RADHASWAMI CO OPERATIVE HOUSING LIMITED Vs. R S SHAH COMPETENT AUTHORITY AND DEPUTY COLLECTOR BHAVNAGAR

JUDGEMENT

(1.) The order passed by the Competent Authority at Bhavnagar (respondent No. 1 herein) on 28th February 1984 under Section 8(4) of the Urban Land (Ceiling and Regulation) Act 1976 (the Act for brief) as affirmed in appeal by the order passed by the Additional Urban Land Tribunal at Ahmedabad (respondent No. 2 herein) on 26th May 1987 in Appeal No. Bhavnagar-924 of 1984 is under challenge in this petition under Article 226 of the Constitution of India. By his impugned order respondent No. 1 declared the holding of respondents Nos. 4 and 5 herein to be in excess of the ceiling limit by 55441.31 square metres.

(2.) The facts giving rise to this petition move in a narrow compass. Respondents Nos. 4 and 5 were the owners of several parcels of land including one parcel of land bearing survey No. 198 admeasuring in all 15783.82 square metres situated at Chitra within the urban Agglomeration of Bhavnagar (the disputed land for convenience). It appears that out of the disputed land an area of 3403.94 square metres was agreed to be sold by respondents Nos. 4 and 5 herein to the petitioner some time in 1973. It is the case of the petitioner that it was put into its possession pursuant to the agreement to sell the said parcel of land. It appears that the petitioner could not arrange for the full consideration and as such no final sale deed came to be executed with respect thereto. In the meantime on coming into force of the Act respondents Nos. 4 and 5 filed their declaration in the prescribed form under Section 6 of the Act with respect to their holding within the urban agglomeration of Bhavnagar including the disputed land. It was duly processed and the proceeding culminated into the order passed by respondent No. 1 on 28th February 1984 declaring the holding of respondents Nos. 4 and 5 to be surplus to the tune of 55441.31 square metres and that declaration included an area of 8371.07 square metres out of the disputed land. Its copy is at Annexure-A to this petition. What is declared surplus under the order at Annexure-A to this petition includes the area of land agreed to be purchased by the petitioner in 1973. The aforesaid order at Annexure-A to this petition aggrieved respondents Nos. 4 and 5. They carried the matter in appeal before respondent No. 2 under Section 33 of the Act. It came to be registered as Appeal No. Bhavnagar-924 of 1984. By his order passed on 26th May 1987 in the aforesaid appeal respondent No. 2 dismissed it. Its copy is at Annexure-B to this petition. That aggrieved the present petitioners. They have thereupon approached this Court by means of this petition under Article 226 of the Constitution of India for questioning the correctness of the order at Annexure-A to this petition as affirmed in appeal by the appellate order at Annexure-B to this petition.

(3.) It has been urged by the learned Counsel for the petitioners that the petitioners are vitally interested in the area of the land which is in their possession pursuant to the agreement to sell and as such they ought to have been heard in view of Rule 5 of the Urban Land (Ceiling and Regulation) Rules 1976 (the Rules for brief) framed under the Act before passing the impugned order at Annexure-A to this petition. As against this Shri Thakkar for respondents Nos. 1 to 3 has urged that petitioner No. 1 was merely a banakhat-holder and it cannot therefore be said to be a person interested in the subject-matter of the banakhat and Rule 5 of the Rules would not be applicable in this case. Shri Thakkar for respondents Nos. 1 to 3 has relied on the ruling of this Court in the case of New Jalaram Park Co. Op. Housing Society Ltd. vs. Ramchandra M. Chauhan reported in 1988(1) 29 (1) Gujarat Law Reporter at page 82 in support of his aforesaid submission.