(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal arises from the order dated 26.8.2010 passed by the learned Single Judge of this Court in Special Civil Application No.4988 of 1999, whereby the petition of the State is allowed and the order of the ULC Tribunal is set aside with the cost of Rs.10,000/-.
2. Heard Mr.Mihir Joshi, learned Counsel appearing with Mr.Tattvam Patel for the appellant, Mr.Rahul Dave, learned AGP for respondent No.1 State and Ms.Trusha Patel, learned Counsel for respondent No.2 representing through legal heirs.
3. The contention raised on behalf of the appellant is that the main petition of the State of Gujarat had abated, since actual possession was not taken over by virtue of the provisions of the Urban Land (Ceiling and Regulations) Repeal Act, 1999 (hereinafter referred to as 'the Repeal Act' for short) and, therefore, it was submitted that the said aspect ought to have been examined by the learned Single Judge. It was also submitted that if the petition had abated of the State, there was no occasion to set aside the order of the Tribunal, which was under challenge in the said petition. Hence, the present appeal.
4. The contention made, prima facie, appears to be with substance, but upon close scrutiny, it appears that it is not a matter where the question arises for actual taking over the possession or otherwise for the first time in a proceedings under the Urban Land (Ceiling and Regulations) Act, 1976 (hereinafter referred to as 'the Act' for short). The facts as recorded by the learned Single Judger in paragraph 5 of the order and the said aspect is not disputed to the extent that the ULC Authority under the Act had passed the order for declaring the land as surplus land as back as on 14.3.1985. Not only that but after the aforesaid order, Notification under Section 10(1) was issued on 28.7.1986, Notification under Section 10(3) was issued on 2.3.1987 and the possession of the land under the Act is stated to have been taken over on 13.5.1987. The pertinent aspect is that the said order of the ULC Authority declaring the land as surplus, was challenged by the legal heirs of the deceased Smt. Sushilaben M. Mehta – the appellants herein and Smt. Shardaben G. Mehta by preferring SCA No.8727 of 1989. It may be recorded that the original land was held by Maganlal Bhagawanbhai Mehta at the appointed day i.e. 17.2.1976, and it was required for him to file declaration and form under Section 6(1) of the Act, but such form was not filed and thereafter on 3.5.1980, Maganlal G. Mehta expired and after his death, the form was filed by Smt. Sushilaben Mehta and Smt. Shardaben Mehta through their power-of-attorney in the year 1981. Therefore, Smt. Sushilaben Mehta and Smt. Shardaben Mehta, both inherited interest in the property and they had filed declaration through their power-of-attorney and the matter was considered before the First ULC Authority. Thereafter, as stated above, the actions were taken under the Act and the land was declared as surplus. By that time it was stated that Sushilaben Mehta expired on 24.1.1983 and the interest came to be represented through her son Dipak Maganlal Mehta and, therefore, Mr.Dipak M.
Mehta and Shardaben, who was alive at that point of time, preferred SCA No.8727 of 1989. The said petition was admitted and it came to be disposed of vide order dated 11.10.1995 and the learned Single Judge of this Court in the said petition found that as the land was held by the deceased Maganlal Bhagawanbhai Mehta on the appointed day and as one unit was available, which has been granted by the First ULC Authority, no useful purpose would be served in entertaining the petition. The pertinent aspect is that prior to the filing of the petition in the year 1989 the possession of the land as per the ULC Authority was taken over, but such contention though was available, was not raised on behalf of the petitioner therein by showing the Court that the actual possession was not taken over and, therefore, it is not a matter where no useful purpose would be served. Once the Court having found that no useful purpose would be served, since there is no prejudice, such contention of actual possession or prejudice, as may be caused on account of the actual possession is deemed to have been concluded. Another aspect is that after the order of the learned Single Judge in SCA No.8227 of 1989, the petitioners therein have accepted the order and have not challenged the order of the learned Single Judge before the higher Forum even by contending that the prejudice is caused to them, since no actual possession was taken over. It is an admitted position that the judgement and order of the learned Single Judge, dismissing SCA No.8727 of 1989 and upholding the order of the ULC Authority, is not carried before the higher forum and the judgement of this Court operated against Mr.Dipak M. Mehta – appellant herein being successor of Smt. Sushilaben Mehta and Smt. Shardaben G. Mehta – respondent No.2 herein, who is represented now through her legal heirs, since she has been stated to have expired thereafter. The matter under Act could be said to have been concluded after the judgement of this Court dated 11.10.1995.
5. Surprisingly, against the very order of the First ULC Authority, which was the subject matter of SCA No.8727 of 1989, the appellant and Shardaben M. Mehta, after a period of about 14 years preferred Appeal before the ULC Tribunal and the ULC Tribunal within three days, without proper notice to the competent Authority, allowed the appeal on 24.3.1999 and quashed and set aside the order of the first ULC Authority. The factum of this Court having confirmed the order in SCA No.8727 of 1989 was neither disclosed, nor referred to by the Tribunal in the impugned order.
6. The aforesaid order of the Tribunal came to be challenged in SCA before the learned Single Judge by the State Government. The aforesaid fact clearly goes to show that neither the Tribunal had any authority or competence to examine the legality and validity of the order of the First ULC Authority, which was confirmed by this Court in the earlier proceedings of SCA No.8727 of 1989, nor the Tribunal could entertain such appeal after a period of 14 years and exercise the power in such a hot haste, without giving proper opportunity to the competent authority. When the question of actual possession was deemed to have been concluded by virtue of the judgement of this Court in SCA No.8727 of 1989, the contention that the learned single Judge ought not to have examined the matter on merit of the order of the Tribunal and ought to have held that the petition had abated, in our view, is not only without substance, but rather could be said as misconceived. As observed earlier, when the Tribunal had no jurisdiction or authority or competence to set aside the order of the first ULC Authority, which has been confirmed by this Court, the order of the Tribunal itself could not be termed as operated. The aforesaid aspect is coupled with the circumstances that the challenge was brought before the Tribunal after a period of 14 years and the Tribunal without giving proper opportunity to the competent authority under the Act allowed the appeal within three days in hot haste. In our view, the learned Single Judge has rightly considered the said aspect. It is not a matter where the Court had an occasion to examine the aspect of actual possession taken over or not, but was rather a matter where the possession as per the ULC Authority was taken over, and the challenge to the action for declaration of the land as surplus land came to be considered by this Court and at the relevant point of time, no grievance was raised on behalf of the petitioner therein – appellant and the respondent No.2 herein and this Court ultimately had found that the prejudice is not caused, since one unit was available and the same is permitted.
7. In our view, the appeal itself before the Tribunal was not only incompetent, but could also be said as misuse of process of law, for which there was no authority with the Tribunal and such process was initiated by the appellant and respondent No.2 herein. Even as on today, the affidavit filed in SCA No.4988 of 1999 on behalf of respondent therein is that the possession has not been taken over in accordance with law, for which the aspects stood concluded by the principles of constructive res judicata when this Court decided SCA No.8727 of 1989 against which the matter is not carried before the higher forum.
8. The attempt was made by the learned Counsel for the appellant to contend that the proceedings under the Act, including that of declaring the land as surplus land, the subsequent Notification under Section 10(1) and Notification under Section 10(3) and for taking over the possession were against the dead person and, therefore, it could not be said as valid in the eye of law and consequently, the benefit of Repeal Act would be available to the appellant, in our view, is on a non-existent premise in law with misconception, inasmuch as all such facts, including the death of the deceased Sushilaben was very much there before the Court when SCA No.8727 of 1989 was preferred and further more, when the said petition came to be decided by the learned Single Judge on 11th October 1995 and the said order of the learned Single Judge is accepted by the appellant as well as respondent No.2 herein and not carried before the higher forum. Under these circumstances, the contention cannot be accepted.
9. In view of the above, read with the reasons recorded by the learned Single Judge, we find that the appeal is meritless. Hence, no interference is called for. Therefore, dismissed.
(Jayant Patel, J.) (C. L. Soni, J.) vinod