State Of Gujarat, Through Chief ... vs Vasantbhai Ambalal Patel
2021 Latest Caselaw 5336 Guj

         C/LPA/1488/2018                                      CAV JUDGMENT



               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/LETTERS PATENT APPEAL NO. 1488 of 2018

                                     In
                 R/SPECIAL CIVIL APPLICATION NO. 636 of 2011

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA                         sd/­
and
HONOURABLE MR. JUSTICE R.P.DHOLARIA                       sd/­
=========================================

1 Whether Reporters of Local Papers may be allowed to see NO the judgment ?

2      To be referred to the Reporter or not ?                             NO

3      Whether their Lordships wish to see the fair copy of the            NO
       judgment ?

4      Whether this case involves a substantial question of law as         NO

to the interpretation of the Constitution of India or any order made thereunder ?

============================================= STATE OF GUJARAT, THROUGH CHIEF SECRETARY, & 1 other(s) Versus VASANTBHAI AMBALAL PATEL & 1 other(s) ============================================= Appearance:

Ms. Dhawni Tripathi Asst.GOVERNMENT PLEADER(1) for the Appellant(s) No. 1,2 Mr. Anshin Desai, Senior Advocate with MR PREMAL S RACHH(3297) for the Respondent(s) No. 1,2 ============================================= CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA and HONOURABLE MR. JUSTICE R.P.DHOLARIA

Date : 04/05/2021

CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied by the judgment and order dated 28.03.2014 passed by the learned Single Judge in SCA No.

6536 of 2011, the appellant State Government and its authorities have preferred this appeal under Clause 15 of the Letters Patent.

2. Following facts emerge from the record of the appeal ­

2.1 That one Jamnaben, predecessor in title of the respondents herein, was the original owner of land bearing Revenue Survey No. 1054/1 situated at Borsad, District Anand. As per the record of the appeal, the land in question was included in the Town Planning Scheme Area No.1 of Borsad under the provisions of Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as the "Act"). As per the Town Planning Scheme, revenue survey No. 1054/1 was allotted Final Plot No. 37A, totally admeasuring 21,549 sq. mtrs. The Town Planning Scheme Borsad 1 came to be sanctioned under the provisions of Section 65 of the Act on 09.06.1983 and the said Town Planning Scheme came into force from 01.08.1983. The said fact is reflected in the certificate dated 16.09.1993 issued by the Chief Officer, Borsad Nagarpalika, being the appropriate authority under the Act. The F Form, which is forming part of the record of the writ petition indicates the said position. It is the say of the respondents that the Town Planning Scheme was sanctioned on 09.06.1983 and that it came into force on 01.08.1983, when section 121 of the Act existed in the statute, which inter alia provided that the provisions of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "Tenancy Act") would not apply to the areas under the Town Planning Scheme. It is also a matter of record that Section 121 of the Act came to be deleted by the Act Gujarat 4 of 1986 with

effect from 06.02.1986. It is the say of the respondents that as per Section 7 of the Amending Act, the provisions of principal act shall continue to apply to any scheme in respect of which a declaration of intention to make such scheme as provided under Section 41 of the principal act was declared before 01.01.1985, as if the amending act was not enacted. 2.2 The record indicates that the respondents applied for Non Agricultural use permission in respect of land bearing Revenue Survey No. 1054/1 and 1054/2, sanction of which was accorded on 03.01.1994 by the competent authority. The record further indicates that the lands in question were plotted and individual plots were sold by the owners to various interested persons and even the construction of residential houses have come up. It is a matter of record that an amount of Rs. 12,929.40 came to be paid as conversion tax on the land having been developed. The land in question came to be developed after permission was granted by Borsad Nagarpalika being local authority under the provisions of the Gujarat Municipalities Act read with the relevant provisions of the Act. The record indicates that on an application filed by Chetankumar Bhailalbhai Thakar, the District Collector, Anand issued an injunction order on 18.05.2009 contending that no premium as provided under section 43 of the Tenancy Act was paid in respect of the land in question. Such notice / order was issued after more than 15 years by the District Collector, Anand. The respondent filed their reply on 18.08.2009 inter alia stating that the residential houses have been constructed pursuant to the non­agricultural permission granted by the competent authority. It was also pointed out that several families now reside since long. It was also the case

of the respondents that Section 121 of the Act was on statute at the relevant time. It is the say of the respondents that section 121 of the Act came to be deleted w.e.f. 06.02.1986. It was also asserted by the respondents that the scheme came to be sanctioned in the year 1983. It is further the case of the respondents that the land in question was included under the Town Planning Scheme before 01.01.1985 and in fact town planning scheme was sanctioned in 1983 hence, the provisions of Section 43 of the Tenancy Act would not apply as per Section 7 of the amending act.

2.3 The record further indicates that the Collector, having issued show­cause notice and having received reply by the respondents did not decide the show cause notice but transferred the proceedings to Revenue Secretary (Appeals). On receipt of the same, the Revenue Secretary (Appeals), issued a show­cause notice on 17.02.2010 mainly on the ground that as per the provisions of Section 43 of the Tenancy Act, the premium has not been paid by the original owner Jamnaben, wife of Ambalal Madhabhai Patel. It was also contended in the show­cause notice that as the land in question was included in the Town Planning Scheme area, it was wrongly assumed that the provisions of Section 43 of the Tenancy Act would not apply and the premium has not been paid. The record indicates that the original petitioners gave a detailed reply to the show­cause notice issued by the Secretary, Revenue Department (Appeals). However, without giving any opportunity of being heard, only on the basis of the reply filed by the respondents, the learned Revenue Secretary (Appeals), was pleased to hold that the show­cause notice dated

17.02.2010 stands proved and consequently, the order of grant of NA dated 03.01.1994 came to be rejected. Being aggrieved by the same, the present respondents preferred writ petition being SCA No. 636 of 2011, which came to be allowed by the learned Single Judge of this Court vide impugned order dated 28.03.2014 and being aggrieved by the same, the present appeal is filed by the State as well as the District Collector.

3. Heard Ms. Dhwani Tripathi, learned AGP for the petitioners and Mr. Anshin Desai, learned Sr. Advocate assisted by Mr. Premal Rachchh, learned advocate for the respondents.

4. Ms. Dhwani Tripathi, learned AGP has taken this Court through the factual matrix arising out of this appeal and has contended that the learned Single Judge has failed to consider the fact that the lands in question were of restricted tenure and such restriction can be lifted only on payment of premium. It was further contended by the learned AGP that the provisions of Section 121, as it stood originally, came to be deleted by Act 4 of 1986 with effect from 06.02.1986 whereas the NA permission was granted in the year 1994 and hence, the provisions of the Tenancy Act will apply in the case on hand and the respondents are therefore liable to pay premium. It was further contended that the learned Single Judge has misread the provisions of Sections 121 and 124 of the Act and the same has resulted into huge loss of premium to the State Government. It was also contended that the learned Single Judge has also failed to appreciate the fact that in a transaction which was void ab initio, the delay would not defeat the object. The learned Single Judge has wrongly relied upon the judgment of the Division Bench of this Court in the case of State of Gujarat Vs.

Deputy Collector (L.R.) Appeals and Ors. being SCA No. 5429 of 1998. It was also contended that the learned Single Judge has wrongly construed the provisions of the Act and has committed error in allowing the petition. On the aforesaid grounds, Ms.Tripathi, learned AGP contended that the appeal deserves to be allowed.

5. Per contra, Mr. Desai, learned Senior Advocate appearing for the respondents has supported the impugned order. Mr. Desai contended that the learned Single Judge has rightly come to the conclusion that the land in question was forming part of the Town Planning Scheme of Borsad, which came to be finalised on 09.06.1983 when the provisions of Section 121 existed. Mr. Desai contended that the learned Single Judge has correctly appreciated the provisions of Sections 121 and 124 of the Act and has rightly come to the conclusion that Section 121 of the Act would be applicable even after repeal to those lands for which the Town Planning Schemes were already declared or finalised. Mr. Desai, learned senior advocate appearing for the respondents contended that it is a matter of record that the NA Permission was granted by the competent authority in the year 1994 and the land in question is already developed fully and third party rights have also been created. Mr. Desai contended that only at the instance of some private person, without examining the matter and without appreciating the provisions of law, without any application of mind, the Collector issued the show­cause notice. Mr. Desai contended that similar show­cause notice on a reference being made by the District Collector, came to be issued by the Revenue Secretary (Appeals) and without giving any opportunity of being heard to the respondents, the impugned order in the petition came

to be passed. Mr. Desai contended that the action of the appellant authorities is per se illegal, dehors the provisions of Section 121 and 124 of the Act and is barred by delay and laches. Mr. Desai also contended that the learned Single Judge has rightly read the provisions of Section 121 and 124 of the Act and has correctly come to the conclusion that as the lands in question were included in the Town Planning Scheme, which was finalised when the Section 121 of the Act existed in the statute book and hence, even after repeal, the provisions would govern the field under Section 7 of the Amending Act. Mr. Desai contended that the appeal is meritless and same deserves to be dismissed both on merits as well as on the aspect of delay.

6. No other or further submissions have been made by the learned advocates appearing for the parties.

7. Have gone through the impugned judgment and order as well as order passed by the learned Revenue Secretary (Appeals), which was impugned in the writ petition. Before reverting to the submissions made by the learned advocates appearing for the parties, it would be appropriate to refer to relevant provisions of the Act. The Gujarat Town Planning Act came into force from 01.02.1978. Section 41 of the Act provides as under ­

"41. Power of appropriate authority to resolve on declaration of intention to make scheme. ­ (1) Before making any town planning scheme under the provisions of this Act in respect of any area, the appropriate authority in consultation with the Chief Town Planner may, by resolution, declare its intention to make such a scheme in respect of such area.

(2) Within twenty­one days from the date of such declaration (hereinafter referred to as the declaration

of intention to make a scheme), the appropriate authority shall publish it in the prescribed manner and shall despatch a copy thereof alongwith a plan showing the area which it proposes to include in the town planning scheme to the State Government.

(3) A copy of the plan despatched to the State Government under sub­section (2) shall be open to the inspection of the public during office hours at the office of the appropriate authority."

"65. Power of Government to sanction or refuse to sanction the scheme and effect of sanction. ­ (1) On receipt of the preliminary scheme or, as the case may be, the final scheme, the State Government may­

(a) in the case of preliminary scheme, within a period of two months from the date of its receipt, and

(b) in the case of a final scheme, within a period of three months from the date of its receipt, by notification, sanction the preliminary scheme or the final scheme or refuse to give sanction, provided that in sanctioning any such scheme, the State Government may make such modifications as may, in its opinion, be necessary for the purpose of correcting an error, irregularity or informality.

(2) Where the State Government sanctions the preliminary scheme or the final scheme, it shall state in the notification­

(a) the place at which the scheme shall be kept open for inspection by the public, and

(b) a date [***] in which all the liabilities created by the scheme shall come into force:

Provided that the State Government may from time to time extend such date, by notification, by such period, not exceeding three months at a time, as it thinks fit. (3) On and after the date fixed in such notification, the preliminary scheme or the final scheme, as the case may be, shall have effect as if it were enacted in this Act. [(4) The appropriate authority shall, after the preliminary scheme is sanctioned by the State Government under sub­section (2), complete the

execution of such scheme within a period of two years from the date of the sanction of such scheme, failing which the State Government may take such actions against appropriate authority as it deems fit.]"

"121. [Provisions of Tenancy Acts not to apply to areas under town planning schemes.] Deleted by Gujarat 4 of 1986, Section 5."

Section 121 was introduced in the Act, which came into force from 01.02.1978.

8. Section 43 of the Tenancy Act provides as under ­

"43. Restriction on transfer of land purchased or sold under the Act.­(1) No land or any interest there in purchased by a tenant under section 17B, 32, 32f, 32­I, 32­O, 32U, 43­ 1D or 88E or sold to any person under section 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest, therein shall partitioned without the previous sanction of the Collector. (1A) The sanction under sub­section (1) shall be given by the Collector in such circumstances and subject to such conditions, as may be prescribed by the State Government. (1AA) Notwithstanding anything contained in sub­section(1), it shall be lawful for such tenant or a person to mortgage or create a charge on his interest in the land in favour of the State Government in consideration of loan advanced to him by the State Government under the Land Improvement Loans, Act, 1883 (19 of 1883), the Agriculturists' Loans Act, 1928 (Bom.III of 1928), as in force in the State of Gujarat, or in favour of a bank or co­operative society, and without prejudice to any other remedy open to the State Government, bank or co­operative society, as the case may be, in the event of his making default in payment of such loan in accordance with the terms on which such loan was granted, it shall be lawful for the State Government, bank or co­operative society, as the

case may be, to cause his interest in the land to be attached and sold and the proceeds to be applied in payment of such loan.

Explanation.­ For the purpose of this sub­ section,"bank" means­

(a) the State Bank of India constituted under the State Bank of India Act, 1955 (23 of 1955);

(b) any subsidiary bank as defined in clause

(k) of section 2 of the State Bank of India (Subsidiary Banks) Act, 1959(38 of 1959);

(c) any corresponding new bank as defined in clause (d) of Section 2 of the Banking Companies (Acquisition and Transfer of Undertakings Act, 1970 (5 of 1970);

(d) the Agricultural Refinance and Development Corporation, established under the Agricultural Refinance and Development Corporation Act, 1962 (10 of 1963); (1B) Nothing in sub­section(1) [or (1AA) shall apply to land purchased under section 32, 32F, 32), or 64 by a permanent tenant thereof, if prior to the purchase the permanent tenant, by usage, custom, agreement or decree or order of a court, held a transfer right in the tenancy of the land.] (2) [Any transfer or partition, or any agreement of transfer, of any land interest therein in contravention of sub­section(i) shall be in valid."

9. It can be seen that section 43 of the Tenancy Act, which imposes restriction of transfer of land or of interest in the land by way of purchase or sale, as an exception stood exempted from its applicability to the lands which were included in the Town Planning Scheme as per Section 121 of the Act. The bare reading of Section 121 of the Act clearly stipulates that the provisions of the Tenancy Act shall not apply to the areas under the Town Planning Scheme. It is a matter of fact that Section 121 of the Act was deleted with effect from 06.02.1986 by Act No. Guj. 4 of 1986. The Act Guj. 4 of 1986, inter alia provides as under ­

"6. (1) The Gujarat Town Planning and Urban Development (Amendment) (Second) Ordinance, 1985 is hereby repealed.

(2) Notwithstanding such repeal anything done or any action taken under the principal Act as amended by the said Ordinance shall be deemed to have been done or taken under the principal Act as amended by this Act.

7. The provisions of the principal Act shall continue to apply to any scheme in respect of which a declaration of intention to make such scheme has been made under section 41 of the principal Act at any time before 1st January, 1985 as if the Act had not been enacted."

Even a reference be made to the the statement of objects of the same wherein statement of object and reasons for deletion of section 121 of the Act is as under ­

STATEMENT OF OBJECTS AND REASONS

(6) It was considered necessary to delete section 121 so as to provide for the continuation of the benefit of the Bombay Tenancy and Agricultural Lands Act, 1948 and the Bombay Tenancy (Vidarbha Region and Kutch Area) Act, 1958, to the tenants of any area although such area may be included in the town planning scheme.

10. The legislature has not merely deleted section 121 but under section 7 of the Act No.4 of 1996, it is inter alia provided that the provisions of principal Act, i.e., the Act of 1976, shall continue to apply to any scheme in respect of which a declaration of intention to make such scheme has been made under the provisions of Section 41 of 1976 Act, at any time before 01.01.1985 as if the amending Act of 4 of 1986 has not been enacted. In case on hand, the Town Planning Scheme no.1, Borsad came to be sanctioned under the provisions of Section 65 of the Act on 09.06.1983. On

conjoint reading of the provisions of Section 121 of the Act read with Section 124 of the Act of 1976 and considering the transitory provisions provided under Section 7 of the amending Act 4 of 1976, the provisions of the Act of 1976, i.e., the provisions of Section 121 of the Act, would continue to govern the field as in the case on hand, the scheme was already sanctioned as if the Act, i.e., the amending Act of 4 of 1976 have not been enacted. In opinion of this Court, the learned Single Judge has therefore rightly come to the conclusion that as the Town Planning Scheme was already finalised and was given effect to, the provisions of section 121 as it stood originally in the Act of 1976 would continue to govern the field and no revival of Section 43 of the Tenancy Act could be permitted.

11. In light of the aforesaid therefore, the provisions of Section 43 of the Tenancy Act would not apply to the lands in question and hence, the show­cause notice as well as the contention raised for payment of premium under Section 43 of the Tenancy Act would not arise in the case on hand. It is an admitted position that as provided in the transitory provisions being Section 7 of the amending Act of 4 of 1976, the provisions of principal act shall continue to apply to Borsad Town Planning Scheme as the said scheme came to be sanctioned before 01.01.1985 and as provided thereunder, the provisions of the principal Act shall continue to apply as if the amending Act no.4 of 1986 have not been enacted. The provisions of Amending Act of 1986 have to be read harmoniously. Section 7 of the Said Amending Act has to be read and applied accordingly and the provision of Section 6 of the Amending Act of 1986, where Section 121 of the Act came to be deleted cannot be read in isolation.

12. Upon examining the case of the appellant on the ground of delay, it is an admitted position that the NA permission was granted on 03.01.1994 and the land in question came to be plotted and transferred to other plot holders and the land in question is already developed. As per the records, the development of lands has been undertaken after obtaining necessary permission from the respective authorities. Considering the binding decisions of the Hon'ble Apex Court in the case of Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai reported in (2012) 5 SCC 157, Postmaster General and Ors. Vs. Living Media India Ltd. and Anr. Reported in (2012) 3 SCC 563, Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Anr. And State of Gujarat Vs. Patel Raghav Natha and Ors. reported in 1969 (1) GLR 992 and in catena of decisions the Apex Court as well as this Court, even on the ground of delay of 15 years, the action taken by the appellate authority is barred by delay and laches.

The learned Single Judge has rightly relied upon the judgment of this Court in the case of State of Gujarat Vs. Deputy collector (Land Reforms) Appeals and Ors. in SCA No.5429 of 1998 wherein identical fact situation had arisen. Considering the Government Resolution dated 6.5.1993 and considering the Section 7 of the Amending Act of 4 of 1986, which provides for transitory provisions, has rightly held that Section 121 of the Act of 1976 would continue to apply. We are in total agreement with the findings and reasoning given by the learned Single Judge, which deserve to be confirmed. The action of the appellants deserves to be quashed and set aside on the ground of merit as

well as delay. The appeal therefore fails and is hereby dismissed. Interim relief granted earlier stands vacated. However, there shall be no order as to costs.

sd/­ (R.M.CHHAYA, J)

sd/­ (R.P.DHOLARIA, J) KAUSHIK J. RATHOD