Thaorebhai Kevelbhai Patel Vs. The
State of Gujarat  INSC 232 (7 November 1974)
RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN
CITATION: 1975 AIR 270 1975 SCR (2) 667 1975
SCC (1) 1
Gujarat Vacant Lands in Urban Area (Prohibition
of Alienation) Act, 1972--Constitutionality-If violative of article 14,
Constitution of India.
The Gujarat Vacant Lands in Urban Area
(Prohibition of Alienation) Act,, 1972 is enacted to prohibit the alienation of
certain vacant lands in urban areas in the State of Gujarat. Section 2 of the
Act embodies a declaration that the Act is for giving effect to the policy of
the State towards securing the principles specific in clauses (b) and (c) of
article 39 of the Constitution. Section 4 prohibits the alienation of vacant
land after the appointed day. It however exempts one plot of vacant land owned
by a person not exceeding 1000 sq. metres and not forming part of a compact
block. The transfers in favour of the State Government, Central Government,
local' authority, Government company, statutory corporations and cooperative
house building societies are also exempted. The State Government has been
empowered by general or special order to exempt any areaor any alienation from
all or any of the provisions of the Act. This is subject to the rules made by
the State Government. Every order made by the State Government and the
Collector exempting any area or alienation from, any of the provisions of the
Act is required to be laid before the State Legislature. The Learned Counsel
for the petitioner conceded that in view of the proclamation of emergency
fundamental right guaranteed under Article 19 is under suspension. It was
contended that the Act offended Article 14 and that the Act was not directly relatable
to the object of Article 39 (b) and (c) and, therefore, Article 31C could, not
HELD : (i) It is not necessary to take
recourse to Article 31C for upholding constitutional validity of the Act as, it
does not infringe equal protection of law guaranteed under Article 14 of the
Constitution. Urban area means any area which is comprised in the city or a
Surrounding area not exceeding 16 kms. has to
be fixed' by a notification of the State Government. By notifications limit of
16 kms. has been fixed in case of big cities like Ahmadabad, Baroda, etc. but
lesser limits of distance have been notified in case of small municipal
boroughs. 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 reference to the value of the land. It was neither feasible
nor expedient to do 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 monopolisation and monoeuvrings by persons belonging to the same family
unit.[668F; 672-B] (ii) There is reasonable classification and there is a clear
nexus between the object of the Act and the classification.
The Act has neither put unequals as equals
nor has it discriminated between equals. The object of the Act being to prevent
alienation of vacant lands it rightly excludes the building-lands from its
operation. Since the object of the Act is to ultimately distribute ownership
and control of the material resources to sub serve the common good transfer in
favour of Government, Local Authorities, Government Companies and Statutory
Corporations has been excluded.
Formation of Cooperative House Building
Societies is obviously a step for fulfilment of the object of the Act.
The power of the State Government to exempt
any area or any alienation from all or any of the provisions of the Act is a
power which is to be exercised for the reasons to be recorded and in
furtherance of the object of the Act. The guideline is to be found in the
object of the Act. The order of exemption to be made by the Collector is only
where the land is to be used for any educational, scientific, industrial or
commercial purposes. The exercise of the power by the Collector is further
controlled by providing an appeal to the State Government. The orders are to be
placed before the State Legislature which will act as a supervisory of the
orders of exemption made by the State Government or this Collector. [672D-H] 668
ORIGINAL JURISDICTION: Writ Petition No. 467
Petition Under Article 32 of the Constitution
B. Sen and R. M. Mehta, S. K. Dholakia and R.
C. Bhatia, for the petitioner.
L. N. Sinha, Solicitor General of India, G.
A. Shah and S. P. Nayar, for the respondent.
The Judgment of the Court was delivered by
UNTWALIA, J.-By this petition under Article 32 of the Constitution of India the
petitioner has challenged the constitutional validity ,of the Gujarat Vacant
Lands in Urban Areas (Prohibition of Alienation) Act, 1972, Gujarat Act No. 12
of 1972-hereinafter referred to as the Act on the around 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 Taluka
Navsari, village Kohilpore.
He intends to sell the said land but is
unable to do so because of the prohibition of alienation imposed under the Act.
Mr. B. Sen, learned counsel for the
petitioner conceded, and in ID ,our opinion rightly, that since the
Proclamation of Emergency is in operation under Article 358 of the
Constitution, fundamental right guaranteed under Article 19 is under suspension
and therefore the Act could not be assailed for infraction of Article 19 even
if there be any.
Counsel, however, submitted that it does
violate the guarantee of equal protection of the law and offends Article
14. 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 clauses (b) and (c) of Article 39
of the Constitution and consequently Article 31C would save the Act from attack
on account of the infraction of Article 14. But it was submitted that the Act
is not directly relatable to the object of Article 39(b) and (c) and hence
Article 31C cannot protect it. In our opinion it is not necessary in this case
to take recourse to 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.
Learned counsel for the petitioner
endeavoured to make out the following points for attacking the Act as being
violative of Article 14.
(1) That the limit of Prohibition in respect
of the area of the vacant land is the same irrespective of its situation and
value thus putting unequals as equals.
(2) That it does not apply to building lands
and building areas have been left out.
(3) That there is discrimination between the
permissible limit of alienation on the basis of the irrational consideration of
the area forming part of a compact block or not.
66 9 (4) That there is no rational basis for
not applying the Act in respect of the alienation of vacant in favour of the
State, Govt., the Central Govt., Local authorities, Govt.
companies, Govt. Corporations or the
Cooperative House Building Societies.
(5) There is no guideline provided in section
7 of the Art for exercise of the power of exemption.
Learned Solicitor General appearing for the
respondent, the State of Gujarat, submitted that none of the points urgea on
behalf of the ,petitioners has got any substance and there is no violation of
the equal protection of law guaranteed under Article 14 of the Constitution.
We shall first refer to and wherever
necessary read some of the relevant provisions of the Act. The Preamble of the
Act indicates that it is an Act to prohibit alienation of certain vacant lands
in urban areas in the State of Gujarat. The object of the Act is to prohibit
alienation of the vacant lands so that ultimately the ownership and control of
the material resources of the Community may be so distributed as best to
sub-serve the common good and may prevent the concentration of wealth to the
common detriment. It may be pointed ,out here that the impugned Act is a
temporary one. Originally it was to remain in force for one year but the period
is being extended from time to time in order to enable the State Legislature to
pass the Urban Property Ceilings Act.
Prohibition of alienation by the Act is a
preparatory measure for distribution of the material resources of the
community. The definition section of the Act is section 3.
Clause (b) defines "City" to mean a
City as constituted under the Bombay Provincial Municipal Corporations Act,
1949. The definition of "Collector" includes certain other officers
also as mentioned in clause (c). It is necessary to read clause (d) which
defines the "compact block" to mean "any block of vacant land in
an urban area exceeding one thousand square metres in extent, (whether owned by
one person or jointly by more than one person or owned in contiguous parts
separately by one or more members of a family unit) and whether or not divided
by a private road, street, lane, footway, passage or drain, natural or
artificial." Under clause (dd) "family unit" means an individual,
his or her spouse and their children." Clause (e) defines "'municipal
borough" to mean "a municipal borough as constituted or deemed to be
constituted under the Gujarat Municipalities Act, 1963." It is necessary
to read clauses (i) and (j) of section 3 in full. (i) "urban area"
means-(1) any area which is comprised for the time being in a City or a
municipal borough and also any such area in the vicinity thereof, within a
distance, not exceeding sixteen kilometres from the local limits of the City,
or as the case may be, of the municipal borough concerned, as the State Govt.
may, having regard to the extent of and the scope for the urbani670 sation of
that area or other relevant considerations, by a notification in the Official
Gazette, specify in this behalf; and (2) any other area which the State
Government may, by notification in the Official Gazette declare to be an urban
having regard to any project existing in that
area on the appointed day or having regard to the possibility in the near
future of any project being established in that area where any such project, in
the opinion of the State Government, has led to or is likely to lead to
urbanisation of that area;
(j) "vacant land" means land in an
urban area, agricultural or non-agricultural, other than land on which any
building has been or is being constructed in accordance with any law regulating
such construction and the land appurtenant to such, building to the minimum
extent required under such law or under the provisions of the Bombay; Town
Planning Act, 1954 or any other corresponding law for the time being in force'.
Explanation for the purposes of this clause
any land which is vacant on the appointed day shall be 'deemed to be vacant
land, notwithstanding that the construction of 2 a building thereon has been
commenced on or after the said day." Section 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
(mortgage other than simple. mortgage), lease or otherwise, or effect a
partition or create a trust of such land', and any alienation made, or,
partition effected, or trust created in contravention of this section shall be
null and void :
Provided that nothing inthis sub-section
shall apply to the alienation by any person of any one plot of vacant land
owned by him not exceeding one thousand square metres in extent and not forming
part of a compact block or to the effecting of a partition or creation of a
trust of any such plot.
(2) The provisions of sub-section (1) shall
apply to any sale, partition or creation of trust, of vacant land of any person
in execution of a decree or order of a civil court or of any award or order of
any other authority. Restrictions on registration of documents have been put in
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 local authority;, 671 (b) A Government
Company as defined in section 617 of the Companies Act, 1956;
(c) a corporation established by or, under a
Central Provincial or State Act, which in controlled or managed by a State
Government or the Central Government;
(d) such cooperative house building societies
established for the purpose of providing housing accommodation to weaker
sections of people, as may be approved by the State Government in this
behalf." Sub-section (2) of section 6 makes a distinction in the
application of sub-section (2) of section:-4 in relation to the execution of a
decree or an order of a civil court in favour of the Government or the local
authority. Under subsection (1) of section 7 "the State Government, may,
by a general or special order in writing and for reasons to recorded therein,
exempt any area or any alienation or other transfer of any vacant land from all
or any of The provisions of this Act." Under sub-section (2), to avoid any
hardship also, the State Government may, if it considers it necessary so to do,
exempt, by an order in writing, any alienation or other transfer of any vacant
land from all or any of the provisions of this Art. Subject to any rules that
may be made in this behalf or to any general or special orders of the State
Government, the Collector has. been authorised under sub-section (3) of section
7 by order in writing, to exempt any alienation or other transfer of any vacant
land from the Provisions of this Act in case the land is to be used for ;my
educational, scientific, industrial or commercial purpose or for such other
purpose as may be prescribed. "Prescribed" means under clause (g) of
the third section "prescribed by rules made under this Art.', The State
Government has power under section 12 to make the rules. Sub-section (4)
enjoins that every order issued by the State Government, under sub-sections (1)
and (2) and by the Collector under section 3 shall be laid before the State
Legislature as soon as possible after its issue. Alienation etc. made on or
after the 1st July, 1972 but before the appointed day under the Act has also
been affected under section 8. Section 9 gives a right to appeal against the
order of the Collector under sub-section (3) of section 7 to the State
Government within the prescribed period and in the prescribed manner. The
jurisdiction of the Civil Court has been barred under section 10. A penalty has
been provided under section 11. The act overrides other laws in view of section
It would be noticed that the urban'area means
any area which is comprised in the City or a Municipal Borough.
Surrounding, distance of the City or municipal
borough has to,.be fixed by a notification of the State Government 'in the
Official Gazette having regard to the relevant considerations. The maximum
distance of such an area cannot exceed sixteen kilometres. We were informed at
the Bar by, the learned Solicitor General that notifications have been issued
fixing the maximum limit of 16 kilometres in case of big cities like Ahmedabad,
Baroda etc. but lesser limits of distances have been notified in case of small
municipal boroughs. Under the proviso to sub-section (1) of L319SupCI/75 672
section 4 a person is not_ prohibited from alienating one plot of vacant land
owned by him not exceeding 1000 sq.
metres provided it does not form part of a
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 reference to the value of the land. It was
neither feasible nor expedient to do 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 owned 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 under the definition of
compact block. Then only the permissible limit of transfer does not apply.
Excluding 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 distinguishing the vacant land from the
building land. The object of the act is to prevent alienation of certain vacant
lands and that being so it is rightly excluded the building lands from its
It is plain that the main object of the act
being ultimately to distribute the ownership and control of the material
resources of the community as best to sub serve 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 excluded 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 fulfillment of the
object of the Act. The Act cannot be held to be discriminatory on such grounds.
The power of the State Government under
sub-section (1) of section 7 to exempt any area or any alienation or other
transfer of vacant land from all or any of the provisions 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 object of the act itself. 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 case of hardship which will depend upon
the facts and circumstances of each case. The order ;if exemption to be made by
the Collector can only be in a case where the land is to be used for any
educational, 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 by the
State Government by rules made under section 12 of the Act. Sub-section (4) of
section 7 is a good safety valve. The State Legislature will act as a
Supervisor of the orders of exemption 673 made by the State Government or the
Collector. The exercise of the power of exemption by the Collector is further controlled
by providing an appeal to the State Government under section 9 of the Act.
In our opinion, therefore, there is no
violation of the equal protection of law guaranteed under Art. 14 of the
Constitution. Classifications are all reasonable and there is a clear nexus
between the object of the act and the classifications. They have neither put
unequals as equals nor has discriminated between equals.
In the result the writ petition fails and is
dismissed with costs.
P.H.P. Petition dismissed.