Gujarat High Court
State Of Gujarat vs Vinodbhai Jagjivan Khalpada on 27 August, 2010
Author: M.R.Shah
Bench: M.R. Shah
SCA/6652/1999 1/14 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 6652 of 1999
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH
=========================================================
Whether Reporters of Local Papers may be allowed to see the
1 judgment ?
2 To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy of the
3 judgment ?
Whether this case involves a substantial question of law as
4 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 ?
=========================================================
STATE OF GUJARAT Petitioner(s)
Versus
VINODBHAI JAGJIVAN KHALPADA Respondent(s)
=========================================================
Appearance :
MR. MENGDEY, AGP for Petitioner(s) : 1,
None for Respondent(s) : 1,
MR ANSHIN H DESAI for Respondent(s) : 1.2.1
MR SN THAKKAR for Respondent(s) : 1.2.2,1.2.3
=========================================================
CORAM : HONOURABLE MR.JUSTICE M.R. SHAH
Date : 27/08/2010
ORAL JUDGMENT
1. By way of this petition under Articles 226 & 227 of the Constitution of India, the petitioner - State of Gujarat has prayed for an appropriate writ, direction and order quashing and setting aside the impugned judgment and order passed by the Urban SPECIAL CIVIL APPLICATION/6652/1999 19/06/2015 02:56:53 AM SCA/6652/1999 2/14 JUDGMENT Land Tribunal dated 26.3.1999 passed in Appeal No. Rajkot 17 of 1999 by which the Tribunal has allowed the said appeal preferred under Section 33 of Urban Land Ceiling Act which was filed after a period of 17 years of delay and by which the Tribunal has quashed and set aside the order passed by the competent authority ULC dated 10.9.1982 declaring 2230.17 sq.mtrs as excess vacant land and that too without issuing any notice on the petitionercompetent authority and when the Urban Land Ceiling Act, 1976 was to be repealed w.e.f.30.3.1999.
2. The facts leading to the present petition in nutshell are as under:
2.1. That one Gangaben Jagjivan Khalpada was the original owner of the land bearing Survey No.440/B, 435/1 and 498 situated at Rajkot and filled in the declaration Form No.1 under Section 6 of the Urban Land Ceiling Act. That the competent authority Deputy Collector, ULC declared 2230.17 sq.mtrs. land as excess vacant land and final statement under Section 9 of the Act came to be issued on 10.9.1982. That being aggrieved and dissatisfied with the order dated 10.9.1982 of the Competent AuthorityULC, Rajkot, the original land owners preferred an appeal under Section 33 of the Act before the Urban Land Tribunal being Appeal No. Rajkot 85 of 1982 and the Tribunal dismissed the said appeal vide judgment and order dated 13.2.1984. That being aggrieved and dissatisfied with the aforesaid two orders passed by the Competent Authority as well as Tribunal, the original land owners preferred Special Civil Application No.2041 of 1984 before this Court and same came to be dismissed by this Court by order dated 26.4.1990 in so far as the orders of both the authorities declaring land admeasuring SPECIAL CIVIL APPLICATION/6652/1999 19/06/2015 02:56:53 AM SCA/6652/1999 3/14 JUDGMENT 2230.17 sq.mtrs. is concerned. However, directed the authorities to give opportunity of hearing as regards option of retainable land. It appears that pursuant to the order passed by this Court, competent authority kept the hearing and the land holder was granted opportunity for personal hearing on 18.7.1990. That thereafter, the competent authority after considering the representation made by the land holder granted the lands at village Raiya of Survey No.83/1, 88/1 and Rajkot S.No. 135/1 as retainable land and lands of survey No. 440 B, 435/1, 498 of Rajkot admeasuring 2230.17 sq.mtrs. was declared as excess.
That thereafter, a notification under Section 10(1) of the Act came to be published in the Government Gazette on 11.10.1990 and notification under Section 10(3) dated 20.11.1990 was published in the Government Gazette on 27.12.1990. That the notification under Section 10(5) of the Act came to be issued on 28.12.1990 and the possession of the lands bearing Survey No.440 B admeasuring 645.12 sq.mtrs.of Rajkot and Survey No.435 admeasuring 354.45 sq.mtrs. was taken. That the possession of the land bearing Survey No. 498 plot No.28 admeasuring 615.30 sq.mtrs. of Rajkot and Survey No.37 admeasuring 615.30 sq.mtrs. was taken on 20.9.1991. That thereafter, award for compensation of excess land came to be declared under Section 11 of the Act on 19.11.1991. Thus, the aforesaid land which came to be declared as excess land was absolutely vested in State Government. That thereafter, it was declared that the ULC Act, 1976 is to be repealed w.e.f. 30.3.1999. It appears that despite the fact that the original land owner lost upto this Court against the orders passed by the competent authority and Urban Land Tribunal and despite the fact that the order passed by the competent authority dated 10.9.1982 declaring 2230.17 sq.mtrs.
SPECIAL CIVIL APPLICATION/6652/1999 19/06/2015 02:56:53 AM
SCA/6652/1999 4/14 JUDGMENT
of excess land came to be confirmed by this Court by way of Special Civil Application No.2041 of 1984, the heirs and legal representatives of the original land holder preferred appeal under Section 33 of the Urban Land Ceiling Act, 1976 before the Urban Land Tribunal challenging the orders passed by the competent authority Deputy Collector, ULC, Rajkot dated 10.9.1982, on 22.3.1999 by submitting that they are coparcner in the property of the mother and obtained unit is required to be given to anyone of them. It appears that initially the hearing of the appeal was fixed on 30.3.1999, however the date of hearing was preponed to 26.3.1999 and Urban Land Tribunal without issuing the notice to the competent authority entertained the said appeal after a period of 17 years of passing the order passed by the competent authority and allowed the said appeal by quashing and setting aside the order passed by the competent authority ULC dated 10.9.1982 by declaring that all the heirs of deceased Gangaben Jagjivan Khalpada i.e. appellants are entitled to separate unit i.e. two additional unit of 3000 sq.mtrs. and therefore, they are not holding any excess vacant land and directed to close the form as holding of land is less than the land to be retained. Being aggrieved and dissatisfied with the impugned judgment and order passed by the Urban Land Tribunal dated 26.3.1999 passed in Appeal No. Rajkot 17 of 1999, the petitionerState of Gujarat has preferred the present Special Civil Application under Articles 226 & 227 of the Constitution of India.
3. Shri Mengdey, learned AGP appearing on behalf of the petitioner has vehemently submitted that the impugned judgment and order passed by the Tribunal is exfacie illegal and SPECIAL CIVIL APPLICATION/6652/1999 19/06/2015 02:56:53 AM SCA/6652/1999 5/14 JUDGMENT without jurisdiction and in breach of principles of natural justice. It is submitted by Shri Mengdey, learned AGP that as such the order passed by the competent authority dated 10.9.1982 was not only confirmed by the Tribunal but even the order passed in appeal under Section 33 of the Act was confirmed by this Court in Special Civil Application No.2041 of 1984 and therefore, the tribunal ought not to have entertained another appeal challenging the very order passed by the competent authority dated 10.9.1982, which was confirmed by this Court. It is submitted that entertaining the said appeal again would tantamount to not only reviewing its own order by the Tribunal but even the order passed by this Court in Special Civil Application No. 2041 of 1984, which is not permissible. It is further submitted that as the order passed by the competent authority dated 10.9.1982 declaring 2230 sq.mtrs. of land as excess vacant land was confirmed by this Court by way of Special Civil Application No.2041 of 1984 as such the original order passed by the competent authority further confirmed by the Tribunal was merged into the order passed by this Court and therefore, thereafter the Tribunal has no jurisdiction to entertain the appeal against the original order passed by the competent authority, which was confirmed by this Court. It is further submitted that by entertaining the said appeal, the Tribunal has virtually set aside the order passed by this Court in Special Civil Application No.2041 of 1984 and has acted as if it was exercising the jurisdiction as an appellate forum against the order passed by this Court, which is not permissible at all. Therefore, it is submitted that as such the impugned judgment and order passed by the Tribunal is without jurisdiction, which cannot be sustained and same deserves to be quashed and set aside.
SPECIAL CIVIL APPLICATION/6652/1999 19/06/2015 02:56:53 AM
SCA/6652/1999 6/14 JUDGMENT
3.1 It is further submitted that even the possession of the land
in question was already taken over and even the award of compensation under Section 11 of the Act was passed /declared in 1991 and on issuing the notification under Section 10(6) of the Act, the land which was declared as excess vacant land had vested absolutely in the State Government and free from all encumbrances and therefore also, the Tribunal ought not to have entertained the said appeal.
3.2. It is further submitted that even the impugned judgment and order passed by the Tribunal is in breach and in violation of principles of natural justice and has been passed in haste. It is submitted that appeal was preferred by the heirs of the original land holder on 22.3.1999 challenging the order passed by the competent authority dated 10.9,1982 i.e. after a period of 17 years and the Tribunal condoned the delay of 17 years on the very date i.e. 22.3.1999 itself and thereafter though initially the appeal was fixed for hearing to 30.3.1999, upon request made by the respondent, it was preponed to 26.3.1999 and the Tribunal without any notice to the petitioner and/ or competent authority and without affording any opportunity of being heard to the petitioner and / or competent authority had passed the impugned judgment and order quashing and setting aside the order passed by the competent authority dated 10.9.1982 (order which was confirmed by this Court) and remanded the matter back to the competent authority. It is submitted that therefore, the impugned judgment and order passed by the Tribunal is in breach of principles of natural justice which deserves to be quashed and set aside.
SPECIAL CIVIL APPLICATION/6652/1999 19/06/2015 02:56:53 AM
SCA/6652/1999 7/14 JUDGMENT
3.3. It is further submitted that once the appeal was preferred earlier under Section 33 of the Act by the original land holder and the same was dismissed, second appeal against the very order passed by the competent authority at the instance of heirs of the original land holder is not maintainable. It is submitted that as such under the provisions of the ULC Act there is no provision for second appeal. It is submitted that as held by the Division Bench of this Court in LPA No. 844 of 2010, such a second appeal at the instance of heirs of the original land holder is not maintainable more particularly, when once earlier the appeal was preferred and the same was rejected. Therefore, it is submitted that the impugned judgment and order passed by the Tribunal is without jurisdiction, which deserves to be quashed and set aside. Therefore, it is requested to allow the present Special Civil Application with exemplary cost.
4. Petition is opposed by Shri Anshin Desai, learned advocate for the respondentoriginal appellant. It is submitted that as the original order passed by the competent authority was a nullity inasmuch as the present respondents were neither heard nor any notice were issued to them and therefore, the Tribunal has not committed any error and / or illegality in entertaining the said appeal and quashing and setting aside the same. It is submitted that lands in question were HUF property and therefore, the respondentsoriginal appellants were having right, title or interest in the lands in question and therefore, they were required to be heard. It is submitted that as the original proceedings were void and nullity, they can be challenged even after the notification issued under Section 10 of the Act. It is submitted that as such there was no question of delay in the SPECIAL CIVIL APPLICATION/6652/1999 19/06/2015 02:56:53 AM SCA/6652/1999 8/14 JUDGMENT present proceedings as alleged in the petition inasmuch as the respondents were not party to the earlier original proceedings and they were not heard. Therefore, it is requested to dismiss the present petition. No other submissions have been made.
5. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that this is a glaring example of misuse of process of law and misuse of power by the Tribunal. That the declaration/ form no.1 under Section 6 of the Act was filled in by one Gangaben Jagjivan Khalpada and the said form was processed and the competent authority declared 2230.17 sq.mtrs. of land as excess vacant land and issued final statement under Section 9 of the Act on dated 10.9.1982. It appears that being aggrieved and dissatisfied with the order passed by the competent authority dated 10.9.1982, the original land holder preferred an appeal being Rajkot 85 of 1982 before the Tribunal under Section 33 of the Act and the same came to be dismissed by the Tribunal vide order dated 13.2.1984. It appears that being aggrieved and dissatisfied with the orders passed by the competent authority as well as Tribunal, the original land holder preferred Special Civil Application No.2041 of 1984 before this Court and the learned Single Judge dismissed the said Special Civil Application in so far as the orders of both the authorities declaring land admeasuring 2230.17 sq.mtrs. as excess land is concerned. However, directed the authorities to give opportunity of hearing as regards option/choice of retainable land. The learned Single Judge dismissed the said Special Civil Application vide order dated 26.4.1990. That thereafter, pursuant to the order passed by this Court, the competent authority kept the hearing and the SPECIAL CIVIL APPLICATION/6652/1999 19/06/2015 02:56:53 AM SCA/6652/1999 9/14 JUDGMENT land holder was granted opportunity for personal hearing on 18.7.1990. That thereafter, the competent authority after considering the representation made by the land holder granted the lands at village Raiya of Survey No.83/1, 88/1 and Rajkot S.No. 135/1 as retainable land and lands of survey No. 440 B, 435/1, 498 of Rajkot admeasuring 2230.17 sq.mtrs. vide order dated 21.7.1990 was declared as excess. That thereafter, a notification under Section 10(1) of the Act came to be published in the Government Gazette on 11.10.1990 and notification under Section 10(3) dated 20.11.1990 was published in the Government Gazette on 27.12.1990. That the notification under Section 10(5) of the Act came to be issued on 28.12.1990 and the possession of the lands bearing Survey No.440 B admeasuring 645.12 sq.mtrs.of Rajkot and Survey No.435 admeasuring 354.45 sq.mtrs. was taken over in the month of August/ September 1991 after notification under Section 10(6) of the Act. Thus, the lands in question came to be vested absolutely free from all encumbrances after notification under Section 10(6) of the Act and possession was taken over. That thereafter, the award of compensation under Section 11 of the Act came to be issued and published on 19.11.1991, That thereafter, after a period of 17 years of passing the order by the competent authority, the heirs of the original land holder preferred the appeal under Section 33 of the Act before the Tribunal on 22.3.1999, challenging the order passed by the competent authority dated 10.9.1982 declaring 2230 sq.mtrs. of land as excess vacant land, the order which was already confirmed by the ULT and further confirmed by this Court by way of Special Civil Application No.2041 of 1984. It appears that the Tribunal exparte condoned the huge delay of 17 years without any notice to the petitioner and / or competent SPECIAL CIVIL APPLICATION/6652/1999 19/06/2015 02:56:53 AM SCA/6652/1999 10/14 JUDGMENT authority and without affording any opportunity being heard to the petitioner and/ or competent authority by observing in only one line "in the interest of justice, the delay is to be condoned and the appeal is to be treated in time limit". It appears that the hearing of the appeal was kept on 30.3.1999 however the power of attorney of respondent appeared before the Tribunal on 26.3.1999 personally and stated orally before the Tribunal that he has come to Ahmedabad for some work in the High Court of Gujarat and therefore, in this case he has produced the written submission and he requested to accept the same and treat the appeal as having been heard and accepting the same, the Tribunal treated the appeal as having been heard, without any notice and / or affording any opportunity of being heard to the petitioner and / or competent authority and by impugned judgment and order condoned the delay of 17 years and quashed and set aside the order passed by the competent authority dated 10.9.1982 the order which was already confirmed by this Court and held that no land is liable to be declared as surplus land.
7. It is to be noted that in the impugned judgment and order while condoning the delay, the Tribunal has observed that considering the various decisions of the High Court of Gujarat and the Hon'ble Apex Court the delay is to be condoned in the interest of justice, however no judgment is referred by the Tribunal while condoning the huge delay of 17 years. It is to be noted that while condoning the huge delay of 17 years, no opportunity of being heard was given to the petitioner and/ or competent authority and even no cogent reasons have been given to condone the delay of 17 years. Under the circumstance, the impugned judgment and order passed by the Tribunal deserves SPECIAL CIVIL APPLICATION/6652/1999 19/06/2015 02:56:53 AM SCA/6652/1999 11/14 JUDGMENT to be quashed and set aside.
8. Even otherwise,the Tribunal ought not to have entertained the appeal filed by the respondents herein challenging the original order passed by the competent authority dated 10.9.1982 as the said order passed by the competent authority was already confirmed by the ULT in an appeal under Section 33 of the Act and the same has further confirmed by this Court vide judgment and order dated 26.4.1990 passed in Special Civil Application No.2041 of 1984 by which the learned Single Judge of this Court confirmed the orders of both the authorities below declaring 2230. 17 sq.mtrs. of land as excess vacant land. Once the order passed by the competent authority declaring 2230.17 sq.mtrs. of land as excess vacant land was confirmed by this Court, the order passed by the competent authority can be said to have been merged into order passed by this Court and therefore, the respondents could not have challenged the order passed by the competent authority again which was confirmed by this Court. That the Tribunal also could not have entertained the said appeal challenging the order passed by the competent authority dated 10.9.1982 which was confirmed by this Court. As stated above, the order dated 10.9.1982 passed by the competent authority was challenged before the Tribunal in an appeal under Section 33 of the Act which was dismissed. Therefore, to entertain the second appeal by the Tribunal again would tantamount to reviewing its own order by the Tribunal which is not permissible under the provision of ULC Act. There is no provisions of review vested in the Tribunal except it is found that there is any clerical or arithmetical error. By entertaining the appeal against the order passed by the competent authority SPECIAL CIVIL APPLICATION/6652/1999 19/06/2015 02:56:53 AM SCA/6652/1999 12/14 JUDGMENT dated 10.9.1982, which was confirmed by this Court, the Tribunal has quashed and set aside the order passed by the competent authority declaring 2230.17 sq.mtrs. of land as excess vacant land, which was confirmed by this Court, the Tribunal has acted illegally and without jurisdiction and has exercised the jurisdiction as if the Tribunal was exercising the appellate power against the order passed by the High Court, which is not permissible at all and which cannot be tolerated. Thus, the tribunal has acted absolutely without jurisdiction and exercised the jurisdiction and powers not vested in it. Once the order passed by the competent authority was confirmed by this Court it is not understood how and / or it is not appreciable how the Tribunal subsequently can set aside the order passed by the competent authority, which was confirmed by this Court. Thus, the impugned judgment and order passed by the Tribunal is without jurisdiction, which cannot be sustained and which deserves to be quashed and set aside.
9. As stated herein above, against the order passed by the competent authority dated 10.9.1982 an appeal under Section 33 of the Act was preferred by the original land holder before the Tribunal and the same was dismissed on merits and the order passed by the competent authority was confirmed and therefore, as held by the Division Bench of this Court in Letters Patent Appeal No.844 of 201, such a second appeal even by the heirs of the original land holder is not maintainable. Before the Division Bench also earlier appeal under Section 33 of the Act was dismissed at the instance of the original land holder and subsequently the heirs of the original land holder preferred an appeal under Section 33 of the Act and the Hon'ble Division SPECIAL CIVIL APPLICATION/6652/1999 19/06/2015 02:56:53 AM SCA/6652/1999 13/14 JUDGMENT Bench observed that the said second appeal is not maintainable. Under the circumstance also, impugned judgment and order passed by the Tribunal is without jurisdiction as the said appeal was not maintainable.
10. From the facts narrated herein above i.e. preferring an appeal on 22.3.1999 after a period of 17 years challenging the original order passed by the competent authority dated 10.9.1982; to condone the delay of 17 years without any notice and/ or affording any opportunity being heard to the petitioner and/ or competent authority; though the hearing was fixed on 30.3.1999 the same was preponed at the instance of the power of attorney holder of the respondent and to file the written submission on 26.3.1999 and finally deciding and disposing of the appeal on that day itself without any notice and/ or affording any opportunity to the petitioner and/ or competent authority, it appears that the Tribunal was in haste and/ or in hurry in deciding the said appeal probably considering the fact that the State Government was to adopt the ULC Repeal Act on and from 30.3.1999. Such haste and / or hurry is not appreciable at all and it speaks volumes about the bonafide of the respondent. It is to be noted that approximately in more than 100 cases such type of orders have been passed by the Tribunal on the said date when ULC Act was to be repealed on and from 30.3.1999 and the orders are passed by the Tribunal in appeals which were filed after 15 to 17 years and that too without giving any opportunity to the State and/ or competent authority. Each and every matters where such orders are challenged, such conduct is deprecated. In the present case, as stated hereinabove, even the Tribunal has shown audacity to quash and set aside the order SPECIAL CIVIL APPLICATION/6652/1999 19/06/2015 02:56:53 AM SCA/6652/1999 14/14 JUDGMENT passed by the competent authority dated 10.9.1982 which was confirmed by this Court.
11. In view of the above and for the reasons state above, petition succeeds. The impugned judgment and order passed by the Urban Land Tribunal dated 26.3.1999 passed in Appeal No. Rajkot 17 of 1999 is hereby quashed and set aside with exemplary cost which is quantified at Rs.10,000/ which the respondent is directed to deposit with the Registry of this Court on or before 31.12.2010. On such deposit, Registry is directed to transmit the same to the High Court Legal Services Committee. Rule is made absolute to the aforesaid extent.
(M.R.SHAH, J.) kaushik SPECIAL CIVIL APPLICATION/6652/1999 19/06/2015 02:56:53 AM