AVANTI ORGANISATION Vs. COMPETENT AUTHORITY AND ADDITIONAL COLLECTOR URBAN LAND CEILING ACT RAJKOT
LAWS(GJH)-1988-10-11
HIGH COURT OF GUJARAT
Decided on October 28,1988

AVANTI ORGANISATION Appellant
VERSUS
Competent Authority And Additional Collector Urban Land Ceiling Act Rajkot Respondents





Cited Judgements :-

CENTRAL ENGINEERING WORKS VS. COMPETENT AUTHORITY AND ADDITIONAL COLLECTOR RAJKOT [LAWS(GJH)-1988-11-7] [FOLLOWED]
JASWANTLAL KASTURCHAND SHAH VS. COMPETANT AUTHORITY AND DEPUTY COLLECTOR ULC [LAWS(GJH)-1996-7-25] [REFERRED]
CHEHARAJI SHANAJI VS. COMPETENT AUTHORITY AND ADDITIONAL COLLECTOR [LAWS(GJH)-2001-9-21] [REFERRED]
OM PRAKASH B KHARE VS. STATE OF GUJARAT [LAWS(GJH)-2004-5-10] [REFERRED TO]
LALIT V MANSINGHANI INDEQUIP ENGINEERING LTD VS. URBAN LAND TRIBUNAL AND EX OFFICIO ADDITIONAL SECRETARY [LAWS(GJH)-2010-5-40] [REFERRED TO]
STATE OF GUJARAT VS. KAPILABEN AMBALAL PATEL [LAWS(GJH)-2011-4-208] [REFERRED TO]
ANILBHAI DWARKADAS PATEL VS. STATE OF GUJARAT [LAWS(GJH)-1993-4-1] [REFERRED TO]
GUJARAT IRON AND STEEL COMPANY LIMITED VS. STATE OF GUJARAT [LAWS(GJH)-1995-2-46] [REFERRED TO]
PATANI UTTAR GUJARAT CO OP HOUSING SOCIETY VS. STATE OF GUJARAT [LAWS(GJH)-1995-2-48] [REFERRED TO]
HEIRS AND LEGAL REPRESENTATIVES OF DECEASED GORDHANBHAI KASHIBHAI PATEL VS. STATE OF GUJARAT [LAWS(GJH)-1995-4-37] [REFERRED TO]
SAVITABEN RAMANBHAI PATEL VS. STATE OF GUJARAT [LAWS(GJH)-1998-11-84] [REFERRED TO]
AMBICA INDUSTRIAL CO OPERATIVE SERVICE SOCIETY LIMITED VS. STATE OF GUJARAT [LAWS(GJH)-1998-11-16] [REFERRED TO]
OM PRAKESH B KHARE VS. STATE OF GUJARATE [LAWS(GJH)-2004-4-103] [REFERRED TO]
RAJNIKANT DESAIBHAI PATEL VS. COMPETENT AUTHORITY AND ADDITIONAL COLLECTOR [LAWS(GJH)-2007-2-56] [REFERRED TO]
AVTAR SINGH VS. UNION OF INDIA [LAWS(DLH)-1992-11-15] [REFERRED]
KANTIBHAI NANUBHAI PATEL VS. URBAN LAND TRIBUNAL [LAWS(GJH)-2001-9-54] [REFERRED]
IDEQUIP ENGINEERING LTD VS. URBAN LAND TRIBUNAL AND EX OFFICIO ADDITIONAL CHIEF [LAWS(GJH)-2005-8-5] [REFERRED TO]
SHANTILAL THAKORDAS MISTRI VS. COMPETENT AUTHORITY & DEPUTY COLLECTOR [LAWS(GJH)-2014-8-74] [REFERRED TO]
SURAT PANJRA POLE VS. STATE OF GUJARAT & ANR. [LAWS(GJH)-1996-11-30] [REFERRED TO]
HEMAL ISHWARBHAI PATEL VS. VEER NARMAD SOUTH GUJARAT UNIVERSITY [LAWS(GJH)-2016-12-35] [REFERRED TO]
KAPILABEN AMBALAL PATEL VS. STATE OF GUJARAT [LAWS(SC)-2020-5-32] [REFERRED TO]
DALWADI MULJIBHAI MATHURBHAI VS. STATE OF GUJARAT [LAWS(GJH)-2021-2-134] [REFERRED TO]
BAVABHAI TAPUBHAI PATEL VS. STATE OF GUJARAT [LAWS(GJH)-2021-6-78] [REFERRED TO]
RAVJIBHAI PRABHUDAS PATEL SINCE DECD THRHEIRS VS. ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U L C [LAWS(GJH)-2021-7-152] [REFERRED TO]


JUDGEMENT

A.M.AHMADI - (1.)The Urban Lard (Ceiling and regulation) Act 1976 No. 33 of 1976 (hereinafter called the Act was enacted to provide for the imposition of a ceiling on vacant land in urban agglomerations for the acquisition of such land in excess of the ceiling limit for regulating the construction of buildings on such land and for matters connected therewith with a view to preventing the concentration of Urban land in the hands of a few persons and speculation and profiteering therein and to bring about on equitable distribution of land in urban agglomerations to subserve the common good. It was made applicable to the State of Gujarat and came into force at once. The definition of the various terms and expression used in the Act are found in Sec. 2 of the Act. Section 3 mandates that no person shall be entitled to hold and vacant land in excess of the ceiling limit in the territories to which the Act applies on and from the commencement of the Act unless otherwise provided. The expression ceiling limit means the ceiling limit specified in Sec. 4. Section 4 read with Schedule indicates for every person the ceiling limit in an urban agglomeration depending on the category of the agglomeration Section 6(1) enjoins upon 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 the Act and every person holding vacant land in excess of the ceiling limit at such commenscment to 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 and also specifying the vacant lands within the ceiling limit which he desires to retain. Section 7 deals with cases where vacant land held by a person is situated within the jurisdiction of two or more competent authorities. Section 8 which is relevant for our purposes may now be set cut:
"8 (1) On the basis of the statement filed under Sec. 6 said after such inquiry as the competent authority may deem fit to make the competent authority shall prepare a draft statement in respect of the person who has filed the statement under Sec. 6.

(2) Every statement prepared under sub-sec. (1) shall contain the following particulars namely:

(i) the name and address of the person;

(ii) the particulars 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 such person;

(iii) the particulars of the vacant lands which such person desires to retain within the ceiling limit;

(iv) the particulars of the right title or interest of the person in the vacant and

(v) such other particulars as may be prescribed.

(3) The draft statement shall be served in such manner as may be prescribed on the persons concerned together with a notice stating that any objection to-the. draft statement shall be preferred within thirty days of the service thereof.

(4) The competent authority shall duly consider any objection received within the period specified ill the notice referred to in sub-sec.(3) or within such further period as may be specified by the competent authority for any good and sufficient reason. from the person on whom a COpy of the draft statement has been served under that sub-section and the competent authority shall after giving the objector a reasonable opportunity of being heard pass such orders as it deems fit".
Section 9 stipulates that after the disposal of the objections if any received under sub-sec. (4) of Sec. 8 the competent authority shall after making such alterations as are necessary in the draft statement in accordance with the orders passed on the objections determine the vacant land held by the person concerned in excess of the ceiling limit and serve a copy of such statement on the person concerned. Section 10(1) enjoins upon the competent authority to cause a notification to be published for the information of the general public giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that such vacant land is to be acquired by the concerned State Government and the claims of all persons interested therein may be made giving particulars of the nature of their interests in ouch land. Under sub-sec. (2) the competent authority has to consider the claims of persons interested in the vacant land determine the nature and extent of such claims and pass such orders as it deems fit. Sub-section (3) of Sec. 10 may now be reproduced:
"10 (3) At any time after the publication of the notification under sub-sec. (1) the competent authority may by notification published in the Official Gazette of the State Government concerned declare that the excess vacant land referred to in the notification published under sub-sec. (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".
Upon the land being vested in the State Government sub-sec. (5) entitles the competent authority to order any person in possession of ouch land to surrender or deliver possession thereof to the State Government or its duly authorised officer within thirty days of the service of the notice. Sub-sec. (6) empowers the State Government or the concerned authorised officer to use force if necessary to obtain possession of the vacant land from the person refusing or failing to comply with an order made under sub-sec. (5). Section 11 provides for the payment of amount for vacant land acquired under Sec. 10 of the Act Sections 23 and 24 indicate how the vacant lands so acquired would have to be disposed of by the State Government.
(2.)It is therefore clear from the scheme of the provisions of Secs. 6 to 11 of the Act that every person holding vacate land in excess of the ceiling limit must file a statement giving particulars thereof before the competent authority. While doing sa he may specify the vacant lands within the ceiling limit which he would like to retain On the basis of such statement the competent authority has to prepare a draft statement containing certain particulars including those in respect of the vacant lands he desires to retain within the ceiling limit. The draft statement so prepared must then be served on the person concerned and his objection if any must be considered by the competent authority before finalising the same. After the draft statement is finalised in accordance wash the orders passed on the objections and a final statement is prepared and served on the concerned party the competent authority is required to state the excess vacant land held by the person concerned by issuance of a notification in the Official Gazette. The notification would indicate tn excess vacant land to be acquired by the State Government and call upon persons interested therein to lodge their claims stating the nature of their interest in such lands. Thereafter the competent authority is expected to issue another notification declaring that the excess vacant land shall with effect from the specified date be deemed be have been acquired by the State Government and thereupon such land shall vest absolutely in the State Government free from all encumbrances. The competent authority may then take possession of such land. Compensation has to be paid for the lands so acquired as provided by Sec. 11 and thereafter such land may be disposed of as indicated by Secs. 23 and 24 of the Act. We may now read Sec. 20 which runs as under:
"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 ant the State Government is satisfied either on its own motion or otherwise that having regard to the location of such land the purpose 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 in 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) where any person holds vacant land in excess of the ceiling limit and the State Government either on its own motion or otherwise it satisfied that the application of the provisions of this chapter should cause undue hardship to such person 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;

Provided that no order under this clause shall be made unless the reasons for doing so are recorded in writing.

(2) If at any time the State Government is satisfied that any of the conditions subject to which any exemption under clause (a) nr clause (b) of sub-sec. (1) Is granted is not complied with by any person it shall be competent for the State Government to withdraw by order such exemption after giving a reasonable opportunity to such person from making a representation against the proposed withdrawal and thereupon the provisions of this Chapter shall apply accordingly".
In the backdrop of the scheme of the Act indicated above two questions arise for determination namely (i) whether the State Government is bound to give a personal hearing to the person concerned or his agent i. e. a right of audience before rejecting an exemption application made under Sec. 20(1)(a) of the Act and (ii) whether the State Government must decide the application made under Sac. 20(1)(a) of the Act before the draft statement is prepared under Sec. 8(1) of the Act ?
(3.)Precisely the same two questions came up for consideration before a Division Bench of this Court consisting of N. H. Bhatt and B. S. Kapadia JJ. in Nirmalaben Manilal Doshi v. State of Gujarat [25(1)] 1984 (1) GLR 322. On the first question the Court observed as under (at page 325 of GLR):
"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 power 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 she 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 8ranted 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".
In taking this view reliance was placed on the observations of the Supreme Court in M/s Raj Restaurant & Anr. v. Municipal Corporation of Delhi AIR 1982 SC 1150 wherein the Supreme Court held that before refusing to renew a licence or cancel or revoke it the concerned party must be given an opportunity to represent his case. Quoting the following passage from the decision of the Madhya Pradesh High Court in the case of Nandkishore v. State of Madhya Pradesh AIR 1982 MP 33 with approval:
"6 The power of exemption has the effect of restoring the applicability of the general law by taking away the exemption to it created by the special law. Accordingly the power to claim exemption is a valuable right. Where under the provisions of an Act an authority is empowered to grant exemption and a person has a right to claim it on fulfilment of statutory conditions the authority is bound to hear him and pass a speaking order giving reasons in support of its finding that he is not entitled to the exemption".
This Court concluded in paragraph 5 as under:
"The outcome will be that the Government will afford a reasonable opportunity of audience to all these petitioners and then decide their applications afresh in accordance with the provisions of the Act".
While taking this view the Court was perhaps unaware of the earlier observations of this Court in Special Civil Application No. 5296 of 2982 made on 25/01/1983 (Mahendrabhai B. Thakkar & Anr. v State of Gujarat) by a Division Bench consisting of M P. Thakkar C. J. (as he then was) and R. J. Shah J. to the following effect:
"The learned Counsel for the petitioners contends that be was not granted any personal hearing before the petitioners application for examination under Sec. 20 was disposed of Section to does not contemplate according an opportunity of personal hearing".

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