SCA/6573/1990 of YUDHISTHIR V DAVE Vs COMPETENT AUTHORITY on 13 October 1995

ORAL JUDGMENT

The very same orders are under challenge in both thesepetitions. The subject-matter of both these petitions is alsothe same. The petitioner of Special Civil Application No. 6573of 1990 (the first petition for convenience) is the father ofthe petitioners of Special Civil Application No. 7727 of 1990(the second petition for convenience). Common questions of lawand fact are found arising in both these petitions. I havetherefore thought it fit to dispose of both these petitions bythis common judgment of mine.

2. The facts giving rise to this petition move in a narrowcompass. For the sake of convenience I shall refer to thepetitioner of the first petition as the father and thepetitioners of the second petition as his children. The fatherfiled his declaration in the prescribed form under sec. 6(1) ofthe Urban Land (Ceiling and Regulation) Act, 1976 ('the Act' forbrief). It came to be processed by the Competent Authority atRajkot (respondent No.1 in each petition). It was claimedbefore him that the property was a joint Hindu family propertyand the same was partitioned amongst its co-owners by means of apartition memorandum executed on 3rd September 1975. Its copyis at Annexure A to the second petition. Respondent No.1 ineach petition accepted the say of the father and, by his orderpassed on 30th November 1978 under sec. 8(4) of the Act, cameto the conclusion that the holding of the father was not inexcess of the ceiling limit for the purposes of the Act. Itscopy is at Annexure B to the second petition. It may be notedthat the petitioners of the second petition are the son and thedaughter of the petitioner of the first petition. PetitionerNo.1 is the son and petitioner No.2 is the daughter. It appearsthat the son served a notice to respondent No.1 in each petitionon 17th February 1980 under sec. 26 of the Act for selling theproperty to one Mohanbhai Premjibhai. By his communicationissued on 4th March 1980, respondent No.1 in each petitioninformed the son that the State Government was not inclined topurchase the subject-matter of the said notice. A copy of theaforesaid communication of 4th May 1980 is at Annexure C to thesecond petition. Pursuant thereto, the petitioner appears tohave sold one parcel of land bearing Plot No. 10 of Survey No.394 admeasuring 1119.1 square yards (equivalent to 935.32 squaremeters) situated in Rajkot (the land in question forconvenience). Pursuant thereto, the son sold the land inquestion to Mohanbhai Premjibhai as mentioned in thecommunication at Annexure C to the second petition. It appearsthat respondent No.3 of the first petition who is incidentallyrespondent No.4 in the second petition purchased it from saidMohanbhai Premjibhai after obtaining the necessary permissionunder sec. 26 of the Act from respondent No.1 in each petition.It appears that the order at Annexure B to the second petitioncame to the notice of the concerned officer of the State of

Gujarat (respondent No.3 of the second petition). He appears tohave found it not according to law. Its suo motu revision undersec. 34 of the Act was therefore contemplated. Apropos, ashow-cause notice came to be issued to the father on 2nd March1987. He appears to have filed his reply thereto on 23rd March1987. He also appears to have submitted his writtenrepresentation on 18th April 1987. He also appears to have madesome further representation on 26th May 1987. The hearing waskept on 10th June 1987 and he thought that it was not necessaryfor him to remain present in view of his reply to the show-causenotice and his aforesaid representations as transpiring from theorder passed by and on behalf of respondent No.3 to the secondpetition. Thereafter, by the order passed on 27th January 1988by and on behalf of respondent No.3 of the second petition, theorder at Annexure B to the second petition came to be revisedand it was declared that the holding of the father was in excessof the ceiling limit by 977.21 square meters and the matter wasremanded to respondent No.1 in each petition for proceedingfurther according to law. A copy of the aforesaid order passedby and on behalf of respondent No.3 of the second petition is atAnnexure D thereto. Pursuant thereto, respondent No.1 in eachpetition took up the matter and, by his order passed on 29thFebruary 1988, declared the holding of the father to be inexcess of ceiling limit by 437.81 square meters. Its copy is atAnnexure C to the first petition and at Annexure E to the secondpetition. The father was aggrieved thereby. He thereforecarried the matter in appeal before respondent No.2 in eachpetition under sec. 33 of the Act. It came to be registered asAppeal No. Rajkot-24 of 1988. By the order passed on 20th June1988 in the aforesaid appeal, respondent No.2 in each petitiondismissed it. Its copy is at Annexure D to the first petitionand at Annexure F to the second petition. It may be mentionedthat after dismissing the father's appeal, respondent No.2 ineach petition modified the order passed by respondent No.1 anddeclared the holding of the father to be in excess of theceiling limit by 977.21 square meters. Pursuant thereto,respondent No.1 in each petition, by his communication of 28thJuly 1988, conveyed to the father the final statement under sec.9 of the Act. Its copy is at Annexure G to the second petition.Pursuant thereto, a notification under sec. 10(3) of the Actappears to have been issued on 13th March 1990 and a noticeunder sec. 10(5) of the Act appears to have been issued on 13thJuly 1990 calling upon the father to hand over possession of theexcess land in terms of the order at Annexure D to the firstpetition and at Annexure F to the second petition. Theaggrieved petitioners have thereupon approached this court bymeans of these two separate petitions for questioning thecorrectness of the order at Annexure D to the second petitionand the order at Annexure C to the first petitio (equivalent toAnnexure E to the second petition) as affirmed in appeal by theappellate order at Annexure D to the first petition (equivalent to Annexure F to the second petition) and all consequentialactions.

to Annexure F to the second petition) and all consequentialactions.

3. It is difficult to accept the submission urged before meby Shri Shah for the petitioners that the revisional powersunder sec. 34 of the Act could not have been exercised afterpassage of nearly 8 1/2 years from the date of the order atAnnexure B to the second petition. It becomes clear therefromthat the said order was passed as early as on 30th November 1978and the show-cause notice for its revision was issued as late ason 2nd March 1987, nearly 8 1/2 years from the date of the ordersought to be revised. In this connection, a reference deservesto be made to the binding Division Bench ruling of this Court inthe case of Haresh Kantilal Vora v. Competent Authority andAdditional Collector, Rajkot and Another reported in 1992(2)G.L.H. 424 as relied on by learned Assistant Government PleaderShri Patel for the contesting respondents. It has been heldtherein that mere lapse of time, without anything more, wouldnot make the exercise of revisional powers under sec. 34 of theAct to be unreasonable. Sitting as a single Judge, theaforesaid Division Bench ruling of this court is binding to me.

4. It is true that pursuant to the order at Annexure B tothe second petition, the son served notice to respondent No. 1under sec. 26 of the Act indicating therein that he wanted tosell the land in question to the predecessor-in-title ofrespondent No.4 to the second petition. By the communicationissued by respondent No.1 in each petition on 4th March 1980 atAnnexure C to the second petition, respondent No.1 indicated tothe son that the property in question was not intended to bepurchased by the State Government. Pursuant thereto, the landin question was sold by the son to the person named therein. Tothat extent, the equities between the parties came to bechanged.

5. It is however found by and on behalf of respondent No.3of the second petition that the total holding of the petitioneras on 17th February 1976 was 2477.21 square meters. Theaforesaid property sold by the son with permission fromrespondent No.1 of each petition would comprise of 935.32 squaremeters. Deducting that area from the holding of the father, thebalance would come to 1541.89 square meters. This area would besufficient to enable the father to surrender the land declaredsurplus under the Act. It would have been a different case ifthe father had sold away or disposed of his entire holding orthat he had raised construction on all the vacant lands duringthe intervening period. If it would have been so, recoursecould have been made to the ruling of this court in the case ofJayantilal Kasalchand Shah v. State of Gujarat and Anotherreported in 1994(2) Gujarat Current Decisions 83 explaining theaforesaid Divison Bench ruling of this court in the case of Haresh Kantilal Vora (supra). Unfortunately for thepetitioners, it is not so. In that view of the matter, delay inexercise of powers under sec. 34 of the Act after a lapse ofnearly 8 1/2 years would pale into insignificance in view of theaforesaid Division Bench ruling of this court in the case ofHaresh Kantilal Vora (supra).

6. I however agree with learned Advocate Shri D.U. Shah forthe petitioners in his submission to the effect that respondentNo.3 of the second petition was not justified in declaring theholding of the father to be surplus by a particular quantum whenrespondent No.1 had not examined the case from all possibleangles in his order of 30th November 1978 at Annexure B to thesecond petition. As rightly submitted by learned Advocate ShriShah for the petitioners, the matter ought to have been remandedto the Competent Authority without anything more for restorationof the proceeding to file and for his fresh consideration in thelight of the remand. This is so because, it is found from theimpugned order of respondent No. 1 after remand at Annexure Cto the first petition (equivalent to Annexure E to the secondpetition), that one property admeasuring 530.40 square meterswas found constructed on 17th February 1976 when the Act cameinto force. The area of that property will have to be excludedfrom the holding of the father in view of the binding ruling ofthe Supreme Court in the case of Smt. Meera Gupta. v. Stateof West Bengal and Others reported in AIR 1992 SC 1567. That isexactly what respondent No.1 in each petition has done in hisorder at Annexure C to the first petition (equivalent toAnnexure E to the second petition).

7. In exercise of his appellate jurisdiction, respondentNo.2 has found fault with the aforesaid order passed byrespondent No.1 after remand only on the ground that ittravelled beyond the order of remand at Annexure D to the secondpetition. Since I find that the order at Annexure D to thesecond petition to the extent it has included in the holding ofthe father the constructed property contrary to the aforesaidbinding Supreme Court ruling, it cannot be upheld in toto. Theexcess declaration therein will have to be sliced down afterexcluding from the holding of the father the area represented bythe constructed property, that is, 534.40 square meters. Ifthat is so done, the order passed by respondent No.1 afterremand at Annexure C to the first petition (equivalent toAnnexure E to the second petition) becomes invulnerable orunassailable. The appellate order modifying it by including inthe holding of the father the area of the aforesaid constructedproperty cannot therefore be sustained in law.

8. So far as the order of respondent No.1 in each petitionafter remand at Annexure C to the first petition (equivalent toAnnexure E to the second petition) is concerned, no fault can be found with it. It is in consonance with the order passed by andon behalf of respondent No.3 of the second petition in exerciseof its powers under sec. 34 of the Act at Annexure D thereto tothe extent indicated hereinabove. The impugned order atAnnexure D to the second petition calls for no interferenceexcept to the extent indicated hereinabove as it has clearlybeen found therein that the land inquestion was purchased in thename of the mother and nowhere it was found mentioned in thedocument of title that the consideration was from the jointHindu family funds. This finding of fact is not found or shownto be perverse in any manner.

9. In view of my aforesaid discussion, I am of the opinionthat the impugned order at Annexure D to the second petitioncannot be sustained in law in toto. For the area of 977.32square meters declared surplus it is to be modified bysubstituting the area of 437.81 square meters. The order passedby respondent No.1 in each petition after remand at Annexure Cto the first petition (equivalent to Annexure E to the secondpetition) calls for no interference by this court in thesepetitions. So far as the appellate order at Annexure D to thefirst petition (equivalent to Annexure F to the second petition)is concerned, it stands modified by upsetting that part of theorder by which it has upwardly revised the order passed byrespondent No.1 after remand.

10. It may be mentioned at this stage that learned AssistantGovernment Pleader Shri Patel for the contesting respondents isright in his submission that the petitioners of the secondpetition have no locus standi to challenge the orders passedagainst the father. So far as the daughter is concerned, she isnot at all affected by the orders in question except to theextent that her so-called share of partition stands obliterated.She had not filled in her form by showing her share in herfather's property. She was not a party before respondent No.1at the time of passing of the order oat Annexure B to the secondpetition. She would not be justified in claiming the right ofhearing before respondent No.3 with respect to the revisionalorder at Annexure D to this petition. So far as the son isconcerned, the permission obtained from him by the communicationat Annexure C to the second petition is not upset. Thetransaction entered into by him with Mohanbhai Premjibhai isalso not disturbed. In view of my aforesaid discussion, thattransaction will not be disturbed even qua respondent No.3 ofthe first petition who is respondent No. 4 of the secondpetition. In that view of the matter, the son also would not bejustified in claiming the right of hearing before respondentNo.3 of the second petition with respect to the order atAnnexure D thereto. If the son and the daughter could not claimany right to hearing as aforesaid, they have no right tochallenge the orders passed against their father. However, with a view to avoiding creation of confusion, I have taken up boththese petitions for hearing and disposal together by this commonjudgment of mine. I have therefore avoided such technicalitiesto be weighed with me for the purpose of deciding their fate.

11. In the result, both these petitions are accepted to theaforesaid extent. The order passed by and on behalf of theState of Gujarat on 18th June 1980 at Annexure D to the secondpetition is modified by substituting the area of 977.21 squaremeters by 437.81 square meters. Similarly, the order passed bythe Urban Land Tribunal at Ahmedabad on 20th June 1988 in AppealNo. 24 of 1988 at Annexure D to the first petition (equivalentto Annexure F to the second petition) is also modified byquashing and setting aside that part of the order by which theorder passed by the Competent Authority at Rajkot after remandon 29th February 1988 under sec. 8(4) of the Act. The orderpassed by the Competent Authority at Rajkot at Annexure C to thefirst petition (equivalent to Annexure E to the second petition)is restored. It is hereby clarified that the holding of thefather (the petitioner of the first petition) is declared to bein excess of the ceiling limit by 437.81 square meters. Thematter may be remanded to the Competent Authority at Rajkot forpreparation of the final statement accordingly after giving anopportunity to the petitioner of the first petition forselection of the land to be surrendered as surplus. It isclarified that the selection to be made by him should not affectthe property sold by his son to Mohanbhai Premjibhai and in turnto respondent No.3 of the first petition who is respondent No.4 of the second petition. Rule issued on each petition isaccordingly made absolute to the aforesaid extent with no orderas to costs.