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Parshottamdas Ramdas Patel Vs. Municipal Corporation of Ahmedabad and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Property
CourtGujarat High Court
Decided On
Judge
Reported in(1981)22GLR137
AppellantParshottamdas Ramdas Patel
RespondentMunicipal Corporation of Ahmedabad and anr.
Cases ReferredSmt. Shanii Devi v. The Competent Authority
Excerpt:
- - the supreme court in appeal has held that the expressions 'legislature' as well as 'houses of legislature' used in article 252 do not carry the same meaning as the expression 'legislature' carries under article 16 for the purposes of article 252, the expression 'legislature' or the expression 'houses of legislature' means the legislative assembly where there is only one house of legislature or the legislative assembly and the legislative council where there is a bicameral legislature. bombay land revenue code deals both with the agricultural lands as well as non-agricultural lands......corporation. on 31st march 1976, government of gujarat issued notification under section 4 of the land acquisition act, 1894, in respect of the aforesaid lands. it was published on 8th april 1976. enquiry under section 5a of the land acquisition act was held. thereafter, on 27th march 1979, declaration under section 6 of the land acquisition act was made and it was published on 5th april 1979. the lands are sought to be acquired under the aforesaid notifications for a public purpose, viz. construction of houses for the employees of the ahmedabad municipal corporation.3. prior thereto, on 26th august 1974, ahmedabad municipal corporation passed a resolution in which it was resolved that the aforesaid lands be purchased at the rate of rs. 43/- per square yard under an agreement which was.....
Judgment:

S.H. Sheth, J.

1. All these petitions raise common questions of law. Therefore, they are decided by this common judgment.

2. Ahmedabad Municipal Corporation has framed Town Planning Scheme No. 29 which was provisionally sanctioned on 21st November 1968 and finally sanctioned on 1st February 1976. All the lands with which we are concerned in this group of petitions are comprised in Town Planning Scheme No. 29. They are agricultural lands. Survey No. 126/1/1 and Survey No. 171/1/1 in Special Civil Application No. 3295 of 1979 (and no other lands specified in that petition) and all lands with which all other petitions are concerned, have been reserved under the Town Planning Scheme for construction of houses for the employees of the Ahmedabad Municipal Corporation. On 31st March 1976, Government of Gujarat issued notification under Section 4 of the Land Acquisition Act, 1894, in respect of the aforesaid lands. It was published on 8th April 1976. Enquiry under Section 5A of the Land Acquisition Act was held. Thereafter, on 27th March 1979, declaration under Section 6 of the Land Acquisition Act was made and it was published on 5th April 1979. The lands are sought to be acquired under the aforesaid notifications for a public purpose, viz. construction of houses for the employees of the Ahmedabad Municipal Corporation.

3. Prior thereto, on 26th August 1974, Ahmedabad Municipal Corporation passed a Resolution in which it was resolved that the aforesaid lands be purchased at the rate of Rs. 43/- per square yard under an agreement which was entered into with the owners of those lands. However, the lands were not actually purchased.

4. On 17th February 1976, the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Land Ceiling Act' for the sake of brevity) came into force and under that Act, all the aforesaid lands were declared as vacant lands. Therefore, the petitioners filed statements before the Competent Authority as required by that Act. Since proceedings under the Land Ceiling Act commenced, proceedings under the Land Acquisition Act were slowed down.

5. The petitioners felt that their lands were not governed by the provisions of the Land Ceiling Act. Therefore, they filed these petitions in which they prayed for quashing the proceedings in respect of the aforesaid lands pending before the Competent Authority under the Land Ceiling Act and for directing the Land Acquisition Officer to proceed with land acquisition proceedings.

6. On behalf of the petitioners, Mr. Nanavaty has raised three contentions before us:

(1) Urban Land (Ceiling and Regulation) Act, 1976, is beyond the legislative competence of Parliament in so far as the State of Gujarat is concerned.

(2) The aforesaid lands are not vacant lands and, therefore, the proceedings under the Land Ceiling Act are liable to be quashed.

(3) Land Acquisition Officer should proceed to make the award under Land Acquisition Act in respect of the lands which are under acquisition.

7. Before we proceed to deal with these contentions, it is necessary to make it clear that this judgment will govern all lands with which Special Civil Applications Nos. 3480 of 1979, 3481 of 1979, 3648 of 1979, 668 of 1980, 669 of 1980, 889 of 1980 and 1205 of 1987 are concerned and only Survey No. 126/1/1 and Survey No. 171/1/1 with which Special Civil application No. 3295 of 1979 is concerned. It shall not govern other lands which have been specified in Special Civil Application No. 3295 of 1979, because they are admittedly 'vacant lands'.

8. So far as the first contention is concerned, it is necessary to refer to Entry 18 in the State List in Seventh Schedule to the Constitution. Indisputably the impugned legislation has been enacted by Parliament under Entry 18 in the State List. It is not within the legislative competence of Parliament lo enact a legislation in respect of a subject which falls within the exclusive jurisdiction of the State Legislature unless such legislation falls within the exceptions contained in Part XI of the Constitution. Article 252 makes one such exception. Clause (1) thereof provides as under:

If it appears to the Legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in Articles 24y and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State.

The preamble to the Land Ceiling Act, in terms, states that in pursuance of Clause (1) of Article 252 of the Constitution, Gujarat Legislature has passed the resolution that the matters falling within Entry 18 in the State List should be regulated by Parliament by law. It is clear, therefore, that the impugned Act has been passed by Parliament under Entry 18 of the State List read with Clause (I) of Art 252 and the resolution passed by Gujarat Legislature.

9. However, it has been argued by Mr. Nanavaty that within the mean ing of Article 252(1), 'Legislature' means not only the Legislative Assembly where there is only one House of Legislature or Legislative Assembly and Legislature Council where there are two Houses of Legislature but also the Governor. According to him, consent of the Governor was not obtained in the instant case and, therefore, even though Gujarat Legislative Assembly had passed the resolution under Clause (1) of Article 252, it was not sufficient to enable the Parliament to make the impugned law for the State of Gujarat. This question has been settled by the Supreme Court in Union of India v. Valluri Basavaiah Choudhary and Ors. etc. : [1979]3SCR802 . A similar question arose before the Andhra Pradesh High Court in relation to the impugned legislation. It was contended before the Andhra Pradesh High Court, which upheld it that consent of the Governor was necessary in order to clothe the Parliament with full authority to make impugned legislation under Entry 18 in the State List. The Supreme Court in appeal has held that the expressions 'Legislature' as well as 'Houses of Legislature' used in Article 252 do not carry the same meaning as the expression 'Legislature' carries under Article 16 For the purposes of Article 252, the expression 'Legislature' or the expression 'Houses of Legislature' means the Legislative Assembly where there is only one House of Legislature or the Legislative Assembly and the Legislative Council where there is a bicameral Legislature. For the purposes of Article 252(1), Governor, it has been held by the Supreme Court, does not form a part of the Legislature. Therefore, the first part of the contention raised by Mr. Nanavaty is without any substance and is rejected.

10. It has been further argued by him that in the State of Gujarat, there are two Acts in force, viz., the Bombay Tenancy and Agricultural Lands Act, 1947, and the Bombay Land Revenue Code. According to him, therefore, the Land Ceiling Act, could not have been passed in respect of the State of Gujarat because the subject-matter of all three Acts overlap. It is not necessary for us to consider what result will b produced if they overlap because we are of the opinion that they do not overlap. The Bombay Tenancy and Agricultural Lands Act, 1947, deals with the agric ultural Lands. Bombay Land Revenue Code deals both with the agricultural lands as well as non-agricultural lands. So far as Bombay Land Revenue Code is concerned, all that Mr. Nmavaty has argued is that permission to convert an agricultural land for non-agricultural purposes is required to be taken under Bombay Land Revenue Code. Section 2(q) of the impu gned Act defines ' vacant land' in the following term:

'Vacant land' means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration, but does not include-....

'Vacant land' to which the Land Ceiling Act applies is, therefore, land which is not bsinj used mainly for the purpose of agriculture. It is clear, therefore, that the land which are principally used for agriculture are excluded from the purview of the Land Ceiling Act. Therefore, provisions of the Land Ceiling Act do not come in conflict with the provisions of the Bombay Tenancy and Agricultural Lands Act, 1947, which govern agricultural lands and the relevant provisions of the Bombay Land Revenue Code. The second part of the first contention which Mr. Nanavaly has raised is, therefore, without any substance and is rejected. In the result, the first contention fails.

11. The second contention which Mr. Nanavaty has raised is that the aforesaid lands are not vacant lands within the meaning of that expression given in Section 2(q) of the Land Ceiling Act According to him, therefore, proceedings before the competent authority under the Land Ceiling Act are without jurisdiction and, therefore, are liable to be quashed. The facts on which he has relied and about which there is no controversy are that since 1965, permission to build upon the aforesaid lands had not been granted because they were forming a part of the 'green bell' around the eitv of Ahmedabad. Secondly, since 1976, the aforesaid lands have been Ihe subject-matter of land acquisition proceedings under Land Acquisition Act. Thirdly, they are reserved for a public purpose under Town Planning Scheme No. 29 framed by the Ahmedabad Municipal Corporation under the Bombay Town Planning Act. There is no dispute about the fact that the aforesaid lands are situate in Ahmedabad Urban Agglomeration, in order to examine this contention, it is necessary to turn again to definition of 'vacant land' given in Section 2(q). The relevant part of the definition reads as under:

'vacant land' means land, net being land mainly used for the purpose of agriculture, in an urban agglomeration, but does not include-

(i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated;... ... ... ... ... ... ... ...

The expression 'urban agglomeration' has been defined by Section 2(n). The relevant part of the definition is as follows:

'urban agglomeration',-

(A) in relation to any State or Union territory specified in column (1) of Schedule 1, means,-

(i) the urban agglomeration specified in the corresponding entry in column (2) thereof and includes the peripheral are specified in the corresponding entry in column (3) thereof;... ... ... ... ... ... ... ...

Abmedabad Urban Agglomeration land is specified at Serial No. 4 in Entry 4 in SCHEDULE I to the Land Ceiling Act. The aforesaid lands are situated within the Ahmedabad Municipal Corporation area which forms the major part of the Ahmedabad Urban Agglomeration. 'Urban land' has been denned by Section 2(o) of the Land Ceiling Act and the relevant part of the definition is as follows:

'urban land' means,-

(i) any land situated within the limits of an urban agglomeration and referred to as such in the master plan;

There are several Explanations to Clause (o) of Section 2 of the Urban Land Ceiling Act. Explanation (C) reads as follows:

notwithstanding anything contained in Clause (B) of this Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for a purpose other than agriculture.

'Master plan' has been defined by Section 2(h) in the following terms: 'master plan', in relation to an area within an urban agglomeration or any part thereof, means the plan (by whatever name called) prepared under any law for the time being in force or in pursuance of an order made by the State Government for the development of such area or part thereof and providing for the stages by which such development shall be carried out.

Town Planning Scheme No. 29 framed under the Bombay Town Planning Act is, in our opinion, a master plan within the meaning of that expression used in Explanation (C) referred 10 above. Therefore, so far as the permissibility of the building activity under 'the building regulations' on the aforesaid lands is concerned, three propositions arise. Firstly, on account of the fact that the aforesaid lands were included in 'the green belt' around the city of Ahmedabad, no building activity was permitted till 1975. In 1975, 'green belt' was abolished. Therefore, the aforesaid lands became free from restrictions which flowed from the existence of the green belt. Secondly, with the coming into force of the Town Planning Scheme No, 29 framed under the Bombay Town Planning Act, no building activity is permissible on the aforesaid land because they are reserved for a public purpose. Section 29 of the Bombay Town Planning Act, 1954, inter alia, provides as follows:

29. (1) On or after the date on which the local authority's declaration of intention to make a scheme under Section 22 or the notification issued by the State Government under Section 24 is published in the official Gazette,-

(a) no person shall within the area included in the scheme erect or proceed with any building or work or remove, pull down, alter, make additions to, or make any substantial repair to any building, part of building, a compound wall or any drainage work or remove any earth, stone or material, or sub-divide any land, or change the user of any land or building unless such person has applied for and obtained the necessary permission which shall be contained in a commencement certificate granted by the local authority in the form prescribed;... ... ... ... ... ... ... ...

Section 29 of the Bombay Town Planning Act, 1954, in our opinion, is a 'building regulation' within the meaning of that expression used in Sub-Clause (1) of Clause (q) of Section 2 of the Land Ceiling Act. Therefore, it is not permissible to build upon the aforesaid lands by virtue of the embargo placed upon building activity under Sub-section (1) of Section 2J of the Bombay Town Planning Act, 1954, In that behalf, we may note that the expression 'building regulations' has been defined by the Land Ceiling Act. Section 2(b) defines it as follows:

In this Act, unless the context otherwise requires,-

(b) 'building regulations' means the regulations contained in the master plan, or the law in force governing the construction of buildings.

Therefore, building activity is not permissible on the aforesaid lands by virtue of the provisions of Section 29(1) of the Bombay Town Planning Act, 1954.

12. The third proposition emerges from the notifications issued under the Land Acquisition Act in respect of the aforesaid lands. Notification under Section 4 was issued in 1976. Declaration under Section 6 was made in 1979. Clause Seventhly in Section 24 of the Land Acquisition Act provides as follows:

But the Court shall not take into consideration-

Seventhly, any outlay or improvements on, or disposal of, the land acquired, commenced, made or affected without the sanction of the Collector after the date of the publication of the notification under Section 4, Sub-section (').

If the petitioners are not entitled by virtue of the said provision in Section 24 to reimbursement of outlay or improvement which they may make on the aforesaid lands, certainly they will not out of prudence construct or build upon them. Clause Seventhly in Section 24, therefore, operates as a restriction on the building activity on the aforesaid lands.

13. Our attention has been invited by Mr. Nanavaty to the decision of the Delhi High Court in Smt. Shanii Devi v. The Competent Authority under U.L. (C & R.) Act, 1976 Delhi and Ors. : AIR1980Delhi106 . The question whether the land in that case was 'vacant land' within the meaning of Section 2(q) of the Land Ceiling Act, arose before Delhi High Court. That land was under acquisition because notification under Section 4 of the Land Acquisition Act, 1894, was issued. In view of the operation of notification issued under Section 4 of the Land Acquisition Act, 1894, Delhi High Court held that building activity was not permissible on that land as no prudent person would construct on land already notified under Section 4 of the Land Acquisition Act as he would get no compensation for it unless the construction was made with the permission of the Collector. Therefore, in the opinion of the Delhi High Court, for all intents and purposes, effect of the notification issued under Section 4 was that building activity was not permissible on that land. Therefore, plots of land belonging to the petitioner in that case were excluded from the total holding of the petitioner in that case for the purposes of computing 'vacant land' under the 1 and Ceiling Act.

14. In reply, it has been argued by Mr. Takwani that expression not permissible under the building regulations in force' used in Sub-Clause (1) of Section 2 of the Land Ceiling Act means total impermissibility in the matter of building activity upon the lands in question and not qualified permissibility. In other words, according to Mr. Takwani, if construction of a building can be undertaken with the permission of the Land Acquisition Officer in case of a land which is under acquisition or with the permission of the Collector or the local authority in a case where there is a Town Planning scheme or a master plan in force, such a land cannot be said to be falling within the exception carved out by Sub-Clause (i) of Clause (q) of Section 2 of the Land Ceiling Act. Such a land, according to him, is one upon which building activity is permissible. We are unable to accede to the contention raised by Mr. Takwani. Non-permissibility contemplated by Sub-Clause (i) of Clause (q) of Section 2 in the Land Ceiling Act is not total impermissibility but it means absence of unfettered permissibility subject indeed to the ordinary building bye-laws of the concerned local authority.

15. In the view which we have taken, we are of the opinion that since the aforesaid lands are subject-matter of land acquisition proceedings and since they are included in Town Planning Scheme No. 29 of Ahmedabad Municipal Corporation, they are not vacant lands within the meaning of Section 2(q) of the Land Ceiling Act. Therefore, the provisions of Land Ceiling Act do not apply to the lands in question. The proceedicgs before the competent authority under the Land Ceiling Act are, therefore, liable to be quashed.

16. The next contention which Mr. Nanavaiy has raised is purely consequential. If proceedings in respect of the aforesaid lands before the competent authority under the Land Ceiling Act are liable to be quashed, obviously the land acquisition proceedings before the Land Acquisition Officer must go on. The Land Acquisition Officer cannot sit on fence and wait for the decision by the competent authority under the Land Ceiling Act. In the view which we have taken, the Land Acquisition Officer is liable to be directed to proceed ahead with the land acquisition proceedings and to make award in respect of the aforesaid lands.

17. In the result, all petitions are allowed. Proceedings under Land Ceiling Act in respect of the aforesaid lands pending before respondent No. 2, the competent authority under the Land Ceiling Act, are qvnshed as the aforesaid lands are not vacant lands under the Land Ceiling Act! gowever, we are not issuing to the Land Acquisition Officer a writ of mandamus in all these cases because he has not been made a party to these proceedings. The declaration which we have made in respect of the land acquisition proceedings does not, in our opinion, suffer from any infirmity because the Ahmedabad Municipal Corporation for whose benefit the land acquisition proceedings have been instituted is a party to these proceedings. Rule in each of the petitions is made absolute to the aforesaid extent with no order as to costs in the circumstances of the case.


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