(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 By way of this Appeal under Clause-15 of the Letters Patent, the original respondent has challenged the judgment and order dated 18th August, 2010, passed by the learned Single Judge in Special Civil Application No. 4991 of 1999. By the judgment and order, the learned Single Judge has allowed the said petition filed by the present respondent i.e. State of Gujarat who challenged the Order dated 26.3.1999 passed by the Tribunal constituted under Section-12 of the Urban Land (Ceiling and Regulation) Act, 1976. By the said order dated 26.3.1999, the Tribunal has allowed the appeal filed by the appellant challenging the decision dated 11.8.1982 of the Competent Authority passed under Section-8(4) of the ULC Act which was challenged after 17 years of delay and allowing the appeal on the same day on which the appeal was filed and without hearing other side.
2 The facts in nutshell of filing the present appeal is that the father of the appellant - original respondent was the owner of 2200.06 sq. meters of land, who filled in the Form No.1 under Section-6 of the ULC Act and the same was processed by the Competent Authority and Competent Authority by order dated 11.8.1982 declared 700 sq. meters of land as excess vacant land and the final statement under Section-9 of the ULC Act came to be issued. No objections were raised by the appellant to the draft statement and only thereafter final statement under Section-9 of the ULC Act came to be issued declaring 700 sq. meters of land as excess and vacant land. Thereafter, further proceedings under Section-10 of the ULC Act came to be proceeded and thereafter final notice under Section-10(5) of the ULC Act was issued on 15.3.1984 and the same was also intimated on 21.8.1986 and thereafter possession of the disputed land in question was taken over by the Competent Authority on 16.9.1986 by drawing the panchnama. No objections, at any point of time, was taken/raised by the original owners. Thereafter, Notification under Section 10(6) came to be issued and, thereafter, after a period of 17 years, the Competent Authority by passing the order declared 700 sq. meters of land as excess vacant land, the appellant herein, who is son of the original law owner, filed an appeal before the Urban Land Tribunal on 26.3.1999, being Appeal No. Rajkot 19 of 1999 and on the very day on which the appeal was filed and without issuing any notice to the Competent Authority, the Tribunal by judgment and order dated 26.3.1999 allowed the said appeal by quashing and setting aside the order passed by the Competent Authority in the year 1982 and remanded the matter to the Competent Authority by holding that the land in question was HUF property, which was not even the case of the original owner i.e. father of the present appellant.
3 It was argued by Mr. Vimal M. Patel, learned Advocate, appearing for the appellant that when the Tribunal has quashed and set aside the order passed in 1982 by the Competent Authority on 26.3.1999 and when the matter was remanded to the Competent Authority for deciding the case afresh, the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act 15 of 1999) would be applicable in the present case. It was further argued that as per Section-4 of the Repeal Act, since no order was in existence and when the case was remanded, it is to be treated as a case pending before the authority and, therefore, proceedings pending before the Competent Authority shall abate in favour of the appellant and whatever actions undertaken by the Competent Authority under the Act shall be treated as non-existant. The learned Single Judge, therefore, ought to have dismissed the petition on the ground that the proceedings have been abated against the appellant and prayed that the appeal be allowed and the judgment and order passed by the learned Single be set aside.
4 On the other hand, learned AGP Ms. Jirga Jhaveri, appearing for the respondent - State of Gujarat has submitted that the learned Single Judge has rightly quashed and set aside the order passed by the Tribunal on the ground of breach of principle of natural justice. She has further submitted that the learned Single Judge has rightly observed that the conduct of the Tribunal raises serious doubts when it decided the appeal on the same day on which it was filed and without issuing any notice to the other side. The Tribunal has not assigned any reason for condoning the delay of 17 years in preferring the appeal before it. She has further submitted that the impugned judgment and order passed by the Tribunal cannot be sustained as the same is in breach of principles of natural justice. It is submitted that even the conduct of the Tribunal in entertaining the appeal on 26.3.1999 which was preferred after a period of 17 years and to dispose of and allow the same on the very same date i.e. on 26.3.1999 itself is questionable and it creates doubt and lacks bona fide. It is further submitted that before passing the judgment and order, the Tribunal, ought to have issued notice to the State Government and/or Competent Authority. It is strange that, the day on which the appeal came to be preferred, straightway the Tribunal entertained the appeal which was filed after a period of 17 years and quashed and set aside the order passed by the Competent Authority and remanded the matter to the Competent Authority. Lastly, it is submitted that no interference in the judgment and order passed by the learned Single is warranted and the appeal may kindly be dismissed.
5 We have heard learned Advocate Mr. Vimal M. Patel for the appellant and Ms. Jirga Jhaveri, learned AGP for the respondent - State. We are in full agreement with the observations made by the learned Single Judge in the judgment and order dated 18.8.2010. The observations made by the learned Single Judge in Paras 5 to 9 of the said judgment and order are relevant for the purpose of deciding the present appeal, the same are reproduced hereunder:
"5. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that it was the father of the respondent herein who filled in the form /declaration under Section 6 of the Act declaring him to be the owner of the land in question. That the declaration / form filled in by the father of the respondent came to be processed by the competent authority under the ULC Act and the competent authority by order dated 11.8.1982 declared 700 sq.mtrs. of land as excess vacant land and final statement under Section 9 of the Act came to be issued. That no objections was raised by the original land owner to the draft statement and only thereafter final statement under Section 9 of the Act came to be issued declaring 700 sq.mtrs. of land as excess vacant land. Father of the respondent-original declarant did not prefer any appeal against the order passed by the competent authority dated 11.8.1982 declaring 700 sq.mtrs. of land as excess vacant land. Meaning thereby he was not aggrieved by the decision of the competent authority declaring 700 sq.mtrs. of land as excess vacant land. It appears that thereafter, further proceedings under Section 10 of the Act came to be proceeded further and final notice under Section 10(5) of the Act was issued on 15.3.1984 and the same was further intimated on 21.8.1986 and thereafter the possession of the disputed land in question was taken over by the competent authority on 16.9.1986 by drawing panchnama. It appears that no objection at any point of time was taken / raised by the original land owner-declarant. That thereafter, notification under Section 10(6) of the Act came to be issued and land in question vested in the State Government absolutely free from all encumbrances. That thereafter, after a period of 17 years, son of the original declarant i.e. respondent herein preferred an appeal before the Urban Land Tribunal under Section 33 of the Act on 26.3.1999, challenging the original order passed by the competent authority dated 11.8.1982 declaring 700 sq.mtrs. of land as excess vacant land and on the very day on which the appeal was filed and without issuing any notice to the competent authority or State Government, the Tribunal entertained the appeal; condoned the delay of 17 years and passed the impugned judgment and order dated 26.3.1999 and allowed the said appeal by quashing and setting aside the order passed by the competent authority passed in the year 1982 and remanded the matter to the competent authority by holding that the land in question was HUF property, which was not even the case of the original land owner i.e. father of the respondent. The impugned judgment and order passed by the Tribunal is ex-facie illegal and in breach and in violation of principles of natural justice, which deserves to be quashed and set aside.
6. It is to be noted that admittedly there was a delay of 17 years in preferring the appeal and the Tribunal entertained the said appeal and condoned the delay of 17 years by observing in one line that in the interest of justice the appeal is entertained by treating the same as within period of limitation. No other reasons have been given by the Tribunal. Identical question came to be considered by the Division Bench of this Court in Letters Patent Appeal No. 844 of 2010 and other allied appeals and similar /identical order passed by the ULT in condoning the delay of 16 years without giving any further reasons, came to be considered and the Division Bench on the aforesaid aspect of delay has observed and held as under:
"7.2 Indisputably, the appeal in question i.e. the appeal No.54 of 1998 was filed after inordinate delay of 16 years and that the appeal was devoid of any satisfactory explanation regarding the cause for such gross delay and the appellants had failed to make out any satisfactory cause for condonation of delay. It was obligatory for the tribunal to satisfy itself, in the first instance, about the sufficiency of the cause and then to record reasons about its satisfaction. However, in the present case there is conspicuous absence of both.
8. In this context, we may recall the relevant dates. The order impugned before the ULC tribunal in the appeal in question i.e. the Appeal No.54 of 1998, was passed by the competent authority on 25th October, 1982. As per Section 33 the appeal against the order of competent authority should be filed within 30 days whereas, in present case, the appeal in question (i.e. the appeal No.54 of 1998) came to be filed in 1998 i.e. after 16 years. Thus, indisputably, there was gross delay of 16 years when the appeal was filed.
8.1 Thus, it was necessary for the ULC tribunal to ascertain, in the first instance as to whether the appellant had put forward any explanation regarding the cause for delay and whether the explanation, if any, would constitute "sufficient cause" which explained the length of delay to the satisfaction of the ULC tribunal. The reason or the cause urged to explain the delay ought to be "sufficient" to satisfy the Court/tribunal about its genuineness and bonafides. When the law requires that the delay may be condoned upon being satisfied that the appellant was prevented by sufficient cause from filing the appeal in time, then it follows that the original Court or authority (the learned ULC tribunal in present case) condoning delay should record reasons.
8.2 In present case, the learned Single Judge has held that ULC tribunal has ignored the delay. The learned Single Judge has also recorded that the decision of the ULC tribunal is hit by the error of non-application of mind.
9. We do not see any reason to differ from the said conclusion of the learned Single Judge. We also could not find any material from the record or any reason coming out of the pleadings which could demonstrate any error in the conclusion of the learned Single Judge and/or which could convince us to take any different view. The learned counsel has also not been able to demonstrate that the appellants had tendered satisfactory explanation making out sufficient cause which was duly taken into consideration by the ULC tribunal and thereby the tribunal was satisfied, about the cause and explanation and had only thereafter considered it appropriate and just to condone the delay. Nothing to this effect emerges from the record. The said appeal was, therefore, barred by limitation.
9.1 It is necessary to note that before the ULC tribunal no explanation regarding the cause for delay, except stating that the order dated 25th October, 1982 by the competent authority is nullity hence the appeal against the nullity order may be entertained in spite of delay, was given. The learned ULC tribunal did not consider it necessary to even discuss the issue and/or to record reasons for its decision. Actually, strictly speaking the impugned order does not contain any "decision" condoning delay. There is virtually no discussion and/or reasons recorded by the ULC tribunal, on the point of delay and condonation and/or about other side's objection or that sufficiency of cause and its satisfaction, etc. 9.2 The ULC tribunal has merely recorded the appellants' submission and then without recording any reasons, much less the reasons disclosing satisfaction, the learned ULC tribunal has simply observed that "in view of the submission that order of the competent authority is nullity it is appropriate to entertain and decide the appeal". This can hardly to be said a reasoned order. It also does not reveal application of mind. The learned ULC tribunal has simply ignored the delay, though inordinate and gross. No decision to condone the delay and/or reason for such decision are recorded.
9.3 Such order cannot be sustained, more so when there is gross delay of 16 years. The learned Single Judge has, on this count, rightly not approved the approach of the learned ULC tribunal and has rightly held the appeal in question (i.e. another appeal being Appeal No.54 of 1998) as barred by time-limitation".
7. Considering the facts of the case on hand and also the impugned judgment and order passed by the Tribunal in entertaining the appeal after period of 17 years and that too without any sufficient cause being shown by the respondent and when the Tribunal has not assigned any reasons, the impugned judgment and order cannot be sustained. Except in one line that in the interest of justice the appeal is treated to be within a period of limitation, nothing has been further considered by the Tribunal. Under the circumstances, considering the aforesaid observations of the Division Bench, it can be said that "there is no decision" by the Tribunal to condone the huge delay of 17 years. It is to be noted and as observed hereinabove that the impugned judgment and order has been passed without any notice to the competent authority and/ or State Government and without giving any opportunity to the petitioner
-State Government.
8. Even otherwise, the Tribunal has materially erred in entertaining the appeal preferred by the respondent herein i.e. son of the original declarant, when the original declarant accepted the order passed by the competent authority dated 11.8.1982 declaring 700 sq.mtrs. of land as excess vacant land and he did not challenge the same by way of appeal under Section 33 of the Act. It appears that Tribunal entertained the appeal preferred by the respondent herein i.e. son of the original declarant by treating the land in question as HUF property however it was not even case of the original declarant that the property in question was ancestral joint family property. Under the circumstances, the impugned judgment and order passed by the Tribunal cannot be sustained.
9. Even conduct on the part of the Tribunal in entertaining the appeal after a period of 17 years i.e. on 26.3.1999 and condoning the delay of 17 years on very day and finally allowing the appeal and disposing the appeal on the very day i.e. 26.3.1999 is not appreciable and it creates doubt and it lacks bona fide. As stated above, appeal was preferred on 26.3.1999 it was entertained on 26.3.1999; delay of 17 years came to be condoned on 26.3.1999 and without any notice and without giving opportunity to the State Government and/ or competent authority, the Tribunal finally disposed of the appeal and allowed the same on 26.3.1999 itself when the ULC Act was to be repealed on and from 30.3.1999 so far as State of Gujarat is concerned and when the President already given ascent to the repeal of ULC Act, 1976 on 26.3.1999. The aforesaid creates doubt and the impugned judgment and order passed by the Tribunal is questionable. Under the circumstances, also the impugned judgment and order passed by the Tribunal deserves to be quashed and set aside."
6 We are in full agreement with the observations made by the learned Single Judge who has relied upon a decision of the Division Bench of this Court passed in Letters Patent Appeal No. 844 of 2010.
7 We would like to add that the Tribunal which is constituted under Section-12 of the ULC Act, 1976, is duty bound to follow the procedure prescribed in Section-12 of the ULC Act, 1976. When a very high rank officer of the Government is appointed as a Member of the Tribunal, it is expected that, he shall act in accordance with law. In the present case, the Additional Chief Secretary, Revenue, was holding the charge of the Tribunal, who decided the appeal on the same day without calling upon the other side and remanded the matter without assigning any reasons for condoning the delay of 17 years in preferring the appeal. As per Section 12(5) of the ULC Act, 1976, the Tribunal has to exercise all the powers which a civil court has and follow the same procedure which a civil court follows in deciding appeals against the decree of an original court under the Code of Civil Procedure, 1908 (5 of 1908). In the present case, when there was a delay of 17 years in filing the appeal, the Tribunal ought to have issued notice to the other side before condoning the delay and extending the time in filing the appeal. The Tribunal, instead of following the procedure,has allowed the appeal in absence of other side without issuing notice to them, which is required to be deprecated by this Court.
8 In view of this, the appeal is devoid of any merit and deserves to be dismissed. Hence, the Appeal is dismissed. The judgment and order impugned in the present appeal passed by the learned Single Judge is confirmed. No order as to costs.
9 In view of the order passed in Appeal, Civil Application No. 6829 of 2011 stands disposed of as dismissed.
(V.M. SAHAI, J.) (A.J. DESAI, J.) pnnair Top