SCA/6724/1989 of CHAMPAKLAL MULSHANKER VALANI Vs COMPETENT AUTHORITY on 7 October 1995

ORAL JUDGMENT

The order passed by the Competent Authority at Rajkot(respondent No.1 herein) on 22nd January 1987 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 (respondent No.2 herein) on 2ndJune 1989 in Appeal No. Rajkot-40 of 1987 is under challenge inthis petition under Art. 226 of the Constitution of India. By his impugned order, respondent No.1 declared the holding of thepetitioners to be in excess of the ceiling limit by 12664 squaremeters.

2. It is not necessary to set out in detail the factsgiving rise to this petition. It may be sufficient to note thatthe petitioners filed their joint and separate declarations withrespect to their holding within the urban agglomeration ofRajkot in the prescribed form under sec. 6(1) of the Act. Thatform was duly processed and by his order passed on 22nd January1987 under sec. 8(4) of the Act, respondent No.1 declared theholding of the petitioners to be in excess of the ceiling limitby 12664 square meters. Its copy is at Annexure C to thispetition. The aggrieved petitioners carried the matter inappeal before respondent No.2 under sec. 33 of the Act. Itcame to be registered as Appeal No. Rajkot-40 of 1987. By hisorder passed on 2nd June 1989 in the aforesaid appeal,respondent No.2 dismissed it. Its copy is at Annexure E to thispetition. The aggrieved petitioners have thereupon approachedthis court by means of this petition under Art. 226 of theConstitution of India for questioning the correctness of theorder at Annexure C to this petition as affirmed in appeal bythe appellate order at Annexure E to this petition.

3. At the stage of its preliminary hearing, the submission was restricted only to the question whether or not the twopetitioners are entitled to one unit or two units under the Act.So far as the rest of the impugned order is concerned, thiscourt as affirmed it.

4. It is the case of the petitioners that they areco-owners and they ought not to have been treated as anassociation of persons. Learned Advocate Shri Shah for thepetitioners is right in his submission in that regard thatco-owners of a parcel of land are not an association of personsin view of the Division Bench ruling of this court in the caseof Chhaganlal Trikamdas Thakker and Others v. CompetentAuthority, Rajkot and Others reported in 1994(1) Gujarat CurrentDecisions at page 1. In that view of the matter, the conclusionreached by the authorities below that the petitioners are anassociation of persons cannot be accepted.

5. It appears that the petitioners filed their declarationsstyling themselves as an association of persons. It transpiresfrom the appellate order at Annexure E to this petition thatthey filed separate declarations also with respect to theirshare in the land in question. It cannot be gainsaid that theAct was new at that time and no one was conversant with respectto the correct procedure to be followed. It transpires from therecord that the petitioners jointly purchased the land and theytreated themselves as joint owners instead of co-owners and styled themselves as an association of persons. Such admissionby them as an association of persons can be said to be anadmission with respect to a mistaken legal position. Suchadmission would not be binding to them as it is based onmisconception of law.

6. In view of my aforesaid discussion, I am of the opinionthat the impugned order at Annexure C to this petition asaffirmed in appeal by the appellate order at Annexure E to thispetition to the extent the petitioners are treated as anassociation of persons cannot be sustained in law. Eachpetitioner would be entitled to a separate ceiling unit of 1500square meters. The rest of the impugned order at Annexure C tothis petition is maintained subject to the aforesaidmodification.

7. In the result, this petition is partly accepted. Theorder passed by the Competent Authority at Rajkot on 22ndJanuary 1987 at Annexure C to this petition as affirmed inappeal by the order passed by the Urban Land Tribunal atAhmedabad on 2nd June 1989 in Appeal No. Rajkot-40 of 1987 atAnnexure E to this petition is modified by substituting theexcess vacant land to be 11,164 square meters as against 12,664square meters by allowing each petitioner a ceiling unit of 1500square meters. It is clarified that it would be open to therespondents to take possession of the excess lands to the extentof 11164 square meters in terms of the notice issued under sec.10(5) of the Act on 25th September 1989 as stated by the learnedAssistant Government Pleader on instructions. Rule isaccordingly made absolute to the aforesaid extent with no orderas to costs.