SCA/3265/1989 of MANHARLAL MANILAL VORA Vs COMPETENT AUTHORITY & DY.COLLECTOR-ULC on 10 October 1995

ORAL JUDGMENT

The order passed by the Competent Authority at Rajkot (respondent No.1 herein) on 2nd January 1986 under sec. 8(4) ofthe Urban Land (Ceiling and Regulation) Act, 1976 ('the Act' forbrief) as affirmed in appeal by the order passed by the UrbanLand Tribunal at Ahmedabad (respondent No.2 herein) on 31stJanuary 1989 in Appeal No. Rajkot-88 of 1986 is under challengein this petition under Art. 226 of the Constitution of India.

By his impugned order, respondent No.1 declared the holding ofthe petitioner to be in excess of the ceiling limit by 540.52square meters.

2. The facts giving rise to this petition move in a narrowcompass. The petitioner filed his declaration in the prescribedform under sec. 6(1) of the Act with respect to his holding forand on behalf of his joint family within the urban agglomerationof Rajkot. Its copy is at Annexure A to this petition. Thatform was earlier processed by respondent No. 1 by his orderpassed on 19th February 1979 and he came to the conclusion thatthe holding of the petitioner was not in excess of the ceilinglimit. Its copy is at Annexure B to this petition. It appearsthat the order at Annexure B to this petition came to the noticeof the concerned officer of the State Government (respondentNo.3 herein). He appears to have found it not according to law.Its suo motu revision under sec. 34 of the Act was thereforecontemplated. A show-cause notice thereupon came to be issuedon 16th September 1983 calling upon the petitioner to show causewhy the order at Annexure B to this petition should not berevised. A copy of the aforesaid show-cause notice is atAnnexure C to this petition. The petitioner filed his replythereto. Its copy is at Annexure D to this petition.Thereafter, by the order passed by and on behalf of respondentNo.3 on 20th October 1984, the order at Annexure B to thispetition came to be set aside and the matter was remanded torespondent No.1 for restoration of the proceedings to file andfor its fresh disposal according to law. A copy of theaforesaid order passed on 20th October 1984 is at Annexure E tothis petition. Pursuant thereto, the petitioner filed hisobjections to the draft statement. A copy of his writtenobjections is at Annexure F to this petition. After hearing thepetitioner, by his order passed on 2nd January 1986 under sec.8(4) of the Act, respondent No.1 declared the holding of thepetitioner to be in excess of the ceiling limit by 540.52 squaremeters. Its copy is at Annexure J to this petition. Pursuantthereto, the final statement was prepared and served to thepetitioner as provided in sec. 9 thereof. Its copy is atAnnexure K to this petition. The aggrieved petitioner carriedthe matter in appeal before respondent No.2 under sec. 33 ofthe Act. A copy of the memo of appeal is at Annexure L to thispetition. It came to be registered as Appeal No. Rajkot-88 of1986. By the order passed by respondent No.2 on 31st January1989 in the aforesaid appeal, respondent No.2 dismissed it. Itscopy is at Annexure M to this petition. The aggrievedpetitioner has thereupon approached this court by means of thispetition under Art. 226 of the Constitution of India forquestioning the correctness of the order at Annexure J to thispetition as affirmed in appeal by the appellate order atAnnexure M to this petition.

3. It is the case of the petitioner that he received oneproperty in Manhar Plot at Rajkot admeasuring 1263.76 squaremeters by way of partition amongst his brothers some time on29th November 1950. It was an ancestral property in the handsof the petitioner and his brothers and the petitioner receivedthat property as his one-third share in partition. Since it wasan ancestral property in the hands of the petitioner, his sonwould acquire interest therein from his birth in view of settledprinciples of law well enshrined in the Hindu Law. In that viewof the matter, there is no escape from the conclusion that thepetitioner was holding that parcel of land jointly with his son,named, Nayankumar. The petitioner was therefore justified infiling his declaration in the prescribed form under sec. 6(1)of the Act on behalf of his joint family consisting of himselfand his son. The name of his daughter as a co-parcener wasunduly shown therein.

4. Since the property in Manhar Plot was admeasuring 4.

Since the property of Manhar Plot was admeasuring 1263.76 squaremeters and since the petitioner was holding jointly with his sonNayankumar, the petitioner's share therein could be said to beabout 632 square meters. It may be mentioned at this stage thatthe birth-date of the petitioner's son Nayankumar is shown to be15th April 1949 as transpiring from the SSC certificate atAnnexure H to this petition. He was therefore major on the dateof coming into force of the Act. His share therefore could notbe clubbed with the petitioner. That is how I have taken thepetitioner's share in the property in Manhar Plot to be 632square meters. That area together with the other properties ofthe petitioner would come to in all about 1300 square meters.The ceiling limit prescribed for the urban agglomeration ofRajkot is 1500 square meters. In that view of the matter, thereis no hesitation in coming to the conclusion that the holding ofthe petitioner was very much within the ceiling limit for thepurposes of the Act.

5. It may be noted that in his order at Annexure J to thispetition respondent No.1 has held that members of the jointfamily would be an association of persons in view of somecircular issued by the State Government on 1st September 1964.That conclusion and the circular also would be contrary to theDivision Bench ruling of this court in the case of ChhaganlalTrikamdas Thakker and Others v. Competent Authority, Rajkot andothers reported in 1994(1) Gujarat Current Decisions at page 1.In that view of the matter, that conclusion will have to bequashed and set aside.

6. Even otherwise the petitioner can be said to be holdinghis property within the ceiling limit. The reason therefor isquite simple. It has been found in the declaration at AnnexureA to this petition that the property in Manhar Plot was a constructed property. It appears that it had two buildings, onea residential house and the other a cluster of six shops astranspiring from the sale deed executed by the petitioner on 8thJanuary 1980. Its copy is at Annexure I to this petition. Foreach constructed building the petitioner would be entitled tothe land appurtenant thereto to the tune of 500 square meterseach in the minimum. Together with the constructed area and theland appurtenant thereto, the total area of the propertyadmeasuring 1263.76 square meters will have to be excluded inview of the binding ruling of the Supreme Court in the case ofSmt. Meera Gupta v. State of West Bengal and Others reportedin AIR 1992 SC 1567. If that area is excluded, what will remainin the holding of the petitioner would be something like 656.53square meters. That area can certainly be said to be very muchwithin the ceiling limit for the purposes of the Act.

7. In view of my aforesaid discussion and in either view ofthe matter, the holding of the petitioner cannot be said to bein excess of the ceiling limit for the purposes of the Act. Inthat view of the matter, the impugned order at Annexure J tothis petition as affirmed in appeal by the appellate order atAnnexure M to this petition cannot survive. It has to bequashed and set aside.

8. In the result, this petition is accepted. The orderpassed by the Competent Authority at Rajkot on 2nd January 1986at Annexure J to this petition as affirmed in appeal by theorder passed by the Urban Land Tribunal at Ahmedabad on 31stJanuary 1989 in Appeal No. Rajkot-88 of 1986 at Annexure M tothis petition is quashed and set aside. Rule is accordinglymade absolute with no order as to costs.