MINBAI DESHALBHAI AHER Vs. STATE OF GUJARAT

JUDGEMENT

(1.) PRESENT Letters Patent Appeal has been preferred by the appellant herein ­ original petitioner challenging the legality and validity of the Judgement and Order passed by the learned Single Judge in Special Civil Application No. 12789 of 2000 dtd.19/3/2002, by which the learned Single Judge dismissed the said writ petition preferred by the appellant herein ­ original petitioner praying for the following main amongst other other reliefs :-

(2.) 00. Facts, leading to the Special Civil Application, out of which the present appeal arises, in nutshell, are as under :- 2.01. That the mother of the appellant herein ­ original petitioner named Smt.Valbai Deshalbhai Ahir filled in form under Section 6 of the Urban Land (Ceiling and Regulation) Ceiling Act, 1976 (hereinafter referred to as "ULC Act" for short) on 14/6/1976 declaring 2307.67 sq.mtrs. of land in her holding. That notice under section 8(1) of the ULC Act, along with the Draft Statement, came to be served upon the original declarant on 6/9/1982 submitting that the original declarant is entitled to 1500 sq.mtrs. and the rest of the land admeasuring 807.67 sq.mtrs. of land is excess vacant land. That the mother of the appellant herein ­ original petitioner / declarant raised objection in writing on 6/10/1982. That thereafter, after considering the objections, the Competent Authority under the ULC Act passed order dtd.13/10/1983 declaring 807.67 sq.mtrs. of land as excess vacant land in the holding of the mother of the appellant herein ­ original petitioner / declarant. Therefore, a Final Statement under section 9 of the ULC Act was passed. Being aggrieved by and dissatisfied with the order passed by the Competent Authority (ULC), declaring 807.67 sq.mtrs. of land as excess vacant land, the mother of the appellant herein ­ original petitioner / declarant preferred appeal under section 33 of the ULC Act before the Urban Land Tribunal, Ahmedabad being Appeal No.Rajkot/164/1983. The said appeal came to be dismissed by the tribunal by order dtd.6/5/1987. Being aggrieved by and dissatisfied with the order passed by the Urban Land Tribunal in Appeal No.164 of 1983 dtd.6/5/1987, mother of the appellant herein ­ original petitioner / declarant preferred Special Civil Application No. 5344 of 1987 before this Court and the same was admitted. However, subsequently the same came to be withdrawn by the mother of the appellant herein ­ original declarant unconditionally on 9/12/1997. It appears that in the meantime even the possession of the excess vacant land admeasuring 807.67 sq.mtrs. of land bearing Survey No.498 of Plot Nos.5 and 6, admeasuring 585.20 sq.mtrs. and 222.38 sq.mtrs. respectively, of Rajkot were taken over by the State Government by drawing Panchnama on 19/8/1987. That even prior thereto Notification under section 10(5) of the ULC Act was published by the competent authority and served upon the original declarant on 4.7.1987 / 10.7.1987 and only thereafter possession was taken over by the State Government by issuing Notification under section 10(6) of the Act. Therefore, on and from 19/8/1987, the excess vacant land actually vested in the State Government free from all encumbrances. It appears that thereafter and during the pendency of the aforesaid Special Civil Application No. 5344 of 1987 preferred by Valbai, brother of the appellant herein ­ original petitioner and son of the original declarant ­ Smt.Valbai named Naranbhgai Deshalbhai Jalu preferred appeal under section 33 of the ULC Act before the Urban Land Tribunal being Appeal No.Rajkot/35/1994 challenging the order passed by the Competent Authority (ULC) dtd.13/10/1983 declaring 807.67 sq.mtrs. of land as excess vacant land in the holding of Smt.Valbai, despite the fact that even the order passed by the Competent Authority dtd.30/10/1983 was confirmed by the tribunal in an appeal preferred by Smt.Valbai ­ original declarant. It was the case on behalf of said Naranbhai that the lands in question were Joint Family Property - HUF property and therefore, he has share, right, title and/or interest in the land which is declared as excess vacant land and therefore, he ought to have been heard. It is required to be noted at this stage that the said appeal was preferred after a period of eleven years from the date of passing of the order passed by the Competent Authority and even after a period of seven years from the date of the dismissal of the appeal preferred by Smt.Valbai ­ original declarant and after a period of seven years from the date of issuance of Notification under section 10(6) of the ULC Act and taking over possession of the excess vacant land by the State Government. That the tribunal by the Judgement and Order dtd.13/6/1994 allowed the said appeal preferred by Naranbhai and quashed and set aside the order passed by the Competent Authority dtd.13/10/1983. It appears that being aggrieved by and dissatisfied with the Judgement and Order passed by the Urband Land Tribunal in Appeal No.Rajkot/35/1994 preferred by said Naranbhai dtd.13/6/1994, State Government preferred Special Civil Application No. 257 of 1996 before this Court which was admitted. However, despite the fact that the possession of the excess vacant land was already taken over by the State Government and that too even without observing that whether possession of the excess vacant land has been taken over or not, aforesaid Special Civil Application No. 257 of 1996 came to be disposed of as having been abated in view of the repeal of the Urban Land (Ceiling and Regulation) Ceiling Act, 1976. It appears that therefore, the said Naranbhai Desalbhai Jalu did not initiate any further proceedings either for restoration of the possession (which was already taken over by the State Government on 19/8/1987) nor any other proceedings even to delete the entry in the revenue record declaring the land as excess vacant land. That thereafter after the Urban Land Ceiling (Repeal) Act came into force and as the possession of the excess surplus land was already taken over by the State Government and the same was acquired under the ULC Act, the Competent Authority issued notice dtd.29/7/1999 upon the said Smt.Valbai calling upon her to submit her objection, if any, against fixation of the price of the acquired land by the State Government, which according to the appellant herein ­ original petitioner was served upon her (though the said notice was not issued upon her) and according to the appellant herein ­ original petitioner she submitted objections on 1/9/1999 submitting that in view of the order passed by the Urban Land Tribunal in appeal preferred by her brother, the land has not vested in the State Government. That thereafter the appellant herein ­ original petitioner preferred Special Civil Application No. 12789 of 2000 before this Court praying for the aforesaid reliefs. It is required to be noted that in the aforesaid Special Civil Application which was filed in the year 2000, appellant herein ­ original petitioner submitted and specifically mentioned that against the Judgement and Order passed by the Urban Land Tribunal dtd. 6/5/1987, Smt.Valbai had preferred Special Civil Application No. 5344 of 1987 and interim relief has been granted in the said Special Civil Application. However, the appellant herein ­ original petitioner did not disclose that as such the said Special Civil Application No. 5344 of 1987 was already withdrawn by the said Smt.Valbai unconditionally in the year 1997. That thereafter the aforesaid Special Civil Application came up for final hearing before the learned Single Judge and the learned Single Judge was of the opinion that there is suppression of material fact by the petitioner by not disclosing that Special Civil Application No. 5344 of 1987 preferred by Smt.Valbai was withdrawn unconditionally and the learned Single Judge considered the said petition on merits also and by the impugned Judgement and Order, the learned Single Judge has dismissed the said Special Civil Application No.12789 of 2000 on the ground of suppression of material facts as well as on merits also.

(3.) PRESENT Letters Patent Appeal is opposed by Mr.L.B. Dabhi, learned Assistant Government Pleader. It is submitted that as such, so far as the appellant is concerned, she could not have preferred even Special Civil Application for the reliefs sought in the said writ petition, as she has never challenged the order passed by the competent authority dtd. 13/10/1983 declaring 807.67 sq.mtrs. of land as excess vacant land. In the declaration submitted by her mother, which was confirmed by the tribunal and even Special Civil Application preferred by the said Smt.Valbai came to be withdrawn unconditionally. It is submitted that though the Special Civil Application preferred by the appellant in the year 2000, appellant herein ­ original petitioner stated in the said petition that Special Civil Application was preferred by Smt.Valbai is pending and the interim relief has been granted. However, it was not disclosed that the said Special Civil Application No. 5344 of 1987, was already withdrawn in the year 1997. it is submitted that therefore, the learned Single Judge has rightly dismissed the said Special Civil Application on the ground of suppression. It is submitted that considering the fact that the competent authority declared land admeasuring 807.67 sq.mtrs. as excess vacant land in the year 1983, against which the original declarant preferred Appeal before the ULT, which came to be dismissed in the year 1987 and in the meantime, State Government took possession of the excess vacant land in the year 1987 itself and therefore, the excess vacant land vested absolutely in the State Government and Special Civil Application preferred by Smt.Valbai against the Judgement and Order passed by the Urban Land Tribunal dismissing the appeal came to be withdrawn unconditionally, the learned Single Judge has rightly dismissed the Special Civil Application on merits by holding that the appellant herein ­ original petitioner is not entitled to any relief as prayed for. It is submitted that no illegality has been committed by the learned Single Judge in dismissing the Special Civil Application and it is therefore requested to dismiss the present Special Civil Application.