Gujarat High Court
SCA/6857/1990 of BABUBHAI CHUNILAL BHATT Vs COMPETENT AUTHORITY & DEPUTY COLLECTOR on 13 September 1995
of Decision: 13th September 1995 SPECIAL CIVIL APPLICATION NO. 6857 of 1990 FOR APPROVAL AND SIGNATURE THE HONOURABLE MR. JUSTICE A.N. DIVECHA 1. Whether Reporters of Local Papers may be allowed to see the judgment? No 2. To be referred to the Reporter or not? No 3. Whether their Lordships
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���Date of Decision: 13th September 1995
SPECIAL CIVIL APPLICATION NO. 6857 of 1990
FOR APPROVAL AND SIGNATURE
THE HONOURABLE MR. JUSTICE A.N. DIVECHA
1. Whether Reporters of Local Papers may be allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether their Lordships wish to see the fair copy of judgment? No
4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder? No
5. Whether it is to be circulated to the Civil Judge? No
---------------------------------------------------------------- Shri M.R. Shah, Advocate, for the PetitionersShri Y.M. Thakkar, Asst. Govt. Pleader, for Respondent No.1Shri P.J. Bhatt, Advocate, for Respondents Nos. 2 and 3----------------------------------------------------------------CORAM: A.N. DIVECHA, J.(Date: 13th September 1995)
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ORAL JUDGMENT
The order passed by the Competent Authority at Ahmedabad(respondent No.1 herein) on 16th February 1985 under sec. 8(4)of the Urban Land (Ceiling and Regulation) Act, 1976 ('the Act'for brief) as affirmed in appeal by the order passed by theUrban Land Tribunal at Ahmedabad ('the Appellate Authority' forconvenience) on 23rd March 1990 in Appeal No. Ahmedabad-43 of 1985 is under challenge in this petition under Art. 227 of theConstitution of India. By his impugned order, respondent No.1declared the holding of the petitioners to be surplus by in all5908.68 square meters.
2. The facts giving rise to this petition move in a narrow compass. The petitioners filed their separate declarations inthe prescribed forms under sec. 6(1) of the Act. Thesubject-matter of the forms was common. They were thereforeprocessed together. After observing due formalities, by hisorder passed on 16th February 1985 under sec. 8(4) of the Act,respondent No.1 declared the holding of the petitioners to be inexcess of the ceiling limit by in all 5908.68 square meters.Its copy is at Annexure B to this petition. The aggrievedpetitioners carried the matter in appeal before the AppellateAuthority under sec. 33 of the Act. It came to be registeredas Appeal No. Ahmedabad-43 of 1985. By his order passed on23rd March 1990 in the aforesaid appeal, the Appellate Authoritydismissed it. Its copy is at Annexure C to this petition. Theaggrieved petitioners have thereupon approached this court bymeans of this petition under Art. 227 of the Constitution ofIndia for questioning the correctness of the order at Annexure Bto this petition as affirmed in appeal by the appellate order atAnnexure C to this petition.
3. It may be mentioned that the property bearing Survey No.217/D situated at Rajpur-Hirpur in all admeasuring 5530 squaremeters does not belong to the petitioners exclusively in view ofthe decree passed by Court No.3 of the City Civil Court atAhmedabad on 30th August 1989 in Civil Suit No. 32 of 1985.Its copy is a part of Annexure A to this petition. I am told atthe Bar that the aforesaid decree has been summarily affirmed inappeal by this court by the order passed on 28th December 1989in First Appeal No. 1175 of 1989.
4. It is unfortunate that the Appellate Authority in his appellate order at Annexure B to this petition has refused torecognise the aforesaid decree passed by the City Civil Courtand summarily affirmed by this court by pressing into servicesec. 42 of the Act. This conclusion of his cannot be sustainedin view of the ruling of this court in the case of B.H. Parekhv. Deputy Collector and Another reported in 1994(2) G.L.H.185. The aforesaid decree passed by the City Civil Court willhave to be given effect to.
5. It transpires from the impugned order at Annexure B tothis petition that certain constructed properties in existenceprior to 1976 are included in the holdings of the petitioners.That is contrary to the binding ruling of the Supreme Court inthe case of Smt. Meera Gupta v. West Bengal and anotherreported in AIR 1992 SC 1567. In view of the aforesaid binding ruling of the Supreme Court, the properties constructed prior to1976 will have to be excluded from the holdings of thepetitioners.
6. In view of my aforesaid discussion, I am of the opinionthat the impugned order at Annexure B to this petition asaffirmed in appeal by the order at Annexure C to this petitioncannot be sustained in law. It has to be quashed and set aside.The matter will have to be remanded to respondent No.1 forrestoration of the proceedings to file and for his freshdecision according to law in the light of this judgment of mine.Since it is found from the aforesaid decree passed by the CityCivil Court that respondents Nos. 2 and 3 herein and one sisterof theirs, named, Anita have their shares in the propertybearing Survey No. 217/D situated at Rajpur-Hirpur admeasuring5530 square meters, they should also be impleaded as parties tothe proceedings after remand.
7. In the result, this petition is accepted. The impugnedorder passed by the Competent Authority at Ahmedabad (respondentNo.1 herein) on 16th February 1985 under sec. 8(4) of the Actat Annexure B to this petition as affirmed in appeal by theappellate order passed by the Urban Land Tribunal at Ahmedabadon 23rd March 1990 in Appeal No. Ahmedabad-43/85 at Annexure Cto this petition is quashed and set aside. The matter isremanded to respondent No.1 for restoration of the proceedingsto file and for his fresh decision according to law in the lightof this judgment of mine. Rule is accordingly made absolute tothe aforesaid extent with no order as to costs.
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