CHANDANBEN CHUNILAL PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned Sr. Advocate Mr. P.M. Thakkar for the petitioners and Mr. Sen, the learned AGP for the respondent authorities. Initially, notice was issued in this matter and it was made returnable on 8th May, 1996 and by way of ad-interim relief, status quo with respect to the subject matter of the petitioner was ordered to be maintained by both the parties, by order dated 23rd April, 1996. Thereafter, this Court has issued rule on 28th June, 1996 and ad-interim relief granted earlier was made confirmed till the final disposal of the petition. Against this petition, the respondent No.2 Competent Authority and the Deputy Collector Shri S.A. Patel has filed an affidavit in reply on 20th October, 1999 and certain documents have been brought on record. Rejoinder thereto has been filed by the petitioner on 6th December, 1999. Thereafter, the additional affidavit in reply has been filed by the competent authority and the deputy collector respondent No. 2 Shri V.L. Patel on 12th October, 2001 and relevant orders passed by the competent authority as well as the panchanama and other relevant orders were produced on record. Against that, the petitioners have filed further rejoinder dated 16th October, 2001. Brief facts of the present petition are as under: According to the petitioners, one Shri Chunilal Tribhovandas Patel and the petitioner No.1 Chandanben Chunilal Patel submitted Form No.1 under section 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976 before the competent authority on 15th September, 1976 declaring certain lands in the holding of the said persons. These lands were covered by survey no. 337, 386, 387, 339, 394, 395, 407, 246/1, 246/2 and two houses covered by survey No. 16/1. According to the petitioners, the lands covered by survey no. 337, 386, 387, 339 and 394 were exempted under section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 ("the ULC Act, 1976" for short) by the Government. Therefore, the decision of the competent authority was to be made only in respect of the land bearing survey No. 395, 407, 246/1 and 246/2. The competent authority passed the impugned orders on 17.3.1986 and thereby declared total of 29785 square meters of the land as excess land after granting one unit of 1500 square meters in favour of the widow of the deceased. The petitioners have pointed out that even though the subject property was the HUF Property, the competent authority has refused to grant unit in respect of four major sons and two major daughters, who are major admittedly as on the appointed date. Further, the competent authority has ignored the evidences submitted before it showing that the lands covered by all the above four survey numbers are mainly used for the agricultural purpose and, therefore, same are required to be exempted. Being aggrieved by the said order, an appeal preferred by the petitioner under section 33 of the ULC Act, 1976 before the tribunal came to be dismissed by the tribunal on 30.10.1993 and the order passed by the competent authority was upheld by the tribunal which order of the tribunal dated 30.10.1993 was challenged by the petitioner before this court by filing the petition being special civil application no. 3876 of 1994 wherein the matter was remanded back to the tribunal while quashing and setting aside the tribunal's order dated 30.10.1993. Upon remand, the tribunal called upon the petitioners to submit their submissions if any. The petitioners submitted their written submissions before the tribunal and took various contentions including the contention that the property in question was the HUF property and that each one of the major coparceners are entitled to one unit each of 1500 sq. mtrs. Further, they also produced the revenue records in respect of survey no. 395, 407, 246/1 and 246/2 reiterating that these lands are mainly used for agricultural purposes. It was also highlighted by the petitioners that the lands covered by House No. 9/6 and 9/1 cannot be included in the holding of the petitioners in view of the ratio laid down in case of Mira Gupta. On 5.1.1996, the tribunal passed the impugned order and thereby once again confirmed the order passed by the competent authority barring the decision with regard to the house no. 9/6 and 9/1 which the tribunal by following the ratio laid down in case of Mira Gupta, allowed to be excluded from the holding of the petitioners. The tribunal further ignored the revenue records to substantiate the fact that the under referred lands are being used for agricultural purposes. Further, the tribunal also grossly erred in not accepting the contention of the petitioners that the properties were that of HUF and, therefore, each of the coparceners are entitled to one unit each. The petitioners have, therefore, approached this Court by way of this petition and have submitted that in view of the aforesaid facts, the orders passed by the competent authority as also by the tribunal are completely illegal, arbitrary, without application of mind and competence and without jurisdiction and cannot sustain.

(2.) At the time of filing of the present petitioners, as per paragraph 10(A) of the petition, the petitioners prayed for quashing and setting aside the impugned orders passed by the tribunal dated 5.1.1996, thereby confirming the order passed by the competent authority dated 17.3.1986 as being illegal, arbitrary, without application of mind and competence, jurisdiction besides violative of Art. 14 and 21 of the Constitution of India. As per para 10(B) of the petition, the petitioners have prayed for staying the implementation, operation and execution of the impugned orders dated 5.1.1996 passed by the tribunal as well as the orders passed by the competent authority dated 17.3.1986 and be further pleased to restrain the respondents, their servants from taking the possession of the subject matter pending hearing and final disposal of this petition.

(3.) In the present petition, the petitioners have mainly contended that the lands in question owned by the petitioners are mainly used for agricultural purposes and, therefore, same are required to be exempted under the ULC Act, 1976 and it was also pointed out that the competent authority has already granted exemption in respect of the land covered by survey No. 337, 386, 387, 339 and 394 under section 20 of the ULC Act, 1976. Reliance has been placed by the petitioners on section 2(o) and section 2(q) of the ULC Act, 1976. The petitioners have also submitted that the lands in question are being used for the purpose of cultivation of Pedi since 1951-52 and in fact, even till the date, said lands are being used for cultivation alone. Second contention raised by the petitioner is to the effect that the properties in question are HUF Properties and in the process, the competent authority has refused to grant unit in respect of four major sons who even according to their own orders, were major on the appointed date and, therefore, the petitioners are entitled for seven units in all, one for widow of the deceased and four for 4 major sons and two for 2 major daughters. The petitioners have submitted that the said lands were purchased from the funds of the HUF and, therefore, each of the coparceners of the said HUF are entitled to have one unit of 1500 sq. mtrs. According to the petitioners, these facts were brought to the notice of the tribunal by the advocate for the petitioners by making clear statement in para 3 of the memo of appeal dated 22.8.1995 and thus, respective age as on 1.4.1976 has been highlighted of all these persons and it has been submitted that the said persons are entitled to have one unit each as per section 4(7) of the ULC Act, 1976. Copy of the memo of petition has been annexed to the present petition by the petitioners. The third contention raised by the petitioner is to the effect that the lands in question were mainly used for cultivation and, therefore, were required to be exempted from the provisions of the ULC Act, 1976 and necessary revenue records to that effect was produced by the petitioners before the tribunal. However, the tribunal has ignored the relevant record and the tribunal has come to the conclusion that the property was self acquired property of the husband of the petitioner no.1. The fourth contention raised by the petitioners is to the effect that the tribunal has passed the order dated 5th January, 1996 in pursuance to the order passed by this Court to pass appropriate fresh orders after considering all these material. However, the said order passed by this court in special civil application no. 7876 of 1994 dated 21st September, 1994 has been ignored by the tribunal.