JUDGMENT
A.N. Divecha, J.
1. The common order passed by the Competent Authority at Bhavnagar (respondent No. 2 herein) on 7th July 1984 in U.L.C. Case Nos. 1470, 283, 285, 286 and 126 all of 1976 as affirmed in appeal by the common appellate order passed by the Urban Land Tribunal at Ahmedabad (the Appellate Authority for convenience) on 26th May 1987 in Appeal Nos. Bhavnagar-1318 and 1293 both of 1984 is under challenge in this petition under Article 227 of the Constitution of India. By his impugned order, respondent No. 2 declared the combine holding of the petitioners with that of the heirs and legal representative of Vadilal Mohanlal Vasani to be in excess of the ceiling limit by 4749.69 square metres and declared the excess to be surplus for the purposes of the Urban Land (Ceiling and Regulation) Act, 1976 (the Act for brief).
2. The facts giving rise to this petition are somewhat complicated and complex. Petitioner No. 1 is the widow of one Gokaldas Prabhudas and petitioner Nos. 2 to 5 are brothers. The deceased husband of petitioners No. 1 was their brother. The aforesaid five brothers appear to have formed one partnership in the name and style of ‘Gokaldas Prabhudas & Brothers’ (the old partnership for convenience). They appear to have purchased one property bearing plot No. 2181 admeasuring 2389.96 square metres situated at Vaghawadi Road in Bhavnagar (the constructed property for convenience). A copy of the sale deed in that regard is at Annexure-H to this petition. It appears that the sale deed was executed on 3rd June 1955. It transpires therefrom that the property consisted of one building housing three dwelling units and one stable separately constituted and one dwelling unit separately constructed for a watchman. That was the position of the constructed property at the time of execution of the sale deed at Annexure-H to this petition. It appears that petitioner No. 2 herein entered into partnership with one Vadilal Mohanlal Vasani in the name and style of ‘Nandlal Vadilal & Company’ (the new partnership for convenience). It took on lease from the Borough Municipality of Bhavnagar sometime in March 1954 four parcels of land bearing plot Nos. 885, 886 and 1100 admeasuring 1071.24 square metres, 1003.35 square metres, 1449.01 square metres and 836.13 square metres respectively situated near Old Dairy in Bhavnagar (the disputed lands for convenience). The communication regarding grant of lease in favour of the new partnership firm by the Borough Municipality of Bhavnagar is at Annexure-A to this petition. It appears that both the partners in the new partnership firm had equal share in the partnership assets and liabilities. It may be mentioned at this stage that the terms of the new partnership were not reduced to writing. There was no partnership deed with respect to the new partnership firm. It appears that Vadilal Mohanlal Vasani breathed his last sometime on 23rd August 1973. Since the partnership consisted only of two partners, it stood dissolved. It may be mentioned at this stage that the effect of the death of said Vadilal Mohanlal Vasani on the partnership in the name and style of “Nandlal Vadilal & Company’ was the subject-matter of Special Civil Application No. 4468 of 1987 decided on 25th January 1994. This Court has held therein that on the death of said Vadilal Mohanlal Vasani sometime on 23rd August 1973, the partnership firm in the name and style of “Nandlal Vadilal & Company’ stood dissolved and the partnership assets in the form of the disputed lands were inherited in equal share by the heirs of Vadilal Mohanlal Vasani on the one hand and by Nandlal Prabhudas on the other. In view of the aforesaid ruling of this Court in Special Civil Application No. 4468 of 1987 decided on 25th January 1994, the share of Nandlal Prabhudas, the surviving partner in the new partnership firm in the lease-hold rights of the disputed lands was only 50%. It may be mentioned that the total area of the disputed lands is 4360.73 square metres. Its 50% would be 2180.37 square metres. It thus becomes clear that the share of Nandlal Prabhudas (petitioner No. 2 herein) in the lease-hold rights with respect to the disputed lands in the dissolved new partnership firm was 2180.37 square metres. That was his holding. It appears that petitioner No. 2 in the new partnership firm represented the old partnership firm, and as such his share in the lease-hold rights qua the disputed lands in the dissolved new partnership firm was taken over by the old partnership firm. It appears that the lease-hold rights in respect of the disputed lands to the extent of 2180.37 square metres were taken over by the old partnership firm in the name and style of’Gokaldas & Brothers’. That appears to be the position on 23rd August 1973 when Vadilal Mohanlal Vasani breathed his last. As pointed out hereinabove, the old partnership firm had purchased the constructed property on 3rd June 1955 by the sale deed at Annexure-H to this petition. The holding of the old partnership firm as on 17th February 1976 when the Act came into force was an area of 2180.37 square metres of the disputed lands and 2389.96 square metres of the constructed property. This holding of the old partnership firm was within the Urban agglomeration of Bhavnagar. The ceiling limit prescribed for that area under the Act is 2000 square metres. The old partnership firm filled in the prescribed form under Section 6(1) of the Act. Pursuant thereto, a draft statement was prepared by respondent No. 2 and it was caused to be served to the new partnership firm and its partners with the forwarding letter of 11th May 1982. Its copy together with a copy of the draft statement is at Annexure-C to this petition. It appears that the mother of petitioner Nos. 2 to 4 had also filled in her separate prescribed form under Section 6(1) of the Act. It appears that the heirs of deceased Vadilal Mohanlal Vasani had also filled in their separate prescribed forms thereunder. The partners of the old partnership firm and their mother filed their objections to the draft statement. A copy of their objections is at Annexure-D to this petition. It appears that all the cases arising from the prescribed forms filled in by different persons including the old partnership firm were consolidated. By his common order passed on 3rd July 1984 in the aforesaid consolidated cases, respondent No. 2 came to the conclusion that the combined holding of the old partnership firm and of the heirs of deceased Vadilal MohanlalVasani was 6749.69 square metres and it was in excess of the ceiling limit by 4749.69 square metres and the excess was declared surplus. Its copy together with a copy of the final statement prepared under Section 9 of the Act is at Annexure-E to this petition. That aggrieved the partners of the old partnership firm as also the heirs of deceased Vadilal Mohanlal Vasani. Both the sides, therefore, carried the matter in appeal before the Appellate Authority under Section 33 of the Act. The appeal preferred by the partners of the old partnership firm came to be registered as Appeal No. Bhavnagar-1293 of 1984 and that preferred by the heirs of deceased Vadilal Mohanlal Vasani as Appeal No. Bhavnagar-1313 of 1984. By his common appellate order passed on 25th May 1987 in the aforesaid two appeals, the Appellate Authority dismissed both the appeals. Its copy is at Annexure-F to this petition. It appears that one partner of the old partnership firm named Gokaldas Prabhudas breathed his last after the appellate order at Annexure-F to this petition saw the light of the day. As pointed out hereinabove, petitioner No. 1 is his widow. The common appellate order at Annexure-F to this petition aggrieved the petitioners. They have, therefore, moved this Court by means of this petition under Article 227 of the Constitution of India for questioning the correctness of the impuned order at Annexure-E to this petition as affirmed in appeal by the common appellate order at Annexure-F to this petition.
3. Both the orders at Annexures-E and F to this petition were under challenge in Special Civil Application No. 4468 of 1987 decided on 25th January, 1994. They were set aside qua the petitioners of that petition. Ordinarily, that judgment would have governed the fate of the present petition. However, the facts in this case are somewhat different. As pointed out hereinabove, the one-half share in the leasehold rights pertaining to the disputed lands was taken over by the old partnership firm in the name and style of ‘Gokaldas Prabhudas & Brothers’ on dissolution of the new partnership firm in the name and style of ‘Nandlal Vadilal & Company’ on the death of Vadilal Mohanlal Vasani on 23rd August, 1973. Besides, the old partnership firm had also purchased the constructed property under the sale deed at Annexure-E to this petition. The fate of this petition will, therefore, have to be decided in the light of the holding of the petitioners with respect to these properties.
4. Shri Patel for the petitioners is right in his submission to the effect that the constructed property with permissible land appurtenant thereto would fall outside the purview of ‘Vacant land’ as defined in Section 2(q) of the Act in view of the binding ruling of the Supreme Court in the case of Meera Gupta v. State of West Bengal . According to Shri Patel for the petitioners, the constructed property has permissible land appurtenant thereto and it would be governed by the principle of law annunciated by the Supreme Court in its aforesaid ruling and it will have to be excluded from the holding of the old partnership firm or the petitioners representing it before this Court. Once the constructed property is excluded from the holding of the old partnership firm or the petitioners, runs the submission of Shri Patel for the petitioners, what would be left with the petitioners would be their share in the disputed lands to the tune of 2180.87 square metres and, in view of the fact that the ceiling limit prescribed for the urban agglomeration of Bhavnagar is 2000 square metres, the excess would be only 180.87 square metres, that is, within the permissible limit of 10-1/2 of the ceiling limit and it should, therefore, be permitted to be retained with the petitioners in view of the Circular issued by the State Government on 28th June, 1977. Shri Dave for the respondents has on the other hand submitted that it does not become clear from the record whether or not any building regulations were in existence when the constructed property came into existence and the permissible land appurtenant thereto would depend on existence of such building regulations in view of the definition of “land appurtenanf’contained in Section 2(g) of the Act.
5. At this stage, the submission urged before me by Shri Patel for the petitioners to the effect that the constructed property was purchased by the deceased husband of petitioner No. 1 and petitioner Nos. 2 to 4 as an undivided Hindu Family of five brothers and such family could not be styled as an association of persons and, in view of the relevant provisions contained in Section 4(5) of the Act, no brother could be said to be holding any property in excess of the ceiling limit deserves to be dealt with. It is an admitted position that the five brothers filled in the declaration in the prescribed form under Section 6(1) of the Act as the partners of the old partnership firm in the name and style of ‘Gokaldas Prabhudas & Brothers’ and not in their capacity as members of any undivided Hindu Family. It transpires from the sale deed at Annexure-H to this petition that the constructed property was purchased by ‘Gokaldas Prabhudas & Brothers’, that is, the old partnership firm. It does not appear to have been purchased by the five partners of the old partnership firm in their capacity as members of any undivided Hindu Family. In that view of the matter, it is difficult to accept the aforesaid submission urged before me by Shri Patel for the petitioners. Besides, no such plea appears to have been advanced either before respondent No. 2 or before the Appellate Authority. It cannot be gainsaid that the aforesaid submission urged by Shri Patel for the petitioners would be in the nature of a new plea of fact. It would not be open to the petitioners to raise such a new plea of fact in this petition under Article 227 of the Constitution of India in view of the Division Bench ruling of this Court in the case of Gujarat Mineral Development Corporation Ltd v. Labour Court Ahmedabad reported in 1986 GLH 650 : 1986 (1) GLR 410.
6. Shri Patel for the petitioners has urged that the constructed property as on 17th February 1976 consisted of in all five different dwelling units and, even if the minimum permissible land appurtenant thereto is taken into consideration as 500 square metres, it will have to be excluded from the expression ‘vacant land’ as defined in Section 2(q) of the Act in view of the aforesaid binding ruling of the Supreme Court in the case of Meera Gupta (supra). The plan of the dwelling units in the constructed property is at Annexure-I to this petition. It transpires, therefore, that four dwelling units are housed in one building and the fifth dwelling unit is in a separate building at the western end of the land housing the constructed property. In view of the definition of “land appurtenant” contained in Section 2(g) of the Act, such land appurtenant is in relation to a building and not with respect to each of the dwelling units comprised in one building. The definition of “dwelling units” contained in Section 2(e) of the Act would clearify the position in that regard. A dwelling unit has been defined to mean, in relation to a building or a portion of a building, a unit of accomodation in such building or portion used solely for the purpose of residence. In that view of the matter, a dwelling unit might be in a separate building or might be in a portion of the building along with another dwelling unit or other dwelling units as in the case of a ‘chawl’ on ‘soul houses’. The permissible land appurtenant for the purpose of Section 2(g) of the Act would be in relation to a building and not in relation to a dwelling unit. In that view of the meter, the plan at Annexure-I to this petition would clearly go to show that there are in existence two buildings, one consisting of four dwelling units and the other of one dwelling unit in the land housing the constructed property. In that view of the matter, the permissible land appurtenant thereto would be with respect to the two buildings existing at the land housing the constructed property. As rightly submitted by Shri Dave for the respondents, it does not become clear from the record whether or not any building regulations were in existence when the constructed property came into existence. It also does not become clear from the record when the construction was undertaken which took the shape of the property at the time of execution of the sale deed at Annexure-H to this petition. It also does not become clear when the fourth dwelling units was added along with the three dwelling units as was found in the sale deed at Annexure-H to this petition and when the watchman’s room was converted into another dwelling unit. Again, there is nothing on record to show or to suggest that whether or not any building regulations were in existence at the relevant time. It cannot be gainsaid that different considerations would arise for consideration of the permissible land appurtenant to the buildings standing on the land housing the constructed property if there were building regulations at the time of construction and if there were no such building regulations at the relevant time. In that view of the matter, it would be necessary to remand the matter to respondent No. 2 or his successor in office for restoration of the concerned case of the old partnership firm in the name and style of ‘Gokaldas Prabhudas & Brothers’ to file and to decide its fate according to law in the light of this judgment of mine and in the light of the ruling of the Supreme Court in the case of State ofUttar Pradesh v. L.J. Johnson reported in AIR 1983 SC 1307 and also in the light of the aforesaid ruling of the Supreme Court in the case of Meera Gupta (supra).
7. In the result, this petition is accepted to the aforesaid extent.
8. The impugned common order at Annexure-E to this petition as affirmed in appeal by the common appellate order at Annexure-F to this petition is quashed and set aside to the aforesaid extent. The matter is remanded to the Competent Authority at Bhavnagar for restoration of the proceeding in question to file and for his fresh decision according to law in the light of this judgment of mine. Rule is accordingly made absolute to the aforesaid extent with no order as to costs.