NIRMALABEN MANILAL DOSHI HEIRS OF MANILAL HIRALAL Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
Nirmalaben Manilal Doshi Heirs Of Manilal Hiralal
STATE OF GUJARAT
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B.S.KAPADIA, N.H.BHATT -
(1.) These 17 matters are taken up together because of the common question pertaining to the interpretation of sec. 20 of the Urban Land (Ceiling and Regulation) Act. being Act No. 33 of 1976 but ceiling factual situations make us divide these petitions into three groups. First 9 matters out of the serial numbers mentioned at the top of this judgment simplicitor deal with only one point namely whether the Government before rejecting an application for exemption under sec. 20(1) of the Urban Land (Ceiling and Regulation) Act 1976 hereinafter referred to as the Act for brevitys sake is bound to give audience to the person who has applied for exemption. In the next six matters commencing from the Special Civil Application No. 2895/83 mentioned at the to of this judgment the above question is certainly there but there is one additional point also that was canvassed by the petitioners of these six petitions. They allege that the rejection of their applications was bad for ant of any opportunity of audience having been extended to them but those rejections were bad also on the ground that the Government had brought to bear on their mind extraneous considerations in the form of Governments policy decisions in respect of granting exemption for industrial purposes So in these six petitions the point that will be required to be considered is what is the scope and ambit of the Governments power while dealing with such applications and whether the Government is competent to lay down guide-lines even if those guidelines tend to whittle down the comparatively wider scope of power conferred on the State Government by the Parliament under whose authority alone the lands in various agglomerations could be declared surplus and acquired or deemed to be acquired. In the last two matters the declaration of the surplus land has been effected even before the applications made by those parties had come to be dealt with one way or the other. Obviously but Incidentally the question about the Governments alleged obligation to hear those petitioners in that regard also would arise. We shall take up the last group first. Sec. 20 of the Act is reproduced below:
20 (1) Notwithstanding anything contained in any of the foregoing provisions of this Chapter. (a) where any person holds vacant land in excess of the ceiling limit and the State Government is satisfied either on its own motion or otherwise that having regard to the location of such land the purposes for which such land is being or is proposed to be used and such other relevant factors as the circumstances of the case may require it is necessary or expedient is the public interest so to do that Government may by order exempt subject to such conditions if any as may be specified in the order such vacant land from the provisions of this Chapter. (b)...... (2).........................
(2.) Chapter-III of the Act containing secs. 3 to 24 deals with ceiling on vacant lands. The scheme of the Act is too well-known to call for any repeated elaboration. It is truism to state that other stringent provisions of the Chapter-III of the Act are subject to sec. 20 of the Act which begins with a non-obstante clause. This means that the declaration about the land being surplus can be made only after the decision on an application under sec. 20 of the Act for exemption is taken. The over-all consideration of the provisions of Chapter-III pre-supposes that the full effect will be given to all the provisions so that a coherent system of working out the problem is evolved. If a declaration under secs. 8(1) and 8(3) proceeds one way or the other decision of an application for exemption it will be tantamount to putting a cart before a horse and if the application (covered under that declaration) would ultimately come to be granted and it will be a meaningless exercise that is why we say that after filing of a statement under sec. 6 of the Act if a citizen applies for exemption under sec. 20 of the Act it is the duty of the Government to deal with that application first and then proceed to resort to secs. 8 and 8(3) of the Act. In the petitions Nos. 2941/83 and 2161/83 the grievance of the petitioners is that the Government slept over their applications under sec. 20 of the Act for exemption and the .. competent authority actually went to issue the declarations in question under those provisions. As per the Scheme understood and stated to be underlined the provisions of Chapter-III of the Act such an exercise of power is contrary to the spirit of the Act and we therefore allow both these petitions by quashing the said declarations in those two petitions and we direct that the Government shall take-up their applications for exemption first on hand decide them in accordance with law that we are laying down in other matters (i.e. hear and then decide) and then the competent authority can take-up the question one way or the other under the provisions of secs. 8(1) and 8(3) of the Act. The Special Civil Applications Nos. 2941/83 and 2161/83 accordingly stand allowed by making the rule absolute with no order as to costs.
(3.) We now take-up the group of nine petitions listed first at the top of this judgment beginning with the Special Civil Application No. 2181/83. The provisions of sec. 20(1)(a) are already reproduced by us above. The Governments satisfaction about granting or not granting the exemption under that provision obviously rests on objective facts. The factors which are required to be taken into account by the Government are (i) the location of the land (2) purpose for which such land was used at the time the application comes to be made or (3) the purpose for which such land is proposed to be used in future and (4) such other relevant factors as make the Government decide that it is necessary or expedient and that too in the public interest to grant the exemption. What is public interest is a matter difficult to be defined but not difficult to be understood by description. A good deal of factors would be required to be examined by the Government under this head. It is well said that in a complex spectrum of facts like-the one required to be examined by the Government for the purpose of exercising its powers under sec. 20(1)(a) which powers are not absolute powers but are powers coupled with a duty the Government must have proper presentation of materials before it. More often than not if such a complex issue is taken on hand by the Government ex-parte incorrect or improper decision is likely to arise. It is therefore in the fitness of the things that the Government should ordinarily hear the applicant if the Government is prima facie and ex-parte inclined to take a view that the exemption was not to be granted. If an applicant has specifically sought for an opportunity to present the case personally or through an agent in a situation like the one arising under sec. 20(1)(a) of the Act it is all the more necessary for the State Government to hear the applicant. We would say that the case of an applicant for exemption under sec. 20 of the Act is akin to the case of a citizen applying for a licence under some provisions of the Act. In the case of M/S. RAJ RESTAURANT AND ANOTHER V. MUNICIPAL CORPORATION OF DELHI A.I.R. 1982 S.C. PAGE-1150 the Division Bench of the Supreme Court has held that where in order to carry on business a licence is required obviously refusal to give a licence or cancellation or revocati on of a licence would be visited with both civil and pecuniary consequences and as the business cannot be carried on without the licence it would also affect the livelihood of the person. In such a situation before either refusing to renew the licence or cencelling or revoking the same; the minimum principle of natural justice of notice that is opportunity to represent ones case is a must. When a citizen applies for exemption say for example for establishing any industry and such proposed future user of the land is one of the relevant factors to be counted while dealing with an application under sec. 20(1)(a) of the Act the citizen in such a situation would be able to explain his difficulties more effectively if the personal hearing is granted. It is because of this far reaching effect of the Governments decision on his prospects that we say that the hearing is required to be read as the implicit requirement of the provisions of the sec. 20(1)(a) and (b) of the Act.;
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