Competent Authority And Addl Collector And Others

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2820 of 1999 With SPECIAL CIVIL APPLICATION No. 3178 of 1999 For Approval and Signature:

HONOURABLE MR.JUSTICE PARESH UPADHYAY =========================================

========================================= MADHUBEN D/O MANUBHAI SOMABHAI Versus COMPETENT AUTHORITY AND ADDL COLLECTOR AND OTHERS ========================================= Appearance :

Special Civil Application No.2820 of 1999

MR M.C.BHATT for the Petitioner MR K. L. PANDYA ASST. GOVERNMENT PLEADER for the Respondent Nos.1­3 RULE SERVED BY DS for the Respondent No.4

Special Civil Application No.3178 of 1999

MR DHARMESH V. SHAH for the Petitioner MR K. L. PANDYA ASST. GOVERNMENT PLEADER for the Respondent Nos.1­3 RULE SERVED BY DS for the Respondent No.4 =========================================

CORAM : HONOURABLE MR.JUSTICE PARESH UPADHYAY

Date : 09/11/2012 CAV JUDGMENT

1. By these two petitions, the daughter and mother have challenged the order passed by the Urban Land Tribunal dated 29.04.1998. The daughter has filed Special Civil Application No.2820 of 1999 and the mother has filed Special Civil Application No.3178 of 1999. In the petition of the daughter, challenge is also made to the order passed by the competent authority dated 14.06.1986 and 22.04.1993. The mother, named Babliben widow of Manubhai Somabhai has filed petition being Special Civil Application No.3178 of 1999 on 26.04.1999 challenging the orders dated 22.04.1993 and 29.04.1998 and not the order dated 16.04.1986, since that round was already over by her, reference to which is made hereinafter.

2. So far the challenge to the orders of the year 1986 and 1993 is concerned, even according to petitioner­daughter, it would be hopelessly time barred and therefore, the same is sought to be explained by contending as under.

“6. The petitioner periodically inquired from the Respondent No.4 (the mother) regarding the exact state of affairs and status of the proceedings under the Urban Land Ceiling Act in respect of the lands inherited by the petitioner alongwith the Respondent No.4. For the reasons best known to the Respondent No.4, the Respondent No.4 always stated that proceedings was pending and on finalisation of the proceeding she will agree for the partition of the properties by mutes and bounds. Respondent No.4 is also an illiterate lady belonging to the lower class of the society. Traditionally the petitioner belongs to Gardner family. It appears that respondent No.4 has also be made victim of misrepresentation and some fraud practised upon her. It has so appears she did not intend to ultimately permit the petitioner to have her 1/2 share by the property left by Manubhai Somabhai. Therefore, she kept the petitioner in darkness regarding the actual status and state of affairs of ULC Proceedings in respect of the disputed land. On account of some customary social function, petitioner had gone to village Dandeshwar and she saw that near the disputed property, various housing schemes were implemented and there were boards affixed on various lands which were agricultural lands situated in the nearby vicinity of the disputed land. In these circumstances, she insisted and pressed her mother in respect of the actual state of affairs of the proceedings under ULC Act in respect of disputed land. This happened on or about 5­4­ 99. Initially Respondent No.4 did not respond property, therefore, petitioner had no alternative but she requested the near relatives and leaders of village community to impress upon respondent NO.4 in respect of the petitioner;s right in the property and the petitioner’s justification of the demand to know about the exact status of the ULC Proceedings in respect of the disputed land. Ultimately she agreed to disclose the information. She went to her lawyer and brought the file and in pursuance of petitioner’s request she provided with the copies of the ULC proceedings. Thereafter the petitioner immediately obtained legal advice and she came to know that the proceeding reached up to the stage of appeal before the Urban Land Tribunal. In these circumstances the petitioner is constrained to file this special civil application at this stage. Therefore, this is a fit case for condonation of delay if any, occurred in filing this special civil application.

All facts in respect of the Urban Land Ceiling proceedings are collected by the petitioner from the zerox copies provided by the Respondent No.4 on or about 5­4­99.”

Be it noted that, these petitions came to be filed in April, 1999, simultaneously to the repeal of the Act.

3. Before the petition filed by the daughter came to be admitted, the question of vires of some provision of the Urban Land Ceiling Act was also raised by her, by way of amendment in the petition and that is how the matter came to be placed before the Division Bench, and with the notice to Attorney General, petition came to be admitted. The petition was pitched that high, being matter relating to constitutional validity of some provision of Central Act, that the question of delay on facts, was not gone into. The question of vires was addressed separately by the Division Bench and that aspect has no relevance at this stage and these petitions are to be addressed and decided on its merits and facts. The mother, named Babliben widow of Manubhai Somabhai, as noted above, also filed petition being Special Civil Application No.3178 of 1999 on 26.04.1999 challenging the orders dated 22.04.1993 and 29.04.1998 and not the order dated 16.04.1986, since that round was already over qua her. While the question of admission of this petition i.e. Special Civil Application No.3178 of 1999 cropped up, as is evident from the order dated 17.10.2001, this petition was admitted only on the ground that petition filed by the daughter being Special Civil Application No.2820 of 1999 was admitted. Thus, not because matters required consideration therefore these two matters were admitted but both the matters came to be admitted in the circumstances mentioned hereinabove. It is these matters which are taken up for final hearing.

4. Heard Mr.M.C.Bhatt and Mr.Dharmesh V. Shah, learned advocates for the petitioners and Mr.K.L.Pandya, learned Assistant Government Pleader for the State authorities.

5. Learned counsel for the petitioner Mr.M.C.Bhatt has mainly contended that the petitioner of Special Civil Application No.2820 of 1999, the daughter was not heard and therefore the proceedings qua her stand vitiated and therefore interference is required. This contention of learned counsel for the petitioner needs to be rejected because the inter­se dispute of the daughter and mother is sought to be taken advantage of. The averments of petitioner in Special Civil Application No.2820 of 1999 in para:6 which are referred hereinabove clearly comes in her way. Further in the said petition, the mother is party respondent and there is no denial to above averments. Thus, it is an undisputed position that the property dispute between the mother and the daughter is sought to be resolved at the cost of Government, the public at large. Secondly, the challenge to the original order dated 16.04.1986 has already attained finality since it was challenged by the mother. The said challenge was rejected and the same is not carried further. Thus, the mother is estopped from challenging the order dated 16.04.1986 which she has rightly not challenged in petition being Special Civil Application No.3178 of 1999 and in absence of challenge to that original order, the subsequent challenge, even if appears to be with some substance, would be, in effect, meaningless to the parties. To come out of this difficulty, proceedings at the hands of daughter are taken out being Special Civil Application No.2820 of 1999 and attempt is made to make challenge to the order dated 16.04.1986 maintainable. Be it noted that, even on the face of the averments in para:6 in the petition filed by daughter, the approach of the mother and daughter before this Court is not like opponents but is like supporting respondents to each other. Conveniently the mother and daughter are contesting that petition jointly against Government and for inconvenient queries they project themselves to be against each other. Both the petitions in these set of circumstances need to be rejected.

6. So far as challenge to the action of the government of declaring excess vacant land is concerned, there cannot be any dispute that the petitioners were not entitled to retain the land above 1500 square meters. It continues to be so even after the impugned order. When the first order came to be passed on 16.04.1986, at that time, the petitioners had exemption of agricultural land in their favour, for one parcel of land, and therefore the said land was not taken into consideration by the authorities. Excluding that part, order was passed by the competent authority on 16.04.1986, the same was challenged by the mother and the same stood confirmed by the order dated 25.04.1996 as reflected in the affidavit­in­reply. Be it noted that, when the order dated 25.04.1996 confirming the order dated 16.04.1986 was passed, the second order dated 22.04.1993 was already there and the same was challenged as late as on 17.01.1998 before the Tribunal. If the merits of the order dated 22.04.1993 is seen, the same was in effect the sponsored order by the petitioner herself, since on her behalf, option was given that the land on which construction is already there, be declared as surplus land and the land which was open land be permitted to be retained by her. Error, or may be a manipulation by the officer, can not be permitted to frustrate the interest of the Government. Order dated 22.01.1993 was to an extent unworkable order. Since the land, on which construction had already taken place was, at the instance of the petitioner, was permitted to be taken over by the Government and the open land was opted to be with the petitioner. The said order was permitted to be continued on paper and when the ULC Act was about to be repealed, the same was challenged before the Tribunal which the Tribunal has set right. It is under these circumstances that now the daughter and mother both have approached this Court by taking different, convenient and competing stands before this Court.

7. On over all consideration, this Court finds that the challenge by none of these two petitioners, is genuine nor is tenable in the eyes of law and hence the same is required to be dismissed. Both the petitions, for the above recorded reasons, need to be dismissed.

8. Learned counsel for the petitioners has relied on the judgment of Hon’ble Supreme Court of India in the case of Vinayak Kashinath Shilkar vs. Dy. Collector and Competent Authority and others (2012 STPL (Web) 165 SC) to contend that the land, the possession of which is not taken by the authorities, can now not be taken. This aspect is dealt with in detail on behalf of the authorities in the affidavit­in­reply 30.03.2000 which is on record. From the said affidavit­in­reply, it is clear that the mischief which was sought to be played on behalf of the petitioners, in connivance with the officer, is set right by the authorities in the interest of the Government and in these peculiar circumstances, the reliance placed by learned counsel for the petitioner on the above referred judgment, in my view, will not take the case of the petitioner any further.

9. Considering the totality of the facts, there is no merit in any of these petitions. Both petitions are required to be dismissed and are dismissed. Rule is discharged. No order as to costs.

(Paresh Upadhyay, J.)

10. At this stage, learned counsel for the petitioners prayed that the interim protection in favour of the petitioners be continued for some reasonable time so that the petitioners can approach the higher forum. From record, I do not find any interim protection, however, with a view to see that, challenge if any made to this order, remains meaningful to the petitioners, the interim protection if any operating in favour of petitioners, is ordered to be continued for a further period of 12 weeks from today.

Amit (Paresh Upadhyay, J.)