HIREABEN HARIBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The persons who have chosen to take law in their hands have approached this Court under Article 226 of the Constitution of India for redressal of their grievance for not sanctioning their Scheme under Section 21 of the Urban Land (Ceiling and Regulation)Acts 1976 (the Ceiling Act for brief). The question that would arise would be whether or not this Court can help such persons.

(2.) The contoversy arising in this petition centres round two parcels of land bearing survey Nos. 78 and 79 situated at Ghatlodia in Ahmedabad (the disputed lands for convenience). They were included in Town Planning Scheme No. 1 Ghatlodia Ahmedabad City and have been allotted final Plot Nos. 75 and 76. The petitioners were the owners thereof. They also own certain other parcels of land bearing survey Nos. 29 37 38 46 54 77 215 199 200 223 226 221 218 and 219 It appears that their holding was in excess of the ceiling area fixed under the Ceiling Act. They appear to have floated a scheme for construction of the residential units for the weaker section of the society (each unit admeasuring between 40 square metres and 80 square metres) on the disputed lands. They appear to have made the necessary-application in the prescribed form under Section 21 (1) of the Ceiling Act on 5 September 1976. During the pendency of the aforesaid application it appears that the petitioners made an application on 23rd August 1978 to the Ahmedabad Urban Development Authority (the AUDA for convenience) constituted under the Gujarat Town Planning and Urban Development Act 1976 (the Town Planning Act for brief) for obtaining the necessary permission for development of the disputed lands. I think this they could not have done before the necessary permission under Section 21 (1) of the Ceiling Act was granted to them. I appears that the plan submitted to the AUDA was found deficient in certain respects and the deficiencies were supplied and the rectified plan was submitted to the AUDA on 19th October 1978 In the meantime it appears that the competent authority dealing with their application under Section 21(1) of the Ceiling Act appears to have found some defects in the said application. Thereupon it appears that they submitted a fresh application in the prescribed form under Section 21 (1) of the Ceiling Act on 23rd March 1979. While the fresh application was pending the petitioners went ahead with their scheme on the basis that the development permission was granted as no reply was received from the AUDA pursuant to their application after submission of the rectified plan on 19th October 1978. It appears that the AUDA had taken exception to the construction activity undertaken by the petitioners on the disputed lands without obtaining the necessary development permission. This petition has nothing to do with the dispute between the AUDA and the present petitioner. They appear to have proceeded with the construction work on the disputed lands.. As a result 349 eons. houses each admeasuring 40 square metres and 2 houses each admeasuring 80 square metres were constructed on the disputed lands. In the meantime respondent No. 1 issued one circular on 13 June 1979 for regularising unauthorised constructions without obtaining the necessary exemption under Section 20 or without obtaining the permission under Section 21 of the Ceiling Act. Its copy is at Annexure-A to this petition. It transpires from a bare perusal thereof that such unauthorised constructions were to be regularised by giving the necessary exemption to the lands on which such constructions were standing under Section 20 of the Ceiling Act on payment of some fine it such construction wore raised without permission after 28th January 1976 In the meanwhile the application made by the petitioners under Section 21(1) of the Ceiling Act came up for hearing and disposal before the competent authority (respondent No. 2 herein). It appears that respondent No. 2 imposed fine of Rs. 38 605.85 paise for raising the unauthorised constructions on the disputed lands without obtaining the necessary permission under Section 21 of the Ceiling Act. It may be mentioned at this stage that as transpiring from the Order-in-Appeal the amount of fine imposed by the competent authority was to the tune of Rs. 3 86 57 Be as that it may the competent authority imposed some fine for raising the constructions on the disputed lands without obtaining the necessary permission under Section 21 of the Ceiling Act. The petitioners made no attempt to pay up the fine. Thereupon by his order passed on 19th March 1981 with respect the aforesaid application made by the petitioners respondent No. 2 herein rejected it. Its copy is at Annexure-B to this petition. The aggrieved petitioners carried the matter in appeal before the appellate authority (respondent No. 3 herein) under Section 33 of the Ceiling Act. By his order passed on 5th March 1982 in the aforesaid appeal the appellate authority came to the conclusion that the amount of fine imposed by the competent authority on the petitioners with respect to the unauthorised constructions raised by the petitioner on the disputed lands without obtaining the necessary permission under Section 21(1) of the Ceiling Act was not properly calculated in accordance with the guidelines issued by respondent No. 1 as reflected in the circular at Annexure-A to this petition and as such the matter was remanded to respondent No. 2 herein for his fresh decision according to law in the light of the circular at Annexure-A to this petition. A copy of the appellate order is at Annexure-C to this petition. By the time the matter was taken up for fresh disposal by respondent No. 2 herein the circular at Annexure-A to this petition came to be rescinded by one circular issued by respondent No. 1 herein on 12th May 1982. Thereupon by Ins order passed on 29th September 1984 with respect to the application made by the petitioners under Section 21 of the Ceiling Act respondent No. 2 rejected it. Its copy is at Annexure-D to this petition. It may be mentioned at this stage that the Scheme for which the aforesaid application was made by the petitioners herein was rejected on two grounds namely the unauthorised construction was made on the disputed lands without obtaining the necessary permission under Section 21 (1) of the Ceiling Act and also on the ground that even under the circular at Annexure-A to this petition it was for the State Government to grant the necessary exemption from the operation of the Ceiling Act under Section 20(1) thereof qua the disputed lands. The aggrieved petitioners thereupon approached this Court by means of this petition under Article 226 of the Constitution of India for questioning the correctness of the impugned order passed by respondent No. 2 herein at Annexure-D to this petition. While issuing Rule of this petition by its order passed on 1st January 1985 this Court directed the petitioners herein to prefer an appeal against the impugned order at Annexure-D to this petition. Apropos the made an appeal before respondent No. 3 herein. It came to be registered as Appeal No. Ahmedabad 45 of 1985. By his order passed on 30th January 1986 in the aforesaid appeal respondent No. 3 dismissed it. Its copy is at Annexure-E to his petition. Thereupon the petitioners sought leave to amend the petition for challenging the appellate order at Annexure-E to this petition. After obtaining the necessary leave the petition has come to be amended and the impugned order passed by respondent No. 3 has also come to be challenged in this petition.

(3.) Kum. shah for the petitioners has submitted that having imposed fine on the basis of incorrect calculation in disregard of the guidelines contained in the circular at Annexure-A to this petition respondent No.2 after remand could not have rejected the scheme under Section 21 of the Ceiling Act only on the ground that the circular at Annexure-A to this petition had come to be rescinded subsequently on 12th May 1982 She has further urged that in any case if respondent No.2 was of the view that the petitioners ought to have obtained exemption under Section 20(1) of the Ceiling Act in terms of the circular at Annexure-A to this petition respondent No. 2 could not have rejected the application made by the petitioners under Section 21 of the Ceiling Act without examining whether or not the scheme submitted for the purpose was in accordance with law As against this Shri Champaneri for the respondents has urged that the competent authority was justified in rejecting the application made by the petitioners under Section 21 (1) of the Ceiling Act as the circular at Annexure-A to this petition had come to be rescinded on 12th May 1982 before the date of the impunged order at Annexure-D to this petition According to Shri Champaneri for the respondents since the circular at Annexure-A to this petition had come to be rescinded respondent No 2 herein could not have followed the direction given by the appellate authority in the appellate order at Annexure-C to this petition