THAKOREBHAI KEVELBHAI PATEL versus THE STATE OF GUJARAT

UNTWAW, 1 .-By ~is petition under Article 32 of the Consti· tution of India the petitioner has chal.len~d the constitutional validity of the Gujm:at Vacant Lands in Urban Areas (Probibltion of Alien- :ation) Act, 1972, Gujarat Act No. 12 of 1972-hereinafter refentd to as the Act on the ground that it violates the fundamental rights of the petitioner granted under Arts. 14 and ·19 of the Constitution. In the writ petition the petitioner claims that he owns 9559 square yards -of land situate in District Bulsar, sub-district and Taluk.a Navsari. 'Village Kobilpore. He intends to sell the said land but is unable to do so because of the prohibition of alienation imposed under the Act.

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Mr. B. Sen, learned counsel for ihe petitioner conceded, and in D

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opinion riglitly, that since the Proclamation of Emergency is in .operation urider Article 358 of the Constitutio.n, fundamental right guaranteed under Article '19 is under suspension and therefdre 1ho Act could not be assailed for infr.action 'of Article 19 even if there 'be any. Counsel, however, submitted that it does violate the guarantee -of equat protection of the law and offends Article )4. In the Act under section 2 is embodied a declaration that the Act is for giving effect to the. policy of the State towards securing the principles specified in cliUiOS {b) and (c) of Article 39 of the Constitution and consequently Article 3 t C would save the Act from attack on account of the tnfrao. tion ot Article 14. But it was s~bmitted that the Act is not directly relatable. to the obiect of Article 39(b) and (c) and hence Article 31C cannot protect .it In our opinion it is not necessary in this cue to take

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to F recourse Article 31C for upholding the constitutional validity of the Act as it does not infringe the equal protection of law guaranteed under Article 14 of the Constitution.

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Learned counsel for the petitioner endeavoured to make out the foDowiog points for attacking the Act as being violative of Article 14 : .

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( 1) That the limit of Prohibition an respect· of the area of the vacant land is the same irrespective of its situ-

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ation and value thus putting unequals as equals. {2) Tbat it does not apply to building lands and building

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areas have been left out ( 3) That there is discrimination between the permissible limit of alienation on the basis of the irrational c-:>nsideration of the area forming part of a eompoct b!ock or· not

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(Untwalia, ( 4) That there is ·r"tional basis for Aot in ~pect ot. the alienation favour of the State Oovt., the Centrt~l authorities, Govt. companies, Oovt.

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the Cooperative House Buildlllg (!) There is 110 fllideline provided

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Aet ror ex~~ of th~ power of

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Leatned Solicitor General appearing for of Glijatat, submitted thai none of the points. petitioners has got any ~ubstance arid there is pr~tion of ·law guar~teed under Article 14

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We s.ball first refer to and 'wherever necessary Rlevant provisions of the Act. The Preamble that it. is llt1 Ad to prohibit alienation of cettaln .areas in tht State of Gujarat. The object of alienatioD of tl2e vacant lands eo that ultimately c:ontrol of the material mources. of the Commutlity buted u best lo supo~e the common good concentration of wealth to the common dettiment. out here that the impugned ~ct ia a temporary to remain in force for on~ year but the Jreriod time to time ia order to enable the State Legislature Property Ceilings Act. Prohibition of alienation paratory measure for distribution of the material munity,, The definition section of the Act is defines "Oty" to mean a CitY as constituted vi.Jielal Munit:ipal Corporations Act, 1949. Th tor" includes certain other officers also as It is necessary to read cl~use (d) which defines to mean "any block of vacant land in nn urhan tbcUsand square me~ in exte1;1t, (whether jointly by more than one person or owne~ rately by one or more members of a family divided by a private road, street, lane, footway Jiattttal or artifieial."'Under clause (dd) "fa vldUaT, his or her spouse and ·their children." ''m~nicipal borough" to mean "a municioal deemed to be constituted under the Gujarat Municip It is necessary to read clauses {i) and '{j) .,urban area" means.- (1) any area which is comprised 'for the Qty or a municipal borough and in the vicinity thereof, within exceeding sixteen kilometres from the City, or as the case may borough ~cemed, as the State regard to ibe extent of and the

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. 0 ther relevant considerations, sation of. that. are~ ~~ Official Gazette,. specify in by a notificatiOn m this behalf; and

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b' 1 h tb State Government may, by . (2) any oth~r a~ea w ~ffici;l Gazette declare to be an notificatwn m 0e regard to any project-existing in urban area. bilimg pointed day or having regard to that area. '?~ ; aihe near future of any project th~ possJbiblil~h in that area where any such pro· bemg esta .e. of the State Government, bas led · t · the opm10n '

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~ l'k ly to lead to urbanisation of that area; to or ts e

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l~d" means land in an urban area, a~- U) ~a~~~~ or non-agricultural, other than land on wbi~h ~n building has been or is bein~ constructed m ac!ordance with any law regulating such . truction and the land appur~enant to such bwldu~ to the minimum extent reqmred under such Ia w. or under the provisions of the Bombay . Town Planrung Act, 19 54, or any other correspondmg law for the time being in force.

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Explanation-for purposes o~ thls clause any land which is vacant en the appomted day shall be deemed to be vacant land, notwithstanding that the construction of a building thereon has been com-

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menced on or after the said day.•• ·

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&ction 4 provides for prohibition of alienation etc. in these terms : ( 1) No person who owns any vacant land shall, on or after the appointed day, alienate such land by way of sale, gift, exchange (mor!g;tgc other than simple mortgage), lease or otherwise, or effect a par~­ tion or create a trust of such land; and alienation made, or partt~ tion effected, or trust created in contravention of this section shall be null and void : · . Provided that nothing in this sub-section shall apply to the .alicn:ttion by any person of any one plot o! vacant land owned by lum not exceeding one thousand squ:~re metres in extent and not forming p:ut of a compact or to the effecting o( a partition or creation of trust of any such plot.

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~~) The pr~visions of sub-!icction (1) shall apply to any s~e, part1t10n or creatiOn of trust, of vacant land of any person in eJtecutlOn of a decree ?r order o~ a. civil court or of any award or order of any other Re-~tnchon' on rr~istration of d()Cuments have bt:en put in section S. Section 6(1) says that "Nothing in this Act shall apply to any transfer of vacant land by or in favour of- (a) A State Government or the Central Government or a local authority;

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(b) A Government Company as defined in section 617 · ·

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of the Companies Act, 1956; · (c) a corporation established by o( under a Central Pro- ..

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vincial or State Act, which· ~ controlled ·or managed

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by a State Government or the Central Government; (d) ·such co-operative house building societies established · . for the purpose of providing housing QCCOmmodation to weaker sections of people; as may ~ approved

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by the State Government iri this behalf." · Sub-section. (2) of section 6 .makes ·a dis.tinction ·in the applica'tion o.f sub-section ( 2) ·of.· sec'tion 4 ·in relation to the execution of a decree

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or an order .of a civil court in favour of the Goverilment or· the local C' authority. :Under. sub-section ( 1) of section 7 "the State Government, may, by a general or special order in writing and for reaso~ to be · recorded therein, exempl any area or. any alienation or other transfer of ·any vacant llll;ld from all or any of t\le provisions of this ·Act.." Under· sub-section (2), to avoid any barifship also, tbe State Government may, if it considers it necessacy so to do, exempt, by an · order in writing, any alienation or other transfer Qf any vacant land from all or any o~ the proVisions of this Act. Subject to apy rules that may be ·made in this ~half or to any general or speciaJ, orders of the State Government, the Collector has been authorised under sub-section (3) of section 7 by crder in Writing, to exempt any alienation or other ·transfer of any vacant ~d from . the prov-Woos of this. Aet in case the 1~ is .to be used for any educational, scientific, industrial qr comJDer~l purpoSe or for such other purpose as may be Dtescci~. "Prescribed .. means under· clause (g) of the third section 'tprescribed by ruleS ·made under this Ad." The State Government bas power under section 12 :to make .the rul~. Sub-section (4) enjoins that every <>rdet issued by the ~tate Government. under sub-Sections (1.) and (2) and by the Collector under section 3 sliall be laid before the State

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Legislature as soon as poSsible after its issue. Alienation etc. made ·on F .or after the 1st July,· 1972 but before the 8ppointed. _day under the Aet. bas also been affected under section 8 . .Sect1on 9 .gives a right to appeal against the order. of ~ Collector under sub-section (3) ~ section 7 to the State Government Within tbe prescribed period in the preScribed manner. 'l1le 'jurisdictl~n of tJte Ovil. Court ·}las ~ barred under section 10. A penalty hal been provi~ under section

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11. The act overrides.other laws in view of ~tion· 1~. ·

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It waold bel noticed .that the urban area means an1 area which· is 'colllPri,Sed in the City. or a MuntciOal BQrou2l\. Stirrolindin!l distance Qf the City or municipal barough bas to . ..be fixed by a notification of the State Qover:ninent jn tbe Official Gazette having regard to the relevant considerations. The maximum distance of such an area cannot exceed sixteen kilometreS. We were infornied at the Bar 'bv the

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'teamed Solicitor General that notifications hav.e beeri issued fiiitl~ the K maximum lir.nit of 16 kilometres in case of big .cities like Ahmeda6ad~ · 'Bitoda etc. but lesser limits of distances have been notffied in case of small municipal borougbs. Under the ·provisc)to 8ub-secdon ·<n of section 4 a person is not. prohibited from alienating one plot of vacant land owned by him not exoeeding 1000 sq. metres provided it does not form part of a compact block. When the limit of 'the distance outside the City or town area differed from place to place it was not necessary to fix the limit of permissible. area of transfer with refc· rcnc:l to the value of the land. It was neither feasible nor expedient to Jo so. From the permissible limit of transfer the area forming part of the compact block had to be excluded as it would have led to manipulations and manoeuvrings by persons belonging to the same family unit. The land belonging jointly to more than one person or ownec.l in contiguous part separately by one or more members of a family unit, which unit is a narrow one as defined in clause ( dd) of section 3, comes \lllder the definition of compact block. Then only the permissible limit of transfer does not apply.

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Eltcluding the land on which any building has been or is being constructed in accordance with any law regulating such construction and only the permissible limit of the vacant land appertaining to it is a reasonable classification distingujshing the vacant land from the building land. The objec.t of the act is to prevent alienation of certain vacant lands and that being so it is rightly excluded the building lands D from its operation.

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It is plain that th~ ma.i.it object of the act being ultimately to dis· tribute the ownership and control of the material r~sources of the community as best to subserve the common good and to prevent concentration of wealth, a transfer in favour of the Government, local authorities, Government companies or Corporations had to be ex· E eluded as such transfer could not possibly defeat the object of the Act, rather, it would give a fillip to it. Permitting transfers of vacant lands in favour of Cooperative Housing Building Societies is obviously a step for the fW,filment of the object of the Act. The Act cannot be held to be discriminatory on such grounds.

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The power of the State Government under sub-section ( 1) of sec· F tion 7 to exempt any area or any alienation or other transfer of vacant land from all or any of the prov1sions of the Act is a power which is to be exercised for the reasons to be recorded in the general or the special order and in furtherance of the object of the Act. The guideline is to be found in the obiect of the i ~lf. The POWer under sub-section (2) has to be exercised by ·the State Government for avoiding any hardship. There is sufficient guideline for exemption in G. case of hardship which will depend upon the facts and circumstances of each case. The order of exemotion to be made bv the Co'Jector can only be in a case where the land .iS to be used for any educa• tional, scientific, industrial or commercial purposes, It has not been left open to the Collector to decide for what other. purpose he can grant the exemption. Such other purpose can be only that as may be prescribed bv the State Government by rules made under section 12 of the Act. Sub-section ( 4) of section 7 is a good safety valve. Tbe State Le~lature will act as a Supervi3or of the orders of exemption

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Untwalia, J.) 6 7 made by the State Government or the Collector. The exercise of the power of exemption by the Collector is further controlled by providing <~n appeal to the State· Government under section 9 of the Act.

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In our opinion, therefore, there is no. violation of the equal protection of law guarant~ under Art. 14 of the Constitution. Classifications are all reasonable and there is a clear nexus between the ob}e:ct of the act and th~ clas$ific:ations. They have neither put unequnls as equals nor has discriminated between equal's.

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ln. the result the writ PJtition fails and is dismissed with costs. P.H.P. Petition dismissed.

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