ORDER
M.R. Calla, J.
1. The petitioner in each of these three matters is the Navsarjan Industrial Cooperative Society Ltd. It had purchased lands in question in a public auction held by Special Recovery Officer under three different sales certificates and, therefore, three Special Civil Applications have been filed. These three Special Civil Applications are based on common facts giving rise to common questions of law and, therefore, all these three matters are being disposed of by this common Judgment.
2. The land in question is situated in village Anjana. Taluka Choryasi, the details of which have been set out in para 4.2 of the Special Civil Application No. 85 of 1993 and for the sake of brevity, reference is made to the pleadings in Special Civil Application No. 85 of 1993 only. The sale Certificates, in pursuance of the auction sale, were issued on 28-5-1981 and on that basis the same of the petitioner-Society was entered in the record of rights as per the document Annexure ‘A’ enclosed with the Special Civil Application No. 85 of 1993. The respondent No. 3 had stood a guarantee for one Kalyanbhai Govindbhai, against whom the Co-operative Society, namely, Shree Ambeta Vibhad Seva Sahakari Mandali had a claim determined under the provisions of the Co-operative Societies Act and to satisfy that claim the auction sale was held, in which the land in question belonging to respondent No. 3 is alleged to have been put to auction. The petitioner-Society has placed the order of the Special Recovery Officer. Surat passed on 28-5-1981 as Annexure ‘D’ on record, which shows that an amount of Rs. 400/- was to be recovered by Shree Ambheta Vibhag Sava Sahakari Mandali from respondent No. 3 as guarantor with interest of Rs. 385.75 Ps. and the administrative cost of Rs. 210.25 Ps. i.e. in all a sum of Rs. 1096/- and this order Annexure “D” dated 28-5-1981 placed on record by the petitioner-Society shows that the land in question was purchased by the petition-Society in this auction for a sum of Rs. 14 lacs.
3. Respondent No. 3 is the original declarant with regard to this land for the purpose of Urban Land (Ceiling and Regulation) Act, 1976 (herein-after referred to as ‘the Act’) and the total holding declared by respondent No. 3 was 23064 Hectare 35 Acre 81 Sq. Mts. and the Competent Authority while deciding the proceedings under Section 6 of the Act held 21564.65.81 Sq. Mts. of land to be excess land for the purpose of Special Civil Application No. 85 of 1993. In the Special Civil Application Nos. 86 and 87 of 1993, there are different figures with regard to the excess land. The Competent Authority passed orders on 30-12-88 with regard to the land in dispute in all the three matters. The petitioner-Society had not raised any objection before the Competent Authority, but it preferred the Appeals against the aforesaid order dated 30-12-1988 passed by the Competent Authority before the Urban Land Tribunal under Section 33 of the Act. Appeals Nos. 47 and 48 of 1990, out of which Special Civil Applications Nos. 85 and 87 of 1993 arise, were decided by the common order dated 11-5-1992 and Appeal No. 49 of 1990, which gave rise to Special Civil Application No. 86 of 1993, was decided by a separate order dated 31-1-1992. Thus, these three Special Civil Applications are directed against the orders dated 31-1-1992 and 11-5-1992 passed by the Urban Land Tribunal at Ahmendabad whereby the Appeals Nos. 47, 48 and 49 of 1990, preferred by the petitioner-Society, were dismissed.
4. Mr. Sanjanwala appearing for the petitioner-Society has raised following contentions :
1. The Tribunal has wrongly held that the petitioner-Society, had no locus standi to prefer the Appeal under Section 33 of the Act against the order passed by the Competent Authority on 30-12-1988 because the petitioner-Society was not the original declarant and it had purchased the property in the auction sale on 28-5-1981 whereas the proceedings under Section 6 and the question as to whether any excess land beyond ceiling limit was there or not was to be decided on the basis of the position as was obtaining on 17-2-1976 i.e. the date of the commencement of the Act and the petitioner-Society had no interest as on 17-2-1976.
2. The Authority under the Urban Land Ceiling Act could not have decided the validity of the sale deed on the basis of which the petitioner-Society had purchased the land in question and, therefore, the finding with regard to the sale being without jurisdiction, when the question about the validity of the sale had not been dealt with by the Competent Authority, and, therefore, it could not have been considered by the appellate authority for the first time.
3. That the petitioner-Society’s application seeking exemption under Section 20 was pending and that during the pendency of this application, notification under Section 10 could not have been issued.
4A. The affidavit-in-reply dated 24-1-1995 has been filed on behalf of respondents Nos. 1 and 2 by Shri B. S. Dave, Competent Authority and Deputy Collector, Surat and the affidavit-in-reply dated 29-1-1995 has been filed by Shri Babubhai Nathubhai Dhanawala i.e. respondent No. 3. Affidavit dated 31-1-1995 was filed in rejoinder and yet another affidavit dated 9-2-1995 along with certain documents was also filed in rejoinder and on behalf of respondents Nos. 1 and 2, another affidavit was filed on 10-2-1995 by Shri H. V. Patel, Deputy Secretary to Government, Revenue Department along with document dated 3-8-1993 and the affidavit-in-rejoinder dated 15-2-1995 was again filed by the petitioner-Society and thus, the Special Civil Application and the affidavits-in-reply and rejoinders, as aforesaid, along with documents, form the pleadings for the purpose of the decision of all these three matters.
5. The respondents through the affidavits-in-reply had traversed the petitioner-Society’s claim. It was submitted by Mr. Oza, learned counsel and Mr. Sompura, learned A.G.P. that the petitioner-Society had no locus standi whatsoever to file and maintain the Appeal under Section 33 of the Act and once it is upheld that the petitioner had no locus standi, the petition deserves to be dismissed on this ground alone and there is no need to consider other contentions raised by the petitioner-Society in case it is held that the petitioner-Society had no locus standi to file and maintain the Appeal. In the alternative, Mr. Sompura, learned A.G.P. and Mr. Oza, learned counsel appearing for respondent No. 3, have also made submissions factual as well legal against the other contentions raised on behalf of the petitioner-Society.
6. In the facts of this case, I may first of all consider the first contention raised on behalf of the petitioner-Society on the question of petitioner-Society’s locus standi to prefer the appeal against the order of the Competent Authority before the Urban Land Tribunal under Section 33. It is to be considered and decided as to what interest the petitioner-Society could have at the time of the commencement of the Act i.e. on 17-2-1976 because it is the petitioner’s own case that the land is purchased in the auction sale by the petitioner on 28-5-1981. Thus, according to the petitioner’s own averment. It cannot be said that the petitioner had any interest in the land in question as on the date of the commencement of the Act. However, Mr. Sanjanwala has referred to various provisions under the scheme of the Act, particularly Sections 10, 15, 21, 26 and 27 and has submitted that according to the scheme of the Act, the subsequent events are also to be taken care of and, therefore, even if the petitioner-Society had purchased the land in the year 1981, the Appeal could not be rejected on the basis of the question of locus standi and the view taken by the Tribunal that the petitioner-Society had no interest is wrong. Mr. Sanjanwala also argued that the case of Suryapur Co-operative Housing Society Ltd. v. State, reported in (1989) 30(1) Guj LR 674 decided by a single Bench is not applicable to the facts of the present case and he relied upon the case of Gigabhai Mavji v. Jagjivan Kanjj, reported in (1979) 20 Guj LR 256. The submission of Mr. Sanjanwala is that the law laid down in the aforesaid case of Suryapur Co-operative Housing Society Ltd. (supra), decided by the single Bench, cannot be made use of against the petitioner-Society because it has been held in the case of Gigabhai Mavji(supra) that specified kinds of transfer are of voluntary transfer and do not indicate or include compulsory transfer or forced transfer. The submission of Mr. Sanjanwala is that in the instant case it was a case not of voluntary transfer but forced transfer. Section 27 of the Act of course requires that no person shall transfer by way of sale, mortgage, gift, lease for a period exceeding ten years or otherwise, but, it could not enlarge the meaning of word ‘transfer’ as the said word occurs in continuation of 4 other words, which are ‘sale’, ‘mortage’, ‘gift’, or ‘lease’, which are essentially volitional or voluntary acts and, therefore, the word ‘transfer’ must take its colour from the aforesaid four words in association with which it is used. Mr. Sanjanwala invoked the principle of ejusdem generis and submitted that according to Gigabhai Mavji’s case (1979 (2) Guj LR 256) what is prohibited under Section 27 is a transfer by a person. On the authority of the aforesaid case, Mr. Sanjanwala argued that in the case at hand, it is clear that neither it was a purchase from a person nor it was a sale by a person. It was a sale and purchase by way of public auction and, therefore, it should not be treated as a case of transfer of any vacant land with reference to Section 5 or any other provisions under the Act. It was also submitted that since the provisions of the Act take care of the subsequent events, even if the petitioner-Society has acquired the interest in the year 1981 in the land in question, the Appeal could not be rejected on the ground of locus standi and he further referred to the provisions of Rule 5 contained in the Urban Land (Ceiling and Regulation) Rules, 1976 (hereinafter referred to as ‘as Rules’) and submitted that the order passed by the Competent Authority shows that it had the knowledge about the petitioner’s interest in the land in question and according to Rule 5 (2)(a)(ii), the draft statement had to be served together with the notice referred to in Sub-section (3) of Section 8 on all other persons, so far as may be known, who have, or are likely to have, any claim to, or interest in the ownership, or possession, or both, in respect of the vacant lands. Mr. Sanjanwala submitted that these Rules are mandatory and since the Competent Authority did not give any notice under Sub-section (3) of Section 8 to the petitioner-Society, the proceedings taken by the Competent Authority were invalid and since the petitioner had interest and yet was not given the notice, as envisaged under Sub-section (3) of Section 8, the Tribunal could not hold that the petitioner had no locus standi. It has been submitted by Mr. Sanjanwala that in the order passed by the Competent Authority, reference has been made to the revenue records pertaining to the land in question and the petitioner’s name has been duly entered in the revenue records of rights as per the document Annexure “A”. The Competent Authority could have very well known and in fact know about the interest of the petitioner in the ownership.
7. As against this, the argument of Mr. Sompura, learned A.G.P. and Mr. Oza, learned counsel for respondent No. 3, is that the entry with regard to the petitioner-Society in the revenue records was admittedly made on or after 28-5-1981 and according to the petitioner-Society’s own showing, it had neither any interest nor possession on 17-2-1976 and, therefore, there is no question of giving notice under Rule 5 to the petitioner-Society and the petitioner had no locus standi. Strong reliance was placed on the decision, of the single Bench of this Court reported in (1989) 30 (1) Guj LR 674 (supra).
8. Rule 5 of the Rules is reproduced as under:
“5. Particulars to be contained in draft statement as regards vacant lands and manner of service of the same.– (1) Every draft statement prepared under Sub-section (i) of Section 8 shall contain the particulars specified in Form III.
(2)(a) The draft statement shall be served, together with the notice referred to in Sub-section (3) of Section 8, on
(i) the holder of the vacant lands, and
(ii) all other persons, so far as may be known, who have, or are likely to have, any claim to; or interest in the ownership, or possession, or both, of the vacant lands.
by sending the same by registered post addressed to the person concerned - (i) in the case of the holders of the vacant lands, to his address and given in the statement filed in pursuance of Sub-section (1) of Section 6, and (ii) in the case of other persons at their last known address. (b) Where the draft statement and the notice are returned as refused by the addressee, the same shall be deemed to have been duly served on such person. (c) Where the effects to serve the draft statement and the notice, on the holder of the vacant lands or, as the case may be, any other person referred to in Clause (a), in the manner , specified in that clause is not successful for reasons other than the reason referred to in Clause (b), the draft statement and notice shall be served by affixing copies of the same in a conspicuous place in the office of the competent authority and also upon some conspicuous part of the house (if any) in which the holder of the vacant lands or, as the case may be, the other person is known to have last resided or carried on business or personally worked for gain." 9. I have considered the submissions made on behalf of both the sides. It is the petitioner's own case that it had purchased the land in question in the public auction in the year 1981 and, therefore, obviously the petitioner could not have had any interest on 17-2-1976 at the time of the commencement of the Act or any date, thereafter, till 28-5-1981. No doubt, there are provisions, which refer to taking care of the subsequent events in certain cases, as pointed out by Mr. Sanjanwala, but this is a case in which the position is to be seen as on 17-2-1976 and under Rule 5 also the notices are required to be given only to those persons, who could have held any interest in the property in question as on 17-2-1976 or when it could be ascertained with reference to the records as available at the time of commencement of the Act that any person is likely to have any interest with regard to ownership or possession in future. In no case, no evidence or document, which was not at all in existence at the time of the commencement of the Act, could be taken into consideration for the purpose of giving notice under Section 8(3), as has been argued by Mr. Sanjanwala and, therefore, even if Rule 5 is mandatory, it cannot be held on the basis of the correct interpretation of Rule 5 that the petitioner-Society had any interest in the land in question at the relevant time and, therefore, the argument of Mr. Sanjanwala that since the petitioner-Society was a party which could be known to have interest and, therefore, entitled to the notice under Rule 5 is hereby rejected.
10. In the order of the Competent Authority passed on 30-12-1988 reference to the revenue record is for the years 1979-80 to 1982-83 and it is with reference to the revenue records of these years that the name of the petitioner-Society has been mentioned and, therefore, the authority could not take the petitioner-Society as a party likely to have any interest with reference to the possession as obtaining in the year 1976. There could not be any reference to the interest of the petitioner-Society in any manner in the Form No. 1 under Section 6, which was filed by the original declarant i.e. respondent No. 3 nor there are any contemporaneous documetns, on the basis of which the petitioner-Society could be taken to be party likely to have any interest in the land in question and merely because the Competent Authority has passed order on 30-12-1988 and in the meantime, the land in question was purchased by the petitioner-Society under a registered sale deed, it cannot confer any interest in the petitioner-Society for the purpose of notice under Section 8(3) or otherwise to have any grievance against the land determined to be in excess of the ceiling limits by the Competent Authority and in the eye of law, the petitioner-Society cannot be taken as an aggrieved party against the order passed by the Competent Authority on 30-12-1988, so as to entitle it to file an Appeal. It has been clearly observed in para 6 of Suryapur Co-operative Housing Society Ltd.’s case (1989 (30) 1 Guj LR 674) (supra) that in view of provisions of Section 5 of the Act read with Section 42 of the Act, any transfer of vacant land within the urban agglomeration area concerned would be deemed to be null and void if the same is not effected in accordance with the provisions of the Act and it has also been categorically held that any party having no interest whatsoever on the date of the commencement of the Act i.e. 17-2-1976 can be said to have acquired interest in the land on the basis of the auction held by the Special Recovery Officer subsequently. In the case of Suryapur Cooperative Housing Society Ltd. (supra) the auction was held by the Special Recovery Officer on 7-4-1981 whereas in the case at hand the date is 28-5-1981 and the reading of para 3 of the judgment in Suryapur Cooperative Housing Society Ltd. would show that except the difference of the dates, the facts of this case are exactly identical and on the date of the commencement of the Act i.e. on 17-2-1976, the petitioner-Society was neither in possession of the land nor it had any interest whatsoever in the land and, therefore, there is no question of any locus standi or any cause of action to the petitioner-Society nor the petitioner-Society can be taken to be an aggrieved party for the purpsoe of filing Appeal under Section 33 of the Act.
11. So far as the decision in Gigabhai Mavji’s case (1979(20) Guj LR 256)(supra)is concerned, it may be straightaway observed that there can not be any quarrel with the preposition of law as has been laid down in this case, but it will be pertinent to point out that so far as the purchaser is concerned he was under no compulsion to purchase and if at all such an objection is taken, such an objection can be taken by the seller and not by the purchaser. It is unbelievable that the petitioner-Society while investing a sum of Rs. 14 lacs to purchase this property had no knowledge that the land, which it was going to . purchase, was under ceiling proceedings and the fact cannot be lost sight of that the land was put to public auction by Special Recovery Officer for the satisfaction of a petty claim of Rs. 400/- + interest + administrative cost, in all to the extent of Rs. 1096/ – and the land put to auction for satisfaction of such a petty claim was purchased by the petitioner-Society for a sum of Rs. 14 lacs as alleged by the petitioner-Society itself. The petitioner should have, therefore, been alert before heading for the purchase of such a land and this fact also cannot be lost sight of that the petitioner-Society never cared to approach the Competent Authority and though it had purchased the land in the year 1981 and the Competent Authority decided the proceedings as late as in 1988 and in such a long span of seven years, the petitioner-Society never cared to raise any objection before the Competent Authority and it woke up from a long slumber only after the passing of the order by the Competent Authority. The inference is irresistible that the petitioner-Society was watching the proceedings sitting on the fence, allowed the proceedings under Section 6 of the Act to be completed as if it was to step in the proceedings only for the purpose of filing the Appeal against the order of the Competent Authority. It was submitted by Mr. Sompura in the beginning that it appears that at that very point of time i.e. when the proceedings were pending before the Competent Authority and at the time when the order was passed, the petitioner as well as the respondent No. 3 were in collusion and it is at a latter stage that had fallen out. Besides this, certain other controversies with regard to the receipt of amount of auction purchase, etc., have also been sought to be raised and claims and counter claims have been included in the affidavits filed by the parties i.e. the petitioner and the respondent No. 3, but it is not at all necessary for this Court to enter into those controversies, especially when it was informed at the Bar that the matter is being separately litigated in the Civil Court. Thus, I have no hesitation in holding from the facts and circumstances of this case that the conclusion is irresistible that the petitioner cannot have any locus standi, it was not at all entitled to any notice under Rule 5, by no norms it can be said to be an aggrieved party against the order passed by the Competent Authority so as to claim an entitlement to file the Appeal under Section 33 before the Urban Land Tribunal, and in my considered opinion, the Urban Land Tribunal has rightly rejected the Appeal of the petitioner-Society under Section 33 of the Act on the ground of locus standi.
12. The learned A.G.P. on the interpretation of Rule 5 has drawn my attention to a decision of the single Bench of this Court rendered in New Jalaram Park Co-operative Housing Society v. Ramchandra, reported in (1988) 29 (1) Guj LR 82 in which it had been held that the petitioner Society was not put in possession of the land on the appointed date. Rule 5 has to be read together with the provisions of the Act and other provisions of the Rule, it cannot be read so as to frustrate the provisions of the Act and it has got to be interpret that the claim or interest in the ownership of possession of the property should exist on the appointed date and if such a claim or interest either in the ownership or possession of the property comes into existence after the appointed date, the same cannot be taken into consideration as far as Rule 5 is concerned.
13. So far as the question of pendency of the application far exemption is concerned, document dated 3-8-1993 filed as Annexure 1 with the affidavit dated 10-2-1995 filed by Shri H.V. Patel, Deputy Secretary makes it clear that the application seeking exemption was made as late as on 10-4-1991, which had already been consigend to record and it was no more pending and this order also shows that the notification under Section 10(5) had also been issued. This letter dated 3-8-1993 shows that it was addressed to one Thakorebhai Manchhabhai Patel, c/o. Navsarjan Industrial Co-operative Society Ltd. through whom the present petition has been filed and a copy thereof had already been separately sent to the petitioner-Society. This letter dated 3-8-1993 also shows that it had been sent by Registered Post A.D. as is mentioned on the top of it and although receipt of this copy has been denied by the learned counsel for the petitioner-Society during the course of arguments, there is no reason to disbelieve that it was sent by Registered Post A.D. and in normal course it must have been received and, therefore, the argument of the pendency of the application for exemption under Section 20 as moved by the petitioner-Society does not survive, although it may also be observed that the petitioner-Society does not even have a locus for the purpose of moving an application seeking exemption under Section 20 because such an application could be moved only by the original declarant and not by a party like the petitioner-Society, who purchased the land in question in the year 1981. The contents of this letter also shows that the Department has taken note of the fact that as on 17-2-1976 the petitioner-Society had no interest and it may also be mentioned that the petitioner-Society, which had purchased the land in the year 1981, moved the application seeking exemption as late as in April 1991, when the proceedings under Section 6 had already been finalised by the Competent Authority way back in December 1988 and by this time i.e. in April, 1991, the petitioner-Society had already preferred the Appeals Nos. 47 and 48 of the year 1990. It is, therefore, transparently clear that the petitioner-Society went on watching the proceedings under the Act, as was going on the basis of the declaration filed by respondent No. 3, but stopped in these proceedings only after the decision of the Competent Authority in the year 1988 and moved the application seeking exemption under Section 20 after preferring the Appeals before the Urban Land Tribunal and the application under Section 20 had been filed during the pendency of the Appeals Nos. 47 and 48 which were registered in the year 1990.
14. Once it is held that the petitioner Society had no locus standi in the matter, it is not necessary for this Court to go into the other contentions raised by the petitioner-Society, to which reference has already been made in the earlier part of this judgment.
15. In the end Mr. Sanjanwala submitted that against the decision of the single Bench of this Court i.e., Suryapur Co-operative Housing Society Ltd.’s case (1989 (30) 1 Guj LR 674) (supra), a Letters Patent Appeal is pending before the Division Bench and, therefore, this matter should also be referred to the Division Bench. In my opinion it is not at all necessary for this Court to refer the matter to the Division Bench merely because Letters Patent Appeal is pending against the decision in Suryapur Co-operative Housing Society Ltd.’s case rendered by the single Bench. I have referred to and dealt with the decision rendered by the learned single Bench in Suryapur Co-operative Housing Society Ltd. ‘s case only because it was cited at the Bar. Independent of this decision also, I am of the considered opinion that the facts relating to the conduct of the petitioner in the case at hand stand a foot higher than the facts, which are available in Suryapur Co-operative Housing Society Ltd.’s case and the petitioner-Society, which had entered into the purchase of this land for a sum of Rs. 14 lacs against the notification of a petty claim of Rs. 1096/-, as stated hereinabove, ought to have knwon and it is unbelievable that it did not know about the pending proceedings under the Urban Land Ceiling Act in the year 1981 and yet it did not take care to raise any objection of its own before the Competent Authority and, therefore, the petitioner has no lotus standi whatsoever to claim notice under Rule 5 or to claim as an aggrieved party and hence independent of the decision rendered in Suryapur Co-operative Housing Society Ltd. I am of the considered opinion that the petitioner-Society had no locus standi whatsoever and the Urban Land Tribunal has rightly rejected the Appeals preferred by the petitioner-Society.
16. The result of the adjudication as aforesaid is that these three petitions have no force and the same, therefore, fail. All the three Special Civil Applications are accordingly dismissed. Rule is hereby discharged in all these three petitions. Interim orders stand automatically vacated in all these petitions. No order as to costs.