Gujarat High Court
State Of Gujarat vs Naresh Himmatlal Vora on 13 January, 2017
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/10770/2001 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10770 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of YES
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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STATE OF GUJARAT....Petitioner(s)
Versus
NARESH HIMMATLAL VORA....Respondent(s)
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Appearance:
MS JYOTI BHATT, AGP for the Petitioner(s) No. 1
SR. ADVOCATE MR. MIHIR THAKORE with MR TATTVAM K PATEL,
ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 13/01/2017
ORAL JUDGMENT
1. The present petition filed by the petitioner State of Gujarat is directed against the order dated 26.03.1999 passed by the ULC Tribunal in Appeal No.11 of 1999, whereby the Tribunal after Page 1 of 12 HC-NIC Page 1 of 12 Created On Sat Aug 12 05:18:14 IST 2017 C/SCA/10770/2001 JUDGMENT condoning the delay of about 11 years occurred in filing the appeal filed by the Respondent Naresh Himmatlal Vora through his power of attorney holder Rajesh Dhirajlal Shingala, had allowed the said appeal setting aside the order dated 30.03.1988 passed by the Competent Authority, Rajkot.
2. It is pertinent to note that the said appeal was filed by the Respondent after the Central Government had published Ordinance on 11.01.1999 repealing the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the ULC Act' for short), and impugned order dated 26.03.1999 was passed by the Tribunal in between the period, when the Parliament had already repealed the said ULC Act by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as 'the Repeal Act' for short) on 18.03.1999 and the State Government had adopted the same with effect from 30.03.1999.
3. The short facts leading to the filing of the present petition are that the father of the Respondent Himatlal Vora on behalf of his late wife Kanchanben Vora had filled in the form No.1 under section 6 of the ULC Act declaring her holdings before the Competent Authority. After the scrutiny of the said form, the Competent Authority vide the order dated 30.03.1984 had declared 458 sq. mtrs. of land as the excess Page 2 of 12 HC-NIC Page 2 of 12 Created On Sat Aug 12 05:18:14 IST 2017 C/SCA/10770/2001 JUDGMENT vacant land, against which appeal was preferred before the ULC Tribunal. The Tribunal vide the order dated 29.12.1987 had set aside the said order of Competent Authority and remanded the matter to the Competent Authority for deciding it afresh. The Competent Authority thereafter vide the order dated 30.03.1988 held that the landholder held 1234 sq. mtrs., of land as the excess vacant land (AnnexureB). As per the case of the petitioner State, the said order of Competent Authority having remained unchallenged, the possession of the excess vacant land was taken over by the Government on 29.03.1996 after following the due process of law and the order with regard to compensation was also passed by the Competent Authority under section 11 of the ULC Act.
4. Thereafter, the Respondent Naresh Himmatlal Vora son of Himmatlal Vora through his power of attorney holder Shri Rajesh Dhirajlal Shingala filed an appeal being No.11 of 1999 on 03.03.1999 before the ULC Tribunal under section 33 of the ULC Act challenging the said order dated 30.03.1988 passed by the Competent Authority i.e. almost after 11 years. The ULC Tribunal passed the impugned order dated 26.03.1999 condoning the gross delay without any justification and allowed the said appeal when the ULC Act was already repealed by the Parliament and just four days before the same was repealed in the State of Page 3 of 12 HC-NIC Page 3 of 12 Created On Sat Aug 12 05:18:14 IST 2017 C/SCA/10770/2001 JUDGMENT Gujarat.
5. In the instant petition, three affidavits have been filed by the said power of attorney holder Rajesh Dhirajlal Shingala on behalf of Respondent Nareshbhai Himmatlal Vora. The first affidavit was filed on 06.08.2002, the second on 02.07.2014 and the third on 08.07.2015. Out of them, two affidavits have been signed by the said power of attorney holder in English, whereas the third affidavit has been signed in Gujarati.
6. When the petition was being heard, the Court had called for the original record of the case from the Competent Authority and from the Tribunal. After perusing the file, the Court had found that name of Nareshbhai as the son of Himmatlal Vora was nowhere mentioned in the form filled in by Himmatlal Vora on behalf of his wife and that the appeal was also filed through power of attorney holder Rajesh Dhirajlal Shingala on behalf of Nareshbhai Himmtlal Vora. The Court therefore had passed the order dated 27.12.2016 directing the learned Advocate Mr. Tattvam Patel to keep Respondent Nareshbhai Himmatlal Vora present in the Court. Accordingly, one Nareshbhai Himmatlal Vora as identified by learned Advocate Mr.Tattvam Patel was present in the Court. He stated that he had executed power of attorney in favour of one Rajesh Dhirajlal Shingala about 20 years back and that at present he did not know the whereabouts Page 4 of 12 HC-NIC Page 4 of 12 Created On Sat Aug 12 05:18:14 IST 2017 C/SCA/10770/2001 JUDGMENT of said Rajesh Dhirajlal Shingala.
7. In light of the aforestated facts, if the documents on record are appreciated, it appears that apart from the fact that signatures of said power of attorney holder Rajesh Dhirajlal Shingala appearing on three affidavits filed in the petition did not tally with the signature appearing on the memo of Appeal filed before the Tribunal on behalf of the respondent, the Court had also found that there were many contradictions in the said three affidavits filed by him. It is also pertinent to note that alongwith the third affidavit filed on 08.07.2015, he had annexed the copy of the form No.1 filled up by the father of the respondent as AnnexureR1, however, when it was compared with the original form contained in the original record of the Competent Authority, it was found that AnnexureR1 did not bear any signature of the holder and that the details of lands stated on page no.4 of AnnexureR1 were not there in the original Form. Since, the Court has serious doubts about the very identity of the said power of attorney holder Rajesh Dhirajlal Shingala as also the contents of affidavits filed by him, the Court is of the opinion that such affidavits should not be taken into consideration. Such affidavits filed by the power of attorney holder, who did not have any personal knowledge about the position and status of the land in question Page 5 of 12 HC-NIC Page 5 of 12 Created On Sat Aug 12 05:18:14 IST 2017 C/SCA/10770/2001 JUDGMENT belonging to the father of the respondent, who had filled in the form No.1, on behalf of his deceased wife, could not have been relied upon by the respondent. It is needless to say that as per the settled legal position, the power of attorney holder could not lead the evidence on behalf of the donor except in respect of the facts of which, he had personal knowledge.
8. At this juncture, it is also pertinent to note the conduct of the Member of the ULC Tribunal, who had passed the impugned order. Not only that he had entertained the appeal filed by the respondent through the said power of attorney holder 11 years after the order was passed by the Competent Authority, from the Rojkam maintained in the proceedings of the Appeal, it appears that the impugned order was not passed by the concerned member himself. The relevant noting of the Deputy Mamlatdar made on 26.03.1999, in the said Rojkam reads as under:
"Aa kesnI ta26.03.1999 na roj AaqrI sunv`I purI 4ta ivvadI trf4I cukado taTkailk Aapva ma3e ma>g`I krI ]tav5 krta Ai2k muQy sicv7I nI sucna Anusar hukmno musdo tEyar krel 0e, je Avlokn A4eR sadr.
ta.26.03.1999
shI//// AvaCy shI////
AvaCy
na. ma.m xherI jmIn p>c AnE Ai2k muQy
sicv"
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C/SCA/10770/2001 JUDGMENT
9. From the said noting it clearly transpires that the Additional Chief Secretary, who was the ULC Tribunal had instructed the Deputy Mamlatdar to prepare the draft order, and the same having been prepared, it was signed by him on 26.03.1999. At this juncture, the Court cannot resist itself from taking judicial notice of the fact that recently the Court has come across many of such orders passed by the same Additional Chief Secretary acting as the ULC Tribunal, who had entertained grossly time barred appeals of the landholders and allowed the same, just few days before the ULC Act was repealed in the State of Gujarat and after the said Act was repealed by the Central Government. To cite a few cases where his orders were under challenge before this Court are in Special Civil Application No.7084 of 1999 and Special Civil Application No.5270 of 1999. Be that as it may, the Court also does not find any merits in the present petition.
10. It was sought to be submitted by learned Senior Counsel Mr.Mihir Thakore for the respondent relying upon the decisions of this Court in the case of Patel Purshottamdas Motilal Vs. Patel Chhotabhai Motibhai reported in (1979) 1 GLR 918 and in the case of Naran Anappa Sheti Vs. Jayantilal Chunilal Sahah reported in (1986) 1 GLR 206, that the application for condonation of delay under section 5 of the Limitation Act could be made orally, and that after the authority was Page 7 of 12 HC-NIC Page 7 of 12 Created On Sat Aug 12 05:18:14 IST 2017 C/SCA/10770/2001 JUDGMENT satisfied, the delay even if gross, could be condoned in the interest of justice. There can not be any disagreement with the said preposition of law laid down by this Court. However, the said decisions have no application to the facts of this case. The respondent who had filed the appeal through his power of attorney holder had submitted an application seeking condonation of delay, in which the only contention taken up by him was that the respondent was not aware about the order passed by the Competent Authority. The said application was neither signed nor sworn in by the respondent Naresh Vora. The simple application singed by the power of attorney holder without any affidavit in support thereof for condonation of gross delay of 11 years, could not be said to be the sufficient requirement for condonation of delay. Hence, the order of ULC Tribunal entertaining and allowing the Appeal condoning the gross delay, in great haste without verifying the record and without examining the facts of the case, is not only perverse but also smacks of malafide intention.
11. As stated hereinabove, the said appeal was filed on 03.03.1999 when the Central Government had already issued Ordinance repealing the ULC Act and the impugned order was passed on 26.03.1999 just four days before the ULC Act was repealed in the State Government. As transpiring from the noting made by the Deputy Mamlatdar in the Page 8 of 12 HC-NIC Page 8 of 12 Created On Sat Aug 12 05:18:14 IST 2017 C/SCA/10770/2001 JUDGMENT Rojkam, the Additional Chief Secretary i.e. ULC Tribunal who had passed the impugned order, had specifically instructed to submit the draft order as the respondent was in hurry to get the order. It further appears that the remarks of the Competent Authority were called on 20.03.1999. However, there is no noting made in the Rojkam as to whether the said remarks were received by the Tribunal before passing of the impugned order or not. Of course, the Tribunal has mentioned about receipt of remarks made in the impugned order, however, the petitioner State has specifically contended in the petition that the impugned order was passed by the Tribunal without granting the opportunity of hearing to the the petitioner State. Thus, considering the dubious conduct of the respondent and the Tribunal, the Court has no hesitation in holding that the impugned order was passed in utter violation of the principles of natural justice.
12. So far as the merits of the case are concerned, the Tribunal has set aside the order of the Competent Authority on the ground that there was railway line passing adjoining to the Plot No.20 situated at Kotharia, Rajkot and therefore, the construction was not permissible on the said plot. The Court fails to understand as to how the Tribunal, without any such issue having been raised by the respondent or his father before the Competent Authority, could have come to the said Page 9 of 12 HC-NIC Page 9 of 12 Created On Sat Aug 12 05:18:14 IST 2017 C/SCA/10770/2001 JUDGMENT conclusion. So far as the Plot No.3A of Niranjan Cooperative Housing Society Ltd. was concerned, the Tribunal has granted deduction of the area of the said plot without assigning any reason. When the father of the respondent had the full opportunity to produce all the documents pertaining to the plots in question and when Advocate Mr.G.M.Shah appearing for the father of the respondent before the Competent Authority was fully heard, the said documents should have been produced before the Competent Authority and not before the Tribunal in the appeal which was grossly time barred.
13. As transpiring from the record, the possession of the excess vacant land was already taken over by the State Government as back as in the year 1996 after following due process of law and thereafter the order of compensation under section 11 of the ULC Act was also passed prior to the repeal of the ULC Act and therefore, the land had stood legally vested in the State Government before the repeal of the ULC Act. Appeal was filed by the respondent through power of attorney holder on 03.03.1999 before the Tribunal, knowing fully well that ULC Act was to be repealed in the State of Gujarat, and therefore such an appeal filed by the Respondent at such a belated stage when the land had already stood vested in the Government should not have been entertained by the ULC Tribunal without verifying the record of the Page 10 of 12 HC-NIC Page 10 of 12 Created On Sat Aug 12 05:18:14 IST 2017 C/SCA/10770/2001 JUDGMENT case.
14. The learned Senior Counsel Mr. Mihir Thakor has relied upon the decision of the Supreme Court in the case of Vipinchandra Vadilal Bavishi(D) and Anr. Vs. State of Gujarat and Ors., reported in 2016 (4) SCC 531 to contend that the possession of the excess vacant land could not be said to have been legally taken over by the State Government, and the respondent was in possession of the said land, however, the said judgment has no application to the facts of the present case in light of the aforestated discussion.
15. In that view of the matter, the impugned order passed by the ULC Tribunal being arbitrary, illegal and perverse, the same deserves to be quashed and set aside, and is accordingly set aside. Present petition is allowed. Rule is made absolute.
16. At this juncture, the learned Advocate Mr.Tattvam Patel for the respondent requests to stay the operation of the this order. However, it is submitted by the learned AGP for the petitioner State that the impugned order of the Tribunal was already stayed by this Court pending the present petition, and the subject land having already vested in the Government and the name of the State Government having been recorded in the revenue record long back, there is no question of staying the operation of this order. Having Page 11 of 12 HC-NIC Page 11 of 12 Created On Sat Aug 12 05:18:14 IST 2017 C/SCA/10770/2001 JUDGMENT regard to the said submission of learned AGP, the request of learned Advocate Mr. Patel for the Respondents does not require any further consideration and hence is rejected.
Sd/ (BELA M. TRIVEDI, J.) Tuvar Page 12 of 12 HC-NIC Page 12 of 12 Created On Sat Aug 12 05:18:14 IST 2017