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LPA/116420/2006 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1164 of 2006
In
SPECIAL
CIVIL APPLICATION No. 6560 of 1990
For
Approval and Signature:
HONOURABLE
MR. JUSTICE MOHIT S. SHAH
and
HONOURABLE MS.JUSTICE H.N.DEVANI
=================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
Yes
2
To
be referred to the Reporter or not ? Yes
3
Whether
their Lordships wish to see the fair copy of the 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
=================================================
NIRANJAN
MAGANLAL MEHTA - Appellant(s)
Versus
COMPETENT
AUTHORITY & ADDL. COLLECTOR & 3 - Respondent(s)
=================================================
Appearance
MR
VIBHUTI NANAVATI for Appellant(s) : 1, 1.2.1, 1.2.2,1.2.3
MS
JIRGA JHAVERI AGP for Respondent(s) : 1 -
3,
=================================================
CORAM
:
HONOURABLE
MR. JUSTICE MOHIT S. SHAH
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 18/03/2009
ORAL JUDGMENT
(Per
: HONOURABLE MS.JUSTICE H.N.DEVANI)
1. Admit.
Ms. Jirga Jhaveri waives service of notice of admission of the appeal
on behalf of the respondents. Having regard to the facts of the case,
the matter is taken up for final hearing today.
2. This
Letters Patent Appeal under Clause 15 of the Letters Patent is
directed against the judgement and order dated 7th
February, 2006 passed by the learned Single Judge whereby the
petition has been dismissed and the order dated 14.11.1984 passed by
the Competent Authority and Additional Collector, respondent No.1
herein as well as the order dated 6.10.87 passed by the Urban Land
Tribunal respondent No.2 herein which were subject matter of
challenge in the writ petition have been affirmed.
3. The
appellants herein are the heirs and legal representatives of deceased
Pannaben Niranjan Mehta, who was the original petitioner in the writ
petition. The facts giving rise to the present appeal are that the
Shri Niranjan Mehta, husband of the petitioner (hereinafter referred
to as the declarant ) had filed a statement under section 6 of
the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter
referred to as the Act ) in the prescribed Form No.1, on behalf
of his family specifying the extent of lands held by his family
members all of which are situated in Ahmedabad as under:
Sr.
No.
Name
of village
Survey
No.
Area
Manner
in which acquired
1.
City
Rajpur-Hirpur
T.P.
Scheme No.4, Final Plot No.73
739.12
sq. mts.
On
lease for 999 years
2.
Thaltej
46
829.28
sq. mts.
As
member of society
3.
Khadia
2695
18.50
sq. mts.
Residential
house. By succession
4.
Khadia
2682
99
sq. mts
Residential
house. By succession
5
Paldi.
Samasth Brahmashatriya Society,
Sub-plot
No.88 Bunglow No.89
635
Sq. mts
House.
By succession
As
per the statement filed by the declarant the total holding of the
family was shown to be 2320.90 sq. mts. It may be pertinent to note
that it was specified in the said form that land admeasuring 829.28
sq. mts of Vanshri Co-op. Housing Society situated at Thaltej is the
self acquired property of Pannaben Niranjanbhai Mehta (hereinafter
referred to as the petitioner ) and is of her sole ownership
wherein no one has any right or share. Against the column lands
held as owner the area shown was 1568.40 sq. mts. and against the
column regarding status of the lands as to whether held as
individual or HUF etc. land admeasuring 1568.40 sq. mts was shown
to be joint family property and 829.28 sq.mts of land is shown
against the column share of individual in co-operative society .
In the column for ad-hoc assessment of excess vacant land and the
lands which are required to be handed over to the Government lands of
Rajpur- Hirpur and Thaltej totally admeasuring 1319 sq. mts. were
shown.
4. By
an order dated 14.11.1984 passed under section 8(4) of the Act, the
Competent Authority found that except for the property shown at
serial No.2, all the lands were H.U.F. properties; that the
definition of family includes husband, wife and their minor children,
hence the land held by the wife is required to be clubbed together to
determine the holding of the family; that the record indicates that
the Samast Brahmakshatriya Co-operative Housing Society is the
occupier of the property shown at serial No.5, hence the same cannot
be taken into consideration for the purpose of computing the
holding; that though the properties at serial No.3 and 4 are built up
properties the same are to be taken into consideration while
computing the extent of vacant land held by the applicant. The
Competent Authority found that the total holding of the applicant was
1685 sq. mts. and held that the applicant was entitled to retain 1000
sq. mts. of land and declared 685 sq. mts. of land as excess vacant
which is to be acquired by the State Government. The Competent
Authority further held that considering the contents of the transfer
agreements in respect of the properties other than the property at
serial No.2, the Thaltej property at serial No.2 being the self
acquired property of the wife of the declarant, he was ordering that
685 sq. mts. out of the same be handed over to the Government.
5. Being
aggrieved by the aforesaid order of the Competent Authority the
declarant preferred an appeal under section 33 of the Act before the
Urban Land Tribunal (hereinafter referred to as the Tribunal ).
One of the pleas raised before the Tribunal was that the location of
retainable land should be changed so that the appellant may surrender
excess vacant land (if any) out of TP 4 F.P. No.73 of Rajpur-Hirpur
and not out of Survey No.46 of Thaltej as ordered by the Competent
Authority. The Tribunal by its order dated 6th October,
1987 dismissed the appeal but observed thus:
However,
after verifying that there is no impediment to the change of location
of vacant land, it should amend the final statement and map etc. to
change the location of excess vacant land from S.No.46 Plot No.10 to
T.P.4 F.P. 73 of Rajpur-Hirpur.
6. It
appears that by a communication dated 10.5.88 addressed to the
Competent Authority, the declarant asked for permission to sell the
Rajpur-Hirpur property and requested that the property of Thaltej
Survey No.46 be acquired. Thereafter further proceedings under the
Act were taken and notifications under section 10(1) and 10(3) of the
Act were published on 19.1.1989 and 24.4.1989 respectively. Notice
under section 10(5) of the Act came to be issued on 27.6.1990, which
according to the respondents was served on 7.7.1990. Thereafter the
possession of 685 sq. mts. of land bearing sub-plot No.10 of Survey
No.46 of Mouje Thaltej (hereinafter referred to as the land in
question ) was taken over in the presence of panchas by a panchnama
dated 28.8.1990. By a notice dated 27.6.1990 the declarant was called
for hearing for determination of compensation in respect of the land
in question. It may be pertinent to note that though the land in
question was the individual self acquired property of the petitioner,
all the aforesaid notices and Notifications were issued in the name
of the declarant. It is at this stage that the petitioner filed the
above numbered Special Civil Application before this Court
challenging the orders dated 4.11.1984 and 6.10.1987 passed by the
Competent Authority and the Tribunal respectively, with respect to
the petitioner s property situate at Van Shree Coooperative Housing
Society, Thaltej, Ahmedabad and lands bearing Survey No.2694 and 2682
of Khadia Shree Ramji Sheri, Ahmedabad.
7. Before
the learned Single Judge the main contention raised on behalf of the
petitioner was that throughout the proceedings under the Act, no
notice had been issued to her despite the fact that she was the owner
of the property in question. The learned Single Judge was of the view
that for the purpose of processing the declaration filed under the
provisions of the Act, the husband of the petitioner and the
petitioner herself were one common person; that at all stages, the
husband of the petitioner had actively participated in the
proceedings before the Competent Authority; that the petitioner had
made no grievance about the exclusive participation of her husband in
this regard; that it was not stated anywhere in the petition that her
husband had duped her by declaring the land held by her as one that
the authority should acquire. The learned Single Judge held that the
declaration was processed with full participation of respondent No.4-
husband of the petitioner. Hence, the petitioner cannot make a
grievance that the entire process was completed without hearing her.
The learned Single Judge accordingly found no merit in the petition
and rejected the same, which has given rise to the present appeal.
8. Heard
Mr Vibhuti Nanavati, learned advocate for the appellants and Ms Jirga
Jhaveri, learned Assistant Government Pleader for the
respondent-authorities.
9. Mr
Nanavati, learned advocate for the appellants has submitted that the
property which was declared as excess vacant and appropriated by the
authority under the Act was of the ownership of the petitioner and
the same was appropriated without complying with the principles of
natural justice; that under the Act, wife’s property is to be clubbed
together for the purpose of ascertaining the holding of the family,
however, merely because the property is to be clubbed together, does
not mean the petitioner who is the holder of certain property in her
own name, is not entitled to any notice under the provisions of the
Act. It is accordingly submitted that the entire proceedings right
from the stage of the proceedings under Section 8(4) of the Act till
the taking over of the possession of the property in question are in
breach of the principles of natural justice as well as violative of
the provisions of the Act inasmuch as the statutory provisions of the
Act, which provide that notice be issued to the holder, have not been
complied with. It is accordingly submitted that the impugned orders
passed by the authorities below are required to be quashed and set
aside on this ground alone and the proceedings subsequent to the
passing of the orders under Section 8(4) are also required to be
quashed and set aside on the ground of being violative of the
statutory provisions inasmuch as no notice has been issued to the
appellant as required under the provisions of the Act.
The
learned advocate for the appellant has placed reliance upon a
decision of the Supreme Court in the case of State of Maharashtra vs.
BE Billimoria, 2003 (7) SCC 336 for the proposition that the Urban
Land (Ceiling & Regulation) Act, 1976 being an expropriatory
legislation is required to be construed strictly.
The
learned Advocate has also made elaborate submissions questioning the
validity of the panchnama dated 28.8.1990 as well as the taking over
of possession of the land in question on behalf of the State
Government. However, considering the view that we are inclined to
take in the matter, it is not necessary to refer to the same in
detail.
10. On
the other hand, Ms Jirga Jhaveri appearing on behalf of the
respondent-authorities has vehemently opposed the appeal. It is
submitted that throughout the proceedings, the petitioner had
remained a silent spectator and had not voiced any grievance with
regard to the non-issuance of any notice to her. It is submitted that
under the provisions of the Act, a person includes a family and that
when the declarant is issued a notice under the provisions of the
Act, the same would take within its ambit, the entire family
including the wife. Hence, no separate notice was required to be
issued to the petitioner. In support of her submission, Ms Jhaveri
has placed reliance upon a decision rendered by a learned Single
Judge of this Court in the case of Patel Gordhan Kadvabhai & Ors.
vs. Competent Authority & Additional Collector, Rajkot &
Ors., 1988 (1) GLR 121 wherein it has been held that an association
or body of individuals are one person, though they may be different
individuals. Simply because they are different individuals who have
formed an association or body of individuals, each different
individual is not required to be heard either under the provisions of
the Act or under the provisions of the Rules. It is accordingly
submitted that the decision would squarely apply to the facts of the
present case as the definition of person also includes the family.
Hence, no notice was required to be issued to each individual member
of the family.
Reliance
is also placed upon a decision rendered by a learned Single Judge of
this Court in the case of Vipinchandra Wadilal Bavishi vs. Competent
Authority & Deputy Collector, Rajkot & Anr., 1994 (1) GLR 505
for the proposition that while working out the extent of land for the
purposes of Sections 6 to 10 of the Act, the property of the husband
and wife have to be clubbed together.
Reliance
is also placed upon a decision of a learned Single Judge of this
Court in the case of Narmadaben D/o Chhotabhai Gelabhai vs. Competent
Authority & Addl. Collector (ULC), Vadodara & Ors., 2002 (2)
GLH (UJ) 9.
It
is accordingly submitted that no individual notice was required to be
served upon the petitioner and that there was no infirmity in the
orders passed by the Competent Authority as well as in the subsequent
proceedings taken under the provisions of the Act. It is further
submitted that the learned Single Judge has carefully examined all
the submissions advanced on behalf of the petitioner and has given a
reasoned judgment, turning down the contentions raised on behalf of
the petitioner, which does not call for any intervention by this
Court.
11. Upon
perusal of the record of the case, it is apparent that there is no
dispute that the petitioner was the owner of the land in question and
that the same was her self acquired property and none of the other
family members had any right over the same. There is also no dispute
regarding the fact that at no stage of the proceedings culminating
into the taking over of possession of the land in question has any
notice under the Act been issued to the petitioner. The
main contention raised on behalf of the petitioner is that it was
incumbent upon the authorities to issue a notice to the petitioner
whereas the defence of the respondents is that as the definition of
person includes family, no individual notice is required to be
given to other family members, once notice is issued to the
declarant. It would be, therefore, necessary to examine certain
provisions of the Act.
12. Sub-section
(4) of Section 6 of the Act provides that the statement under
sub-section (1) of the Act shall be filed in case of a family by the
husband or the wife. Section 8 of the Act provides that on the basis
of the statement filed under Section 6 and after such inquiry as the
competent authority may deem fit to make, the competent authority
shall prepare a draft statement in respect of the person who has
filed the statement under Section 6.
Sub-section
(3) of Section 8 provides that the draft statement shall be served in
such manner as may be prescribed on the person concerned together
with a notice stating that any objection to the draft statement shall
be preferred within thirty days of the service thereof. As to the
manner of service under sub-section (3) of Section 8, the same is
prescribed by Rule 5 of the Urban Land (Ceiling and Regulation)
Rules, 1976 (the Rules). Rule 5 of the Rules insofar as the same is
relevant for the purposes of the present case lays down that 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
holder of the vacant lands, to his address as 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 addresses.
13. The
expression to hold has been defined under Section 2(l) of the
Act, which reads thus :-
(l) to
hold with its grammatical variations, in relation to any vacant
land, means –
(i) to
own such land; or
(ii) to
possess such land as owner or as tenant or as mortgagee or under an
irrevocable power of attorney or under a hire-purchase agreement or
partly in one of the said capacities and partly in any other of the
said capacity or capacities.
Explanation.
– Where the same vacant land is held by one person in one capacity
and by another person in another capacity, then, for the purposes of
this Act, such land shall be deemed to be held by both such persons;
14. Though
the expression holder has not been defined under the Act, in
view of the meaning attributed to the expression to hold ,
holder would mean a person who owns any vacant land, or possesses
such land as owner or tenant or as mortgagee or under an irrevocable
power of attorney or under a hire-purchase agreement or partly in one
of the said capacities and partly in any other of the said capacity
or capacities.
15. In
the facts of the present case, it is an admitted position, which also
finds support in the declaration filed under Section 6 of the Act,
that the land in question situated in Van Shree Cooperative Housing
Society admeasuring 829.25 sq.mtrs. was of the individual ownership
of the petitioner Pannaben Niranjan Mehta and was her self-acquired
property. Thus the petitioner was the holder of the land in question
within the meaning of the said term as envisaged under the provisions
of the Act. In the circumstances, as prescribed under Rule 5 of the
Rules read with Section 8(3) of the Act, the petitioner being the
holder of the land in question was entitled to the service of notice
under sub-section (3) of Section 8 of the Act. It is an admitted
position that no such notice was served upon the petitioner. In the
circumstances, the proceedings under the Act to that extent would
stand vitiated as being violative of the statutory provisions of Rule
5 of the Rules read with Section 8(3) of the Act.
16. As
already noted hereinabove during the course of the proceedings under
the Act culminating into the taking over of possession of the land in
question all notices and Notifications have been issued in the name
of the declarant. A perusal of the Notifications under section 10(1)
and 10(3) of the Act shows the name of the declarant Niranjan
Maganlal Mehta under the column Name of Landholder despite the
fact that the petitioner Pannaben was holder of the said land. Thus
by the said Notifications under section 10(1) and 10(3) of the Act,
what is vested in the Government is the land belonging to declarant
who was not the holder of the land. In the circumstances, it cannot
be said that the land belonging to the petitioner has been vested in
the Government under the said Notifications. In the circumstances the
notifications under sections 10(1) and 10(3) of the Act stand
vitiated, as they do not indicate the name of the holder.
Consequently taking over of possession pursuant to such notifications
also stands vitiated.
17.
The decisions on which reliance has been placed upon by the learned
Assistant Government Pleader, do not in any manner support the case
of the respondents.
The
decision in the case of Patel Gordhan Kadvabhai & Ors. vs.
Competent Authority, (supra) refers to lands jointly held by an
association of person, whereas in the facts of the present case, the
appellant was holding the said lands in an individual capacity and
hence the said decision would not apply to the facts of the present
case.
Insofar
as the decision in the case of Vipinchandra Wadilal Bavishi vs.
Competent Authority (supra), there is no quarrel with the proposition
that the lands of the husband and wife are to be clubbed together for
the purposes of determining the extent of holding of the family.
The
decision in the case of Narmadaben D/o Chhotabhai Gelabhai vs.
Competent Authority (supra) in fact supports the case of the
petitioner inasmuch as it has been held that when it was known to the
Competent Authority that the petitioner therein had a claim to the
ownership and possession of the lands, the petitioner therein was
entitled to a notice as envisaged under section 8(3) of the Act. The
requirement is mandatory.
18. Examining
the issue from another angle, it may be noticed that except for the
land in question all the properties declared by the declarant as
forming part of the holding of the family were HUF properties. The
land in question was the individual self-acquired property of the
petitioner. It is this property that the declarant had indicated as
his choice for acquisition by the Government towards the lands
declared excess vacant. There is nothing on record to show that the
petitioner was ever put to notice in respect of the same. In such a
situation, when the lands held by the HUF have been retained and the
only land held by the petitioner in her individual capacity which, as
the record indicates, was stated to have been purchased from her
Streedhan has been declared as excess vacant without any notice to
her, immense prejudice has been caused to the petitioner. Hence the
entire proceeding undertaken without issuance of notice to the
petitioner is null and void.
19. In
view of the above discussion, it is apparent that though the land in
question, namely, the land held by the petitioner in her individual
capacity could have been taken into consideration for the purpose of
computing the total holding of the family, the petitioner was
entitled to issuance of notice as prescribed under Rule 5 as well as
service of draft statement under section 8(3) of the Act. Besides the
notifications under Section 10(1) and 10(3) of the Act in respect of
the property held by the petitioner, could not have been issued
indicating her husband to be the holder, more so when it was
specifically indicated in Form No.1 filed under Section 6 of the Act
that the property in question is an individual self-acquired property
of the petitioner.
20. In
the circumstances, the impugned order dated 14.11.1984 passed by the
Competent Authority as well as the subsequent proceedings taken under
the Act stand vitiated on account of non-compliance with the
mandatory provisions of the Act and the Rules and are, therefore,
required to be quashed and set aside. Consequently, the order passed
by the Urban Land Tribunal as well as the judgment and order passed
by the learned Single Judge upholding the order of the Competent
Authority are also required to be quashed and set aside.
It
is ordered accordingly.
21. The
Letters Patent Appeal is accordingly allowed with no order as to
costs.
(M.S.
SHAH, J.)
(HARSHA
DEVANI, J.)
zgs/-
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