1.00. Present Letters Patent Appeal has been preferred by the appellant herein – original petitioner challenging the legality and validity of the Judgement and Order passed by the learned Single Judge in Special Civil Application No. 12789 of 2000 dtd.19/3/2002, by which the learned Single Judge dismissed the said writ petition preferred by the appellant herein – original petitioner praying for the following main amongst other other reliefs :- “(A) The Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, declaring that the respondents have no right to take possession of the land of the petitioner bearing Survey No.498 of Plot Nos.5 and 6, admeasuring 807.67 sq.mtrs.
(B) The Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to delete the lands of the petitioner bearing Survey No.498 from the register/list which shows that the same is vested with the Government under the Urban Land Ceiling Act.”
2.00. Facts, leading to the Special Civil Application, out of which the present appeal arises, in nutshell, are as under :-
2.01. That the mother of the appellant herein – original petitioner named Smt.Valbai Deshalbhai Ahir filled in form under Section 6 of the Urban Land (Ceiling and Regulation) Ceiling Act, 1976 (hereinafter referred to as “ULC Act” for short) on 14/6/1976 declaring 2307.67 sq.mtrs. of land in her holding. That notice under section 8(1) of the ULC Act, along with the Draft Statement, came to be served upon the original declarant on 6/9/1982 submitting that the original declarant is entitled to 1500 sq.mtrs. and the rest of the land admeasuring 807.67 sq.mtrs. of land is excess vacant land. That the mother of the appellant herein – original petitioner / declarant raised objection in writing on 6/10/1982. That thereafter, after considering the objections, the Competent Authority under the ULC Act passed order dtd.13/10/1983 declaring 807.67 sq.mtrs. of land as excess vacant land in the holding of the mother of the appellant herein – original petitioner / declarant. Therefore, a Final Statement under section 9 of the ULC Act was passed. Being aggrieved by and dissatisfied with the order passed by the Competent Authority (ULC), declaring 807.67 sq.mtrs. of land as excess vacant land, the mother of the appellant herein – original petitioner / declarant preferred appeal under section 33 of the ULC Act before the Urban Land Tribunal, Ahmedabad being Appeal No.Rajkot/164/1983. The said appeal came to be dismissed by the tribunal by order dtd.6/5/1987. Being aggrieved by and dissatisfied with the order passed by the Urban Land Tribunal in Appeal No.164 of 1983 dtd.6/5/1987, mother of the appellant herein – original petitioner / declarant preferred Special Civil Application No. 5344 of 1987 before this Court and the same was admitted. However, subsequently the same came to be withdrawn by the mother of the appellant herein – original declarant unconditionally on 9/12/1997. It appears that in the meantime even the possession of the excess vacant land admeasuring 807.67 sq.mtrs. of land bearing Survey No.498 of Plot Nos.5 and 6, admeasuring 585.20 sq.mtrs. and 222.38 sq.mtrs.
respectively, of Rajkot were taken over by the State Government by drawing Panchnama on 19/8/1987. That even prior thereto Notification under section 10(5) of the ULC Act was published by the competent authority and served upon the original declarant on 4.7.1987 / 10.7.1987 and only thereafter possession was taken over by the State Government by issuing Notification under section 10(6) of the Act. Therefore, on and from 19/8/1987, the excess vacant land actually vested in the State Government free from all encumbrances. It appears that thereafter and during the pendency of the aforesaid Special Civil Application No. 5344 of 1987 preferred by Valbai, brother of the appellant herein – original petitioner and son of the original declarant – Smt.Valbai named Naranbhgai Deshalbhai Jalu preferred appeal under section 33 of the ULC Act before the Urban Land Tribunal being Appeal No.Rajkot/35/1994 challenging the order passed by the Competent Authority (ULC) dtd.13/10/1983 declaring 807.67 sq.mtrs. of land as excess vacant land in the holding of Smt.Valbai, despite the fact that even the order passed by the Competent Authority dtd.30/10/1983 was confirmed by the tribunal in an appeal preferred by Smt.Valbai – original declarant. It was the case on behalf of said Naranbhai that the lands in question were Joint Family Property - HUF property and therefore, he has share, right, title and/or interest in the land which is declared as excess vacant land and therefore, he ought to have been heard. It is required to be noted at this stage that the said appeal was preferred after a period of eleven years from the date of passing of the order passed by the Competent Authority and even after a period of seven years from the date of the dismissal of the appeal preferred by Smt.Valbai – original declarant and after a period of seven years from the date of issuance of Notification under section 10(6) of the ULC Act and taking over possession of the excess vacant land by the State Government. That the tribunal by the Judgement and Order dtd.13/6/1994 allowed the said appeal preferred by Naranbhai and quashed and set aside the order passed by the Competent Authority dtd.13/10/1983. It appears that being aggrieved by and dissatisfied with the Judgement and Order passed by the Urband Land Tribunal in Appeal No.Rajkot/35/1994 preferred by said Naranbhai dtd.13/6/1994, State Government preferred Special Civil Application No. 257 of 1996 before this Court which was admitted. However, despite the fact that the possession of the excess vacant land was already taken over by the State Government and that too even without observing that whether possession of the excess vacant land has been taken over or not, aforesaid Special Civil Application No. 257 of 1996 came to be disposed of as having been abated in view of the repeal of the Urban Land (Ceiling and Regulation) Ceiling Act, 1976. It appears that therefore, the said Naranbhai Desalbhai Jalu did not initiate any further proceedings either for restoration of the possession (which was already taken over by the State Government on 19/8/1987) nor any other proceedings even to delete the entry in the revenue record declaring the land as excess vacant land. That thereafter after the Urban Land Ceiling (Repeal) Act came into force and as the possession of the excess surplus land was already taken over by the State Government and the same was acquired under the ULC Act, the Competent Authority issued notice dtd.29/7/1999 upon the said Smt.Valbai calling upon her to submit her objection, if any, against fixation of the price of the acquired land by the State Government, which according to the appellant herein – original petitioner was served upon her (though the said notice was not issued upon her) and according to the appellant herein – original petitioner she submitted objections on 1/9/1999 submitting that in view of the order passed by the Urban Land Tribunal in appeal preferred by her brother, the land has not vested in the State Government. That thereafter the appellant herein – original petitioner preferred Special Civil Application No. 12789 of 2000 before this Court praying for the aforesaid reliefs. It is required to be noted that in the aforesaid Special Civil Application which was filed in the year 2000, appellant herein – original petitioner submitted and specifically mentioned that against the Judgement and Order passed by the Urban Land Tribunal dtd. 6/5/1987, Smt.Valbai had preferred Special Civil Application No. 5344 of 1987 and interim relief has been granted in the said Special Civil Application. However, the appellant herein – original petitioner did not disclose that as such the said Special Civil Application No. 5344 of 1987 was already withdrawn by the said Smt.Valbai unconditionally in the year 1997. That thereafter the aforesaid Special Civil Application came up for final hearing before the learned Single Judge and the learned Single Judge was of the opinion that there is suppression of material fact by the petitioner by not disclosing that Special Civil Application No. 5344 of 1987 preferred by Smt.Valbai was withdrawn unconditionally and the learned Single Judge considered the said petition on merits also and by the impugned Judgement and Order, the learned Single Judge has dismissed the said Special Civil Application No.12789 of 2000 on the ground of suppression of material facts as well as on merits also.
Being aggrieved by and dissatisfied with the impugned Judgement and Order passed by the learned Single Judge in Special Civil Application No.12789 of 2000 in dismissing the said writ petition, appellant herein – original petitioner has preferred present Letters Patent Appeal.
3.00. Mr.M.K. Vakharia, learned advocate appearing on behalf of the appellant herein – original petitioner has vehemently submitted that the learned Single Judge has materially erred in dismissing the petition and not granting reliefs as prayed for. It is submitted by Mr.Vakharia, learned advocate appearing on behalf of the appellant that as such there was no material suppression on the part of the appellant in not disclosing the withdrawal of the Special Civil Application No.5344 of 1987 preferred by Smt.Valbai and therefore, the learned Single Judge has materially erred in dismissing the petition on the ground of suppression. It is further submitted that even on merits also the learned Single Judge has materially erred in dismissing the Special Civil Application and not granting reliefs as prayed for. It is submitted that as such in the appeal preferred by Naranbhai – s/o Smt.Valbai – original declarant, being Appeal No.Rajkot/35/1994, it was specifically held by the tribunal that the land in question is HUF Property and quashed and set aside the order passed by the competent authority dtd.13/10/1983 and Special Civil Application preferred by the State Government against the order passed by the tribunal in an appeal preferred by Naranbhai came to be disposed of having been abated, the learned Single Judge ought to have granted relief as prayed for by holding that the State Government has no authority to take possession of the disputed land in question which was declared as excess vacant land and in fact entry in the register maintained by the State Government with respect to excess land is required to be deleted.
3.01. Mr.M.K. Vakharia, learned advocate appearing on behalf of the appellant herein – original petitioner has vehemently submitted that on receipt of notice dtd.29/7/1999 appellant herein – original petitioner raised objection on 1/9/1999 and therefore, it is requested to allow the present Letters Patent Appeal by quashing and setting aside the impugned Judgement and Order passed by the learned Single Judge and consequently allow the main Special Civil Application and grant the reliefs as prayed for in the said Special Civil Application.
No other submissions have been made by Mr.M.K. Vakharia, learned advocate appearing on behalf of the appellant herein – original petitioner.
4.00. Present Letters Patent Appeal is opposed by Mr.L.B. Dabhi, learned Assistant Government Pleader. It is submitted that as such, so far as the appellant is concerned, she could not have preferred even Special Civil Application for the reliefs sought in the said writ petition, as she has never challenged the order passed by the competent authority dtd. 13/10/1983 declaring 807.67 sq.mtrs. of land as excess vacant land. In the declaration submitted by her mother, which was confirmed by the tribunal and even Special Civil Application preferred by the said Smt.Valbai came to be withdrawn unconditionally. It is submitted that though the Special Civil Application preferred by the appellant in the year 2000, appellant herein – original petitioner stated in the said petition that Special Civil Application was preferred by Smt.Valbai is pending and the interim relief has been granted. However, it was not disclosed that the said Special Civil Application No. 5344 of 1987, was already withdrawn in the year 1997. it is submitted that therefore, the learned Single Judge has rightly dismissed the said Special Civil Application on the ground of suppression. It is submitted that considering the fact that the competent authority declared land admeasuring 807.67 sq.mtrs. as excess vacant land in the year 1983, against which the original declarant preferred Appeal before the ULT, which came to be dismissed in the year 1987 and in the meantime, State Government took possession of the excess vacant land in the year 1987 itself and therefore, the excess vacant land vested absolutely in the State Government and Special Civil Application preferred by Smt.Valbai against the Judgement and Order passed by the Urban Land Tribunal dismissing the appeal came to be withdrawn unconditionally, the learned Single Judge has rightly dismissed the Special Civil Application on merits by holding that the appellant herein – original petitioner is not entitled to any relief as prayed for. It is submitted that no illegality has been committed by the learned Single Judge in dismissing the Special Civil Application and it is therefore requested to dismiss the present Special Civil Application.
5.00. Heard Mr.M.K. Vakharia, learned advocate appearing on behalf of the appellant herein – original plaintiff and Mr.L.B. Dabhi, learned Assistant Government Pleader appearing on behalf of the State and and Competent Authority.
5.01. At the outset, it is required to be noted that as such declaration under section 6 of the Urban Land Ceiling Act was filled in by the mother of the appellant i.e. Bai Valbai (not the appellant) declaring 2307.67 sq.mtrs. of land in her holding which was processed by the competent authority and by the order dtd. 13/10/1983, the competent authority declared 807.67 sq.mtrs of land as excess vacant land, under the provisions of the ULC Act from her holding. It is also not in dispute that the said Smt.Valbai – original declarant preferred appeal before the Urban Land Tribunal being Appeal No.164 of 1983, which also came to be dismissed by the tribunal in the year 1983, against which the said original declarant preferred Special Civil Application No. 5344 of 1987 before this Court, which came to be withdrawn by Smt.Valbai in the year 1997 unconditionally. It has also come on record that after 807.67 sq.mtrs of land came to be declared as excess vacant land by the Competent Authority, proceedings under the ULC Act were proceeded further, more particularly under section 10 of the ULC Act and even possession of the excess vacant land was taken over in the year 1987 itself, after following procedure under section 10(5) and 10(6) of the ULC Act. Therefore, as such in the year 1987 itself the land in question, which was declared as excess vacant land, vested in the State free from all encumbrances. It appears that thereafter and after the Repeal Act came into force and considering the order passed by the Competent Authority against the original declarant – Smt.Valbai and as the possession of the excess vacant land was taken over by the State Government and even prior thereto there was already entry in the register maintained by the State Government with respect to excess vacant land and and possession of which was taken over by the State Government, said Smt.Valbai was issued notice dtd.29/7/1999 calling upon her to submit her objection, if any, with respect to fixation of the compensation only. It is the case on behalf of the appellant that the said notice was served upon her (though nothing on record) and therefore, she preferred the aforesaid Special Civil Application for appropriate writ, order and/or direction declaring that the State Government has no authority to take over the possession in view of the order passed by the Urban Land Tribunal in appeal preferred by her brother and that entry in the register maintained by the State Government with respect to excess vacant land is to be deleted. It is to be noted that the learned Single Judge has dismissed the aforesaid Special Civil Application on the ground of suppression of material facts and also on merits. Considering the fact that the appellant submitted in the petition that Special Civil Application preferred by Smt.Valbai against the order passed by the tribunal being Special Civil Application No. 5344 of 1987 is admitted and interim relief is granted and it was not mentioned that the said Special Civil Application is already withdrawn, though the Special Civil Application has been preferred in the year 2000. It cannot be said that the learned Single Judge has committed any error and/or illegality in dismissing the petition on the ground of suppression of material facts. The submission on behalf of the learned advocate appearing on behalf of the appellant that the appellant was not aware about the withdrawal of the said petition cannot be accepted. When she could get information with respect to filing of the petition and granting interim relief, she was supposed to know about the withdrawal of the said Special Civil Application.
5.02. Even otherwise the learned Single Judge has not committed any error and/or illegality in dismissing the Special Civil Application on merits and in not granting the reliefs as prayed for by the appellant in the Special Civil Application. As stated above, declaration under section 6 of the Act was submitted by Smt.Valbai and not by the appellant herein – original petitioner and in the declaration submitted by the mother of the appellant, the competent authority declared 807.67 sq.mtrs. of land as excess vacant land in the year 1983 and even the same came to be confirmed by the tribunal in the year 1987 and even Special Civil Application preferred by Smt.Valbai came to be withdrawn by her in the year 1997 unconditionally. As stated above, in the meantime, in the year 1987 itself, State Government took possession of the excess vacant land after following due procedure as required under section 10(5) and 10(6) of the ULC Act and therefore, in the year 1987 itself excess vacant land absolutely vested in the State Government free from all encumbrances. It is to be noted that as such the appellant herein never challenged the order passed by the Competent Authority dtd. 13/10/1983 declaring 807.67 sq.mtrs. of land as excess vacant land nor the order passed by the learned Urban Land Tribunal and/or even Notification under section 10(5) and 10(6) of the ULC Act. In fact the appellant has never claimed that she is in possession of the land in question. Therefore, as such the appellant herein – original petitioner could not have preferred Special Civil Application and prayed the aforesaid reliefs. As such it is to be noted that the appellant herein – original petitioner has claimed reliefs mainly relying upon the order passed by the ULT in an appeal preferred by her brother Naranbhai. However, her brother has not initiated any further proceedings and/or claimed any relief pursuant to the order passed by the tribunal passed in his favour. At the most, he could have initiated proceedings which for the reasons best known to him, has not initiated and presumably apprehending that as the possession of the excess vacant land was already taken over by the State Government in the year 1987 which was not disclosed, he could not have got any relief. It is also required to be noted at this stage that the appellant herein – original petitioner has preferred Special Civil Application submitting that she has been served with the notice dtd.29/7/1999. However, it is required to be noted that the said notice is not with respect to taking over possession which was to be objected by the appellant – original petitioner, but the said notice was with respect to fixation of amount of compensation. It is also required to be noted that the said notice was issued to Smt.Valbai and not the petitioner. In any case, when the appellant herein – original petitioner did not challenge the order passed by the Competent Authority declaring 807.67 sq.mtrs. of land as excess vacant land and even Special Civil Application preferred by Smt.Valbai against the order passed by the Competent Authority and ULC declaring 807.67 sq.mtrs of land as excess vacant land, was withdrawn unconditionally. The appellant herein – original petitioner, who is claiming tobe heir of Smt.Valbai and/or heir of Smt.Valbai and claiming to be member of HUF, cannot ask for the realiefs which are sought more particularly, when the appellant herein – original petitioner has not challenged the order passed by the Competent Authority declaring 807.67 sq.mtrs. of land as excess vacant land which was confirmed by the tribunal. Under the circumstances, the appellant herein – original petitioner is not entitled to the reliefs sought for in the main Special Civil Application. Under the circumstances, no error and / or illegality has been committed by the learned Single Judge in dismissing the Special Civil Application. We are in complete agreement with the view taken by the learned Single Judge in dismissing the Special Civil Application.
6.00. In view of the above and for the reasons stated above, present Letters Patent Appeal fails and the same deserves to be dismissed and is accordingly dismissed. No costs.
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(M.R.SHAH, J.)
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(S.H.VORA, J.) rafik