Gujarat High Court
SCA/4591/1988 of RAMESHCHANDRA SAUBHAGYACHAND DOSHI Vs COMPETENT AUTHORITY & DEPUTY COLLECTOR on 7 October 1995
1 Date of Decision: 7th October 1995 SPECIAL CIVIL APPLICATION NO. 4591 of 1988 FOR APPROVAL AND SIGNATURE THE HONOURABLE MR. JUSTICE A.N. DIVECHA 1. Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? No 3. Whether their Lordships
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���Date of Decision: 7th October 1995
SPECIAL CIVIL APPLICATION NO. 4591 of 1988
FOR APPROVAL AND SIGNATURE
THE HONOURABLE MR. JUSTICE A.N. DIVECHA
1. Whether Reporters of Local Papers may be allowed to see the judgment? Yes
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 Mehul S. Shah, Advocate, for the Petitioners Shri Y.M. Thakkar, Asst. Govt. Pleader, for the Respondents----------------------------------------------------------------CORAM: A.N. DIVECHA, J.(Date: 7th October 1995)
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ORAL JUDGMENT
The order passed by the Competent Authority at Rajkot(respondent No.1 herein) on 31st August 1987 under sec. 8(4) ofthe Urban Land (Ceiling and Regulation) Act, 1976 (the Act forbrief) as affirmed in appeal by the Urban Land Tribunal atAhmedabad (respondent No. 2 herein) by the order passed on 3rdNovember 1987 in Appeal No. Rajkot-171 of 1987 is underchallenge in this petition under Art. 226 of the Constitution of India. By his impugned order, respondent No.1 declared theholding of the petitioners to be in excess of the ceiling limitby 4413.10 square meters.
2. The facts giving rise to this petition move in a narrowcompass. Petitioners Nos. 1 and 2 filed their declarations inthe prescribed form under sec. 6(1) of the Act with respect totheir holding within the urban agglomeration of Rajkot. Thatform was duly processed earlier by respondent No. 1 by hisorder passed on 31st January 1983. Its copy is at Annexure B tothis petition. That was carried in appeal and it was numberedas Appeal No. Rajkot-65 of 1983. The appeal was disposed of bythe order passed on 29th January 1987 and the matter wasremanded to respondent No.1 for his fresh decision according tolaw. A copy of the appellate order is at Annexure D to thispetition. Thereafter by his order passed on 31st August 1987under sec. 8(4) of the Act, respondent No.1 declared theholding of petitioners Nos. 1 and 2 to be in excess of theceiling limit by 4413.10 square meters. Its copy is at AnnexureE to this petition. That aggrieved the petitioners. Theycarried the matter in appeal before respondent No.2 under sec.33 of the Act. It came to be registered as Appeal No.Rajkot-171 of 1987. By his order passed on 14thMarch 1988 inthe aforesaid appeal, respondent No.2 dismissed it. Its copy isat Annexure F to this petition. The aggrieved petitioners havethereupon approached this court by means of this petition underArt. 226 of the Constitution of India for questioning thecorrectness of the order at Annexure E to this petition asaffirmed in appeal by the appellate order at Annexure F to thispetition.
3. It transpires from the impugned orders that petitionersNos. 1 and 2 sold practically their entire holding to one DenaFriends Society by executing five sale deeds between 1st March1974 and 4th June 1974. It transpires from the appellate orderat Annexure D to this petition that all these documents weresubmitted for registration in 1974. In fact, in the order atAnnexure E to this petition the numbers by which the sale deedswere taken for registration have also been mentioned. It thusbecomes clear that the sale deeds were executed between 1stMarch 1974 and 4th June 1974. Their registration was howevereffected as late as on 31st March 1978. On account of suchbelated registration of the sale deeds, respondent No.1 came tothe conclusion that sale transactions were not bona fide for thepurpose of sec. 4(4) of the Act and the lands represented bysuch sale transactions will have to be included in the holdingof petitioners Nos. 1 and 2. This view has been affirmed byrespondent No.2 in appeal as transpiring from the appellateorder at Annexure F to this petition.
sec. 7 of the Registration Act, 1908. It has been providedtherein that the effect of registration would be operation ofthe document from the date of its execution and not from thedate of its registration. Both the authorities below haveremained oblivious to this provision of law. Had theyconsidered this aspect of the aforesaid statutory provision,they would have immediately realised that the sale transactionshad taken place even before the specified period contained insec. 4(4) of the Act. In that case, both the authorities wouldhave realised that it was not necessary for petitioners Nos. 1and 2 to include the lands represented by the aforesaid saletransactions in the declaration in the prescribed form undersec. 6(1) of the Act.
5. Under the impugned orders the excess land held bypetitioners Nos. 1 and 2 beyond the ceiling limit is found tobe to the tune of 4413.10 square meters. The area representedby the aforesaid sale transactions is shown to be 5492.82 squaremeters together with the common plot to the tune of 420.28square meters. In that view of the matter, the holding ofpetitioners nos. 1 and 2 could not be said to be in excess ofthe ceiling limit on the date the Act came into force.
6. In view of my aforesaid discussion, I am of the opinionthat the impugned order at Annexure E to this petition asaffirmed in appeal by the appellate order at Annexure F to thispetition cannot be sustained in law. It has to be quashed andset aside.
7. In the result, this petition is accepted. The orderpassed by the Competent Authority at Rajkot on 31st August 1987at Annexure E to this petition as affirmed in appeal by theorder passed by the Urban Land Tribunal at Ahmedabad on 14thMarch 1988 in Appeal No. Rajkot-171 of 1987 at Annexure F tothis petition is quashed and set aside. Rule is accordinglymade absolute with no order as to costs.
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