(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1. This Appeal under clause 15 of Letters Patent is arising from the judgment dated 15.12.2008 passed by learned Single Judge in Special Civil Application No.522 of 2001 by which the learned Single Judge has allowed the petition and set aside the order passed by competent authority under Section 8(4) of the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as “U.L.C. Act”) declaring 5217.44 sq. mts of land as excess land, other than retainable under the provisions of U.L.C. Act.
2. Heard learned AGP Ms.Jirga Jhaveri for the appellant and learned advocate Mrs.Ketty Mehta for the respondent.
3. The only argument advanced by learned AGP is that, after Repeal of U.L.C Act, 1976 in the year 1999, the petitioner had no legal right to challenge the order passed by the competent authority under Section 8(4) of the U.L.C. Act, since the same had become final and possession of the excess land was taken over by the authority provided under Section 10(5) of the U.L.C. Act.
4. The brief facts giving rise to this appeal are as under:
4.1 On introduction of U.L.C. Act, the original land owners – respondents herein in August 1976 filed Form No.1 as required under Section 6(1) of the U.L.C. Act disclosing the property held by him, being property bearing Survey No.27/2 of Village Anjana, Taluka and District Surat. The competent authority thereafter processed the form filed by the respondents and after considering all the relevant materials on record and submissions made on behalf of respondents passed an order on 27th June, 1988, under Section 8(4) of the U.L.C. Act and declared land ad-measuring 5217.44 sq. mtrs as excess vacant land. A copy of the order dated 27th June, 1988, is annexed at Annexure R-III of affidavit-in-reply. The order passed under Section 8(4) of the U.L.C. Act along with the final statement under Section 9 of the U.L.C. Act was personally served by the Maintenance Surveyor upon Sakarlal Maganlal – respondent No.1 herein. A copy of the report with acknowledgement is annexed at Annexure R-IV of the affidavit-in-reply.
4.2 Thereafter the competent authority issued Notification under Section 10(1) of the U.L.C. Act and the same was published in the Government Gazette on 11th May, 1989, giving the particulars of the vacant land held by the respondent herein in excess of the ceiling limit. Thereafter the Notification under sub-section 3 of Section 10 was issued on 23rd March, 1990, and was published in the Official Gazette declaring that the excess vacant land referred to in the Notification published under sub-section 1 of Section 10 shall be deemed to have been acquired by the State Government and that such land shall be deemed to have vested absolutely in the State Government free from all encumbrances. Subsequently, the competent authority issued notice dated 5th May, 1990, as per sub-section 5 of Section 10 and called upon the land owner to surrender or return possession of the excess land to the State Government within 30 days. The same was sent through Registered Post A.D. as the land owner failed to comply with the said notice made under sub-section 5 of Section 10, the competent authority again issued notice under Section 10(6) of the Act on 16th June, 1990. Thereafter on 13th March, 1996, possession of the vacant land was taken over after drawing proper panchnama. A copy of the panchnama and a copy of the notice dated 16th June, 1990, under Section 10(6) of the U.L.C.Act is annexed at Annexure R-IV of the affidavit-in-reply.
4.3 The respondents never challenged the order passed by the competent authority or the notifications issued under Section 10 of the U.L.C. Act and the possession taken by the State Government. Thereafter in the year 2001, the respondents filed the present petition inter-alia challenging the order of taking possession of the land in question and further that the authority has not issued No Objection Certificate to the respondents stating that there is no bar under the Act pertaining to the land in question and the sales deeds can be registered in the name of the persons who have purchased the tenements. The learned Single Judge of this Hon'ble Court vide order dated 15th December, 2008, allowed the petition and set aside the order passed by the competent authority dated 27th June, 1988, mainly on the ground that the order passed by the competent authority declaring land ad- measuring 5217.44 sq. mtrs as excess vacant land and the action of the State Government in taking over the possession of the land amounted to reducing the area covered under Section 21 of the U.L.C. Act and was also against the Government Resolution dated 10th June, 1980.
5. While allowing the petition the learned Single Judge in para 5 of his judgment has observed as under.
“Having heard learned Advocates for the parties and having perused the material on record, it appears clearly that though at the outset the petitioners declared a total holding of 25,293 sq. mts. in Survey No.27/2, after filling up the Form No.1 under Section 6 of the U.L.C., the Town Planning Scheme was implemented and against the said Survey No.27/2, Final Plot No.167 was allotted to the petitioners of the reduced size i.e. 18,660 sq. mts.. The competent Authority, therefore, erred in holding that the Scheme Weaker Sections 21 operated for 18,660 sq. mts leaving an excess land of 6633 sq. mts when the plot area itself had shrunk upon the implementation of the Town Planning Scheme. The petitioners held no further land than that covered under the Weaker Sections Scheme. The action of the competent Authority was, thus, impermissible. It eventually amounted to reducing the area covered under Section 21 Scheme and was also opposed to the G.R. dated 10th June, 1980. The action of the respondent taking over possession of the 5217.44 sq. mts. land pursuant to the said order of the competent authority is, therefore, erroneous and would lead to anomalous situation. In this case, the government took possession, after the Scheme under Section 21 was sanctioned. As per the petitioners, the same was fully implemented and land was constructed upon. Respondents, however, dispute this aspect. Be that as it may be, admittedly, Section 21 permission was never canceled before the U.L.C. Act was repealed. “ We are of the opinion that the learned Single Judge has rightly observed in the aforesaid paragraph and we are in respectful agreement with the said observation.
6. We have gone through the orders passed by the authorities below by which several orders were passed under the provisions of U.L.C Act. It is not in dispute that, out of the land in dispute ad-measuring 25,377.45 sq. mts, 30% of the total land was reduced to 18,660 sq. mts for Town Planning Scheme No.27/2/T.P.No.7 and the said land was given as Final Plot No.167 by the authority.
6.1 The original petitioner – respondent had filed Form No.1 under Section 6(1) of the U.L.C Act on 25.3.1979. The petitioner respondent had also applied for exemption under Section 21 of U.L.C Act which was granted by the competent authority on 18.12.1987 and the entire land of 18660 sq.mts was granted exemption under Section 21 of the U.L.C Act for construction of dwelling houses of the weaker section of the society. It also appears that, while deciding Form No.1 under Section 6(1) of U.L.C Act, the authority, while passing the order dated 27.6.1988, considered the order dated 18.12.1987 by which the authority had granted exemption for Final Plot No.167 ad-measuring 18660 sq.mts.
6.2 When the authority was aware that the land for which the form was filed was reduced to 18660 sq.mts, the authority did commit mistake in calculating the holding of the land as if the petitioner respondent was holding land ad-measuring 25,377.45 sq.mts. Since the petitioner respondent was holding 18660 sq.mts, and when the competent authority had granted exemption for the entire piece of land, the authority could not have declared the excess land which has arrived by the said order dated 27.6.1988. It is also clear from the resolution of the Revenue Department dated 10.6.1980 that, while calculating the retainable land and excess land of an individual, the authority should consider the actual area after the deduction in holding due to any town planning scheme and not the holding of a land of an individual. The authority, while processing Form No.1 under Section 6 of the U.L.C Act, has not taken into consideration the said resolution of the Government itself. If the authority would have gone into details of the order dated 18.12.1987, it would have come to the right conclusion that petitioner was holding on 18,660 sq.mts of land which was exempted by the authority.
6.3 When the authorities itself had committed error in calculating the holding of the land of the petitioner, the arguments advanced by learned AGP that petitioner had no legal right to challenge the order passed under Section 8(4) of the U.L.C. Act, after Repeal Act of 1999 cannot be challenged under the provisions of Article 226 of the Constitution of India is not acceptable and the same is rejected. If possession under Section 10(5) of the U.L.C. Act has been taken over by the authority for the land which was exempted under Section 21 of the U.L.C. Act, it cannot be said that the authority had taken legal possession of any so-called excess vacant land. As stated hereinabove, when the authority itself has not properly considered the order dated 18.12.1987 as well as the notification dated 10.6.1980 issued by the Revenue Department, it cannot take advantage of its own wrong and cannot rely upon the provisions of the Repeal Act which came into existence in 1999.
6.4 The judgment relied upon by the learned AGP in case of Omprakash Verma and others vs State of Andra Pradesh and others reported in (2010) 13 SCC 158 is not applicable in the present case since the facts of that case different from the present case. It is true that when the notification under Section 10(3) of the U.L.C. Act is issued the land which is declared excess, vest in the State Government free from all encumbrances. In the present case, the proceedings from the beginning i.e. passing order under Section 8(4) is under misconception, therefor the notifications issued subsequent to the order become nullity. In the present case, though the notifications were issued under Sections 10(3) and 10(5) of the U.L.C. Act, and even though the possession was taken by the Government, the same were not in accordance with law and, therefore, are required to be treated as nullity.
7. We are also of the opinion that the learned Single Judge has rightly allowed the petition by directing the original petitioner – respondent to deposit Rs.10,000/- with the Legal Aid Committee for approaching the Court at a belated stage.
8. For the aforesaid reasons, we do not find any merits in the appeal. The appeal fails and is accordingly dismissed. The parties shall bear their own costs.
(V.M. SAHAI, J.) (A.J.DESAI, J.) syed/