State Of Gujarat Thro The Principal Secretary & 1 ­

1. RULE. Ms. Asmita Patel, learned AGP waives service of Rule on behalf of the respondents.

2. By way of this petition, the petitioner has inter­alia prayed for the following reliefs:­ “a) Declaring that the proceeding and order Ann.B under the Urban Land Ceiling and Regulation Act, 1976, has abated under section 3 & 4 of the Urban Land Ceiling (Repeal) Act, 1999, and the order Ann.A has no effect.

b) Pending admission hearing and final disposal of this petition, to stay the operation of the order Ann.B and directing the respondents to maintain status quo;

c) To award costs from the respondent;

d) To grant such other and further reliefs to the petitioner as the nature of the case and interest of justice may require.”

3. This Court (Coram: S.R. Brahmbhatt, J.) vide order dated 19.9.2011 passed the following order:­ “Notice for final disposal returnable on 3/10/2011. Direct service permitted.”

4. Today Ms. Asmita Patel, learned AGP has tendered an affidavit in reply filed for and on behalf of the respondents which is taken on record and with the consent of the learned advocates appearing for the respective parties, the matter is taken up for final disposal forthwith.

5. The facts which can be culled out from the record of the petition are summed up as under:­

5.1 The petitioner is the owner and occupier of the eight parcels of lands situated in Adajan, Surat total admeasuring 67475.13 sq. mtrs. It appears from the record that the mother of the present petitioner Maniben Bhagubhai filed form No.1 in her capacity as the guardian of the present petitioner as well as Gajendra Bhagubhai and declared that they hold the following lands:­

5.2 It was also further declared in the aforesaid declaration form No.1 that they have one half share in the land bearing survey No.242 total admeasuring 9308 sq. mtrs. situated at Village Adajan being agriculture lands. It further transpires that the competent authority and the Deputy Collector vide order dated 18.1.1986 closed the proceedings and came to the conclusion that there is no surplus land. The State Government, in exercise of its powers under Section 34 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “the Act”) undertook the proceedings for revision of the order dated 18.1.1986 passed by the competent authority and the Deputy Collector, Surat. It further transpires that by an order dated 4.5.1989, the order dated 18.1.1986 came to be quashed and set aside and remanded back the matter to the competent authority and Deputy Collector, Surat for denovo proceedings after giving an opportunity of adducing the evidence and hearing to the holders.

5.3 It further transpires from the record that by an order dated 19.10.1979, the State Government granted exemption as contemplated under Section 21(1) of the Act to Balubhai Gopalbhai in respect of land bearing survey No.242 of Village Adajan admeasuring 9308 sq. mtrs. wherein the petitioner and Gajendra Bhagubhai claimed one half share. Similarly, the present petitioner as well as Gajendra Babubhai applied for exemption as contemplated under Section 20 of the Act in respect of the land bearing survey No.95 admeasuring 16795 sq. mtrs., 608–609 admeasuring 2748 sq. mtrs., 235 part admeasuring 6633 sq. mtrs. and 90 part admeasuring 3600 sq. mtrs. It further transpires that as the petitioner along with the other holders of the land applied for cancellation of the exemption so granted in respect of the land bearing survey No.95, 235 and 242 of Village Adajan, the State Government by an order dated 18.11.1989 withdrew the said exemption. It appears that after the remand of the matter as observed above, the competent authority and the Deputy Collector reprocessed the form submitted by Maniben Bhagubhai on behalf of the petitioner as well as his brother Gajendra Bhagubhai and by an order dated 31.8.1990 passed an order as contemplated under Section 8(4) of the Act and declared the following lands as surplus lands:­

5.4 Being aggrieved by the aforesaid decision taken by the competent authority, the petitioner filed an appeal as contemplated under Section 33 of the Act before the Urban Land Tribunal, Ahmedabad being Appeal No. Surat­57/90 which came to be dismissed by an order dated 12.3.1997. It may also be noted that the notification as contemplated under Section 10(3) of the Act came to be published and accordingly, a notice as contemplated under Section 10(5) was also issued by the competent authority and Additional Collector, Surat dated 16.7.1992 asking the petitioner and his brother Gajendra Bhagubhai to hand over the possession. It further appears that the petitioner has also placed on record of this petition information derived under the Right to Information Act, whereby a chart showing possession taken by the competent authority under the provisions of the Act especially of Village Adajan is relied upon.

6. Mr. Rakesh K. Shah, learned advocate for the petitioner submitted that in view of the fact that possession is not taken even though a notice came to be issued under Section 10(5) of the Act, the proceedings stands abated in view of Sections 3 and 4 of the Urban Land Ceiling (Repeal) Act, 1999. Mr. Shah has relied upon the judgment of this Court in the case of Rajkot Municipal Corporation Vs. Lavjibhai M. Patel, reported in 2000 (3) GLR 2293 as well as in the case of Laxmanbhai K. Chokshi Vs. Competent Authority reported in 2007 (3) GLR 2231 and contended that as the possession is not taken over in accordance with law and the petitioner is in possession of the same, in view of the provisions of Sections 3 and 4 of the Repeal Act, the proceedings shall stand abated. It is, therefore, submitted that the petition deserves to be allowed as prayed for.

7. Per contra, Ms. Asmita Patel, learned AGP has relied upon the affidavit in reply filed on behalf of the respondents. The learned AGP submitted that the petition is misconceived and there is no need of any declaration as prayed for as by a communication dated 30.4.2010, in response to the revision filed by Maheshvariben Kishorchandra/Manish Patel, it was already pointed out that as far as the land bearing survey No.235 part is concerned, since the scheme under Section 21(1) was sanctioned, possession under the Act was not taken over.

8. It would be appropriate to quote the following from the affidavit in reply filed by the respondents:­ “7. With reference to paragraph 2 of the petition, I say and submit that contentions raised in this paragraph are not true and correct and the same are hereby denied in toto. I say and submit that the petitioner was given numerous opportunities of hearing before passing the order under Section 8(4) dated 31.08.1990. I say and submit that vide order dated 31.08.1990, after declaration of the aforesaid lands as surplus, the proceedings under Sections 9, 10(1), 10(3) and 10(5) were initiated against the petitioner. I say and submit that at that point of time also, the petitioner has not made any submissions and thereby given any option. In fact and in reality, since the possession of the said surplus lands has not been taken by the respondent­State, the present contention of the petitioner is thoroughly baseless.

8. With reference to paragraphs 3 and 4 of the petition, I say and submit that contentions raised in these paragraphs are not true and correct and the same are hereby denied in toto. I say and submit that as discussed hereinabove, since the constructive possession of the aforesaid surplus lands of the petitioner could not be taken over by the respondent­State, there is as such no question of as to taking over possession of how much and which land by the Government from the said Survey Numbers.

9. With reference to paragraphs 5 and 6 of the petition, I say and submit that contentions raised in these paragraphs are not true and correct and the same are hereby denied in toto. I say and submit that the petitioner has committed mistake in narrating facts before this Hon'ble Court. I say and submit that the petitioner has stated that the petitioner was issued the notice under Section 10(5) of the U.L.C. Act, 1976 on 16.07.1992. However, in fact and in reality, the same was issued on 06.07.1992, as against which the petitioner had also replied in writing through their advocate vide reply dated 14.07.1992. Further, since the petitioner had prayed for a Housing Scheme for Weaker Sections of the Society under Section 21(1) of the ULC Act, 1976, the petitioner had prayed for staying further proceedings under the ULC Act. In pursuance of the same, the respondent­State could not take over the possession of the lands in question and, therefore, there is no question of making payment of compensation to the petitioner.

10. With reference to paragraphs 7 to 10 of the petition, I say and submit that contentions raised in these paragraphs are not true and correct and the same are hereby denied in toto. I say and submit that as discussed above, the Government had not taken over the possession of the lands in question, there was no question of mutation of name of the respondent­State in the revenue records.

11. With reference to paragraphs 11 to 19 of the petition, I say and submit that contentions raised in these paragraphs are not true and correct and the same are hereby denied in toto. I say and submit that since on the facts stated hereinabove, the respondent­State could not take over the possession and since the ULC Repeal Act came into force in the year 1999, no proceedings could be initiated in that respect by the respondent­State. I say and submit that in view of the provisions of Section 4 of the ULC Repeal Act, 1999 as well as in view of the circular dated 15.04.1999 since the proceedings pending on that date were to be closed down, no further proceedings are required to be initiated as per the say of the petitioner. I say and submit that since the petitioner had prayed for doing the development work in view of Section 21(1) of the Act and since all the proceedings were dropped on coming into force of ULC Repeal Act, 1999, there is no hindrance to the development work on the lands in question. Thus, present petition preferred by the petitioner seeking the reliefs as prayed for in the petition is absolutely misconstrued and baseless.”

9. Considering the aforesaid statement made on oath, it clearly transpires that the possession is not taken and in fact as averred in the affidavit in reply, the proceedings under the Act were closed in view of the provisions of Section 4 of the ULC Repeal Act.

10. It would be advantages at this stage to refer to the decision of this Court in the case of Rajkot Municipal Corporation (supra), wherein it has been held as under:­ “26. We have given our thoughful consideration to the above submissions of Shri Tanna. In our view detailed discussion is not required on the above points raised by Shri Tanna in view of the Repeal of the Urban Land Ceiling Act through the Repeal Act of 1999. Whether the order of the State Government u/s.34 of the ULC Act is valid or void and nulity makes no difference for the obvious reason that the provisions of Section 3 of the Repeal Act are applicable to the facts of the case before us. It is evident from the record that so far possession of the excess land has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or the Competent Authority. If the Competent Authority has not taken possession of the excess land nor the State Government or any person duly authorised by the State Government has taken possession of the excess land as provided in Section 10(3) and 10(6) of the Act, the notional vesting of the vacant land in the State Government will not render the State Government to be owner of excess vacant land.

27. Section 3(1) of the Repeal Act provides that the repeal of the principal act shall not affect vesting of any vacant land under Sub.Section 3 of Section 10 possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or the Competent Authority.

28. It therefore follows from this provision that if excess land has been declared by the competent Authority which has been confirmed in Appeal, but possession of vacant land was not taken over by the State Government or any person duly authorised by the State Government in this behalf then under the aforesaid provision the State Government cannot be treated as owner of the excess land. It is only where the possession is taken over by the State Government u/s.10(3) of the Act that the provisions of the Repeal Act shall not affect the right and title of the State Government.

29. It would be convenient to refer to Section 4 of the Repeal Act also. If the State Government has remanded the matter to the Competent Authority then all proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of this Act before or any Court, Tribunal or other Authority shall abate. Even the writ petitions pending on the day of enforcement of Repeal Act will also abate has laid down in M.M.Patel v/s. Competent Authority, 1999 (2) G.L.H. 350 1999 (3) GLR 2105.”

11. Similar view is also taken by this Court in the case of Laxmanbhai K. Chokshi (supra).

12. Consequently, considering the averments made in the affidavit in reply, as the possession of the land which was otherwise declared surplus as per the order dated 31.8.1990 confirmed in appeal vide order dated 12.3.1997 and as per the statement made by the respondent authorities, since the proceedings are closed, and as per the ratio laid down by this Hon'ble Court in the case of Rajkot Municipal Corporation Vs. Lavjibhai M. Patel (supra), the resultant effect would be that the proceedings under the Act stands abated. It is, however, made clear that the conclusion arrived at is only limited to the proceedings under the Act and shall have no application qua any other acts.

13. With these observations, the petition is disposed of. Rule is made absolute accordingly only to the aforesaid extent with no order as to costs.

[R.M.CHHAYA, J.] mrpandya