Gujarat High Court
Mavjibhai Parbatbhai Trapasia And Ors. vs State Of Gujarat And Anr. on 28 February, 1995
Equivalent citations: (1996)1GLR280
JUDGMENT M.R. Calla, J.
1. As the facts narrated hereinafter would show that both these matters are required to be decided by a common order as they relate to the proceedings about the same land and accordingly, both these Special Civil Applications are decided by this common order.
2. The petitioners in Special Civil Application No. 6194 of 1984 formed a partnership firm, in the name and style of M/s. Khedut Sarvoday Company, through a partnership deed dated 21st January 1975. The said partnership firm owned and possessed plot Nos. 19 to 24, 29 to 32, 42, 43, 61 to 67, 70 to 74 in Survey No. 481/2, admeasuring 12,919.6 sq.mtrs. at Rajkot. The Urban Land (Ceiling and Regulation) Act, 1976 ('the Act' for short) came into force on 17th February 1976. Before the said Act commenced, the aforesaid partnership firm was dissolved by a document dated 4th December 1975. However, the Form No. 1 was filed under Section 6 of the Act by the firm on 12th September 1976. The Competent Authority finalised the proceedings and keeping in view the factum of dissolution of the partnership in December 1975, i.e., before the commencement of the Act and holding that the dissolution of the partnership does not amount to transfer of the property, the case was filed by the Competent Authority on the basis that no partner held the land in excess. This order was passed by the Competent Authority on 15th November 1979. The Revenue Department of the Government, issued a show cause notice in exercise of its powers under Section 34 of the Act on 7th March 1984. The order passed by the Competent Authority was set aside and the Government directed the Competent Authority to inquire into the matter on the basis of the directions given in the decision of the Government under Section 34 rendered on 20th October 1984. It has been given out by Mr. J.R. Nanavati, Learned Counsel for the petitioners that, this time, the Competent Authority passed the order against the petitioners and an appeal under Section 33 of the Act was preferred against the order passed by the Competent Authority against the petitioners in pursuance of the remand order of the Government in the Revenue Department, i.e., the order passed on 20th October 1984 under Section 34. It is also given out by Mr. Nanavati that, the Urban Land Tribunal dismissed the appeal by saying that, in view of the order passed by the Government under Section 34, the Urban Land Tribunal, as an appellate authority, could not do anything and against such order passed by the Urban Land Tribunal, a separate Special Civil Application No. 5508 of 1988 was filed in this High Court and the same is also pending. At this stage, it was submitted by Mr. T.H. Sompura, learned Asstt. Govt. Pleader that, in view of the aforesaid facts given out by the Learned Counsel for the petitioners, this Special Civil Application has become infructuous. But the argument of Mr. Nanavati is, that if the order passed by the Government under Section 34 dated 20th October 1984 is not sustained by this Court, the original order passed by the Competent Authority shall stand restored and the proceedings which have taken place in consequence of the Revenue Department's order dated 20th October 1984 as a result of this Special Civil Application may be consequently rendered invalid and therefore, this Special Civil Application No. 6194 of 1984 cannot be dismissed as having become infructuous and the same has to be decided on merits. I find ample justification in the submission of Mr. Nanavati, Learned Counsel for the petitioners and, therefore, Special Civil Application No. 6194 of 1984 cannot be dismissed as having become infructuous and the same has to be decided on merits.
3. Special Civil Application No. 6194 of 1984 was filed way back in the year 1984. The Rule was issued way back on 22nd January 1985 and even after a lapse of a period of more than one decade, no return has been filed on behalf of the respondents as is not being done by the Urban Land Ceiling Department or the Revenue Department, State of Gujarat, in almost all the cases under the Act. However, Mr. T.H. Sompura, learned Asstt. Govt. Pleader has argued the matter orally.
4. The first submission of Mr. Nanavati, Learned Counsel for the petitioners is that, merely because the declaration in Form No. 1 under Section 6 was filed by the petitioners in the name of the Firm in September 1976, despite the dissolution of the partnership Firm in December 1975, it could not be considered that the petitioners have approbated and reprobated. Mr. Nanavati has invited my attention to the proviso of Section 6 of the Act. According to this proviso, every person who holds vacant land in excess of the ceiling limit on or after the 17th day of February 1975 and before the commencement of this Act and every person holding vacant land in excess of the ceiling limit at such commencement had to file the declaration under Section 6, whereas the dissolution of the firm took place in December 1975 and according to Mr. Nanavati, the declaration was in conformity with this proviso. Section 6(1) with the proviso thereunder is reproduced as under:
6.(1) Every person holding vacant land in excess of the ceiling limit at the commencement of this Act shall, within such period as may be prescribed, file a statement before the Competent Authority having jurisdiction specifying the location, extent, value and such other particulars as may be prescribed of all vacant lands and of any other land on which there is a building, whether or not with a dwelling unit therein, held by him (including the nature of his right, title or interest therein) and also specifying the vacant land within the ceiling limit which he desires to retain:
Provided that in relation to any State to which this Act applies in the first instance, the provisions of this sub-section shall have effect as if for the words "Every person holding vacant land in excess of the ceiling limit at the commencement of this Act", the words, figures and letters "Every person who held vacant land in excess of the ceiling limit on or after the 17th day of February 1975 and before the commencement of this Act and every person holding vacant land in excess of the ceiling limit at such commencement" had been substituted.
The use of the word, 'and' between the words "Every person holding vacant land is excess of the ceiling limit on or after the 17th day of February 1975" and "before the commencement of this Act and every person holding vacant land in excess of the ceiling limit at such commencement" is conjunctive and according to this proviso, the declaration in Form No. 1 under Section 6 is to be filed by those who hold the vacant land in excess of the ceiling limit on or after the 17th day of February 1975 and before the commencement of this Act and every person holding vacant land in excess of the ceiling limit at such commencement. In this view of the matter, even if the use of the word 'and' in the earlier part was conjunctive, the use of the word 'and' in the latter part of this proviso, i.e., between the words, "before the commencement of this Act" and "every person holding vacant land in excess of the ceiling limit" is disjunctive and, therefore, if at all it was the stand of the petitioners that the dissolution of the Firm had taken place in December 1975 and as a result of this dissolution, the land of their share reverted back to them whether by transfer or otherwise, then too they should have filed declaration in Form No. 1 under Section 6 in their own names apart from the declaration which had been filed in the name of their Firm in September 1976 so that the Competent Authority would have considered both the declarations by way of consolidation. In any case, even if the petitioners had not filed the declaration in Form No. 1 under Section 6 in their own names and the declaration was filed by the Firm in September 1976, the Competent Authority, while considering the matter and finalising the proceedings, could not have taken the view that the partners individually were not having excess land because of the dissolution of the Firm which had taken place in the month of December 1975 and that the partnership Firm which had filed the declaration also, had no vacant land. Mr. Nanavati, Learned Counsel for the petitioners referred to the provisions of Section 4(4) and sumitted that the dissolution of partnership and reverting back of the land of the share of individual partner as a consequence of this dissolution does not amount to transfer and it has to be computed in terms of the money. He has also submitted that, neither the partnership deed nor the deed of dissolution of the partnership was required to be registered and on both these points, he has relied upon a decision of the Supreme Court, (Addanki Narayanappa and Anr. v. Bhaskara Krishnappa (Dead) and thereafter his Heirs and Ors.) and a decision of our own High Court reported in (1971) XIIGLR 586 (Vrajlal Makandas Valiya v. L.D. Joshi, Collector, Dist. Bhavnagar). These cases have been decided under the general law relating to the transfer and partnership, whereas the case at hand is a case with reference to the provisions of the special enactment, i.e., Urban Land (Ceiling and Regulations) Act, 1976 and while deciding the case under the Ceiling Law, if it is found that the dissolution of the partnership was brought about, on the face of it, only to wriggle out of the provisions of the Act and/or to defeat the provisions of this Act and the dissolution as such was only a device to retain the excess land so as to render the provisions of this Act to be defeasible, the principles of general law cannot be applied and it is the trite law that the provisions contained in special enactment always override the provisions contained in the general law and therefore, in my considered opinion, the aforesaid decisions on which reliance has been placed by Mr. Nanavati on behalf of the petitioners is of no avail to the controversy involved in the present case, more particularly, in view of the provisions contained in Section 42 of the Act, according to which the provisions of this Act have overriding effect. Mr. Sompura, learned Asstt. Govt. Pleader has argued that under Section 4(b), for the purpose of Clause (a), the burden of proving any sale to be a bona fide lies on the testator, which is disputed by Mr. Nanavati, Learned Counsel for the petitioners. It is not a case of sale, nevertheless, the spirit of the Act shows that any transaction with regard to the land whether it is by way of dissolution or otherwise has to be bona fide and it is for the petitioners to show that the transaction is bona fide. Whereas the facts of this case eloquently speak that the dissolution was brought about only to wriggle out of the provisions of the Act, the case of lack of bona fides is clearly made out.
5. Once it is found that the partnership had been dissolved so as to defeat the object of the Act, the natural consequence is that the land belonging to the share of each and every partner is still to be treated as of the firm, for the purposes of the Urban Land (Ceiling and Regulation) Act, 1976 and, therefore, the Competent Authority could not have proceeded on the basis that the land stood reverted back to the individual partner as per share, and therefore, there was no excess land. As a matter of fact, the act of dissolution of the partnership was only to defeat the provisions of the Act and it was the case of an attempt to transfer the vacant land contrary to the provisions of the Act and therefore, the Revenue Department in exercise of its powers under Section 34, rightly examined the matter and remanded it to the Competent Authority after setting aside the order passed by the Competent Authority. In this view of the matter, the effect of the dissolution of the partnership could not be taken to have entailed the consequence as was held by the Competent Authority. It would have been different matter altogether, had the partners claimed the land of their share in their own rights on the basis of the dissolution of the partnership Firm with the permission of the concerned authority in accordance with law, which is not the fact-situation obtaining in this case and, therefore, it is apparent that the dissolution has resulted into the transfer in violation of the provisions of the Act and, therefore, it was required to be ignored and the proceedings under Section 6 should have been finalised by treating the entire land to be the land belonging to the partnership Firm.
6. Mr. Nanavati, Learned Counsel for the petitioners has submitted that the Competent Authority, in the instant case, had passed the order dated 15th November 1979 whereas the notice under Section 34 was issued by the State Government under Section 34 as late as on 7th March 1984 and the order was passed on 20th October 1984. He has submitted that there is an unreasonable, inordinate and unexplained delay for the purpose of the proceedings under Section 34 in the year 1984 against the order which was passed in the year 1979 and in support of his arguments, he has placed reliance on 1994(1) GLR 649 (M/s. Kavita Benefit Pvt. Ltd., Ahmedabad v. Joint Secretary, Revenue Department and Anr). So far as Section 34 is concerned, no period of limitation has been prescribed and in the aforesaid decision, this Court has taken the view that, the reasonable time should depend upon the facts and circumstances of each case and in that case, the period for exercise of suo motu power running into two years and 7 months was held to be unreasonable. It has been argued by Mr. Nanavati that the delay of four years and 9 months in this case, should be held as unreasonable, more particularly, when the petitioners had obtained the permission from the Competent Authority under Section 26 of the Act on 5th August 1981 and had sold the property in dispute to third parties. In support of this averments in paragraph 14 of the Special Civil Application No. 6194 of 1984, no details whatsoever have been filed and absolutely vague and bald averments have been made. Mere reference to such permission having been obtained in August 1981 would not constitute the period to be unreasonable unless it is shown through a factual foundation from the body of the petition that the rights of any third party had intervened to such an extent that the process could not be reversed back and that it was now impossible to revert the process. It is matter of common knowledge (though disputed by Mr. Nanavati, Learned Counsel for the petitioners) that after the commencement of the Act of 1976, in large number of cases, the declarations under Section 6 had been filed and the Competent Authority concerned must have passed orders in large number of cases. The Government could exercise its powers under Section 34 by way of revision suo motu as and when it came to its notice and there being large number of such cases, if time is taken for initiating proceedings under Section 34, it cannot be said, to be a case of unreasonable delay unless and until it is shown as a question of fact by pleading specific fact in detail that the position of the party had been changed considerably to such an extent that now it was impossible to reverse the process. In this view of the matter, I am not inclined to hold on the basis of the bald and vague averments made in paragraph 14 of the petition that it is a case of unreasonsble delay so as to set aside the order passed by the Government under Section 34 only on this ground.
7. With regard to Special Civil Application No. 5508 of 1988, it has been argued by Mr. Nanavati, Learned Counsel for the petitioner that, even if the order passed by the Government under Section 34 is held and it is found that the land in question is held by the Firm, in terms of the provisions contained in Sub-section (5) of Section 4, each of the partners was entitled to one unit according to his share. Sub-section (5) of Section 4 is reproduced as under:
(5) Where any firm or unincorporated association or body of individuals holds vacant land or holds any other land on which there is a building with a dwelling unit therein or holds both vacant land and such other land, then, the right or interest of any person in the vacant land or such other land or both, as the case may be, on the basis of his share in such firm or association or body shall also be taken into account in calculating the extent of vacant land held by such person.
According to the scheme of the Act, it is clear that in cases where any firm holds vacant land, right or interest of any person in such vacant land on the basis of his share in such firm shall also be taken into account in calculating the extent of vacant land held by such person. While dealing with such matters, no particular provision of the Act can be read in isolation. The harmonious construction is to be given and accordingly it is clear that Sub-section(5) of Section 4 comes into play for the purpose of counting the total holding of an individual, i.e., when an individual holds any vacant land in his own name and also holds the land as a partner in a firm. Therefore, Sub-section (5) of Section 4 has been enacted only to safeguard the determination of the holding so that the holding of an individual in his own name and holding to the extent of his share in the firm is also clubbed together so as to determine the land held by him beyond the ceiling limits. In this view of the matter, the argument of Mr. Nanavati based on Sub-section (5) of Section 4 does not advance the case of the petitioner and there is no question of invoking Sub-section (5) of Section 4 and to determine the retainable land with reference to the individual's share in the firm and that every partner is entitled to one unit and thereafter if it is found that his share is less than one unit, he may get only that much land out of one such unit. In my view, such a course of action would defeat the very purpose of the Act. Therefore, Sub-section (5) of Section 4 cannot be operated in the manner suggested by Mr. Nanavati, keeping in view the object and scheme of the entire Act.
Mr. Nanavati then argued that the Firm was not even asked the choice with regard to the retainable land and for this purpose, he has placed reliance on Clause (iii) of Sub-section (2) of Section 8. Clause (iii) of Sub-section (2) of Section 8 is reproduced as under:
(iii) the particulars of the vacant lands which such person desires to retain within the ceiling limit;
8. It does not cast any statutory obligation on the Competent Authority to ask for the choice in respect of the retainable land. The only requirement is that the statement prepared under Sub-section (1) of Section 8 must contain the particulars of the vacant land which such person desires to retain within the ceiling limit. It is also the case of the petitioners that the partnership firm had given any particulars in the declaration or had expressed any desire to retain any particular land at any stage. In want of such particulars in the declaration, it is not possible for the Competent Authority to include such particulars in the statement in Sub-section (1) of Section 8 and, therefore, no exception can be taken on this aspect of the matter that the statement did not include the particulars of the vacant land which the firm desired to retain with the ceiling limits. Learned Counsel Mr. Nanavati for the petitioners has failed to show any provision under the Act casting a statutory obligation upon the Competent Authority to call upon the declarant to exercise his option with regard to the retainable land unless and until he himself gives out such particulars. Therefore, this argument with reference to Clause (iii) of Sub-section (2) of Section 8 is not of any avail to the petitioners in the facts of this case and the same is hereby rejected. It was argued that the Urban Land Tribunal has dismissed the appeal by saying that in view of the order passed under Section 34 by the Revenue Department, it could not take a contrary view. Even if it is held to be a wrong view, now that this Court itself has heard the petitions on merits and it has been held in no uncertain terms that the land was held by the Firm and that the dissolution was brought about only to defeat the provisions of the Act, no useful purpose will be served by saying that the order of the Urban Land Tribunal is wrong on the basis that the Government had passed order under Section 34 and, therefore, the Tribunal refused to go into the matter and therefore, the matter should be remanded back. The so-called illegality about which the grievance is raised by Mr. Nanavati has now become a matter of technical and academic importance only and, therefore, no interference can be made with the impugned order on that basis so as to order a remand at this stage.
9. The upshot of the aforesaid adjudication is that there is no substance in both these Special Civil Applications and no interference is called for and same are hereby dismissed. Rule is discharged in both the matters. Interim orders stands vacated. There shall be no order as to costs.