Executive Of Khatu Mulji Parekh,Jaysinh Mulji Parekh ­ Defendants

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 67 of 2008 With CROSS OBJECTION No. 21 of 2008 In SECOND APPEAL No. 67 of 2008 For Approval and Signature:

HONOURABLE MR.JUSTICE M.R. SHAH ­sd/­ =========================================

========================================= STATE OF GUJARAT & 1 ­ Appellant(s) Versus EXECUTIVE OF KHATU MULJI PAREKH,JAYSINH MULJI PAREKH ­ Defendant(s) ========================================= Appearance :

MR. PRANAV DAVE ASSIT. GOVERNMENT PLEADER for Appellant(s) : 1 ­ 2. MR. J.R. NANAVATI WITH MR SUNIL B PARIKH for Defendant(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 14/06/2012 CAV JUDGMENT

1.0 Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants herein­ original defendants to quash and set aside the impugned judgment and decree passed by the learned 4th Joint Civil Judge (S.D.), Jamnagar dated 16.6.1997 passed in Regular Civil Suit No.361 of 1984, by which the learned trial Court has partly decreed the suit by granting declaration that the order passed by the appellant herein rejecting the application of the respondent herein ­original declarant for exemption under Section 20 of the Urban Land Ceiling Act (hereinafter referred to as “ULC Act”) is null and void and is in breach of principles of natural justice and granting permanent injunction restraining the appellants herein­original defendants not to transfer the suit property in any manner to anybody till the decision of the application under Section 20 of the ULC Act of the plaintiff is decided in accordance with law. The appellants herein­ original defendants have also prayed to quash and set aside the impugned judgment and order passed by the learned Appellate Court­ learned Additional District Judge, Jamnagar dated 27.10.2005 passed in Appeal No.31 of 1998, by which the learned Appellate Court has dismissed the said appeal preferred by the appellants herein­original defendants by confirming the judgment and decree passed by the learned trial Court.

2.0 The facts leading to the present Second Appeal in nutshell are as under:

2.1. That one Khatao Mulji Parekh was the owner of certain parcels of land inclusive of suit lands which were subjected to the provision of ULC Act. That on coming into force of the ULC Act, the original owner ­original plaintiff submitted the declaration / form under Section 6(1) of the ULC Act before the competent authority which was registered as Case No.158 of 1976. That the original declarant declared land admeasuring 6101 sq mtrs of land, out of land bearing survey no.1397 as vacant land under the provision of the ULC Act inclusive of disputed suit land in question in his holding. That the said form was processed by the competent authority under the ULC Act and after giving an opportunity to the original plaintiff ­original declarant the competent authority declared the land admeasuring 8101 sq mtrs out of land bearing Survey No.1397 situated at Jamnagar in his holding. It appears that thereafter notification under Section 10(3) of the ULC Act came to be issued on 23.5.1977 declaring 6101 land from the land bearing Survey No.1397 as excess vacant land. That the said notification was published on 2.6.1977. It appears that in the meantime the respondent herein­original plaintiff submitted the application for exemption under Section 20 of the ULC Act on 18.3.1977, which came to be rejected by the State Government vide order dated 6.12.1982 on the ground that as the land is already declared as excess vacant land there is no question of granting exemption under Section 20 of the ULC Act. It appears that thereafter, further notification under Section 10(5) of the Act came to be published and issued on 30.7.1983 and pursuant thereto the possession of the excess vacant land has been taken over by the State Government on 21.11.1983 in presence of panchas. It appears that thereafter the respondent­original plaintiff submitted the review application before the State Government against the order dated 6.12.1982 rejecting the exemption application under Section 20 of the Act, which also came to be rejected by the State Government vide its order dated 3.3.1984. Therefore, after the notification under Section 10(5) of the ULC Act was issued and the possession of the excess vacant land was taken over by the State Government, the same absolutely vested in the State Government and therefore, the State Government was to allot the said land either to the Slum Clearance Board or Gujarat Housing Board under Section 23 of the ULC Act. At that stage, respondent herein ­original plaintiff instituted Regular Civil Suit No.361 of 1984 for declaration that the orders passed by the State Government dated 6.12.1982 as well as 3.3.1984 rejecting his exemption application under Section 20 of the ULC Act are absolutely illegal as the same are passed without giving an opportunity to him and therefore, the same are in breach of principles of natural justice. The plaintiff also prayed for permanent injunction restraining the appellants herein­original defendants from transferring and/ or allotting the excess vacant land to any other authority and / or person till his application under Section 20 of the ULC Act is decided in accordance with law. The plaintiff also prayed for mandatory injunction directing the appellants herein­original defendants to return the possession of the excess vacant land. It was the specific case on behalf of the plaintiff that the orders passed by the State Government dated 6.12.1982 as well as 3.3.1984 rejecting his application for exemption under Section 20 of the ULC Act, is illegal and in breach of principles of natural justice. It was the case on behalf of the plaintiff that before deciding the application under Section 20 of the ULC Act, the plaintiff was required to be given an opportunity of being heard. In support his above case, the plaintiff relied upon the decision of the Division Bench of this Court in the case of Manilal Hiralal Doshi vs. State of Gujarat reported in AIR 1985 Gujarat 47.

2.2. The suit was resisted by the appellants herein­original defendants by filing written Statement at Exh.13 by submitting that the the Civil Court has no jurisdiction to consider the legality and validity of the order passed by the State Government passed under the provisions of ULC Act. It was further submitted that as the possession of the disputed land in question has been already taken over by the State Government the application submitted by the plaintiff for exemption under Section 20 of the Act has been rightly rejected by the State Government as the possession of the excess vacant land was already taken over by the State Government and was proposed to be used by Gujarat Housing Board and Slum Clearance Board. It was further submitted that as possession of the excess vacant land in question was already taken over by the State Government after following due procedure as required under the provision of the ULC Act the land absolutely vested in the State Government, therefore, the plaintiff was not entitled to declaration and permanent injunction as prayed for. Therefore, it was requested to dismiss the suit.

2.3. The learned trial Court framed the issues at Exh.16. On behalf of the plaintiff, his power of attorney holder came to be examined at Exh.21. He also relied upon the documents produced at Exhs. 30 and 31. On behalf of the defendants one Shri V.T.

Singara, Deputy Mamlatdar came to be examined at Exh.26. After hearing the learned advocates for the respective parties and considering the evidence on record and relying upon the decision of the Division Bench of this Court in the case of Manilal Hiralal Doshi (supra), the learned trial Court partly allowed the suit and declared the orders dated 6.12.1982 and 3.3.1984 passed by the State Government rejecting the exemption application submitted by the plaintiff under Section 20 of the ULC Act as null and void and against the principles of natural justice and also granted permanent injunction restraining the appellants herein ­original defendants from allotting excess vacant land to any other person and / or authority. However, refused to grant injunction as prayed for by which it was prayed to return the possession of the excess vacant land to the plaintiff.

2.4. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court passed in Regular Civil Suit No.361 of 1984, the appellants herein­original defendants preferred Regular Civil Appeal No.31 of 1998 before the learned District Court, Jamnagar and the learned Additional District Judge, Jamnagar by impugned judgment and order dated 27.10.2005 has been pleased to dismiss the said appeal confirming the judgment and decree passed by the learned trial Court.

2.5. Feeling aggrieved and dissatisfied with the impugned judgment and orders passed by both the Courts below, the appellants herein ­original defendants have preferred the present Second Appeal.

3.0 At the outset, it is required to be noted that while admitting the present Second Appeal, the learned Single Judge has framed the following substantial questions of law for determination in the present Second Appeal.

(i) “Whether the Court could have directed transferring the land when the possession had been taken by the State under Section 10(5) of the ULC Act? What was the effect of Repeal Act, which has come into force by then ?

(ii) Whether the principle of natural justice would require to be followed for passing an order under Section 20 of the ULC Act ?”

4.0 Shri Dave, learned AGP has appeared on behalf of the appellants herein­original defendants. It is submitted that both the Courts below have materially erred in holding the orders passed by the State Government dated 6.12.1982 and 3.3.1984 rejecting the exemption application under Section 20 of the ULC Act submitted by the plaintiff as illegal and in breach of principles of natural justice. It is submitted that as the land in question was already declared as excess vacant land and the possession was already taken over by the State Government under Section 10(5) of the ULC Act after following due procedure as required and when the said land absolutely vested in the State Government and the same was proposed to be allotted for the use of slum clearance board or Gujarat Housing Board, both the Courts below have materially erred in granting declaration declaring orders passed by the State Government passed under Section 20 of the ULC Act i.e. rejecting the application submitted by the plaintiff as illegal.

4.1. It is further submitted by Shri Dave, learned AGP appearing on behalf appellants­original defendants that in any case in view of the provisions Urban Land (Ceiling and Regulation) Repeal Act, 1999 which has come into effect on and after 31.3.1999, there is no question of considering exemption application under Section 20 of the Act of the applicant now. It is further submitted by Shri Dave, learned AGP appearing on behalf appellants­original defendants that necessary consequences of judgment and decree passed by the learned trial Court confirmed by the learned Appellate Court would be to consider the application of the plaintiff submitted under Section 20 of the Act afresh after giving an opportunity to the plaintiff. However in view of the Urban Land (Ceiling and Regulation) Repeal Act, 1999there is no question of now considering the exemption application under Section 20 of the Act as all proceedings inclusive of exemption application under Section 20 of the Act would stand abated. Therefore, it is requested to take note of provisions of Urban Land (Ceiling and Regulation) Repeal Act, 1999and to answer substantial question of law no.1 accordingly. Shri Dave, learned AGP for the appellant has heavily relied upon the recent decision of the Division Bench of this Court in the case of Baldevbhai Dhanabhai Valand vs. State of Gujarat and others reported in 2011(1) GLH 379, in support of his above submission. It is submitted that as held by the Division Bench of this Court in the aforesaid decision application under Section 20 of the Act pending on the relevant date shall abate upon coming into force of the Repeal Act. Therefore, it is requested to allow the present Second Appeal.

5.0 Present Second Appeal is opposed by Shri J.R. Nanavati, learned advocate with Shri Parikh, learned advocate for the respondent herein­original plaintiff. It is submitted that both the Courts below have rightly declared the orders passed by the State Government rejecting the exemption application under Section 20 of the Act submitted by the plaintiff as illegal and in breach of principles of natural justice. It is submitted that both the Courts below have as such relied upon the decision of the Division Bench in the case of Manilal Hiralal Doshi (supra) by granting declaration declaring the orders passed by the State Government rejecting the exemption application under Section 20 of the Act submitted by the plaintiff as illegal and in breach of principles of natural justice, which are not required to be interfered with by this Court in exercise of powers under Section 100 of the Code of Civil Procedure. It is submitted that the Division Bench in the aforesaid decision has specifically held that while deciding the application under Section 20 of the Act, declarant / applicant is required to be given personal hearing.

5.1. Now, so far as effect of Urban Land (Ceiling and Regulation) Repeal Act, 1999 which has came into force on and from 31.3.1999, it is submitted that as the judgment and decree passed by the learned trial Court has been passed on 16.6.1997 i.e. much prior to Urban Land (Ceiling and Regulation) Repeal Act, 1999 the application under Section 20 of the ULC Act would not be abated and the same is required to be decided and disposed of in light of the judgment and decree passed by the learned trial Court after giving an opportunity to the plaintiff. It is submitted if the case on behalf of the appellants is that the application under Section 20 of the ULC Act stand abated in view of the Urban Land (Ceiling and Regulation) Repeal Act, 1999is accepted, in that case, the judgment and decree passed by the learned trial Court which is otherwise just and proper and in accordance with law would become nugatory. Therefore, it is requested not to accept such submission.

5.2. Shri J.R. Nanavati, learned advocate for the respondent has also relied upon the decision of the Hon'ble Supreme Court in the case of T.R.Thandur vs. Union of India and others reported in (1996) 3 SCC 690 in support of his submission that as rightly held by the both the Courts below before deciding the application under Section 20 of the ULC Act, declarant/ applicant was required to be given an opportunity of being heard.

5.3. Shri J.R. Nanavati, learned advocate for the respondent has also relied upon the decision of the Hon'ble Supreme Court in the case of Special Officer and Competent Authority, Urban Land Ceilings, Hyderabad and Another vs. P.S. Rao reported in (2000) 2 SCC 451 by submitting that as held by the Hon'ble Supreme Court, application for grant of exemption under Section 20(1)(a)(b) filed after excess vacant land is determined and vests in the State under Section 10 of the Act would be maintainable since only after the exact extent of land in one's holding is known that he can seek exemption. Therefore, it is submitted that even on merits also rejection of the exemption application submitted by the plaintiff by the State Government is illegal.

5.4. That on cross objetions filed by the respondent herein­original plaintiff with respect to not granting of relief by the learned trial Court to return the possession of the excess vacant land, the possession which was already taken over by the State Government is concerned, Shri Nanavati, learned advocate for the respondent has submitted as the order passed by the State Government rejecting the application under Section 20 of the ULC Act has been set aside by the learned trial Court confirmed by the Appellate Court, necessary consequences would be to return the possession of the excess vacant land to the original plaintiff ­original declarant and therefore, it is requested to allow the cross objections by directing the appellants herein­original defendants to return the possession of the excess vacant land to original plaintiff ­declarant.

5.5. Now, so far as cross objections submitted by the original plaintiff is concerned, Shri Dave, learned AGP has submitted that the plaintiff has not challenged the legality and validity of the orders passed by the competent authority declaring the excess vacant land and notifications under Section 10 (3) and 10(5) of the ULC Act, under which the possession was taken over by the State Government. It is submitted that merely because declaration has been granted by the learned trial Court quashing and setting aside the order passed by the State Government rejecting the exemption application submitted by the plaintiff under Section 20 of the ULC Act which is under challenge, the possession of the excess vacant land is not required to be returned to the plaintiff ­original declarant. Therefore, it is requested to dismiss the present Second Appeal.

6.0 Heard the learned advocates for the respective parties at length and considered the impugned judgment and order /decree passed by both the Courts below. At the outset, it is required to be noted that land admeasuring 6101 sq mtrs of land, out of land bearing survey no.1397 has been declared as excess vacant land in the holding of the original plaintiff by the competent authority under the ULC Act and even the possession of the excess vacant land has been taken over by the State Government as back as on 21.11.1983 by issuing notification under Section 10(5) of the ULC Act. It appears that the plaintiff submitted exemption application under Section 20 of the Act which came to be rejected by the State Government by order dated 6.12.1982 against which the revision application came to be filed which also came to be rejected by the State Government by order dated 3.3.1984 and the aforesaid two orders were subject matter of the suit on the ground that the said orders are in breach of principles of natural justice as while rejecting the application under Section 20 of the ULC Act, the plaintiff­original declarant ­applicant was not given any opportunity of being heard. Relying upon the decision of the Division Bench of this Court in the case of Manilal Hiralal Doshi (supra) the learned trial Court declared the aforesaid orders passed by the State Government rejecting the exemption application of the plaintiff submitted under Section 20 of the ULC Act as illegal and in breach of the principles of natural justice. Therefore, as such in light of the decision of the Division Bench in the case of Manilal Hiralal Doshi(supra) it cannot be said that the learned trial Court has committed any error and / or illegality in granting such declaration and declaring orders passed by the State Government rejecting the exemption application submitted by the plaintiff under Section 20 of the ULC Act as illegal and in breach of principles of natural justice. However the present appeal is required to be considered in light of the subsequent development i.e. in light of the Urban Land Ceiling Repeal Act. As stated above, while admitting the present Second Appeal the learned Single Judge has framed the substantial question of law which reads as under:

(i) Whether the Court could have directed transferring the land when the possession had been taken by the State under Section 10(5) of the ULC Act? What was the effect of Repeal Act, which has come into force by then ?

(ii) Whether the principle of natural justice would require to be followed for passing an order under Section 20 of the ULC Act ?

6.1. Considering the above, this Court is required to consider the effect of the Urban Land (Ceiling and Regulation) Repeal Act, 1999vis­a­vis the impugned judgment and decree passed by the learned trial Court by which the exemption application under Section 20 of the ULC Act submitted by the plaintiff is required to be considered afresh now.

6.2. It cannot be disputed that necessary consequence and the effect of judgment and decree passed by the learned trial Court confirmed by the learned Appellate Court would be to decide the exemption application under Section 20 of the ULC Act submitted by the plaintiff afresh and after giving an opportunity to the plaintiff. Therefore, short question which is posed for consideration of this Court would be whether in view of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 and considering the provisions of Section 3 and 4 of the Repeal Act, exemption application under Section 20 of the Act submitted by the original plaintiff is required to be decided now and / or whether it stood abated ?

6.3. Identical question came to be considered by the Division Bench of this Court in the case of Baldevbhai Dhanabhai Valand (supra) and Division Bench considered the Sections 3 and 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 and the application under Section 20 of the ULC Act seeking exemption pending at the time of Repeal Act. In the said decision, Division Bench has specifically held that application under Section 20 of the Act pending on the relevant date of coming into force of the ULC Repeal Act, 1999 shall abate upon coming into force of the Repeal Act. In para 17 of the said decision the Division Bench has specifically observed and held as under:

17. On plain reading of the provision under Section 3 of the Repeal Act it comes out that said section has saved only:­ (i) the vesting of the vacant land of which possession is already taken over; (ii) validity of an “order” under Section 20(1) granting exemption i.e. the order granting exemption under Section 20(1) which has already been passed; and (iii) the payment made to the state government for granting exemption. However any “proceedings” arising from or related to an application seeking exemption under section 20 of the Act are not saved.

Only “concluded” actions are intended to be saved. Thus either the action which reached finality by “taking” possession of the vacant land; or the “exemption” which had been “already granted” upon the authority having passed the order, are saved. Section 3 of the Repeal Act which is the “saving provision” does not save from abatement any pending application/proceedings under section 20 of the ULC Act.

17.1 Differently put the legislature intended to put an end to the “in future” actions i.e. to put an end to the power to take possession even where it was already not taken over before the relevant date and/or to grant exemption where it was already not “granted” before the relevant date which is clear from the plain reading of Sections 3 and 4 of the Repeal Act inasmuch as the words used are “order made” and “action taken” and only an “order made” under Section 20(1) and the action “taken”, have been saved.

From the provision under Section 3 and/or 4 under the Repeal Act, even any intention to save the proceedings related to application under Section 20 does not appear. Upon conjoint reading of Sections 3 and 4 it also becomes clear that the legislature never intended to salvage any “pending” application(s) which might have been submitted (under Section 20 of the ULC Act) but was not decided either way.

It is further held and observed by the Division Bench in the said decision in para 15.1 that the power to grant (or refuse) exemption was created (in favour of the Government) under and conferred by virtue of Section 20 of the ULC Act. In absence of such power after Repeal Act came into force, there would not be any authority with the Government to consider and decide such application. It is further held by the Division Bench in the said decision that when there is no power to grant exemption or when the State Government is de­vested of the power to exempt, then any occasion or possibility for the Government to take­up an application for consideration and to even “consider” the application seeking exemption would not survive or cannot arise. The Division Bench in para 15.1 has observed and held as under:

15.1 Furthermore, the power to grant (or refuse) exemption was created (in favour of the Government) under and conferred by virtue of Section 20 of the ULC Act. In absence of such power after Repeal Act came into force, there would not be any authority with the Government to consider and decide such application.

When there is no power to grant exemption or when the State Government is divested of the power to exempt then any occasion or possibility for the Government to take­up an application for consideration and to even “consider” the application seeking exemption would not survive or cannot arise.

When the power to grant exemption has been taken away mere pendency of the application cannot breathe life in the extinguished power to grant exemption and resurrect it and/or cannot confer or continue the power taken away by the legislature. Once the power to grant or deny exemption is repealed and does not survive, as a corollary, the power to allow or reject the application seeking exemption would cease to exist. Consequently the authority with the Government flowing from the power to grant or refuse the request for exemption to take up any application “for consideration” would also terminate.

6.4. Under the circumstances and considering the aforesaid observation made by the Division Bench even if the judgment and decree passed by the learned trial Court confirmed by the learned Appellate Court stand, in that case also in view of the provisions of Urban Land (Ceiling and Regulation) Repeal Act, 1999 and Sections 3 and 4 of the Repeal Act there is no question of now considering the application under Section 20 of the ULC Act seeking exemption as observed by the Division Bench in the aforesaid decision the application under Section 20 of the Act seeking exemption shall abate upon coming into force of the Repeal Act.

6.5. Now, so far as cross objections submitted by the original plaintiff against not granting relief to the plaintiff directing the appellants herein­defendants to return the possession of the excess vacant land on quashing and setting aside the orders passed by the State Government rejecting the exemption application under Section 20 of the Act is concerned, considering the fact that the orders passed by the competent authority and the notification issued under Section 10(5) of the Act declaring 6101 sq mtr of land bearing survey no.1397 as excess vacant land and taking over the possession of the excess vacant land has attained the finality, the said relief is rightly rejected by the learned trial Court which is rightly confirmed by the learned Appellate Court. Even otherwise, merely because the order passed by the State Government rejecting the application under Section 20 of the Act was set aside, the possession of the excess vacant land which was taken over after following due procedure as required under the provisions of ULC Act, is not required to be restored. Under the circumstance, there is no substance in the cross objections and the same deserves to be dismissed.

7.0 In view of the above and for the reasons stated above, though the judgment and decree passed by the learned trial Court declaring the orders dated 6.12.1982 as well as 3.3.1984 passed by the State Government rejecting the exemption application under Section 20 of the Act submitted by the plaintiff is held to be illegal and in breach of principles of natural justice, is upheld in that case also considering the provisions of Urban Land (Ceiling and Regulation) Repeal Act, 1999 and considering the aforesaid discussion, it is held that the application of the plaintiff for exemption under Section 20 of the Act stood abated on coming into force of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 and therefore, the State Government is now not required to decide the exemption application under Section 20 of the Act of the plaintiff now as the same stood abated upon coming into force of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. With this, present appeal is allowed accordingly. The cross objections submitted by the respondent herein stand dismissed. No costs.

“kaushik”

sd/­ ( M. R. Shah, J. )