Gujarat High Court
Natvarlal Devchandbhai Kabrawala vs Competent Authority & Additional ... on 8 August, 2014
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/1570/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1570 of 2012
In
SPECIAL CIVIL APPLICATION NO. 7418 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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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 ?
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NATVARLAL DEVCHANDBHAI KABRAWALA....Appellant(s)
Versus
COMPETENT AUTHORITY & ADDITIONAL COLLECTOR (CORDINATION) &
2....Respondent(s)
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Appearance:
MR D D VYAS, SR. ADVOCATE with Mr. Dhaval Vyas for the Appellant(s) No.
1
MR HARDIK SONI AGP for the Respondent(s) No. 3
Page 1 of 5
C/LPA/1570/2012 JUDGMENT
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 08/08/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. This Letters Patent Appeal is filed against the order dated 26.06.2011 passed by the learned Single Judge of this Court in the captioned petition whereby, the petition was dismissed summarily.
2. Learned Senior Counsel Mr. Vyas appearing on behalf of the petitioner submitted that Devchandbhai Kabarawal, the original owner of the land, viz. father of the petitioner herein, died on 18.12.1984 and alleged possession is taken over on 26.01.1986 though the order of the competent authority dated 18.01.1984 was not challenged by the original owner. Inter se claims are also existing. It is submitted that the petitioner had preferred Special Civil Application No.671 of 1989 before this Court, which came to be dismissed on 27.02.1991. The legal heir - Jekishan had preferred Special Civil Application No.2186 of 1989, which was dismissed on 28.06.2001.
2.1 It is submitted that the authority could not have taken possession since the original owner had died and necessary entry in the revenue record was effected on 25.01.1986 pursuant to the Will. It is further submitted that Notice u/s.10(5) of ULC Act was Page 2 of 5 C/LPA/1570/2012 JUDGMENT never served upon the petitioner though he was in possession of the land. It is, therefore, submitted that since possession was not taken over at relevant time and ULC Act came to be repealed, the action of the respondentauthority is bad in law. However, the learned Single Judge failed to appreciate the above aspects of the case and committed serious error in dismissing the petition.
2.2 In support of his submissions, learned Senior Counsel Mr. Vyas has placed reliance upon a reported decision of Apex Court in the case of State of Uttar Pradesh v. Hari Ram, 2013 (4) SCC 280 wherein, it has been held that the word "may" in S.10(5) and 10(6) of the Act requiring service of notice to the land holder for taking possession is to be read as "shall" and it is mandatory to give notice to take possession of vacant land.
3. Mr. Hardik Soni learned AGP submitted that the issue is prohibited in view of the petition which was preferred earlier in the year 1989. It is submitted that possession was taken over in the year 1986 and it could have been challenged by the petitioner at the relevant time but, the same was not done. Therefore, it is barred by the principle of res judicata. Further, the order passed in SCA No.2186 of 1989 dated 28.06.2001 was also not challenged and therefore, the issue got concluded.
3.1 In support of his submissions, learned AGP placed reliance upon a reported decision of this Court in the case of Gujarat Housing Board, Vadodara v. Kalpeshkumar Naranbhai Patel and others, 2002 (3) GLR 1940, wherein, it has been held that where Page 3 of 5 C/LPA/1570/2012 JUDGMENT appeal u/s.11 of the ULC Act filed by the father against the order of the competent authority was dismissed, then subsequent appeal challenging the same order filed by his wife and sons, who were minor when appeal by father was filed, is barred on the principles analogous to res judicata and subsequent appeal could not have been entertained on the ground that no opportunity was given to the wife and sons.
3.2 Learned APP also placed reliance upon another decision of this Court in the case of Vasantlal Ratilal Jasani v. State of Gujarat reported in 2007 (3) GLR 2706 wherein, it is held that joint owners can be treated to be an association or body of individuals and would fall within the mischief of definition of 'person' u/s.2(i) of the ULC Act and therefore, Notice to one of joint owners would be deemed to be a notice to all and dispossession of one of the joint owners u/s.10(3) would adversely affect the rights of other joint owners.
4. We have heard learned counsel for both the sides and have perused the record of the case. The point which is sought to be agitated here has been raised after almost eleven years of the repeal of ULC Act. At the relevant time, no steps were taken for retaining possession of the land in question and all of a sudden, in the year 2011, the petitioner has woke out of slumber. It is evident from the set of facts that the petitioner is trying to take advantage of the repeal of ULC Act. The petitioner had preferred SCA No.671 of 1989 before this Court against the order dated 24.01.1984 passed by the competent authority and dated 14.12.1988 passed by Page 4 of 5 C/LPA/1570/2012 JUDGMENT the Urban Land Tribunal, which was dismissed vide order dated 27.02.1991. Therefore, the petitioner was very much aware about the entire situation and in our opinion, it is constructive res judicata. The present litigation appears to have been initiated since the prices of lands have sky rocketed.
5. Nevertheless, it will not be appropriate to disturb the position prevailing as on 26.09.1986 after almost 28 years. We are in complete agreement with the reasonings given by and the findings arrived at by the learned single Judge in the impugned order and hence, find no reasons to entertain this appeal. This is a speculative litigation at the instance of the petitioner for which heavy cost is required to be imposed.
6. For the foregoing reasons, the appeal is dismissed with costs quantified at Rs.1.00 Lacs, which shall be paid within a period of 12 weeks, as requested by learned senior counsel Mr. Vyas for the petitioner, failing which the concerned District Collector shall initiate recovery proceedings under the provisions of the Bombay Land Revenue Code. Interim relief granted earlier stands vacated.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) Pravin/* Page 5 of 5