Gujarat High Court
State Of Gujarat & Anr. & vs Natverlal Mahjibhai Patel & Anr. & on 14 February, 2007
Author: Jayant Patel
Bench: Jayant Patel
SCA/96/1996 1/23 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 96 of 1996
For Approval and Signature:
HONOURABLE MR.JUSTICE JAYANT PATEL
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Whether Reporters of Local Papers may be allowed
1 to see the judgment ?
2 To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy
3 of the judgment ?
Whether this case involves a substantial question
of law as to the interpretation of the
4 constitution of India, 1950 or any order made
thereunder ?
Whether it is to be circulated to the civil judge
5 ?
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STATE OF GUJARAT & ANR. & 1 - Petitioner(s)
Versus
NATVERLAL MAHJIBHAI PATEL & ANR. & 1 - Respondent(s)
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Appearance :
MR SATYAM CHAYYA, AGP for Petitioner(s) : 1,
MR MC BHATT for Respondent(s) : 1,
RULE SERVED for Respondent(s) : 2,
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CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL
Date : 14-15/02/2007
ORAL JUDGMENT
SCA/96/1996 2/23 JUDGMENT
1. The short facts of the case are that on
09.03.1984, the respondent No.1 Natwarlal
Majijibhai Patel filed a Form under Section 6 of the Urban Land(Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Act'). Pursuant to the said Form, on 27.03.1984, notice was issued to the respondent No.1 under Section 8(1) of the Act alongwith the draft statement. No objections were filed. However, the original record was called for by the Court during the course of the hearing and the perusal of thereof shows that the intimations were given to the respondent No.1 on various dates through Registered A.D. Post and there are A.D. Slips in the file of the competent authority signed by the respondent No.1 on various dates 03.12.1984 and another in which the date of the postal stamp is not legible. Further, in the original record, it appears that the respondent No.1 on 01.08.1984 and 12.12.1984 had applied for adjournment. It appears that thereafter, on 20.12.1984, the order came to be passed by the competent authority for declaring the land bearing Survey No.205 as excess land and the other agricultural land which were over the agricultural zone in the master plan were excluded for the purpose of computing the holding of the respondent No.1. It may also be recorded that thereafter, the notifications were issued for declaring the land bearing Survey No.205 admeasuring 5364 (hereinafter referred to SCA/96/1996 3/23 JUDGMENT as 'the land in question') as excess land under the Act. The intimation prior to the publication of the notification under Section 10(1) of the Act was given on 31.12.1984 and the original file shows that there are A.D. slips signed by the respondent No.1 forwarded on 19.02.1985 and A.D. received on 23.02.1985. It appears that thereafter, the notification under Section 10(1)of the Act was published on 08.04.2005 for inviting claims and in the file of the competent authority there is one A.D. slip for the post forwarded on 30.04.1985, received on 06.05.1985. Thereafter, notification under Section 10(3) was published on 29.06.1985 and the land came to be vested in the Government pursuant to the said notification. The proceedings under Section 10(5) for taking over the possession were also initiated and the intimation was given for taking over of the possession to the respondent No.1 vide communication dated 07.10.1985 and the file contains A.D. Slip signed by the respondent No.1 and the postal endorsement appears to be of 13.01.1986. Ultimately, on 25.03.1986, the possession is taken over of the excess land and the pertinent aspect is that, in the possession receipt, the respondent No.1 has voluntarily signed for entrustment of the possession and has further signed for entrusting for voluntarily handing over of the possession of the excess land. The file further shows that the proceedings for payment of the compensation is SCA/96/1996 4/23 JUDGMENT also finalised and during the course of finalisation of the compensation, two intimations with the A.D. slip signed by respondent No.1 dated 01.10.1986 is on record. The final order under Section 11 appears to have been passed on 23.07.1987 for fixing the amount of compensation. However, there is no record showing that whether the compensation was actually paid or not since the intimation for disbursement of payment was forwarded to the concerned office for payment.
2. It appears that the respondent No.1 had also submitted an application under Section 21 of the Act for putting dwelling house for the weaker section on 09.03.1984 and in the said application, vide para 3, it was also mentioned that the land shown in the master plan is for residential purpose.
3. It appears that in the year 1994, i.e. roughly after a period of about more than 9 years, appeal came to be preferred by the respondent No.1 before the Urban Land Tribunal being Appeal No. 54/1994. From the original file of the competent authority, in the noting, there is no reference of receipt of the intimation of preferring of the appeal or the representation made in this regard before the appellate authority, but it appears that Mr. A.N. Munshi, advocate of respondent No.1, on 09.02.1995 has SCA/96/1996 5/23 JUDGMENT produced the copy of the order of the appellate authority for pursuing the matter before the competent authority to proceed further in accordance with law in view of the order of the appellate Tribunal. In the said appeal, it appears that there was no separate application for condonation of delay explaining the delay for about 10 years. In the order, there is no reference as to whether any representation was made on behalf of the competent authority. However, ultimately, the Urban Land Tribunal on 27.01.1995, passed the order of allowing the appeal by setting aside the order of the competent authority. It is under these circumstances, the present petition is preferred by the State Government and the competent authority before this Court.
4. Heard Mr. Chayya, learned AGP for the petitioner and Mr. MC Bhatt for respondent No.1. Respondent No.1 is the Urban Land Tribunal which can be said as formal party, since the exercise of the power by the Tribunal was as a quasi judicial authority.
5. Mr. Chayya, learned AGP for the petitioner raised the first contention that neither there is application for condonation of delay nor there is any proper discussion on the aspect of condonation of delay and he therefore, submitted that the Urban Land Tribunal ought not to have SCA/96/1996 6/23 JUDGMENT exercised the power after 10 years without even condoning the delay.
6. Mr.Bhatt, learned counsel appearing for respondent No.1 however submitted that when the power is already exercised by the Tribunal for condoning the delay, this Court under Article 227 of the Constitution of India may not upset the exercise of the discretion for condonation of delay, if this Court is to find that substantial justice is rendered by the Tribunal to the parties before it. Therefore, he submitted that before examining the aspects on delay, on merits, there is a very good case in favour of the respondent No.1 and the order of the competent authority was rightly quashed by the Tribunal since in the submission of Mr.Bhatt, the land was not falling in the master plan and in his submission, no master plan was in existence at the time when the Act came into force, i.e. on 17.02.1976.
7. He therefore submitted that since there was no master plan for village Tarsali when the Act came into force, the land would not fall in the urban agglomeration and consequently, was outside the net of ULC Act. He submitted that the Tribunal has rightly exercised the power and this Court may not interfere on the ground of no proper exercise of power of condonation of delay.
SCA/96/1996 7/23 JUDGMENT
8. Mr. Chayya, learned AGP on merits of the order passed by the competent authority contended inter alia that if the intimation was already given and thereafter, if the party did not remain present, the order of the competent authority cannot be said to be in breach of principles of natural justice. He further submitted that the existence of the master plan is examined by the competent authority and other lands which were falling in the agricultural zone are excluded. It is qua the land in question, the matter is considered for computing the excess. He also submitted that in the application which was submitted by respondent No.1 on 09.03.1984 under Section 21 of the Act, he himself has stated that the land in the master plan is for residential purpose and therefore, the contention that no master plan was in existence or that the master plan has subsequently came into force and was not in existence when the Act came into force, cannot be accepted. He therefore submitted that on merits also, the order of the competent authority was legal and the Urban Land Tribunal ought not to have set aside the order of the competent authority.
9. It is true that had it been an exercise of condoning the delay by the Urban Land Tribunal by exercise of proper discretion on the basis of SCA/96/1996 8/23 JUDGMENT the material available before it, this Court in its supervisory jurisdiction, may not exercise the power as that of the appeal. However, the test would be whether there was relevant material for exercise of the power for condonation of delay and the second aspect would be, can the exercise of the power on the face of it be said as patently wrong or view taken can be said as perverse to the record of the case or not.
10.If the facts of the aforesaid case are examined in light of the aforesaid test for exercise of the power by this Court under Article 227 of the Constitution, it appears that the following aspects are not at all considered by the Urban Land Tribunal before examining the appeal on merits.
1) There is no application for condonation of delay. The statutory requirement of preferring the appeal is within the period of 30 days from the date on which the order is communicated to the person concerned. The same is coupled with the power with the appellate authority to entertain the appeal after expiry of the period of 30 days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. The memo of the appeal is neither in the file of the competent SCA/96/1996 9/23 JUDGMENT authority, nor the learned counsel appearing for the respondent No.1 is in a position to make available to the Court. As such, from the record of the competent authority, which is made available to the Court, it appears that there is no intimation on record for filing of the appeal before the Tribunal by the respondent No.1. In normal circumstances, when the appeal is preferred and the intimation is received, the noting in the file would contain the said aspects, since the proper representation may be required to be made before the appellate Tribunal. As there is no intimation or noting for such purpose, it can be said that no such intimation was given by the Tribunal to the petitioner herein before hearing the appeal. Further, the question of condonation of delay and hearing of the appeal are two separate aspects which may be required to be considered by the Tribunal while exercising the power under Section 33 of the Act, more particularly, when the appeal is admittedly preferred after expiry of the statutory period. Even if the power are considered to be conjoint for the sake of examination, then also, there has to be proper material before the Tribunal to come to the conclusion that the appellant was prevented by sufficient reason for not preferring the appeal within the period of limitation. In SCA/96/1996 10/23 JUDGMENT the present case, no material whatsoever is referred to by the Tribunal to record the satisfaction that the appellant was prevented by sufficient reason for not preferring the appeal within the stipulated period of 30 days from the date of the order. Therefore, as such, it is a case for exercise of the power on the part of the Tribunal for indirectly condoning the delay of about 10 years without there being any application for condonation of delay and without there being any material whatsoever for condoning such delay.
2) The Urban Land Tribunal is a statutory tribunal constituted under the Act and while exercising the power under Section 33 of the Act, has to exercise the power within the bounds of the statute keeping in view the basic spirit of the Tribunal or quasi judicial authority exercising the appellate power. If the statutory period is over and thereafter the appeal is preferred, the affected party is required to be heard before the Tribunal exercises the appellate power. Such appears to have been not undertaken by the Tribunal before exercising the appellate power against the order of the competent authority on merits. Therefore, it appears that the present case is a case of no material whatsoever before the SCA/96/1996 11/23 JUDGMENT Tribunal to entertain the appeal on the basis that the appellant was prevented by sufficient cause for not filing the appeal within the time limit.
3) Apart from the above, if the facts of the present case are examined in light of the records contained in the file of the competent authority, it does appear that after the order was passed by the authority under Section 8(4) of the Act, several proceedings were undertaken upto the stage of Section 11. At majority of the stages, the intimation given to respondent No.1 is on record. The important aspects, which may have direct bearing to the facts of the present case even on the aspects of condonation of delay was that the respondent No.1 voluntarily handed over the possession of the excess land to the competent authority pursuant to the order of the competent authority. Therefore, it was a case where during the period of delay, the rights of the parties were substantially altered.
4) The exercise of power in the matter of condonation of delay is essentially an equitable consideration with a view to see that real cause may not be frustrated. But, equitable consideration would include the SCA/96/1996 12/23 JUDGMENT alteration of the rights of the parties during the period of delay. If one party to the proceedings after having accepted the order has acted upon the same and the rights of the other parties have accrued during the course of the delay, the same would be a direct relevant circumstances for non-
condonation of delay. The Tribunal may decline to condone the delay if the party who caused delay has by its own conduct, created new rights in favour of the other party. As such, in view of the various intimations contained in the record of the competent authority, it can be said that the appellant was not prevented by sufficient reason of not preferring an appeal within the stipulated time limit. However, if such aspect was to be considered, the Tribunal ought to have considered the aforesaid aspects of altering the rights of the parties during the period of delay of more than 9 years. Since no material whatsoever is considered by the Tribunal, it can be said that error apparent on the face of record and rather a patent error in exercise of the jurisdiction is committed by the Tribunal in condoning the delay of more than 9 years without their being any material whatsoever before it for exercise of the power.
SCA/96/1996 13/23 JUDGMENT
5) Therefore, it appears from the record that the Tribunal has condoned the delay by committing the patent error of jurisdiction and has lost sight of the basic requirement for exercise of the power for condonation of delay, which is required to be considered by the State level Urban Land Tribunal.
11.If the matter is to be considered on merits of the order passed by the Tribunal, it does appear from the record that the competent authority had excluded the lands, which were falling in the agricultural zone and has included the land in question since it was in the residential zone. It also appears that as recorded hereinabove, without giving proper opportunity to the competent authority, the Tribunal has decided the appeal finally on the date which was fixed for admission and final hearing. The respondent No.1 had filled the Form and the findings recorded by the competent authority was that the land in the master plan is in residential zone. The aforesaid is coupled with the circumstance that when the application under Section 21 of the Act was made, the respondent No.1 has declared the land for residential purpose in the master plan. Therefore, the burden would be upon the respondent No.1 to disprove the certificate which has been considered by the competent authority when the first order came to be passed. No material is produced on record SCA/96/1996 14/23 JUDGMENT showing the position otherwise. I find it proper not to conclude on the said aspects but, it cannot be said concluded as sought to be canvassed on behalf of respondent No.1 by Mr. Bhatt that there was no master plan for the land in question and therefore, outside the net of the Act. As such, on the basis of the certificate referred to by the competent authority, in the impugned order, it can be said that the land was shown in the master plan for the use other than agricultural zone, unless other cogent authenticated record is produced by respondent No.1 to show the position otherwise.
12.Even otherwise also, the Tribunal will have to reconsider the matter on the aspects of exercise of the power for condonation of delay in light of the observations made hereinabove. Further, even if the matter is to be considered on merits, the additional aspects of having accepted the order passed by the competent authority of voluntarily handing over of the possession by the respondent No.1 of the excess land will also be a relevant circumstance for exercise of the appellate power by the Urban Land Tribunal. Further, the Tribunal will have to rely upon the authentic material evidence, if any, for reversing the finding of the competent authority that the land was in master plan in the zone other than agricultural zone. As the aforesaid aspect may be required to be further SCA/96/1996 15/23 JUDGMENT examined by the Tribunal, I find that it may not be necessary for this Court to conclude on the said aspects. But as the contention has been raised on behalf of the respondent No.1 that on merits, the order of the Tribunal is for rendering justice, it deserves to be observed and recorded that even on merits of the appeal, the Tribunal has committed ex facie error in not considering the relevant aspects germane to the exercising of the appellate power and therefore, it cannot be said that a substantial justice is rendered by the Tribunal while exercising the appellate power, by condoning the delay.
13.Mr. Bhatt, learned counsel appearing for the respondent No.1 did attempt to submit that the respondent No.1 would be entitled to the benefit of Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as 'the Repeal Act'). He contended that though the order of the competent authority was passed and the possession of the land was already taken over as per the order of the competent authority, in view of the order of the Urban Land Tribunal, the said order of the competent authority was quashed on 27.01.1995. Therefore, the consequential action by the competent authority based on the order of the competent authority which is set aside by the Tribunal would automatically go. He further submitted SCA/96/1996 16/23 JUDGMENT that after 27.01.1995, the position remained the same until this Court on 30.01.1996, roughly after a period of about one year, admitted the present petition and granted interim relief in terms of para 11B. He submitted that if the interim relief is granted by this Court, at the most, it can be said that the order of the Tribunal remained under suspension and therefore, if the order of the Tribunal has merely remained in suspension, the consequence would be that the proceedings under the Act will have to proceed from the stage of Section 8(1) of the Act, i.e. the Draft Statement and therefore, the respondent No.1 would be entitled to the benefit of the Repeal Act since it cannot be said that any proceedings were concluded under the ULC Act and the possession of the land was lawfully taken over on the date when the Repeal Act came into force. He therefore submitted that this Court may observe that the proceedings under the Act stood abated.
14.It is true that by the impugned order, the Tribunal has quashed the order of the competent authority. However, on 30.01.1996, as this Court has granted the interim relief, in terms of para 11B, the implementation, operation and execution of the Judgment of the Tribunal which is impugned in the present petition was stayed. Therefore, the consequence pending the petition and during the period when the Repeal Act came SCA/96/1996 17/23 JUDGMENT into force would be that there was no order operating of the Urban Land Tribunal and any order, if was in operation, would be the order of the competent authority. If the facts of the present case are further examined on that basis, not only the order of the competent authority operated, but the position remained as already implemented upto the stage of Section 10(5) for taking possession and Section 11 of the Act. As per the provisions of the Repeal Act and more particularly as per section (3) of the Repeal Act, the repeal of the principal Act is not to affect the vesting of the land under sub-section (3) of Section 10, possession of which has been taken over by the State Government or by any person duly authorised by the State Government in this behalf or by the competent authority. Therefore, when such an action including vesting and/or of taking over the possession was saved, it cannot be said that the proceedings under the Act would stand abated in view of the Repeal Act. Therefore, the said contention raised on behalf of the respondent No.1 by Mr. Bhatt deserves to be rejected.
15.Mr. Bhatt, learned counsel for respondent No.1 also submitted that even if this Court is to examine the matter on merits, it does appear from the record that when the competent authority decided the matter under Section 8(4) of the Act, the application of the petitioner SCA/96/1996 18/23 JUDGMENT under Section 21 of the Act was pending. In support of his contention, he relied upon the application produced by the State Government dated 09.03.1984 together with the additional affidavit filed on behalf of the petitioner. He therefore submitted that the proceedings under Section 8(4) are concluded before the competent authority on 20.12.1984 and at that stage, as the application was pending under Section 21 of the Act, in view of the decision of the full bench of this Court, the competent authority ought not to have proceeded further for finalising the form under Section 8(4) of the Act and ought to have awaited till the decision of the application under Section 21 of the Act as observed by the full bench in the case of M/s. Avanti Organisation V. Competent Authority & Additional Collector, Urban Land Ceiling Act, Rajkot & Anr. reported at 1989(1) GLR 581. Therefore, as a consequence thereof, in the submission of Mr. Bhatt, the order of the competent authority was illegal and rightly quashed by the Tribunal.
16.It does appear from the perusal of the order passed by the Tribunal that as such, the Tribunal has not set aside the order on the ground that the application under Section 21(2) was pending nor such contention appears to have been raised by the respondent No.1 before the Tribunal. The learned counsel for the SCA/96/1996 19/23 JUDGMENT petitioner fairly submitted that the decision of the full bench is impliedly overruled by the Apex Court in the case of Smt. Darothi Clare Parreira & Ors. V. State of Maharashtra & Ors. reported at AIR 1996 SC 2553, wherein the view taken by the Apex Court was that the competent authority need not wait till the application by the land owner under Section 20 or 21 is disposed off.
17.The learned counsel for the respondent No.1 fairly drew the attention of this Court to the subsequent decision of this Court in the case of Indequip Engineering Ltd. & Anr. Vs. Urban Land Tribunal & Ex-officio Additional Chief & Ors. reported at 2006(1) GLR 215 wherein it has been held by this Court in view of the subsequent decision of the Apex Court in the case of Smt. Darothi Clare Parreira (Supra), the view of the full bench is substantially modified. Therefore, as the point is covered by the decision of the Apex Court in the case of Smt. Darothi Clare Parreira (Supra) read with the subsequent decision of this Court in the case of Indequip Engineering Ltd. (Supra), the contention of the learned counsel for the respondent No.1 cannot be accepted and deserves to be rejected.
18.The learned counsel for respondent No.1 made
strenuous effort to contend that as per the
SCA/96/1996 20/23 JUDGMENT
various decisions of the Apex Court in the case of Ranjeet Singh V. Ravi Prakash reported at 2004(3) SCC 682, unless the patent error is found by the Court, it would not be a case to exercise the jurisdiction under Article 227 of the Constitution. He also relied upon the another decision of the Apex Court in the case of Essen Deinki V. Rajiv Kumar reported at 2002(8) SCC 400 for contending that wrong decision made by the lower Court cannot be interfered under Article 227 unless the error of law patently on record is committed by the lower Courts. He also relied upon the another decision of the Apex Court in the case of Ouseph Mathai & Ors. Vs. M.Abdul Khadir reported at 2002(1) SCC 319 for contending that mere wrong decision is not a ground for exercise of the jurisdiction under Article 227 unless it is established that the lower Court or the Tribunal has been guilty of grave dereliction of duty and flagrant abuse of the power, which has resulted in grave injustice to any party. He therefore submitted that the present case is not such which would fall in the exceptional category for exercise of the jurisdiction under Article 227 of the Constitution.
19.Even if the principles laid down by the Apex Court in the above referred decisions are followed, in view of the reasons record hereinabove, it does appear from the record and SCA/96/1996 21/23 JUDGMENT proceedings, which has been called for that there is patent error on the part of the Tribunal in the matter of condonation of delay for about 10 years, in absence of any application for condonation of delay or in absence of any material produced on record for recording the satisfaction that the appellant was prevented by sufficient reason from preferring the appeal within the stipulated time limit. Further, there were grave suppression of material facts recording the various intimations received by the appellant before the Tribunal including that of various stages under Section 10(1), 10(3), 10(5) and 11 of the Act. Had such record and proceedings called for by the Tribunal while deciding the proceedings of the appeal, no Tribunal exercising the quasi judicial power in normal circumstances would find that there were sufficient reasons whereby the appellant was prevented for preferring an appeal within the period of limitation. However, without there being any application for condonation of delay, and without there being prior notice to the competent authority, the Tribunal has allowed the appeal including by taking too lenient and too vague view of the aspects of delay. As recorded hereinabove, such by no stretch of imagination it can be said as the exercise of the jurisdiction which is expected for a quasi judicial authority or as a Tribunal to hear and decide the appeal as per SCA/96/1996 22/23 JUDGMENT the Scheme of Section 33 of the Act. Therefore, the present being a patent error of jurisdiction, on the aspects of delay as well as on the aspects of hearing the appeal on merits by the Tribunal, I find that it is a fit case to interfere under Article 227 of the Constitution of India and if the power is not exercised, the consequence would be that such patently illegal order would continue to operate and would consequently result into grave injustice to one of the parties to the proceedings of the appeal, who is the petitioner herein. Therefore, the contention raised by the petitioner cannot be accepted.
20.In view of the aforesaid observations and discussions, the impugned order passed by the Tribunal dated 27.01.1995 (Annexure-A) is quashed and set aside with the further direction that to the Tribunal to rehear and decide the appeal in accordance with law after giving opportunity of hearing to the parties to the proceedings.
21.Petition is allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and circumstances, there shall be no order as to costs.
22.At this stage, Mr. Bhatt, learned counsel for respondent No.1 prayed that with a view to enable the respondent No.1 to approach before SCA/96/1996 23/23 JUDGMENT the higher forum, for the period of 6 weeks, the State be restrained from allotting the land to any other party and the status quo be maintained during the said period.
23.No such prohibitory order was granted when the petition came to be entertained for the first time in the year 1996 and thereafter also at any point of time, no such prayer is made. Therefore, the said request is declined. However, it is clarified that in the event any order is passed for allotment by the competent authority, the same shall be subject to the order, which may be passed by the higher forum in the present proceedings.
(JAYANT PATEL, J.) *bjoy