Gujarat High Court
Harumal Jhumromal Through Legal Heir vs State Of Gujarat on 3 March, 2015
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/1403/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1403 of 2014
In
SPECIAL CIVIL APPLICATION NO. 17523 of 2005
With
CIVIL APPLICATION NO. 13948 of 2014
In
LETTERS PATENT APPEAL NO. 1403 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
=====================================================
1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair
copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
=====================================================
HARUMAL JHUMROMAL THROUGH LEGAL HEIR....Appellant(s)
Versus
STATE OF GUJARAT....Respondent(s)
=====================================================
Appearance:
MR HARSHADRAY A DAVE, ADVOCATE for the Appellant(s)
No. 1 1.1
Mr RAKESH PATEL, AGP for the Respondent(s) No. 1
=====================================================
CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Page 1 of 10
C/LPA/1403/2014 JUDGMENT
Date : 03/03/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. By way of this appeal the appellant has challenged the Judgment and order dated 7th November, 2014 passed in Special Civil Application No.17523 of 2005 by the learned Single Judge, whereby the learned Single Judge has dismissed the petition.
2. Brief facts of the case are that a parcel of land bearing Survey No.262B3 of Behrampur Taluka, Ahmedabad which was later on given Final Plot No.104 of Town Planning Scheme No.13 of Behrampur Taluka was in the original form admeasuring 3318 sq. mtrs. The said land was originally of the ownership of a partnership firm named Alka Prints which partnership comprised of Mohammad Hanif and Farid Mohammad as the partners. The partnership had multiple liabilities far exceeding its assets. Against the partners of the said firm, therefore proceedings under the Presidency Towns Act, 1909 were instituted under Insolvency Application No.9 of 1968 before the City Civil Court, Ahmedabad. It is stated by the appellant that adjudication order came to be passed on such petition on 05.12.1969. A receiver was also appointed under the same order. Pursuant to such order, the property in question namely the said land was put to public auction which was held on Page 2 of 10 C/LPA/1403/2014 JUDGMENT 20.01.1978. The appellant purchased the said land for a consideration of Rs. 2.75 lacs. He deposited a sum of Rs.68,750/ on the date of the auction itself. Remaining amount was deposited with the received on 07.02.1978. The auction was challenged at one stage, however, once such challenge was dismissed, the deed of conveyance was executed in favour of the appellant on 9.1.1980.
3. Learned Counsel Mr. Dave for the appellant has referred to and relied upon the judgment of the Hon'ble Supreme Court reported in AIR 1999 SC 3495 in the name of Anurag Virmani Vs. State of M.P. And another, to contend that the appellant has locus standi to challenge the proceedings.
4. Learned Counsel Mr. Dave further referred to and relied upon the judgment of the Division Bench of this Court reported in 2010 (2) GLH 265 in the case of Vipinchandra Vadilal Bavishi and anr., Vs. State of Gujarat and Ors., wherein the Division Bench held as under:
"41. The provisions of the Repeal Act would only show that if taking over of the possession and vesting is wanting, without there being any dispute on this proposition then simply the land can be restored but if the fact of taking possession is disputed and adjudication is required on this issue then such Page 3 of 10 C/LPA/1403/2014 JUDGMENT adjudication was required to be made when the petitioners first came to know of that in the year 1989, if not earlier and also when the possession was taken and they were issued notice for any encroachment. Having waited upto 2000 after 1989, the petitioners have acquiesced to this situation. In that view of the matter, it cannot be said that the petitioners' claim before this Court in seeking declaration that the land has not been lawfully vested in the State Government its possession has not been lawfully taken would be a relief that would be ordinarily be barred by the Law of Limitation because such declarations are only liable to be available within three years and having not been resorted to, the writ petition suffers from delay and laches.
42. Argument of learned Counsel that the vesting being not according to law, the delay cannot be put against them is misconceived thought because by efflux of time if the rights are lost then time becomes and essential factor and all those facts having come to the notice of the petitioners in the year 1989 it cannot be said that the question is available to the petitioners to be Page 4 of 10 C/LPA/1403/2014 JUDGMENT agitated in a jurisdiction under Article 226 of the Constitution of India."
5. Learned AGP Mr. Patel, however, resisted the appeal and has submitted that the learned Counsel Mr. Dave has relied on the notice of Section 10 (5), is misconceived. He further submitted that even after the repeal of the Act, the parties have not approached the Court within a period of limitation i.e., 3 years from 1995. The parties have approached the Court after 6 years.
6. Learned AGP Mr. Rakesh Patel has referred to and relied upon the judgment of the Hon'ble Supreme Court reported in JT 2014 (13) SC 301 in the case of State of Assam V. Bhaskar Jyoti Sarma & Ors., wherein the Hon'ble Supreme Court has held as under:
"12. The issue can be viewed from another angel also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile land owner on 7th December, 1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such Page 5 of 10 C/LPA/1403/2014 JUDGMENT dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him o raise the issue regarding his dispossession being in violation of the prescribed procedure."
7. We have gone through the judgment and order passed by the learned Single Judge as well as the documents produced on record. The learned Single Judge has observed in the judgment in Para Nos.14, 15 and 16 as under:
"14. It can thus be seen that ULC Act operated in two stages. As per Section 3, from the commencement of the Act, no person was entitled to hold any vacant land in excess of the ceiling limit. On the other hand, Sections 26 and 27 of the ULC Act, control the transfers of vacant or constructed land after coming into Page 6 of 10 C/LPA/1403/2014 JUDGMENT force of the Act.
15. Admittedly, the petitioner did not obtain any permission for purchase of the land which was in excess of the ceiling limit. In such a case, by virtue of Section 3 of the ULC Act he was not entitled to hold any such land in excess of ceiling limit. If the case of the petitioner is that the land was open land, the transaction was hit by Section 26 of the ULC Act. According to the petitioner, if the land was partially or fully constructed upon, permission under Section 27 was needed.
16. Under the circumstances, quite apart from the gross delay in filing the petition, as rightly pointed by the learned AGP, I refuse to recognize the locus standi of the petitioner to question the order passed by the competent authority which he sought to challenge before the Tribunal. His transaction of purchase of the land was not recognized by law. He could not have purchased the land in breach of Section 3 read with Section 26 or Section 27 of the ULC Act. In either case either the sale was hit by mandatory provisions of the law or required a prior permission from Page 7 of 10 C/LPA/1403/2014 JUDGMENT the authority. His contention that with lapsing of the ULC Act the sale should be recognized beg the question for the sale itself was not in accordance with law. No title in the property would pass in the petitioner. His name was nowhere reflected in the official records. In that view of the matter, the question of lapsing of ULC proceeding so far as the petitioner is concerned would not arise. In any case, his name was never reflected in any of the records as the owner or occupant of the land. There is nothing on record to suggest that even he made an attempt to have his name entered. The competent authority therefore had no occasion to serve him with the notice of eviction. For all such reasons, petition is dismissed. Rule is discharged. I.R. stands vacated."
8. It is trait law that the purchaser of property does not get better title than the seller. There is no cavil that the appellant purchased the land in question from the Court appointed received on 20.01.1978 in a public auction. The land which the appellant has purchased from the Court received was covered under the ULC Act. We are of the opinion that the learned Single Judge has rightly concluded that the appellant could not have purchased the land without obtaining Page 8 of 10 C/LPA/1403/2014 JUDGMENT requisite notice to the competent authority under Section 26 of the Act and therefore the transaction of sale cannot be recognized. The facts of the judgment of the Hon'ble Supreme Court in the case of Anurag Virmani Vs. State of M.P. & Anr., (supra) relied upon by the learned Advocate for the appellant are different from the case on hand. It needs to be reiterated that even after the appellant purchased the land from the Court appointed received, admittedly, the name of the appellant was mutated in the revenue record, while in the case before the Supreme Court, after the saledeed was executed, the name of the purchaser was mutated in the revenue record and therefore, the Supreme Court concluded that the purchaser had locus standi to file appeal in respect of the proceedings under Section 9 of the ULC Act.
9. Considering the judgment and order of the learned Single Judge as well as the the reported decisions of the Hon'ble Supreme Court and the Division Bench relied upon by the learned AGP, it appears that the learned Single Judge has not committed any error in passing the impugned judgment and order. We are of the opinion that the impugned judgment and order passed by the learned Single Judge is just and proper and requires no interference.
10. Therefore, in view of the above discussion Page 9 of 10 C/LPA/1403/2014 JUDGMENT and observation, present appeal devoid of merits and accordingly stands dismissed.
In view of the order passed in Letters Patent Appeal No.1403 of 2014, present Civil Application would not survive and accordingly stands disposed of.
(K.S.JHAVERI, J) (A.G.URAIZEE,J) Tuvar Page 10 of 10