State Of Gujarat &

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2773 of 2012 For Approval and Signature:

HONOURABLE MR.JUSTICE R.M.CHHAYA =========================================================

========================================================= GANSHYAMBHAI BHIKHABHAI MISTRY ­ Petitioner(s) Versus STATE OF GUJARAT & 2 ­ Respondent(s) ========================================================= Appearance :

MR BHARAT T RAO for Petitioner(s) : 1, MS NISHA M THAKORE, AGP for Respondent(s) : 1 – 2, MR MAULIK BHATT for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 16/10/2012 CAV JUDGMENT

1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:­ “(A) To admit and allow this petition.

(B) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to pass order restoring the land of survey no.496 of village Gotri, Taluka and District Vadodara admeasuring 1755 sq. mtrs. in favour of the petitioner in view of the provisions of Sec.3(2)(b) of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 especially in view of the NOC issued by the respondent No.3 for the reasons stated in the Memo of Petition and in the interest of justice and fairness of things.

(C) Pending admission, hearing and final disposal of the above Special Civil Application to restrain the respondents, their servants and agents from allotting the land bearing survey No. 496 admeasuring 1755 sq. mtrs. of village Gotri, Taluka and District Vadodara to anyone else except the petitioner.

(D) The Hon'ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require.

(E) To award the cost of this petition.”

2. The facts which can be culled out from the record of the petition are as follows:­

2.1 The petitioner inherited agricultural land bearing survey No.455 admeasuring 5261 sq. mtrs. and land bearing survey No.496 admeasuring 6677 sq. mtrs. situated at Village Gotri, Taluka and District Vadodara.

2.2 The lands in question were subjected to the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “the Act”) with effect from 17.2.1976 as the lands were situated within Vadodara Urban Agglomeration.

2.3 It appears from the record that the petitioner filed a declaration form as provided under Section 6 of the Act which came to be registered as declaration form No.ULC/1076/111/PD/PPT/Gotri with the competent authority. The petitioner made a declaration about his holding of urban lands within Vadodara Urban Agglomeration before the competent authority. It further appears that the form submitted by the petitioner came to be scrutinized by the competent authority and the competent authority thereafter issued a draft statement as provided under Section 8(3) of the Act. The record further indicates that the petitioner applied for exemption for agricultural purpose as provided under Section 20 of the Act vide application dated 24.5.1979. The competent authority granted exemption vide its order dated 15.10.1979.

2.4 It appears from the record that after granting of such exemption, Indian Petrochemical Corporation Ltd. (IPCL) requested the petitioner to give land bearing survey No.496 admeasuring 6677 sq. mtrs. for the purpose of construction of residential colony for the employees of IPCL. In view of such a request having been made, the petitioner filed an application with the competent authority for withdrawal of the exemption granted under Section 20 of the Act vide order dated 15.10.1979. The said application was accepted by the Government vide order dated 16.11.1984 and the exemption granted by the State Government under Section 20 of the Act stood withdrawn qua survey No.496 admeasuring 6677 sq. mtrs. It appears that thereafter the competent authority further processed the form and issued a final statement as provided under Sections 8(4) and 9 of the Act dated 19.9.1985. As per the said order, the competent authority declared that the land bearing survey No.496 admeasuring 6677 sq. mtrs. is a surplus land.

2.5 It appears that after the final statement, a notification as provided under Section 10(1) was issued on 30.10.1985 and the same was published in the official gazette on 14.11.1985. Thereafter, it reveals from the record that a notification as provided under Section 10(3) of the Act came to be published on 27.1.1986 and the same was published in the official gazette on 20.3.1986. It further appears from the record that thereafter, an order came to be passed as provided under Section 10(5) of the Act on 3.7.1986, whereby it was decided that the surplus land declared by the competent authority be taken over by the State Government. It also reveals that after the aforesaid order, the petitioner voluntarily handed over possession of the surplus land bearing survey No.496 admeasuring 6677 sq. mtrs. to the competent authority on 2.8.1986. Thereafter, the competent authority passed an order under Section 11 of the Act on 9.7.1987 and the petitioner was given compensation to the tune of Rs.26,708/­ out of which Rs.6,708/­ was paid in cash and Rs.20,000/­ by way of “Narmada Bonds”. It further transpires that the land in question was allotted to respondent No.3 as provided under Section 23 of the Act by the State Government vide order dated 30.7.1990.

2.6 It is pertinent to note that after the proceedings were over and the possession was also taken over as aforesaid and even the petitioner was paid compensation, the petitioner filed an appeal under Section 33 of the Act before the Urban Land Tribunal challenging the order dated 19.9.1985 passed by the competent authority under Sections 8(4) and 9 of the Act in the year 1993. The said appeal came to be registered as Appeal No. Vadodara­22/93. The Urban Land Tribunal vide judgment and order dated 24.10.1994 dismissed the said appeal and confirmed the order passed by the competent authority dated 19.9.1985.

2.7 Being aggrieved by the aforesaid order passed by the Urban Land Tribunal, the petitioner preferred a writ petition before this Court being Special Civil Application No.6275 of 1995. The said petition came to be dismissed by this Court (Coram: R.K. Abichandani, J. as he then was) vide order dated 8.9.1995. The petitioner carried the matter further by way of intra Court appeal being Letters Patent Appeal No.1050 of 1995 and Division Bench of this Court (Coram: C.K. Thakkar, J. and H.L. Gokhale, J. as they then were) dismissed the same vide order dated 26.3.1997.

2.8 It is pertinent to note that after the possession having been taken pursuant to the final statement and declaration under the provisions of the Act and having received the compensation, the petitioner applied for exemption under Section 21 of the Act. It is also pertinent to note that apropos the order of allotment passed under Section 23 of the Act, as aforesaid, respondent No.3 society was allotted the land in question. However, respondent No.3 society took possession of only 4922 sq. mtrs. It further transpires from the record that the entry as regards the same is also being mutated in favour of respondent No.3 in the revenue records and the land admeasuring 1755 sq. mtrs. out of the total area of 6677 sq. mtrs. of survey No.496 has remained unused and is in possession of the State Government. It further appears from the record that thereafter, by a communication dated 1.8.2003, the petitioner requested the Whole Time Director of IPCL to issue an NOC as some portion of land bearing survey No.496 has been left unutilized by respondent No.3 society. It further appears that respondent No.3 society issued a No Objection Certificate in favour of the petitioner on 30.5.2008. It also appears that thereafter, the petitioner filed an application before the Revenue Minister of the State of Gujarat dated Nil requesting to allot the remaining part of land bearing survey No.496 i.e. 1755 sq. mtrs. out of the said land.

2.9 The petitioner has thereafter filed the present petition before this Court, inter­alia, for the prayers prayed for as observed above.

3. This Court (Coram: Smt. Abhilasha Kumari, J.) vide order dated 1.3.2012 was pleased to issue notice to the respondents.

4. Respondent No.2 filed affidavit in reply through the competent authority and Deputy Collector (Land Reforms), Vadodara and respondent No.3 has also filed a separate affidavit in reply.

5. The petitioner has also filed an affidavit in rejoinder to the affidavit in reply filed by respondent No.2 as well as respondent No.3 and has denied the contentions raised by both the respondents. The petitioner has reiterated the stand that under the provisions of Section 3(2) (b) of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as “the Repeal Act”), the petitioner is entitled to claim the possession of the land in question and the State authorities have given only mechanical reply under the provisions of law. It is also contended that the earlier proceedings, as mentioned in the petition, is only made to bring to the notice of this Court. However, the present petition is filed under the provisions of the Repeal Act and the same does not take away right of the petitioner to file the proceedings for getting back the land when the provisions have been made under the Repeal Act. It is further contended that the endeavours on the part of respondent No.3 to get back the possession of the land in question is an afterthought and the representation/application is made after issuance of notice by this Court.

6. Mr. B.T. Rao, learned advocate for the petitioner has taken this Court through the factual matrix as stated in the petition. Mr. Rao predominantly contended that the land in question i.e. survey No.496 admeasuring 6677 sq. mtrs. was allotted to respondent No.3 society, but the respondent No.3 society has utilized only 4922 sq. mtrs. and the area of admeasuring 1755 sq. mtrs. of land is unutilized and therefore, in view of the provisions of Section 3(2)(b) of the Repeal Act, the petitioner is entitled to restoration of the land on condition to refund the amount of compensation. Mr. Rao contended that after the Repeal Act, the original holder of the land has a right to get the land back on condition to refund the compensation and has further submitted that the petitioner is ready and willing to refund the amount of compensation of the land which is not used by the Government. Mr. Rao also invited attention to the No Objection Certificate issued by respondent No.3 society and has, therefore, prayed that the land may be regranted to the petitioner. It is submitted that the land in question was allotted to respondent No.3 society, but the possession to the extent of 1755 sq. mtrs. is not taken over by respondent No.3 society because high tension line passes from survey Nos.496 and 501 and has averred that the possession was handed over back to the Government at the request of the IPCL. It is further submitted that the State authority should have passed an order of reallotment as provided under Section 3(2)(b) of the Repeal Act.

No other or further contentions are raised by Mr. Rao, learned advocate for the petitioner.

7. Per contra, Ms. Nisha M. Thakore, learned AGP has contended that the land in question is no more the land belonging to the petitioner. It is pointed out that after following due process of law, as envisaged under the provisions of the Act, the possession has been taken over by the Government and the petitioner has already been paid the compensation under the Act, as admitted by the petitioner himself and therefore, the petitioner is estopped from raising the dispute, more particularly, because of the fact that the land has vested in the State Government free from all encumbrances and the actual possession of the land is taken over by the State Government. The learned AGP relied upon the affidavit in reply filed by respondent No.2 and has contended that the interpretation put forward by the learned advocate for the petitioner as regards Section 3(2)(b) of the Repeal Act is erroneous. The learned AGP submitted that the order of declaration passed by the competent authority under Sections 8(4) and 9 of the Act is confirmed by the Division Bench of this Court in Letters Patent Appeal No.1050 of 1995 vide order dated 26.3.1997 and therefore, once the petitioner has handed over the possession of the land and the amount of compensation has been realized, the petitioner has no right to pray for restoration of the land as the said land has vested in the State Government free from all encumbrances. The learned AGP further invited attention of this Court that the petition is filed after almost 9 years and that the No Objection Certificate of respondent No.3 society is of no consequence whatsoever, as by operation of the provisions of the Act, the land has already vested in the State Government and the possession of the land is already taken over and the State Government has right, title and interest over the land in question.

8. Mr. Maulik Bhatt, learned advocate for respondent No.3 society has denied the fact and contended that no such No Objection Certificate dated 30.5.2008 is issued by the society and that as per the society record, no such No Objection Certificate is reflected. Mr. Bhatt submitted that no resolution is passed by the society to issue any such No Objection Certificate and the letter relied upon by the petitioner was addressed to the Whole Time Director of IPCL and not respondent No.3 society. Mr. Bhatt, on the contrary, submitted that respondent No.3 society is in need of the land as the land originally allotted is subjected to deduction in area because of operation of a Town Planning Scheme. It is submitted that lastly vide communication dated 25.3.2012, the President of respondent No.3 society has requested the competent authority to hand over the possession of the land admeasuring 1755 sq. mtrs. which is the subject matter of the present petition.

9. Before considering the submissions made by the learned advocates for the parties, it would be appropriate to refer to certain provisions of the Act as well as the Repeal Act.

“4. Ceiling limit (1) Subject to the other provisions of this section, in the case of every person, the ceiling limit shall be,­

(a) where the vacant land is situated in an urban agglomeration falling within category A specified in Schedule I, five hundred square metres;

(b) where such land is situated in an urban agglomeration falling within category B specified in Schedule I, one thousand square metres;

(c) where such land is situated in an urban agglomeration falling within category C specified in Schedule I, one thousand five hundred square metres;

(d) where such land is situated in an urban agglomeration falling within category D specified in Schedule I, two thousand square metres.

(2) Where any person holds vacant land situated in two or more categories of urban agglomerations specified in Schedule I, then, for the purpose of calculating the extent of vacant land held by him,­

(a) one square metre of vacant land situated in an urban agglomeration falling within category A shall be deemed to be equal to two square metres of vacant land situated in an urban agglomeration falling within category B, three square metres of vacant land situated in an urban agglomeration falling within category C and four square metres of vacant land situated in an urban agglomeration falling within category D;

(b) one square metre of vacant land situated in an urban agglomeration falling within category B shall be deemed to be equal to one and one­ half square metres of vacant land situated in an urban agglomeration falling within category C and two square metres of vacant land situated in an urban agglomeration falling within category D; and

(c) one square metre of vacant land situated in an urban agglomeration falling within category C shall be deemed to be equal to one and one­ third square metres of vacant land situated in an urban agglomeration falling within category D.

(3) Notwithstanding anything contained in sub­ section (1), where in respect of any vacant land any scheme for group housing has been sanctioned by an authority competent in this behalf immediately before the commencement of this Act, then, the person holding such vacant land at such commencement shall be entitled to continue to hold such land for the purpose of group housing:

Provided that not more than one dwelling unit in the group housing shall be owned by one single person:

Provided further, that the extent of vacant land which such person shall be entitled to hold shall, in no case, exceed­

(a) the extent required under any building regulations governing such group housing; or

(b) the extent calculated by multiplying the number of dwelling units in the group housing and the appropriate ceiling limit referred to in sub­section (1), whichever is less.

Explanation.­ For the purpose of this sub­ section and sub­section (10),­

(i) "group housing" means a building constructed or to be constructed with one or more floors, each floor consisting of one or more dwelling units and having common service facilities;

(ii) "common service facility" includes facility like staircase, balcony and varandah.

(4)(a) In any State to which this Act applies in the first instance, if, on or after the 17th day of February, 1975, but before the appointed day, any person has made any transfer by way of sale, mortgage, gift, lease or otherwise (other than a bona fide sale under a registered deed for valuable consideration) of any vacant land held by him and situated in such State to any other person, whether or not for consideration, then, for the purposes of calculating the extent of vacant land held by such person the land so transferred shall be taken into account, without prejudice to the rights or interests of the transferee in the land so transferred:

Provided that the excess vacant land to be surrendered by such person under this Chapter shall be selected only out of the vacant land held by him after such transfer.

(b) For the purpose of clause (a), the burden of proving any sale to be a bona fide one shall be on the transferor.

Explanation.­ Where in any State aforesaid, there was or in force any law prohibiting transfer of urban property in that State except under the circumstances, if any, specified therein, then, for the purposes of this sub­section, any transfer by way of sale of such property, being vacant land, made by any person under a registered deed for valuable consideration in accordance with the provisions of such law or in pursuance of any sanction or permission granted under such law, shall be deemed to be a bona fide sale.

(5) Where any firm or unincorporated association or body of individuals holds vacant land or holds any other land on which there is a building with a dwelling unit therein or holds both vacant land and such other land, then, the right or interest of any person in the vacant land or such other land or both, as the case may be, on the basis of his share in such firm or association or body shall also be taken into account in calculating the extent of vacant land held by such person.

(6) Where a person is a beneficiary of a private trust and his share in the income from such trust is known or determinable, the share of such person in the vacant land and in any other land on which there is a building with a dwelling unit therein, held by the trust, shall be deemed to be in the same proportion as his share in the total income of such trust bears to such total income and the extent of such land apportionable to his share shall also be taken into account in calculating the extent of vacant land held by such person.

(7) Where a person is a member of a Hindu undivided family, so much of the vacant land and of any other land on which there is a building with a dwelling unit therein, as would have fallen to his share had the entire vacant land and such other land held by the Hindu undivided family been partitioned amongst its members at the commencement of this Act shall also be taken into account in calculating the extent of vacant land held by such person.

(8) Where a person, being a member of a housing co­operative society registered or deemed to be registered under any law for the time being in force, holds vacant land allotted to him by such society, then, the extent of land so held shall also be taken into account in calculating the extent of vacant land held by such person.

(9) Where a person holds vacant land and also holds any other land on which there is a building with a dwelling unit therein, the extent of such other land occupied by the building and the land appurtenant thereto shall also be taken into account in calculating the extent of vacant land held by such person.

(10) Where a person owns a part of a building, being a group housing, the proportionate share of such person in the land occupied by the building and the land appurtenant thereto shall also be taken into account in calculating the extent of vacant land held by such person.

(11) For the removal of doubts it is hereby declared that nothing in sub­sections (5), (6), (7), (9) and (10) shall be construed as empowering the competent authority to declare any land referred to in sub­clause (ii) or sub­clause (iii) of clause (q) of section 2 as excess vacant land under this Chapter.

Explanation.­ For the purposes of this section and Secs. 6, 8 and 18 a person shall be deemed to hold any land on which there is a building (whether or not with a dwelling unit therein) if he­

(i) owns such land and the building; or

(ii) owns such land but possesses the building or possesses such land and the building, the possession, in either case, being as a tenant under a lease, the unexpired period of which is not less than ten years at the commencement of this Act, or as a mortgagee or under an irrevocable power of attorney or a hire­ purchase agreement or partly in one of the said capacities and partly in any other of the said capacity or capacities; or

(iii) possesses such land but owns the building, the possession being as a tenant under a lease or as a mortgagee or under an irrevocable power of attorney or a hire­ purchase agreement or partly in one of the said capacities or partly in any other of the said capacity or capacities.

6. Persons holding vacant land in excess of ceiling limit to file statement.­

(1) Every person holding vacant land in excess of the ceiling limit at the commencement of this Act shall, within such period as may be prescribed, file a statement before the competent authority having jurisdiction specifying the location, extent, value and such other particulars as may be prescribed of all vacant lands and of any other land on which there is a building, whether or not with a dwelling unit therein, held by him (including the nature of his right, title or interest therein) and also specifying the vacant lands within the ceiling limit which he desires to retain:

Provided that in relation to any State to which this Act applies in the first instance, the provisions of this sub­section shall have effect as if for the words "Every person holding vacant land in excess of the ceiling limit at the commencement of this Act", the words, figures and letters "Every person who held vacant land in excess of the ceiling limit on or after the 17th day of February, 1975 and before the commencement of this Act and every person holding vacant land in excess of the ceiling limit at such commencement" had been substituted.

Explanation._ In this section, "commencement of this Act" means,­

(i) the date on which this Act comes into force in any State;

(ii) where any land, not being vacant land, situated in the State in which this Act is in force had become vacant land by any reason whatsoever, the date on which such land becomes vacant land;

(iii) where any notification has been issued under Cl.(n) of Sec.2 in respect of any area in a State in which this Act is in force, the date of publication of such notification.

(2) If the competent authority is of opinion that­

(a) in any State to which this Act applies in the first instance, any person held on or after the 17th day of February, 1975 and before the commencement of this Act or holds at such commencement; or

(b) in any State which adopts this Act under clause (1) of article 252 of the Constitution, any person holds at the commencement of this Act, vacant land in excess of the ceiling limit, then, notwithstanding anything contained in sub­section (1), it may serve a notice upon such person requiring him to file, within such period as may be specified in the notice, the statement referred to in sub­ section (1).

(3) The competent authority may, if it is satisfied that it is necessary so to do, extend the date for filing the statement under this section by such further period or periods as it may think fit; so, however, that the period or the aggregate of the periods of such extension shall not exceed three months.

(4) The statement under this section shall be filed,­

(a) in the case of an individual, by the individual himself; where the individual is absent from India, by the individual concerned or by some person duly authorised by him in this behalf; and where the individual is mentally incapacitated from attending to his affairs, by his guardian or any other person competent to act on his behalf;

(b) in the case of a family, by the husband or wife and where the husband or wife is absent from India or is mentally incapacitated from attending to his or her affairs, by the husband or wife who is not so absent or mentally incapacitated and where both the husband and the wife are absent from India or are mentally incapacitated from attending to their affairs, by any other person competent to act on behalf of the husband or wife or both;

(c) in the case of a company, by the principal officer thereof;

(d) in the case of a firm, by any partner thereof;

(e) in the case of any other association, by any member of the association or the principal officer thereof; and

(f) in the case of any other person, by that person or by a person competent to act on his behalf.

Explanation.­ For the purpose of this sub­ section, principal officer­

(i) in relation to a company, means the secretary, manager or managing­director of the company;

(ii) in relation to any association, means the secretary, treasurer, manager or agent of the association and includes any person connected with the management of the affairs of the company or the association, as the case may be, upon whom the competent authority has served a notice of his intention of treating him as the principal officer thereof.

10. Acquisition of vacant land in excess of ceiling limit.­

(1) As soon as may be after the service of the statement under section 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and staling that­

(i) such vacant land is to be acquired by the concerned State Government : and

(ii) the claims of all persons interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land, to be published for the information of the general public in the Official Gazette of the State concerned and in such other manner as maybe prescribed.

(2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under sub­section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit.

(3) At any time after the publication of the notification under sub­section (1) the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under sub­section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified.

(4) During the period commencing on the date of publication of the notification under sub­ section (1) and ending with the date specified in the declaration made under sub­section (3) :

(i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and

(ii) no person shall alter or cause to be altered the use of such excess vacant land.

(5) Where any vacant land is vested in the State Government under sub­section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice.

(6) If any person refuses or fails to comply with an order made under sub­ section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary.

Explanation. In this section, in sub­section

(1) of section 11 and in sections 14 and 23 , "State Government", in relation to­

(a) any vacant land owned by the Central Government, means the Central Government;

(b) any vacant land owned by any State Government and situated in a Union territory or within the local limits of a cantonment declared as such under section 3 of the Cantonments Act, 1924 (2 of 1924) , means that State Government.

11. Payment of amount for vacant land acquired.­

(1) Where any vacant land is deemed to have been acquired by any State Government under sub­section (3) of section 10 , such State Government shall pay to the person or persons having any interest therein,­

(a) in a case where there is any income from such vacant land, an amount equal to eight and one­third times the net average annual income actually derived from such land during the period of five consecutive years immediately preceding the date of publication of the notification issued under sub­section (1) of section 10 ; or

(b) in a case where no income is derived from such vacant land, an amount calculated at a rate not exceeding­

(i) ten rupees per square metre in the case of vacant land situated in an urban agglomeration falling within category A or category B specified in Schedule 1; and

(ii) five rupees per square metre in the case of vacant land situated in an urban agglomeration falling within category C or category D specified in that Schedule.

(2) The net average annual income referred to in clause (a) of sub­section (1) shall be calculated in the manner and in accordance with the principles set out in Schedule II.

(3) For the purpose of clause (b) of sub­ section (1), the State Government shall­

(a) divide, by notification in the Official Gazette, every urban agglomeration situated within the State into different zones, having regard to the location and the general use of the land situated in an urban agglomeration, the utility of the land in that urban agglomeration for the orderly urban development thereof and such other relevant factors as the circumstances of the case may require; and

(b) fix, subject to the maximum rates specified in that clause, the rate per square metre of vacant land in each zone, having regard to the availability of vacant land in the zone, the trend of price rise of vacant land over a period of twenty years in the zone before the commencement of this Act, the amount invested by the Government for the development of the zone, the existing use of vacant land in the zone and such other relevant factors as the circumstances of the case may require.

(4) Different rates may be fixed under clause (b) of sub­section (3) for vacant lands situated in different zones within each urban agglomeration.

(5) Notwithstanding anything contained in sub­ section (1) where any vacant land which is deemed to have been acquired under sub­section (3) of section 10 is held by any person under a grant, lease or other tenure from the Central Government or any State Government and­

(i) the terms of such grant, lease or other tenure do not provide for payment of any amount to such person on the termination of such grant, lease or other tenure and the resumption of such land by the Central Government or the State Government, as the case may be; or

(ii) the terms of such grant, lease or other tenure provide for payment of any amount to such person or such termination and resumption, then,­

(a) in a case falling under clause (i), no amount shall be payable in respect of such vacant land under sub­section (1); and

(b) in a case falling under clause (ii), the amount payable in respect of such vacant land shall be the amount payable to him under the terms of such grant, lease or other tenure on such termination and resumption or the amount payable to him under sub­section (1), whichever is less.

(6) Notwithstanding anything contained in sub­ section (1), or sub­section (5), the amount payable under either of the said sub­sections shall, in no case, exceed two lakhs of rupees.

(7) The competent authority may, by order in writing, determine the amount to be paid in accordance with the provisions of this section as also the person, or, where there are several persons interested in the land, the persons to whom it shall be paid and in what proportion, if any.

(8) Before determining the amount to be paid, every person interested shall be given an opportunity to state his case as to the amount to be paid to him.

(9) The competent authority shall dispose of every case for determination of the amount to be paid as expeditiously as possible and in any case within such period as may be prescribed.

(10) Any claim or liability enforceable against any vacant land which is deemed to have been acquired under sub­section (3) of section 10 may be enforced only against the amount payable under this section in respect of such land and against any other property of the owner of such land.”

10. From the scheme of the Act, it transpires that a person holding urban lands was supposed to fill in form No.1 as provided under Section 6 of the Act, declaring his holding of urban lands within the urban agglomeration as well as anywhere else. The competent authority, after primary scrutiny of the form so submitted, would prepare a draft statement as provided under Section 8(3) of the Act and after giving an opportunity of being heard to the person would determine the extent of excess vacant land, if any, and pass an order in form of declaration as provided under Section 8(4) of the Act and on the basis of the same, a final statement would be drawn as provided under Section 9. The scheme of the Act further provides that if any excess vacant land is so declared, the same would be notified as provided under Section 10(1) of the Act and the declaration of the same would also be made in the official gazette. After this procedure, the competent authority would make a further declaration as provided under Section 10(3) of the Act. Once such a declaration is made, the land vests free from all encumbrances in the State. The Act further provides that the competent authority shall put a holder to notice as provided under Section 10(5) of the Act and would take actual and physical possession of the land in question. After the possession is taken, the competent authority was to determine the compensation which is to be paid to such a holder whose land is declared to be excess vacant land and possession thereof is taken. It is also an admitted position that the Act came to be repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 and especially in the State of Gujarat with effect from 30.3.1999. In the instant case, if the scheme of the Act, as observed above, is taken into consideration, the petitioner filled in form No.1 as provided under Section 6 of the Act and a draft statement was issued by the competent authority as provided under Section 8(3) of the Act. The facts reveal that meanwhile, by an application dated 24.5.1979, the petitioner applied for exemption for agricultural purposes under Section 20 of the Act and the competent authority vide order dated 15.10.1979 granted such an exemption. Thereafter, the petitioner applied for withdrawal of the said exemption for the land in question by an application dated 19.7.1984, which was accepted by the Government by order dated 16.11.1984. On exemption being withdrawn, the competent authority passed an order as provided under Section 8(4) of the Act and issued final statement, whereby the land in question was declared to be excess vacant land. It further transpires from the record that the notification as provided under Section 10(1) of the Act was made by the competent authority on 30.10.1985 and the same was also published in the official gazette on 14.11.1985. Thereafter, a notification as provided under Section 10(3) of the Act was issued by the competent authority on 27.1.1986 and the same was published in the official gazette on 20.3.1986. It further transpires that thereafter an order as provided under Section 10(5) of the Act was passed on 3.7.1986 and the possession of the land in question was taken over by the competent authority on 2.8.1986. It further transpires from the record of the petition and as admitted by the petitioner that the petitioner received compensation of Rs.26,708/­, out of which Rs.6,708/­ has been paid in cash and Rs.20,000/­ by way of Narmada Bonds under Section 11 of the Act on 9.7.1987 and the same was accepted by the petitioner. It further transpires that thereafter the land in question came to be allotted to respondent No.3 society by the State Government under Section 23 of the Act vide order dated 22.5.1990.

11. It is pertinent to note that after the whole procedure was over as contemplated under the provisions of the Act and even the same having been reviewed by the State Government as provided under Section 34 of the Act and the land in question which was declared to be excess vacant land having been allotted to respondent No.3 society, the petitioner filed an appeal as provided under Section 33 of the Act before the Urban Land Tribunal which came to be rejected vide order dated 24.10.1994. The said order passed by the Urban Land Tribunal came to be challenged by the petitioner by way of filing a writ petition being Special Civil Application No.6275 of 1995 which came to be dismissed by this Court (Coram: R.K. Abichandani, J. as he then was) vide order dated 8.9.1995, which is confirmed by the Division Bench of this Court (Coram: C.K. Thakkar, J. and H.L. Gokhale, J. as they then were) in Letters Patent Appeal No.1050 of 1995 vide order dated 26.3.1997. As regards the contention that the petitioner is entitled to restoration of land admeasuring 1755 sq. mtrs. out of the land which is so declared as excess vacant land, at this stage, it is necessary to refer to the order dated 26.3.1997 passed in Letters Patent Appeal No.1050 of 1995, which reads as under:­ “It appears that pursuant to the consent given by the appellant the land was taken over by the Government. Amount of compensation was fixed and it is an admitted fact that the amount was accepted by the appellant. The possession was also handed over to the Government. Notification under Sec.10(3) of the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as "the Act") was also issued. It appears that after everything was over, part of the land was given to the Indian Petrochemical Corporation Limited ("IPCL" in short). It, however, appears that since only part of the land was accepted, the appellant made a demand that remaining part may be given to him as the consent given by the appellant was a condition one. In our opinion, contention is not well founded. Once, the appellant agreed and the possession of the land was handed and the amount of compensation was paid and notification under Sec.10(3) of the Act was issued, the land stood vested in the State Government free from all encumbrances. Thereafter it is not open to the appellant to claim the whole or part of the land. The learned Single Judge has not committed any error of law in dismissing the petition and that we do not see any infirmity in the order passed by the learned Single Judge. Hence, Letters Patent Appeal is dismissed.”

12. It further transpires from the facts that the land in question has vested in the State Government free from all encumbrances is also mutated in the revenue record. After the aforesaid order dated 26.3.1997, after the Repeat Act came into force, as an afterthought, the petitioner has filed present petition on the ground that by virtue of Section 3(2)(b) of the Repeal Act, the petitioner is entitled to restoration of the land in question. Mr. Rao, learned advocate for the petitioner has also contended that by virtue of the provisions of Section 3(2)(b) of the Repeal Act, the petitioner is entitled to restoration of the land in question.

13. Section 3 of the Repeal Act provides for Saving as under:­ “3. Savings.­ (1) The repeal of the principal Act shall not affect­

(a) the 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 by the competent authority;

(b) the validity of any order granting exemption under sub­section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary;

(c) any payment made to the State Government as a condition for granting exemption under sub­section (1) of Section 20.

(2) Where­

(a) any land is deemed to have vested in the State Government under sub­section (3) of Section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and

(b) any amount has been paid by the State Government with respect to such land then, such land shall not restored unless the amount paid, if any, has been refunded to the State Government.”

14. The contention raised by the petitioner that as the petitioner is ready and willing to refund the amount of compensation which has been paid under Section 11 of the Act, the petitioner is entitled to restoration, if examined in light of the aforesaid provisions of Section 3, the only conclusion which can be arrived at is that it is an afterthought and a misconceived contention on the part of the petitioner. The provisions of an Act is to be interpreted in a harmonious manner and not in isolation. In the instant case, as enumerated above, the land in question has vested in the State Government free from all encumbrances and the possession is also taken over by the State Government and in fact the same came to be allotted also in favour of respondent No.3 society.

15. At this juncture, it would be advantageous to refer to the judgment of the Hon'ble Apex Court in the case of Sulochana Chandrakant Galande Vs. Pune Municipal Transport, reported in (2010) 8 SCC 467, wherein it has been held as under:­ “10. The Scheme of the Act, 1976 provides that the prescribed authority shall make an order declaring the surplus land. The land would be acquired by the State and tenure holder is entitled to have an amount of compensation. Section 10(3) of the 1976 Act, provides that after acquisition and publication of the Notification under Section 10(1) of the 1976 Act "the land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified".

11. Section 11 of the 1976 Act, provides for the Mode of Payment of the amount for vacant land acquired. Any person aggrieved, has a right to file an appeal before the Land Tribunal and a second appeal before the High Court.

12. The provisions of Section 10(3) of the 1976 Act are analogous to Section 16 of the Land Acquisition Act, 1894 (hereinafter called “the 1894 Act”). Acquisition proceedings cannot be withdrawn/abandoned in exercise of the powers under Section 48 of the Act 1894 or Section 21 of the General Clauses Act, 1897 once the possession of the land has been taken. (Vide The State of Madhya Pradesh and Ors. v. Vishnu Prasad Sharma and Ors., AIR 1966 SC 1593; LT. Governor of Himachal Pradesh and Anr. v. Sri Avinash Sharma, AIR 1970 SC 1576; Pratap and Anr. v. State of Rajasthan and Ors., AIR 1996 SC 1296 : (1994 AIR SCW 1404); Mandir Shree Sita Ramji alias Shree Sitaram Bhandar v. Land Acquisition Collector and Ors., AIR 2005 SC 3581 : (2005 AIR SCW 4508); Bangalore Development Authority and Ors. v. R. Hanumaiah and Ors., (2005) 12 SCC 508 : (AIR 2005 SC 3631 : 2005 AIR SCW 4881); and Hari Ram and Anr. v. State of Haryana and Ors., (2010) 3 SCC 621) : (2010 AIR SCW 1726).

13. The meaning of the word 'vesting' has been considered by this Court time and again. In The Fruit and Vegetable Merchants Union v. The Delhi Improvement Trust, AIR 1957 SC 344, this Court held that the meaning of word 'vesting' varies as per the context of the Statute in which the property vests. While considering the case under Sections 16 and 17 of the 1894 Act, the Court held as under :­ "19. ... the property acquired becomes the property of Government without any condition or limitations either as to title or possession. The legislature has made it clear that vesting of the property is not for any limited purpose or limited duration." (Emphasis added).

14. "Encumbrance" actually means the burden caused by an act or omission of man and not that created by nature. It means a burden or charge upon property or a claim or lien on the land. It means a legal liability on property. Thus, it constitutes a burden on the title which diminishes the value of the land. It may be a mortgage or a deed of trust or a lien of an easement. An encumbrance, thus, must be a charge on the property. It must run with the property. (Vide Collector of Bombay v. Nusserwanji Rattanji Mistri and Ors., AIR 1955 SC 298; H.R State Electricity Board and Ors. v. Shiv K. Sharma and Ors., AIR 2005 SC 954 : (2005 AIR SCW 596); and AI Champdany Industries Ltd. v. Official Liquidator and Anr., (2009) 4 SCC 486) :

(2009 AIR SCW 2402).

15. In State of Himachal Pradesh v. Tarsem Singh and Ors., AIR 2001 SC 3431 : (2001 AIR SCW 3284), this Court held that the terminology 'free from all encumbrances' used in Section 16 of the Act 1894, is wholly unqualified and would en­compass the extinguishing of "all rights, title and interests including easementary rights" when the title vests in the State.

16. Thus, "free from encumbrances" means vesting of land in the State without any charge or burden in it. Thus, State has absolute title/ownership over it.

22. In view of the above, the law can be summarised that once the land is acquired, it vests in the State free from all encumbrances. It is not the concern of the land owner how his land is used and whether the land is being used for the purpose for which it was acquired or for any other purpose. He becomes persona non grata once the land vests in the State. He has a right to get compensation only for the same. The person interested cannot claim the right of restoration of land on any ground, whatsoever.

36. Undoubtedly, the 1976 Act, stood repealed by the 1999 Act. However, it has no bearing on this case for the reason that proceeding pending in any Court relating to the 1976 Act, stood abated, provided the possession of the land had not been taken from the owner. Therefore, in a case, where the possession has been taken, the repeal of the Act would not confer any benefit on the owner of the land. [Vide Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. and Ors., (2000) 6 SCC 325 : (AIR 2000 SC 3415 : 2000 AIR SCW 1882; Ghasitey Lal Sahu and Anr. v. Competent Authority, (2004) 13 SCC 452; and Mukarram Ali Khan v. State of Uttar Pradesh and Ors., (2007) 11 SCC 90 : (AIR 2007 SC (Supp) 985 : 2007 AIR SCW 6286).”

16. In view of the above, Section 3(2)(b) cannot be applied in isolation as the pre­requisite for its application is that the possession has not been taken over by the State Government. In the facts and circumstances arising out of this petition, the petitioner cannot get any benefit of the Repeal Act as tried to be canvassed by the petitioner in this petition, as the possession is already taken in the instant case.

17. It is pertinent to note that the petitioner having recited all the facts in the petition has, in Paragraph 15 of the same, made contradictory statement of fact. In Paragraph 15 of the petition, the petitioner has made a statement to the effect that “In the present case the land's situation is such that it has not been allotted to anybody and atpresent also the petitioner is in possession of the land...” and in the same paragraph, it is mentioned thus, “It is submitted that this land has not been taken by IPCL because from that land High Tension Line was passing from Survey No.496 and 501. Therefore possession of the same has been returned by IPCL to the Government and on the request of IPCL, the Government has allotted land from survey nos.508, 608 and 552. It is submitted that the land admeasuring 1755 sq. mtrs. is open land and petitioner is protecting the said land so that nobody encroaches upon the same though possession has been taken over by the competent authority in the year 1986 and compensation has been paid to the petitioner.”. As such it reveals from the affidavit in reply filed by the competent authority supported by the documents that the possession is already taken. It is also evident from the observations of this Court in the order dated 8.9.1995 passed in Special Civil Application No.6275 of 1995 as well as order dated 26.3.1997 passed in Letters Patent Appeal No.1050 of 1995 that the land in question vests absolutely free from all encumbrances and the petitioner cannot now contend that even though the land has vested in the State Government and the possession is already taken, the petitioner is entitled to restoration under Section 3(2)(b) of the Repeal Act. Such contention is not only misreading the provisions of the Repeal Act, but is misconceived. The provision of Section 3(2)(b) of the Repeal Act, therefore, would not apply in the instant case. It may also be noted that only because an application as provided under Section 21 of the Act was filed and it was not decided by the State Government, the same would annul the earlier proceedings which are already taken, inasmuch as, that the same was filed after the land in question was declared to be excess vacant land and possession was taken over and the compensation was already paid. The reliance placed by the petitioner on an alleged No Objection Certificate issued by respondent No.3 society also does not take the case of the petitioner forward. It may be noted that respondent No.3 society has not only denied the said fact, but has also challenged the authenticity of such a No Objection Certificate. It is an admitted position that the present petition is filed on 29.2.2012 i.e. after an enormous delay and even if it is counted from the date of the order of the Letters Patent Appeal No.1050 of 1995, the present petition is preferred after a period of about 15 years. The petition is, therefore, liable to be rejected and is hereby rejected in limine. No order as to costs.

[R.M.CHHAYA, J.] mrpandya