The Patani Uttar Guj. Co-Op. Housing Society, Ahmedabad v. State Of Gujarat And Others

1. This Special Civil Application under Articles 226 and 227 of the Constitution of India, has been filed by the petitioner, seeking a direction for the grant of permission to the petitioner under Urban Land (Ceiling and Regulation) Act, 1976 ('the Act' for short) for the land in village Ghatlodiya, bearing Survey No. 19 admeasuring 18717 sq. mtrs.; for quashing the order dated 1-1-1993 passed by the District Collector, whereby the permission was granted to the respondent No. 5 for the sale of the land in question to the Society respondent No. 6; to declare that order Annexure G passed by the Competent Authority and Additional Collector, dated 5-8-1993 is null and void and to declare the action of the Authority in rejecting the petitioner's application under Section 20 to be illegal.

2. The petitioner is a Co-operative Housing Society and it had entered into an agreement with the respondent No. 5 to purchase-the land in question on 10th June, 1987 and a sum of Rs. 6,25,000/ - was paid by the petitioner to the respondent No. 5. Although the date of application has not been given in the petition, it was submitted that an application seeking exemption from the provisions of the Act was filed, but this application was rejected. The date of the order of rejection has not been given out by the petitioner and it has been stated that, by a letter dated 3rd June, 1988, the petitioner Society was informed that, the matter shall not be taken up on 9th June, 1988 as was fixed earlier and the subsequent date will be intimated later on. It was pointed out by the learned counsel for respondent No. 6 that the application under Section 20 of the Act, filed by the petitioner had been rejected on 1-3-1989, but the petitioner has not filed the said order dated 1-3-1989 by which the application under Section 20 was rejected. It has also been submitted that respondent No. 5 also dealt with the matter of sale about this very land with the respondent No. 6 and the petitioner's case is that this time when the application under Section 20 was filed by the respondents Nos. 5 and 6 the same was granted. It has been submitted that permission was granted for non-agricultural use of the land on 1-1-1993 and thereafter the exemption was granted on 5-8-1993. On these premises, it was submitted that the permission with regard to the non-agricultural use of the land could not be granted in advance, i.e., before the grant of exemption under Section 20,' that the petitioner was not heard before the rejection of his application under Section 20 and thus, there was violation of the principles of natural justice and that the rejection of the petitioner's application under Section 20 of the Act and the grant of exemption under Section 20 in respect of the very same land on 5-8-1993 on the application of respondents Nos. 5 and 6 is violative of Art. 14 of the Constitution of India and, therefore, the' petitioner was entitled to the reliefs asked for. The notice was issued on 22nd September, 1993 and in response to the notice, the affidavits-in-reply have been filed on behalf of the respondents Nos. 5 and 6 and rejoinder to the affidavit-in-reply of respondent No. 6 and a sub-rejoinder thereto have also been filed. However, the respondents, i.e. the State of Gujarat, the Collector, Ahmedabad, the Competent Officer and Deputy Collector, Urban Land Ceiling and the Additional Collector, Urban Land (Ceiling and Regulation), Unit, Sachivalaya, Gandhinagar have not cared to file any return, as usual. It has been noticed that replies are not filed in the matters of Urban Land Ceiling which are matters of wholesome importance for the State Government and not only that the replies and affidavits-in-reply are not filed by the respondents, even on factual aspects, a stand has been resolutely taken on occasions more than once before this Court on behalf of the respondents that filing of the replies, even on factual aspect is not necessary as these matters are under Articles 226 and 227. Be that as it may, the fact remains that the matter has to be decided on the basis of the pleadings as are available before this Court on behalf of the parties in the form of Special Civil Application and replies and rejoinder etc.

3. So far as the first contention which has been raised on behalf of the petitioner that the exemption under Section 20 of the Act is a condition precedent for seeking permission for non-agricultural use of the lands and that the respondents Nos. 5 and 6 obtained such permission for non-agricultural use of the land in advance, I called upon the learned counsel appearing on behalf of the petitioner to show from the Scheme of the Act or any provision of the law making it a pre-requisite for seeking permission for the non-agricultural use. The argument of the learned counsel is that, unless the land is exempted under the Ceiling Law, the question of seeking permission for non-agricultural use does not arise and, therefore, this position flows from the provision of section 20 itself which provides for exemption. I have gone through the Scheme of the Act and the learned counsel for the petitioner could not point out any provision of law on the basis of which it can be said that such is the requirement of law. Section 20 cannot be read in the manner suggested by Mr. Mahajan. On the other hand, Mr. G. N. Desai, learned counsel appearing for the respondent No. 6 pointed out that the respondent No. 5 had, of course, entered into a deal and it is also a fact that the respondent No. 5 entered into an agreement earlier with the petitioner on 10th June, 1987, but it was only an un-registered document and no permission had been applied for or taken in accordance with the provisions of Ss. 63 and 43 of the Bombay Tenancy and Agricultural Lands Act, 1948 ('the Tenancy Act' for short) and, therefore, the agreement entered into between the petitioner and the respondent No. 5 was invalid. It was also submitted that the application which had been filed by the respondents Nos. 5 and 6 was under the relevant provisions of Ss. 63 and 43 of the Tenancy Act. He invited my attention to the order dated 1-1-1993. This order has been passed by the District Collector, Ahmedabad, with reference to the Revenue Department's letters dated 6-6-1992 and 21-10-1992. This order dated 1-1-1993 shows that the permission was granted for the non-agricultural use of the land in favour of the respondent No. 6 on the conditions mentioned therein. It has been recorded in this order that, as per the orders of the Revenue Department, the applicant Shri Gandabhai Hirabhai Parmar, the respondent No. 5 herein, who had been granted the land and who has been holding the land had received permission from the Government to sell the said land for non-agricultural use to Rajani Co-opetative Housing Society, upon deposit of preium at the rate of 80% of the market price, i.e. a sum of Rs. 47,22,458/-. The market price had been fixed by the Department of Town Planning and the Deputy Town Planner, Ahmedabad, vide his order dated 4th August, 1992 who had calculated the market price of the land in question at Rs. 425/- per sq. mtr. and the amount of premium had been deposited on 30th November, 1992 under the receipt from the Talati-cum-Mantri, Ghatlodiya. The permission was, therefore, granted for non-agricultural use of the land bearing Survey No. 19 of Ghatlodiya Taluka City, admeasuring 14352 sq. mtrs. and for sale to Rajanikunj Co-operative Housing Society, on the terms and conditions detailed therein. Thus, when the permission in respect of this very land after receipt of the premium on the land is granted for non-agricultural use, the matters were finalised with regard to the proceedings under Section 6 of the Act. Mr. Desai, learned counsel for the respondent No. 6 has argued that the order dated 5-8-1993 which has been referred to by the learned counsel for the petitioner as an order granting permission under Section 20 of the Act, passed at the instance of respondents Nos. 5 and 6 is not an order granting exemption under Section 20, but it is an order passed by the Competent Authority finalising the proceedings under Section 6 so that it may be made known to all concerned as determined under the provisions of the Act that this land in question for which the permission was granted for non-agricultural use was not a land within the ceiling limits and the same was available to the party which had deposited the premium and in whose favour the permission had been granted for the non-agricultural use of this land. On this basis, Mr. Desai submitted that there is no question of violation of Article 14 of the Constitution of India and the petitioner has not been subjected to any discrimination whatsoever inasmuch as the respondents Nos. 5 and 6 had applied for permission for non-agricultural use under the provisions of the tenancy act and it was no application under the provisions of the Urban Land (Ceiling and Regulation) Act, and therefore, the argument of discrimination with reference to Article 14 of the Constitution of India is not available to the petitioner.

4. I have gone through the orders dated 1-1-1993 and 5-8-1993 and I find substance in what has been argued on behalf of the respondents Nos. 5 and 6. The terms in which the order dated 1-1-1993 has been couched and the conditions which have been imposed therein clearly indicate that this permission for non-agricultural use has nothing in do with any of the provisions of the ceiling act and this order has to be construed as REFERABLE only to the provisions under the Revenue Law and the order dated 5-8-1993 is an order passed by the Competent Authority under Section 6. So far as the exemption orders under Section 20 are concerned, they are passed by the Government and not by the Competent Authority and, therefore, ex facie it is clear that the order dated 5-8-1993 Annexure G is an order passed by the Competent Authority and Additional Collector, Urban land Ceiling, Ammedabad. Thus, the argument of discrininaion with reference to Article 14 of the Constitution of India is not tenable in the facts of this case.

5. On the question of principles of natural justice, it may be straightway pointed out that, in the pleadings after referring to the letter dated 3rd June, 1988, in paragraph 2.4 at page 5, no factual foundation has been laid in the body of the petition making a grievance that, after the receipt of this letter dated 3rd June, 1988, no date was conveyed. It is of course, true that in the letter Annexure D dated 3rd June, 1988, it is mentioned that the matter shall not be taken up on 9th June. 1938 as scheduled and the next date will he informed later on, but the petitioner has not ventured to say in the body of the petition that thereafter no date was intimated to him and the matter was taken up without any intimation to him. The petitioner has not even cared to place the order dated 1-3-1989 on the record by which the application under Section 20 was rejected, from which it could be found out as to whether any further date for the next hearing had been intimated to the petitioner or not. The learned counsel for the petitioner made a request that the relevant record be called for and examined on this aspect of the matter. However, I do not find it proper to delve into the Government record for this purpose because this was a burden to be discharged by the petitioner himself if at all he wanted to get this plea sustained. Moreover, so far as the provisions of section 20 are concerned, giving of the hearing in each and every case is not the requirement of law. If at all there is a complex situation where complex questions of law and facts are involved, then and then alone, in appropriate cases, according to the Full Bench decision of this Court in the case of Avanti Organisation v. Competent Authority and Additional Collector, Urban Land Ceiling Act, 30 (I) Guj LR 586 : (AIR 1989 Guj 129), the Government may think it appropriate to afford the right of audience and opportunity of hearing. In this view of the matter, in the totality of the facts of this case, the grievance with regard to the violation of the principles of natural justice does not warrant any interference. No other point was argued.

6. Looking to the fact that this controversy between the parties have given rise to lot of litigation as it was informed at the Bar that the petitioner had filed a Civil Suit for the specific performance of the contract against the respondent No. 5 and for recovery of an amount Rs.6,25,000/- which had been paid by the petitioner to respondent No. 5, way back in 'the year, 1987 and arising out the injunction proceedings in the suit, the Appeal from Order is also pending and the factual allegation that the petitioner had parted with a sum of Rs. 6,25,000/- way back in the year 1987 so as to gain nothing so far, except the litigation, a suggestion was made to the petitioner's learned counsel as had already been agreed by Mr. S.N. Sanjanwalla and Mr. Desai appearing for the respondents Nos. 5 and 6 respectively that they were prepared to return the sum of Rs. 6,25,000/-with interest at the rate of 18% per annum from 10th June, 1987 till the date of realisation; Although the matter had been almost heard, the time was granted as prayed for by the learned counsel for the petitioner to seek instructions from the petitioner and the matter was taken up again in the second sitting at 2.45p.m. today as prayed by Mr. Mahajan, the Court was informed by the learned counsel for the petitioner that the petitioner was not agreeable to this suggestion. The learned counsel for the petitioner also made alternative suggestions that both the parties may share fifty-fifty of the land or that the petitioner was prepared to pay a sum of Rs. one crore to the respondent No. 6. These suggestions were not acceptable to the respondents Nos. 5 and 6 and. therefore, the matter was taken up for dictation of orders and the order was dictated.

7. The upshot of the aforesaid adjudication of the grievances raised before me on behalf of the petitioner is that I do not find any substance in this Special Civil Application and the same fails and is hereby dismissed. The notice is hereby discharged. There shall be no order as to costs.

8. Both the sides claim that the possession rests with them. On the request of the learned Counsel for the petitioner, not opposed by learned Counsel Mr. S. H. Sanjanwalla and G. N. Desi, it is ordered that the parties would maintain status quo as obtaining today for a period of six weeks from to-day.