein) on 16th July 1987 inter alia in Appeal No. Rajkot-195 of 1986 isunder challenge in this petition under Art. 227 of theConstitution of India. By his impugned order, respondent No. 1declared the holding of the petitioner to be in excess of theceiling limit by 37094 square meters.

2. The facts giving rise to this petition move in narrow compass. The petitioner filed his declaration in the prescribedform under sec. 6(1) of the Act. It appears that his holdingincluded one parcel of land bearing Survey No. 311 (part)admeasuring 9 acres 19 gunthas. It appears that he applied forexemption under sec. 20(1) of the Act and by the order passedby and on behalf of the State Government on 25th February 1978,such exemption was granted. However, later on, by the orderpassed by and on behalf of the State Government on 5th June 1986under sec. 20(2) of the Act, such exemption came to bewithdrawn. Thereupon the declaration filed by the petitionerwas processed by respondent No.1 and, by his order passed on26th November 1986, the petitioners' holding was declared to bein excess of the ceiling limit by 37094 square meters. Its copyis at Annexure A to this petition. The aggrieved petitionercarried the matter in appeal before respondent No.2 under sec.33 of the Act. It came to be registered as Appeal No.Rajkot-195 of 1986. It was heard with Appeal No. Rajkot-196 of1986. By the common order passed on 16th July 1987 in theaforesaid two appeals, the petitioner's appeal came to bedismissed. Its copy is at Annexure B to this petition. Theaggrieved petitioner has thereupon approached this court bymeans of this petition under Art. 227 of the Constitution ofIndia for questioning the correctness of the order at Annexure Ato this petition as affirmed in appeal by the appellate order atAnnexure B to this petition.

3. Learned Advocate Shri Nanavaty for the petitioner hasurged that neither authority below has applied the mind withrespect to exclusion of the constructed area from the holding ofthe petitioner in view of the binding ruling of the SupremeCourt in the case of Smt. Meera Gupta v. State of West Bengaland Others reported in AIR 1992 SC 1567 and exclusion ofagricultural land from his holding in view of the binding rulingof the Supreme Court in the case of Smt. Atia Mohammadi Begumv. State of U.P. and Others reported in AIR 1993 SC 2465. Asagainst this, learned Assistant Government Pleader Shri Thakkarfor the respondents has urged that no such point was canvassedbefore the authorities below and it cannot be permitted to beurged before this court in this petition under Art. 227 of theConstitution of India. Learned Assistant Government PleaderShri Thakkar has further urged that, it is not the case of thepetitioner that the land was situated in agricultural zone.

the case of Smt. Meera Gupta (supra) came to light only in 1992and that in the case of Smt. Atia Mohammadi Begum (supra) cameto light some time in 1993. The exclusion from the holding ofthe land-holder on the ground of constructed area together withthe land appurtenant thereto and on the ground of agriculturaluse of land would go to the root of the matter. In that view ofthe matter, it would be open to this court to examine thesequestions in this petition under Art. 227 of the Constitutionof India though not urged before the authorities below.

5. It appears that the holding of the petitioner consistedof one plot of land admeasuring 300 square meters with aresidential house constructed therein. It does not become clearfrom the impugned order at Annexure A to this petition asaffirmed in appeal by the appellate order at Annexure B to thispetition whether or not such area has been included in thepetitioner's holding. If construction is authorised, such areais to be excluded from the land-holder's holding in view of theaforesaid binding ruling of the Supreme Court in the case ofSmt. Meera Gupta (supra).

6. So far as the land bearing Survey No. 311 (part) isconcerned, it does not become clear from the impugned orderswhether or not there existed any master plan answering itsdefinition contained in sec. 2 (h) of the Act, whether or notthe land was situated in the agricultural zone and whether ornot the land in question was used for agricultural purposes onthe date of coming into force of the Act. Neither authoritybelow has applied his mind to the aforesaid three aspects of thematter.

7. In view of my aforesaid discussion, I am of the opinion thatthe impugned order at Annexure A to this petition as affirmed inappeal by the appellate order at Annexure B to this petitioncannot be sustained in law. It has to be quashed and set aside.The matter deserves to be remanded to respondent No. 1 forrestoration of the proceeding to file and for his fresh decisionaccording to law in the light of this judgment of mine takinginto consideration whether or not the construction of house in aresidential plot in Rajkot was authorised and keeping in mindthe aforesaid three questions.

8. In the result, this petition is accepted. The orderpassed by the Competent Authority at Rajkot (respondent No.1herein) on 26th November 1986 at Annexure A to this petition asaffirmed in appeal by the common order passed by the Urban LandTribunal at Ahmedabad inter alia in Appeal No. Rajkot-195 of1986 at Annexure B to this petition is quashed and set aside.The matter is remanded to respondent No.1 for restoration of theproceeding to file and for his fresh decision according to lawin the light of this judgment of mine. Rule is accordingly made

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