Gujarat High Court
Ganesh Industrial Estate & vs Addl Dy Collector & Competant on 15 January, 2013
Author: Jayant Patel
Bench: Jayant Patel
GANESH INDUSTRIAL ESTATEV/SADDL DY COLLECTOR & COMPETANT OFFICER C/SCA/4642/1992 JUDGEMNT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 4642 of 1992 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE JAYANT PATEL ============================================================== 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== GANESH INDUSTRIAL ESTATE & 2....Petitioner(s) Versus ADDL DY COLLECTOR & COMPETANT OFFICER & 1....Respondent(s) ============================================================== Appearance: MR.D K.PUJ, ADVOCATE for the Petitioner(s) No. 1 - 1.2 MS NIYATI K SHAH, ADVOCATE for the Petitioner(s) No. 1 MR DHAWAN JAYSWAL for the Respondent(s) No. 1 - 2 ============================================================== CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL Date : 15/01/2013 ORAL JUDGMENT
The petitioner has preferred the present petition for appropriate writ to quash and set aside the impugned order passed by respondents no.1 and 2, Annexures B and F, whereby the land in question has been declared as surplus land and the appeal against the said order for declaration of the land as surplus land stood dismissed.
The short facts are that Supreme Industries Ltd., (hereinafter referred to as the original owner ) was holding the land at Odhav bearing Survey No.274/1 admeasuring 6050 sq. mtrs. with construction. As per the petitioner, the agreement to sell was entered into by the Company (original owner) with one Shree Ganesh Industrial Estate on 17.01.1974. As per the petitioner, the possession of the land was handed over. However, as the land was held by the original owner and no sale deed was executed, form no.I was filed by the original owner under section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act for short). The said form was filled by the Power of Attorney holder of Shri Natwarlal Somchand Oza on behalf of the original owner. In the said form while showing interest of any other person, it was stated that the agreement to sell has been entered into on 17.10.1974. In clause no.10 of the form no.1, it was stated that the possession has also been handed over as per the agreement to sell to Shree Ganesh Industrial Estate. In clause 11, it was mentioned that the application for exemption has been made. In clause no.13 it was also mentioned that the application for exemption has been made under section 21 of the Act and in clause no.14, while showing the interest of any other party, it was mentioned that Ganesh Industrial Estate, Odhav Taluka City Ahmedabad is having interest.. In the supplementary to the said form, in clause no.14, the interest of Ganesh Industries Ltd. was mentioned and in the remarks column it was mentioned that the agreement to sell is executed and total Rs.70000 has been received by the Company. The aforesaid form came to be filed on 05.04.1976. It appears that thereafter, the person who had filed the form in capacity as the power of attorney of the original owner was sent the notice. But it appears that he was represented through his legal heirs Kanubhai Natwarlal. Neither any objections were filed nor the said legal heirs of the Power of Attorney remained present and the matter proceeded ex parte and ultimately, vide order dated 22.08.1990, the order was passed by the competent authority under the Act for declaring the land admeasuring 4037 sq. metre bearing survey no.274/1 as surplus land. Thereafter, the notice under section 10(5) of the Act is stated to have been issued on 25.09.1991 and such notice was also addressed to the legal heirs of Natwarlal Somchand Oza.
As per the petitioner, when the possession was to be taken over, the petitioner came to know about the aforesaid proceedings under the Act and he preferred an appeal being Appeal No.11/92 before the Tribunal contending inter alia that no notice was served upon him before final order was passed by the competent authority. The tribunal in the said appeal vide impugned order dated 27.04.1992, found that by agreement to sell, no interest is created in the property as per the provisions of Transfer of Properties Act and it further found that the possession of the suit land has been taken over by the State Government under section 10 of the Act on 28.12.1991 and therefore, the land has vested to the Government free from all encumbrances and therefore, the Tribunal dismissed the appeal. Under the circumstances, the present petition before this Court.
It may be recorded that the present petition at one point of time was disposed of by the learned Single Judge observing that the proceedings under the Act had abated. However, subsequently, the matter was carried before the Division Bench of this Court and the Division Bench vide judgment and order dated 29.07.2004 in Letters Patent Appeal No.974/01 and allied matters, allowed the appeals and directed the matter to be examined by the learned Single Judge and under the circumstances, the petition has been relegated to the learned Single Judge for examination of the matter on merits.
I have heard Mr.Puj, learned counsel appearing for the petition and Mr.Dhawan Jayswal, learned AGP appearing for the respondents.
As such, if the record is considered as it is, following position emerges -
In form no.1, the declaration has been made by the original owner for the alleged agreement to sell in favour of Ganesh Industrial Estate and the transfer of the possession of the land under the agreement to sell by the original owner in favour of Ganesh Industrial Estate. It also shows the construction in part over the land in question.
Power of Attorney on behalf of the original owner had filed form under the Act..
The original owner is not served with the draft statement, but legal heirs of Natwarlal Somchand Oza who was power of attorney appears to have been served the notice.
The petitioner who is claiming to be in possession is also not served with the notice under section 10(5) of the Act.
As per the documents produced by the petitioner with the affidavit-in-rejoinder dated 18.10.2010, the Corporation at the relevant point of time in the year 1988 appears to have assessed the property in the name of Vashrambhai Punjabhai Patel (sole proprietor of Laxmi Saw Mills) vide bill No.327 dated 26.12.1988 of Rs.51,673/-. Therefore, in the year 1988, there appears to be the construction and Vashram Punjabhai Patel in capacity as proprietor of Laxmi Saw Mill was shown as person in possession as per the AMC record. The petitioner has also produced in the said affidavit-in-rejoinder, subsequent bills for the years 1989, 1991, 1992, 1993, 1996, 1997 and 2000.
The aforesaid shows that Vashrambhai Punjabhai was in possession of a portion of the constructed property bearing part of the same survey number at the time when the order came to be passed under the Act on 22.08.1990 as well as when the notice under section 10(5) of the Act was issued on 25.09.1991.
It further appears from the affidavit-in-reply filed on behalf of the State Government that the panchnama was prepared for taking possession of the land pursuant to the notice under section 10(5) of the Act on 28.12.1991 and at para 2 there is reference to the unauthorised construction but it has been stated that the possession was taken over ex parte without any encumbrance.
It is in light of the aforesaid factual aspects, the impugned order deserves to be considered. However, before I proceed to examine the factual aspects, it would be necessary to refer to certain legal aspects which are discussed and considered hereinafter.
As per the provisions of Urban Land (Ceiling & Regulation) Rules, 1976, (hereinafter referred to as the Rules for short) more particularly Rule 5(2)(a)(ii), all other persons so far as may be known, who have, or are likely to have any claim to or interest in, the ownership, or possession, or both, of the vacant lands, are required to be served with the draft statement. Therefore, even if one is not having any interest in the ownership, but one may have claim in the property or claim in possession is also required to be served with the draft statement as per the provisions of Rule 5 of the aforesaid Rules. The reference may be made to the decision of this Court in the case of Rajnikant Desaibhai Patel vs. Competent Authority and Additional Collector, Vadodara reported at 2007(4) GLR 3573 and more particularly the observations made at para 10. This Court in the case of Mangabhai C. Patel Vs. Competent Officer and Deputy Collector, Baroda reported at 2007(3) GLR 2731 has taken the view that the notice under section 10(5) of the Act before taking over the possession is required to be served upon the occupier.
It is true that in both the aforesaid decisions, the question of legally valid claim or legally valid construction was not examined and therefore, the aspect of so called claim or claim for possession or so called claim for valid construction and the possession thereof, were the relevant aspects to be taken into consideration by the appellate authority at the time when the appeal was to be decided, more particularly because both the aforesaid aspects are in addition to claiming of interest in the property as per the provisions of Transfer of Properties Act.
Apart from the above, the other relevant aspects to be considered by the Tribunal were as under:
Whether any agreement to sell was ever entered into since the possession was stated to have been handed over by the original owner in favour of Shree Ganesh Industrial Estate. If the agreement to sell never existed, the question of claiming any right may not arise but such aspect could be gone into only if the so called original agreement to sell is produced and its authenticity is proved by the process known to law by a person who is claiming the right pursuant to the so called agreement to sell.
The so called Shree Ganesh Industrial Estate as such was not legal entity in the eye of law and unless such agreement was entered into by the original owner with any living person or any legal entity. As such agreement to sell was neither produced before the appellate authority nor before this Court, no view can be expressed at this stage but if the agreement is not in favour of any legal entity or living personality, it may have adverse effect on the so called claim.
Further, the role or capacity of Vashrambhai Punjabhai Patel was also required to be considered and examined by the Tribunal as to whether Vashrambhai Punjabhai Patel could represent Ganesh Industrial Estate or not or whether he could be said as aggrieved for challenging the order of the first authority.
In my view, it was required for the Tribunal to examine the aforesaid aspects in addition to the above referred legal aspects of the so called claim, so called construction over the property before finally concluding on the aspects of maintainability of the appeal and/or for dismissal of the appeal.
As the present petition is essentially under article 227 of the Constitution, if the Tribunal has not properly examined the matter on the aspects which were germane to the exercise of the power by the Tribunal, it would be just and proper to remand the matter to the Tribunal. In my view, the dismissal of the appeal on the mere ground that no interest could be said to have been created under the Transfer of Properties Act in the land or property in question was not sufficient. Therefore, the order of dismissal of the appeal on such one aspect even if maintained to the extent that the original appellant had no interest in law over the property, the matter deserves to be remanded to the Tribunal for examination of the other relevant aspects which were germane to the exercise of appellate power by the Tribunal.
In view of the aforesaid observations and discussions, the impugned order passed by the Tribunal for dismissal of the appeal is set aside but with the direction that the appeal No.11/92 shall stand restored to the file of the Tribunal. It is further directed that the Tribunal shall examine the matter in light of the observations made hereinabove in the present judgment and decide the appeal after giving opportunity of hearing to the petitioner preferably within a period of six months from the receipt of the order of this Court.
Petition is allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs.
(JAYANT PATEL, J.) BIJOY Page 10 of 10