Gujarat High Court
SCA/5309/1987 of PATEL LAXMANBHAI SAVDASBHAI Vs COMPETENT AUTHORITY & DY COLLECTOR, ULC & 1 on 17 October 1995
1 Date of Decision: 17th October 1995 SPECIAL CIVIL APPLICATION NO. 5309 of 1987 FOR APPROVAL AND SIGNATURE THE HONOURABLE MR. JUSTICE A.N. DIVECHA 1. Whether Reporters of Local Papers may be allowed to see the judgment? No 2. To be referred to the Reporter or not? No 3. Whether their Lordships
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���Date of Decision: 17th October 1995
SPECIAL CIVIL APPLICATION NO. 5309 of 1987
FOR APPROVAL AND SIGNATURE
THE HONOURABLE MR. JUSTICE A.N. DIVECHA
1. Whether Reporters of Local Papers may be allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether their Lordships wish to see the fair copy of judgment? No
4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder? No
5. Whether it is to be circulated to the Civil Judge? No
---------------------------------------------------------------- Shri J.R. Nanavaty, Advocate, for the Petitioner Shri Y.M. Thakkar, Asst. Govt. Pleader, for the Respondents---------------------------------------------------------------- CORAM: A.N. DIVECHA, J.
(Date: 17th October 1995)
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ORAL JUDGMENT
The order passed by the Competent Authority at Rajkot(respondent No. 1 herein) on 26th November 1987 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) on16th July 1987 inter alia in Appeal No. Rajkot-196 of 1986 is under 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 36847.52 square meters.
2. The facts giving rise to this petition move in a narrowcompass. The dispute centres round one parcel of land bearingSurvey No. 311 (part) admeasuring 9 acres 18 gunthas situatedwithin the urban agglomeration of Rajkot (the disputed land forconvenience). By the order passed by and on behalf of the StateGovernment on 25th February 1978, exemption under sec. 20(1) ofthe Act was granted qua the disputed land on certain terms andconditions. Later on the exemption came to be withdrawn by theorder passed by and on behalf of the State Government on 11thJune 1986 under sec. 20(2) of the Act for breach of certainconditions. Prior thereto, the petitioner had submitted hisdeclaration in the prescribed form under sec. 6(1) of the Actwith respect to his holding within the urban agglomeration ofRajkot. His holding consisted of the disputed land only. Thatform was duly processed by respondent No.1 and, by his orderpassed on 26th November 1986 under sec. 8(4) of the Act, theholding of the petitioner was declared to be in excess of theceiling limit by 36847.52 square meters. Its copy is atAnnexure A to this petition. The petitioner carried the matterin appeal before Respondent No. 2 under sec. 33 of the Act.It came to be registered as Appeal No. Rajkot-196 of 1986. Itwas heard along with Appeal No. Rajkot-195 of 1986. By thecommon order passed in the aforesaid two appeals on 16th July1987, respondent No. 2 dismissed both the appeals. Its copy isat Annexure B to this petition. The aggrieved petitioner hasthereupon approached this court by means of this petition underArt. 227 of the Constitution of India for questioning thecorrectness of the order at Annexure A to this petition asaffirmed in appeal by the appellate order at Annexure B to thispetition.
3. Relying on the binding ruling of the Supreme Court inthe case of Smt. Atia Mohammadi Begum v. State of U.P. andOthers reported in AIR 1993 SC 2465, Shri Nanavaty for thepetitioner has urged that the disputed land has to be excludedfrom the holding of the petitioner as it was used foragricultural purposes on the date of coming into force of theAct. It appears that this point was not urged before the lowerauthorities. Since this point goes to the root of the matter, Ioverrule the objection against raising this new plea raised bylearned Assistant Government Pleader Shri Thakkar for therespondents and have permitted the petitioner to raise this pleabefore this court.
4. Since neither authority below has applied its mind tothis aspect of the case, it would be necessary to remand the matter to respondent No. 1 for restoration of the proceeding tofile and for his fresh decision according to law in the light ofthe following three questions:
(i) Was there in existence any master plan answering its definition contained in sec. 2(h) of the Act?
(ii) What was the position of the disputed land in the master plan? Was it situated in the agricultural zone or any other zone?
(iii) Was the disputed land used for agricultural purposes on the date of coming into force of the Act?
5. In order to allow the matter to be remanded torespondent No. 1, it would be necessary to quash and set asidethe impugned order at Annexure A to this petition as affirmed inappeal by the appellate order at Annexure B to this petition.
6. 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 on 16th July 1987 inter alia in Appeal No.Rajkot-196 of o1986 at Annexure B to this petition is quashedand set aside. The matter is 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. Rule isaccordingly made absolute to the aforesaid extent with no orderas to costs.
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