STATE OF GUJARAT Vs. GORDHANBHAI BECHARBHAI PATEL

JUDGEMENT

(1.) . This Special Civil Application has been filed against the order Annexure "F" dated 17-6-92 passed by the Urban Land Tribunal and Secretary to the Government in Revenue Department of the Government of Gujarat whereby the Appeal of the respondents against the order of the Competent Authority was allowed And the matter was remanded back to the Competent Authority.

(2.) . The land in question, which is Hindu Undivided Family property, is situated in village Harni, Taluka and District Vadodara.. A declaration with regard to the holding of this land had been filed under Section 6 Of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as "the Act"). The Competent Authority passed the order on 31-5-86 holding 7500 sq. mts. of land to be retainable and 14132 sq. mts of land to be in excess. Against this order, the Appeal was preferred before the Urban Land Tribunal on the ground that the material placed on record has not been taken into consideration and that the original declarant was entitled to retain more land and the Competent Authority had wrongly held 14132 sq. mts. Of land to be in excess. The petitioner-State of Gujarat has come with the case that the Appeal aganst the order dated 31-5-86 passed by the Competent Authority, was preferred after a delay of about two years and in the meantime, the Notification under Section 10 had been published on the official Gazette. Notification under Section 10(3) had been published on 23-10-86 and the land stood vested in the Government. Requisite Notifications under Section 10 (5) and Section 19(6) had also been issued on 30-1087 and 21-11-87 and without taking notice of the Notification issued under Section 10, the Urban Land Tribunal passed order on 17-6-92 remanding the matter back to the Competent Authority, while the possession had already been taken on 12-1-88. Thus, in short, the case of the petitioner-herein is that the Appeal preferred by the respondents was time barred and in the meantime the land stood vested in the Government and the possession had also been taken and, therefore, the order passed by the Tribunal was passed in a time barred Appeal and was oblivious of the Notification issued under Section 10 and the fact that the possession had already been taken over by the Government.

(3.) . On Rule being issued by this Court, an affidavit-in-reply dated 8-2-95 was filed by one Shantibhai Harmanbhai Patel, claiming to be the Power of Attorney Holder on behalf of the respondents herein. Alongwith this reply, the copies of two Memos of Appeals, i.e. Appeal No. 106 of 1986 and Appeal No. 71 of 1988 have been filed. It has been stated as under: 31-5-85 - The Competent Authority passed by order. 30-6-86 - The Competent Authority's order was communicated to the respondents. 4-9-86 - Appeal No. 106 of 1986 was preferred before the Tribunal Thus, Appeal No. 106 of 1986 had been preferred within 30 days of the date on which the order was communicated. The Memo of Appeal No. 106 of 1986 is annexed as Annexure "I" to the affidavit-in-reply. It has been stated that this Appeal No. 106 of 1986 was filed within time, but the respondents were adviced (sic.) by another Advocate Shri K. N. Dave that there was some confusion in filing the aforesaid Appeal, which was registered as Appeal No. 106 of 1986 and, therefore, it will be better, in order to avoid any technical objection, to file another Appeal and indicate therein that the Appeal already filed by the respondents was pending and accordingly another Appeal was filed before the Urban Land Tribunal during the pendency of the earlier Appeal and another Appeal appears to have been filed in the year 1988 and the same was registered as Appeal No. 71 of 1988, copy of which has been annexed with the affidavit-in-reply as Annexure "II". Both these Appeals were filed against the same impugned order dated 31-5-86 passed by the Competent Authority. Alongwith subsequent Appeal No. 71 of 1988, an application for condonation of delay had also been filed stating therein that by mistake a copy of the order passed by the Competent Authority had not been annexed with the earlier Appeal filed by the learned Advocate Shri Munshi and, therefore, the respondents were advised to file the application for condonation of delay in filing the subsequent Appeal. A copy of this Application has been annexed as Annexure "III". It has been further stated that the two Appeals, i.e. Appeal No. 106 of 1986 and Appeal No. 71 of 1988 were not tagged by the Tribunal and the Tribunal proceeded to dispose of Appeal No. 71 of 88 separately and Tribunal remanded the matter to decide the matter a fresh after giving an opportunity to the parties to produce evidence on the question as to whether the property was an ancestral property or not. The present Special Civil Application has been filed on the basis of Appeal No. 71 of 1988, as the Tribunal did not make any reference to Appeal No. 106 of 1986. The Tribunal then took up Appeal No. 106 of 1986 separately for hearing and at that time, the respondents had submitted a written reply, wherein they had pointed out that the Tribunal had already passed an order in an Appeal arising out of the same order passed by the Competent Authority, out of which Appeal No. 106 of 1986 had also arisen. The Competent Authority had also pointed out that the Special Civil Application had been preferred against the Tribunal's order passed in Appeal No. 71 of 1988, i.e. present Special Civil Application. But the Tribunal did not accept the contention of the State Government and passed an order holding that a decision had already been rendered earlier and no consideration of the matter was required to be undertaken now and on that basis the Tribunal disposed of Appeal No. 106 of 1986 accordingly on 31-5-94 and this order has been enclosed with the affidavit-in-reply as Annexure "V". It has been then stated that the respondents were in possession of the land in question and the possession was never taken over from them and it is also alleged that even if the possession was taken, it was only a possession on paper and it has also been stated in this affidavit-in-reply that the land is being cultivated by the respondents even now. The issuance of the Notification under Section 10 has not been denied but it has been stated that in a decision of this Court, reported in AIR 1982 Gujarat 52, it has been held that once the Appeal is presented, it is the continuation of the proceedings before the Competent Authority and, therefore, the issuance of the notice, during the pendency of the Appeal, would be of no consequence. It has been submitted by Mr. Patel on behalf of the respondents that the respondents are not at fault. Appeal No. 106 of 1986 had been filed within limitation. It is his misfortune that two Appeals were not tagged and the order was passed in Appeal No. 71 of 1988 in his favour after condoning the delay and the order was passed in Appeal No. 106 of 1986 at a latter stage. I have heard learned Counsel for both the sides. It appears from the above narration of facts that the Tribunal has passed the order in Appeal No. 71 of 1988 on 17-6-92 being oblivious of the earlier Appeal No. 106 of 1986 and also being oblivious of the notifications, which were issued under Section 10 and the present Special Civil Application has been filed being oblivious of the Appeal No. 106 of 1986 on the sole basis that the order, which has been passed by the Tribunal in Appeal No. 71 of 1988, was an order, which was passed in time barred Appeal and the notifications issued under Section 10 had not been taken notice of and whereas the land stood vested in the Government with the issuance of the Notification under Section 19(3) and the possession had also been taken, nothing could be done in the matter and, therefore, there was no land, about which the remand order could be passed by the Tribunal. I have gone through the relevant orders placed on record and the other documents, including two Memos of Appeal No. 71 of 1988. It is unfortunate that the Tribunal did not tag the two Appeals, which had been filed against the same order, and proceeded to first decide the Appeal, which had been filed subsequently, and the Appeal, which had been earlier filed, i.e. Appeal No. 106 of 1986, was decided on a latter date and was disposed of by saying that the order had already been passed in another Appeal earlier. Be that as it may, one thing is very clear that the Appeal No. 106 of 1986 was not time barred and Appeal No. 71 of 1988, even if it was time barred, was accompanied with an Application for condonation of delay and such delay had also been condoned by the Tribunal. In this view of the matter, nothing turns out so far as the objection with regard to the limitation in filing the Appeal by the respondents before the Tribunal is concerned. We have to examine the substance of the matter and, therefore, even if another appeal was filed under some mistaken but bona fide advice and the Tribunal did not tag the two Appeals and did not decide the two Appeals simultaneously, although, both were filed against the same order, the party cannot be made to suffer for the fault of the Tribunal and on that principle, the objection raised in this Special Civil Application, about the Appeal being time barred, is found to be of no legal consequence in the facts of this case.