LAWS(GJH)-2001-1-63

KHODABHAI CHAKUBHAI PATEL Vs. STATE OF GUJARAT

Decided On January 25, 2001
KHODABHAI CHAKUBHAI PATEL Appellant
V/S
STATE OF GUJARAT Respondents

JUDGEMENT

(1.) The order of the Competent Authority under the Urban Land (Ceiling & Regulation) Act, (for short "ULC Act") passed on 25.10.1991 (Annexure : B) and consequent order of the Urban Land Tribunal in Appeal u/s.33 of the ULC Act passed on 29.10.1994 are under challenge in this petition. The prayers of the petitioners are that these two orders be quashed and set aside. They have further prayed for a writ of mandamus directing the respondents to give two separate units to the petitioners.

(2.) Brief facts are that according to the petitioners their grand father Panchhabhai Kurjibhai Patel was a farmer and owner and occupier of various pieces of land in village Raiya. The joint family of the petitioners consisted of their grand father and his five sons including the father of the petitioners. The land bearing Survey No.56/2 of village Raiya was purchased in the name of the father of the petitioners, namely, Chhakubhai from joint family fund and at that time the family was joint and undivided. In 1965 the petitioners' grand father distributed the land of the family amongst his five sons including the father of the petitioners and at that time as the land bearing Survey No.56/2 was purchased in the name of the petitioners' father the said land came into the share of the father of the petitioners family. The petitioners' father filled in form No.1 u/s.6(1) of the ULC Act. The petitioners' father applied for exemption for agricultural purpose as contemplated u/s.20 of the ULC Act which was granted. Thereafter in the year 1981 the land in question was agreed to be sold to a co.operative society and therefore exemption u/s.20 for the said purpose was applied for. The exemption was not granted and therefore the petitioners' father filed writ petition No.6990 of 1990. The said petition was rejected. Before that vide order dated 26.8.1997 the respondent No.2 competent Authority passed ex-parte order u/s.8(4) of the ULC Act declaring the surplus land from the holding of the petitioners' father. The petitioners' father filed Appeal u/s.33 of the Act which was allowed and the matter was remanded to the Competent Authority for fresh hearing and order passed u/s.8(4) was quashed and set aside on 9.10.1990. The petitioners' case is that since the main order u/s.8(4) of the Act was set aside further proceeding undertaken by the Competent Authority stood terminated. Thereafter the matter was heard de-novo by the competent Authority who gave only one unit even though the petitioners being major sons and daughters of their father and the property was joint family property. An Appeal u/s.36 of the Act was preferred. This Appeal was also rejected on 29.10.1994. It is further the case of the petitioners that no valid notification for de-novo consideration was issued u/s.10(3) and (5) of the Act and part of the land belonging to the petitioners' family has been allotted to co.operative societies u/s.23 of the Act hence this petition was filed.

(3.) The case of the respondents in the counter Affidavit of Shri J.K.Astik, Competent Authority is that Chhakubhai Panchhabhai, father of the petitioners, filed form No.1 u/s.6(1) of the Act wherein he had shown several properties out of which he obtained agricultural exemption with respect to six plots mentioned in Para : 4 of the counter Affidavit. Survey No.56/2 in dispute is one of such plots over which agricultural exemption was obtained by the petitioners' father. However, agricultural exemption was cancelled due to breach of conditions of exemption. As such form No.1 u/s.6(1) was processed and on 26.8.1987 an order was passed by the competent Authority u/s.8(4) that the land holder was entitled to retain one unit and 17604 sq.mtrs. of land from Survey No.56/2 and 560.51 sq.mtrs. from Survey No.38 paiki were declared as excess vacant land. Thereafter, further proceedings were taken under the Act. Notification u/s.10(1) of the Act was published in the Gazette dated 16.9.1987 and notification u/s.10(3) was published in the Gazette on 28.11.1987. Notice u/s.10(5) of the Act was issued on 1.12.1987 and possession of land in question was taken over on 28.3.1988. Thereafter compensation was awarded to the land holder u/s.11 of the Act on 17.3.1989. Out of the aforesaid land 5175 sq.mtrs. of land from Survey No.56/2 was allotted to Sales-Tax Employees Cooperative Housing Society, 6555 sq.mtrs. was allotted to Telephone Co.Operative Housing Society and 3450 sq.mtrs. was allotted to Civil Hospital Employees Co.Operative Housing Society u/s.23 of the Act.