Gujarat High Court
SCA/1080/1984 of JAYSHREEBEN K MASHRUWALA Vs STATE OF GUJARAT on 18 September 1995
1 Date of Decision: 20th September 1995 SPECIAL CIVIL APPLICATION NO. 1080 of 1984 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: 20th September 1995
SPECIAL CIVIL APPLICATION NO. 1080 of 1984
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 S.I. Nanavati, Advocate, for the Petitioner Shri Y.M. Thakkar, Asst. Govt. Pleader, for the Respondents---------------------------------------------------------------- CORAM: A.N. DIVECHA, J.
(Date: 20th September 1995)
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ORAL JUDGMENT
The order passed by and on behalf of the State ofGujarat (respondent No.1 herein) on 30th January 1984 under sec.34 of the Urban Land (Ceiling and Regulation) Act, 1976 ('theAct' for brief) is under challenge in this petition underArticles 226 and 227 of the Constitution of India. By theimpugned order, the order passed by the Competent Authority on 12th April 1982 and the order passed by him on 30th June 1982were sought to be revised.
2. The facts giving rise to this petition move in a narrowcompass. The petitioner along with her sister received certainfour parcels of land by way of gift from their father some timeon 12th December 1962. On coming into force of the Act, thepetitioner filed the declaration in the prescribed form undersec. 6(1) of the Act for herself and also for the otherco-owner. That form was processed and by the order passed bythe Competent Authority at Ahmedabad (respondent No.2 herein) on12th April 1982, the proceeding was closed on the ground thatthe holding of the petitioner was not in excess of the ceilinglimit. Its copy is at Annexure A (part) to this petition. Itappears that she thereafter applied for permission to sell hershare of the holding to one Purna Kuti Vikas Mandal, Ahmedabad(NTC) under sec. 26(2) of the Act. By his order passed on30thJune 1982, respondent No.2 granted such permission. Itscopy is at Annexure A (part) to this petition. It appears thatthe orders at Annexure A collectively to this petition came tothe notice of the concerned officer of respondent No.1. Heappears to have found them not according to law. Their suo moturevision was therefore contemplated. Thereupon a show-causenotice appears to have been issued to the petitioner callingupon her to show cause why the orders at Annexure A collectivelyto this petition should not be revised. After hearing her, bythe order passed on 30th January 1984, respondent No.1 held thatthe holding of the petitioner was by and on behalf of anassociation of persons and that holding would be in excess ofthe ceiling limit. Its copy is at Annexure B to this petition.In that view of the matter, the orders at Annexure Acollectively to this petition were set aside. The aggrievedpetitioner has thereupon approached this court by means of thispetition under Articles 226 and 227 of the Constitution of Indiafor questioning the correctness of the order at Annexure B tothis petition.
Conclusion
3. Shri Nanavati for the petitioner is right in hissubmission to the effect that co-owners of gifted lands cannotbe treated as an association of persons in view of the bindingDivision Bench decision of this court in the case of ChhaganlalTrikamdas Thakker & Others v. Competent Authority, Rajkot andOthers reported in 1994(1) Gujarat Current Decisions 1. It istrue that the shares of two sisters with respect to the giftedlands were not specified. It appears that the author of theimpugned order at Annexure B to this petition lost sight of Sec.45 of the Transfer of Property Act. Keeping in mind theprovisions contained therein, by analogy, the shares of thedonees will have to be treated as equal in absence of anyspecified share in the gift transaction. In that view of thematter, there should not be any hesitation in coming to the conclusion that the share of the petitioner in the gifted landswould be one-half. That is exactly what was taken to be byrespondent No.2 in his impugned order of 12th April 1982 atAnnexure A (part) to this petition. After deducting the landgoing in road margin, respondent No. 2 came to the conclusionthat the holding of the petitioner was to the tune of 988.93square meters. It would be very much within the ceiling limit.
4. In view of my aforesaid discussion, I am of the opinionthat the impugned order at Annexure B to this petition cannot besustained in law. It has to be quashed and set aside.
5. In the result, this petition is accepted. The orderpassed by and on behalf of the State Government on 30th January1984 under sec. 34 of the Act at Annexure B to this petition isquashed and set aside. Rule is accordingly made absolute withno order as to costs.