SCA/5584/1989 of JAMANABAI W/O OF DECEASED POPATBHAI UKABHAI Vs COMPETENT AUTHORITY on 13 October 1995

ORAL JUDGMENT

The order passed by the Competent Authority at Rajkot(respondent No.1 herein) on 22nd September 1986 as affirmed inappeal by the order passed by the Urban Land Tribunal atAhmedabad (respondent No.2 herein) on 1st June 1989 in AppealNo. Rajkot-163 of 1986 is under challenge in this petition under Art. 226 of the Constitution of India. By his impugnedorder, respondent No.1 declared the holding of the petitionersto be in excess of the ceiling limit by 10920.27 square meters.The petitioners have incidentally also challenged the orderpassed by and on behalf of the State of Gujarat on 23rd July1986 under sec. 20(2) of the Urban Land (Ceiling andRegulation) Act, 1976 (the Act for brief) withdrawing theexemption granted with respect to a parcel of land bearingSurvey No. 182 (part) situated within the urban agglomerationof Rajkot.

2. The facts giving rise to this petition move in a narrowcompass. Petitioner No.1 is the widow of one Popatbhai Ukabhai(the deceased for convenience) and petitioners Nos. 2 and 3 arehis daughters. The deceased owned and possessed certainproperties within the urban agglomeration of Rajkot. Hebreathed his last on 31st August 1975 before coming into forceof the Act. A copy of his death certificate is at Annexure A tothis petition. He was survived by his son and his widow and twodaughters, that is, the petitioners in this petition. Itappears that the son also breathed his last on 29th April 1987.A copy of his death certificate is at Annexure B to thispetition. It is not necessary to dwell upon the son's death forthe purpose of this petition. It appears that petitioner No.1filed a declaration in the prescribed form under sec. 6(1) ofthe Act with respect to the holding received by the family fromher deceased husband. The holding included one parcel of landbearing Survey No.. 182 (part) admeasuring 12141 square meterssituated at Rajkot. Petitioner No.1 applied for exemption undersec. 20(1) of the Act and such exemption came to be granted bythe order passed on20th October 1982 on certain terms andconditions. Its copy is at Annexure D to this petition. Thatexemption came to be withdrawn on the ground of breach ofconditions by the order passed by and on behalf of the State ofGujarat (respondent No.3 herein) on 23rd July 1986. Its copy isat Annexure G-1 to this petition. The petitioners havechallenged its correctness in this petition. Later onrespondent No.1 processed the declaration filed by petitionerNo.1 and it was decided on 11th June 1984. Its copy is atAnnexure F to this petition. In appeal the matter was remandedto respondent No.1 by the order passed by the appellateauthority on 2nd October 1985. A copy of the appellate order isat Annexure G to this petition. Thereafter, by his order passedon 23rd September 1986 under sec. 8(4) of the Act, respondentNo.1 declared the holding of petitioner No. 1 to be in excessof the ceiling limit by 10920.27 square meters. Its copy is atAnnexure G-2 to this petition. Pursuant thereto, the finalstatement under sec. 9 of the Act was conveyed to petitionerNo.1 with the forwarding letter of 11th October 1986. Theaggrieved petitioners including the deceased son carried thematter in appeal before respondent No.2 under sec. 33 of the Act. A copy of the memo of appeal is at Annexure H to thispetition. It came to be registered as Appeal No. Rajkot-163 of1986. By the order passed on 1st June 1989 in the aforesaidappeal, it came to be dismissed. Its copy is at Annexure I tothis petition. The son of petitioner No. 1 thereafter breathedhis last. The surviving heirs of the deceased father havethereupon approached this court by means of this petition underArt. 226 of the Constitution of India for questioning thecorrectness of the order at Annexure G-2 to this petition asaffirmed in appeal by the appellate order at Annexure I to thispetition.

3. So far as the challenge to the order at Annexure G-1 to

this petition is concerned, it transpires that there was a clearbreach of the conditions of exemption. In that view of thematter, respondent No.3 was justified in withdrawing exemptionunder sec. 20(2) of the Act with respect to the land inquestion. This order passed by and on behalf of respondent No.3at Annexure G-1 to this petition calls for no interference bythis court in this petition.

4. As pointed out hereinabove, the original owner breathedhis last on 31st August 1985 leaving behind him the presentpetitioners and one son. It is nobody's case that the deceasedleft behind him any testamentary document. in that view of thematter, the succession to his properties would be governed bythe relevant provisions contained in the Hindu Succession Act,1956. Thereunder his widow, two daughters and son would get hisproperties equally. Each will have his or her 1/4th sharetherein. They would be holding all the properties of thedeceased as co-owners. They cannot be treated as an associationof persons in view of the Division Bench ruling of this Court inthe case of Chhaganlal Trikamdas Thakker and Others v.Competent Authority, Rajkot and Others reported in 1994(1)Gujarat Current Decisions at page 1. In that view of the mater,each heir would be entitled to one ceiling unit for the purposesof the Act.

5. Under the impugned order at Annexure G-2 to thispetition as affirmed in appeal by the appellate order atAnnexure I to this petition, only one ceiling unit to the familyhas been granted. The family will be entitled to four ceilingunits as all the heirs of the deceased were major on 17thFebruary 1976 when the Act came into force.

6. It transpires from the impugned orders that theproperties included one house property admeasuring 279.27 squaremeters. That has to be excluded from the holding of thepetitioners in view of the binding ruling of the Supreme Courtin the case of Smt. Meera Gupta v. State of West Bengal andOthers reported in AIR 1992 SC 1567.

7. The total holding of the petitioners is found to be tothe tune of 12420.23 square meters. As pointed out hereinabove,the petitioners would be entitled to four ceiling units, eachfor four heirs and legal representatives left behind by thedeceased owner on 31st August 1975. In that view of the matter,the area of the holding will have to be reduced by 6279.27square meters. The holding of the family will therefore be inexcess of the ceiling limit by 6140.96 square meters.

8. In view of my aforesaid discussion, I am of the opinionthat the impugned order at Annexure G-2 to this petition callsfor no interference by this court in this petition under Art.226 of the Constitution of India. The impugned order atAnnexure G-2 to this petition as affirmed in appeal by theappellate order at Annexure I to this petition cannot besustained in law in toto. The area declared surplus thereunderdeserves to be modified from 10920.27 square meters to 6140.96square meters. The rest of the order is required to besustained.

9. In the result, this petition is accepted to theaforesaid extent. The order passed by the Competent Authorityat Rajkot (respondent No.1 herein) on 22nd September 1986 atAnnexure G-2 to this petition as affirmed in appeal by theappellate order passed by the Urban Land Tribunal at Ahmedabadon 1st June 1989 in Appeal No. Rajkot-163 of 1986 at Annexure Ito this petition is modified by substituting the area of thesurplus land by 6140.96 square meters in the place of 10920.27square meters. The matter will now go to respondent No.1 forpreparation of the final statement under sec. 9 of the Actafter giving an opportunity to the petitioners for selection ofthe land for surrender as surplus. Rule is accordingly madeabsolute to the aforesaid extent with no order as to costs.

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