Gujarat High Court
Jayantilal Bachubhai Vadiwala And Etc. vs The Competent Authority And Deputy ... on 10 February, 1994
Equivalent citations: AIR1995GUJ25, (1995)1GLR831, AIR 1995 GUJARAT 25
ORDER A.N. Divecha, J.
1. All these four petitions are directed against the common order passed by the Competent Authority at Surat (respondent No. 1 herein) on 31st March 1983 in cases Nos. 93, 83,25 and 26 all of 1982 as affirmed in appeal by the common order passed by the Additional Urban Land Tribunal at Ahmedabad (respondent No. 2 herein) on 11th Feb., 1986 in Appeals Nos. Surat-94, 95, 96 and 97 all of 1983. Since the cases of all these petitioners were consolidated both by respondent No. 1 and in appeal by respondent No. 2 and since common questions of fact and law are found arising in all these petitions, I have thought it fit to dispose them of by this common judgment of mine.
2. It appears that each petitioner filed his respective statement in the prescribed form under Section 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976 (the Act for brief) with respect to the properties held by him within the urban agglomeration of Surat as on 17th Feb., 1976. It may be mentioned at this stage that the petitioners of Special Civil Applications Nos. 1982, 1983 and 1984 all of 1987 are brothers. They claimed their shares in some common properties. It appears that these three brothers along with the petitioner of Special Civil Application No. 2523 of 1984 (the fourth petition for convenience) had purchased one property bearing survey No. 34/C admeasuring 3541 square metres situated at Ved in Surat (the disputed property for convenience). They claimed that the three brothers on the one hand and the petitioner of the fourth petition on the other had one-half share each therein. The one-half share therein belonging to the three brothers was held in equal share by them. In that view of the matter, each of the three brothers claimed his one-sixth share in the disputed property. It appears that some of the properties declared by each of the three brothers were constructed properties as on 17th Feb, 1976, the appointed day for the purposes of the Act. Respondent No. 1 thereupon prepared a draft statement in each case and caused it to be served to each of the four petitioners in all these four petitions in accordance with the relevant provisions contained in Section 8 of the Act. It appears that each petitioner filed his objections thereto. Thereupon the cases of all these four petitioners came to be registered as cases Nos. 93, 83, 25 and 26 all of 1982. After hearing the parties, by his common order passed on 31st March, 1983 in the aforesaid four cases, respondent No. 1 declared the holding of each petitioner to be in excess of the ceiling limit to the extent specified therein. Its copy is at Annexure-A to each petition. That aggrieved each petitioner. Each one thereupon carried the matter in appeal before respondent No. 2, All their appeals came to be registered as Appeals Nos. 94,95,96 and 97 all of 1983. By his common order passed on 11th Feb., 1986 in the aforesaid four appeals, respondent No. 2 partly accepted the appeal to the extent of the land appurtenant to the disputed property. Rest of the order passed by the Competent Authority came to be affirmed. A copy of the aforesaid common appellate order is at Annexure-B to each petition. The aggrieved petitioners have thereupon moved this Court by means of their respective petitions under Article 227 of the Constitution of India for questioning the correctness of the impugned order at Annexure-A to each petition as substantially affirmed in appeal by the impugned appellate order at Annexure-B to each petition.
3. According to Shri Shelat for the petitioners, the authorities below have seriously erred in treating all these petitioners to be an association of persons qua the disputed property. Shri Shelat for the petitioners has further urged that the constructed properties have also been included in the holdings of the petitioners in each case contrary to the binding ruling of the Supreme Court in the case of Suit. Meera Gupta v. State of West Bengal reported in AIR 1992 SC 1567. As against this, Shri Champaneri for the respondents has urged that the material on record did show that the petitioners were joint owners of the disputed property and as such they were rightly held to be an association of persons.
4. It appears that each petitioner is assessed to wealth tax under the Wealth Tax Act, 1957. A copy of the Wealth Tax Return together with the Assessment Order for the Assessment Year 1973-74 is at Annexure-C to each petition. It appears that the share of each of the three brothers in the disputed property to be the 1 / 6th and that of the petitioner of the fourth petition to be the one-half therein are accepted by the wealth tax authorities. Shri Shelat for the petitioners submits that these Wealth Tax Returns together with the concerned Assessment Order were produced before respondent No. 2 as the Appellate Authority at the time of hearing of the appeals in question but they have not been taken into consideration and the impugned appellate order at Annexure-B to each petition came to Be passed. According to Shri Shelat for the petitioners, respondent No. 2 ought to have taken into consideration the evidence produced before him in appeal. Shri Champaneri for the respondents has urged that Section 33 of the Act under which the appeals in question were filed by the petitioners does not contemplate acceptance of any additional evidence at the appellate stage.
4A. In order to appreciate the rival contentions urged before me, it would be quite necessary to look at certain provisions of the Act. Section 33 thereof provides for an appeal against an order made by the Competent Authority, not being an order under Section 11 or an order under Sub-section (1) of Section 30 thereof, to such authority as may be prescribed. The prescribed authority has thereafter been referred to as the appellate authority as mentioned therein. The word "prescribed" has been defined in Section 2(j) thereof to mean prescribed by Rules made under the Act. The power to make Rules is conferred on the Central Government under Section 46 thereof. Clause (o) of Sub-section (2) thereof empowers the Central Government to frame Rules inter alia with respect to the Appellate Authority under Sub-section (1) of Section 33 thereof. In exercise of its powers under Section 46(2) of the Act, the Central Government has framed the Urban Land (Ceiling and Regulation) Rules, 1976 (the Rules for brief). Rule 15-A thereof is material for our purposes. It has been provided therein that the appellate authority for the purposes of Section 33 of the Act would be as specified in column "4" of the Second Schedule except in relation to lands or buildings in cantonment declared as such under the Cantonment Act, 1924. Part I of the Second Schedule refers to the appellate authority with respect to each State. The State of Gujarat figures at serial No. 2A. The appellate authority for the purpose of Section 33 of the Act named therein in each of Urban Land Tribunals Nos. 1, 2, 3 and 4. It thus becomes clear that Urban Land Tribunals Nos. I to 4 are named as Appellate Authorities for the purposes of Section 33(1) of the Act with respect to lands and buildings in the urban agglomeration within the State of Gujarat except with respect to the buildings or lands in cantonment declared as such under the Cantonment Act, 1924.
5. Constitution of an Urban Land Tribunal has been provided in Section 12(1) of the Act. There could be more than one Tribunal in a State. Sub-section (5) of Section 12 of the Act lays down the procedure to be followed by such Tribunal in deciding appeals thereunder. The procedure is the same which a civil Court follows in deciding appeals against the decree of an original Court under the Civil P. C., 1908 (the Code for brief).
6. It is true that Section 12(4) of the Act refers to an appeal under Section 11 thereof. That does not however mean that the Tribunal has to follow the procedure laid down in Section 12(5) thereof only with respect io an appeal under Section 11 thereof. It is equally true that in Section 30(4) of the Act the legislature has ordained the Tribunal with respect to an appeal thereunder to follow the same procedure as laid down in Section 12(5) thereof. That however does not mean that the Tribunal has to follow a different procedure for the purpose of an appeal under Section 33 thereof. Any restricted meaning in that regard would create an anomalous situation. The Tribunal exercising appellate powers under Section 12 or 30 of the Act would follow a procedure different from that followed by it with respect to the appellate powers under Section 33 thereof. It may be noted that the procedure to be followed by the appellate authority under Section 33 thereof has not been prescribed anywhere therein or thereunder. It cannot be gainsaid that our country is bound by the concept of Rule of Law as is enshrined in Article 14 of the Constitution of India. Absence of provision for any procedure to be followed by the appellate authority under Section 33 of the Act would certainly not mean that the procedure to be followed by the appellate authority thereunder could or would be at the caprice or whim of the appellate authority, more particularly when the Tribunal constituted under Section 12(1) of the Act has been named as the appellate authority by R. 15-A of the Rules read in the light of the Second Schedule thereto. As pointed out hereinabove, a restricted interpretation in that regard would create an anomalous situation with respect to the procedure followed by the Tribunal while exercising the appellate jurisdiction under Section 12 or 30 on the one hand and under Section 33 on the other. No different procedure could be said to have been contemplated under the Act as that might amount to contravention of the guarantee of equality contained in Article 14 of the Constitution of India. As pointed out hereinabove, absence of any prescribed procedure under Section 33 of the Act qua the appellate authority would not mean exercise of any arbitrary powers by the appellate authority with respect to the procedure. That would again be violative of Article 14 of the Constitution of India.
7. It is a settled principle of law that in such cases the provisions of law have to be construed harmoniously. Absence of provisions prescribing the procedure for the appellate authority under Section 33 of the Act has to be read in the light of the fact that such procedure has been prescribed for the Tribunal under Section 12(5) and Section 30(4) thereof. When the Tribunal has been named as the appellate authority for the purpose of Section 33 thereof by virtue of R. 15-A of the Rules read with the Second Schedule, the principle of harmonious construction would require the Tribunal to follow the same procedure with respect to the appellate powers under Section 12 or 30 of the Act as well as under Section 33 thereof.
8. Once the conclusion is reached that the Tribunal exercising the appellate powers under Section 33 of the Act has to follow the procedure as laid down in Section 12(5) of the Act, there is no escape from the conclusion that the procedure prescribed in the relevant provisions contained in the Code with respect to the appellate jurisdiction of the appellate Court thereunder will govern the procedure to be followed by the Tribunal while exercising the appellate powers inter alia under Section 33 of the Act. It cannot be gainsaid that Order 41, Rule 27 of the Code provides for production of additional evidence at the appellate stage. The procedure for production of additional evidence at the appellate stage will have to be followed by the Tribunal with respect to the appellate powers under Section 33 of the Act. |
9. Shri Shelat for the petitioners has submitted that a copy of the Wealth Tax Return at Annexure-C to each petition was sought to be produced at the appellate stage. A grievance is made in para 6 of each petition to the effect that the appellate authority completely ignored the evidence produced at the appellate stage. This statement occurring in para 6 of each petition has not come to be controverted in any manner. There is no reason why it should not be accepted. In that view of the matter and in view of my aforesaid discussion, it was incumbent on the part of the Tribunal to have decided the fate of an attempt to produce additional evidence at the appellate stage before undertaking the hearing of the appeals of the petitioners on the basis of materials before the Competent Authority (respondent No. I herein). Respondent No. 2 herein could not have overlooked the documents sought to be produced in appeal unless it has by its order in that regard rejected acceptance of additional evidence at the appellate stage. The impugned common appellate order at Annexure-D to each petition cannot therefore be sustained in law and it has to be quashed and set aside. The matter will have to be remanded to respondent No. 2 for restoration of all the appeals culminating into his common appellate order at Annexure-B to each petition to file and for his fresh decision therein according to law in the light of this judgment of mine. By way of abundant caution, it is made clear that respondent No. 2 will have to decide whether or not the additional evidence sought to be produced by the petitioners at the appellate stage should be permitted to be produced or not.
10. It transpires from the impugned orders under challenge in each petition that some constructed properties as on 17th Feb. 1976 have been included in each petitioner's holding for the purposes of the Act. This is contrary to the aforesaid binding ruling of the Supreme Court in the case of Smt. Meera Gupta (AIR 1992 SC 1567) (supra). It needs no telling that respondent No. 2 will take the aforesaid binding ruling of the Supreme Court in the case of Smt. Meera Gupta (supra) into consideration while deciding the fate of the aforesaid four appeals after remand.
11. In the result, the impugned common appellate order passed by the Urban Land Tribunal at Ahmedabad (respondent No. 2 herein) on 11th Feb., 1986 in Appeals Nos. Surat-94, 95, 96 and 97 all of 1983 at Annexure-8 to each petition is quashed and set aside. The matter is remanded to respondent No. 2 for restoration of all the aforesaid four appeals to file and for his fresh decision according to law in the light of this judgment of mine. Since the matters are old, it would be desirable on the part of respondent No. 2 herein to accord top priority to disposal of the appeals after remand preferably by 30th June, 1994. The Registry is directed to send the writ in each case as expeditiously as possible but in any case latest by 5th March 1994. Rule is accordingly made absolute to the aforesaid extent with no order as to costs.