Manchhubhai Hirabhai v. State of Gujarat — 1995 DIGILAW 118 (GUJ)

JUDGMENT : S. K. Keshate, J. This Special Civil Application has come up before us, to resolve an apparent conflict between two decisions of the two different learned single Judges of this Court on the question of the power of the appellate authority hearing appeal under Section 33 of the Urban Land (Ceiling and Regulation) Act, 1976 to modify the conclusion reached by the competent authority as reflected in his judgment appealed against, in the absence of any appeal preferred there against by or on behalf of the State Government or any other competent authority in this regard, on reference made by Hon'ble Mr. Justice A.N. Divecha on reference this matter was ordered to be placed before this Court. 2. Briefly stated the facts of this case move in a narrow compass. The petitioners claimed themselves to be the heirs and legal representatives of one Bai Ambaben d/o Shri. Nathubhai Gordhanbhai are the owners of the lands bearing survey Nos. 10312 and 10313 situated at village (sic) Taluka Choryasi Distt. Surat and H. No. 92 of same village which is a residential house. The areas of survey Nos. 10312, 10313 and house are 7588 sq. mts. 4047 sq. mts. and 101 sq. mts. respectively. The area of the total holdings came to be 11736 sq. mts. Bai Ambaben breathed her last on 25-2-1979, that is, nearly three years after appointed date for the purpose of the Urban Land (Ceiling and Regulation) Act, 1976, (hereinafter referred to as `the Act). She was in occupation of the aforesaid properties within the urban agglomeration area of Surat on the appointed date. She, therefore, filled in the prescribed form under Section 6(1) of the Act, 1976 on death of Bai Ambaben, the petitioners claiming themselves to be her heirs and legal representatives, filed revised return before the competent authority. The respondent No. 2 thereupon prepared a draft statement and caused it to be served to the petitioners as heirs and legal representatives of the said lady, in accordance with the provisions of sections of the Act, 1976. The petitioners filed their objection to the draft statements thereupon the proceedings came to be registered as G.L.C. Case No. 282 of 1982. The petitioners filed their objection to the draft statements thereupon the proceedings came to be registered as G.L.C. Case No. 282 of 1982. After hearing the parties the competent authority, the respondent No. 2, came to the conclusion vide its order dated 18-1-1986, that the holdings of deceased was in excess of the urban land ceiling limits by 5736 sq. mts. 3. The petitioners felt aggrieved of this order carried the matter in appeal before the appellate authority, the respondent No. 3. The appeal filed by the petitioners aforesaid came to be registered as appeal No. Surat/191/37. The respondent No. 3 decided the appeal of the petitioners vide its order dated 28-6-88. The respondent No. 3 has not only affirmed the order of the competent authority but also modified it by holding that the properties held by the petitioners through deceased Bai Ambaben were in excess of the urban land ceiling limits by 10236 sq. mts. 4. The petitioners aggrieved of the orders dated 18-1-1986 of the respondent No. 2 and dated 28-6-88 of the respondent No. 3 filed this petition before this Court under articles 226 and 227 of the Constitution of India. 5. This special civil application has come up for hearing, before the learned single Judge on 8-3-94 and learned counsel for the petitioners relying on the decision of this Court (Goramak G. Shah, J.). In S.C.A. No. 160/50 Pravin Chandra Kikalal Chokshi v. State of Gujarat and other connected matters decided on 20-(sic)-1992 urged that the appellate authority respondent No. 3, under Section 33 of the Act, 1976 has no power to modify the conclusions reached by the competent authority as reflected in its order in the absence of any appeal preferred by the State Govt., or any other competent agency in that regard. 6. As against it reliance has been placed by the opposite side on the decision of this Court (Coram A. P. Ravani, J.) in the case of Nagindas Keshav Lal v. State of Gujarat reported in 1988 (1) Vol. 6. As against it reliance has been placed by the opposite side on the decision of this Court (Coram A. P. Ravani, J.) in the case of Nagindas Keshav Lal v. State of Gujarat reported in 1988 (1) Vol. 29, G.L.R. 558 wherein this Court has taken the view that the appellate authority under Section 33 of the Act, 1976 enjoys the same powers as enjoyed by the State Govt., under Section 34 of the said Act, finding it to be an apparent conflict in these two decisions the matter, as stated earlier, has been referred to the larger bench by the learned single Judge. 7. Learned counsel for the parties at very outset of the hearing of this case made a statement that this Court may decide this writ petition on merits finally instead to restrict its decision on the question of conflict as referred and send the matter to learned single Judge for decision on other questions. The request aforesaid made by the learned counsel for the parties was allowed and both of them were asked to make their all submissions in the case. 8. Heard the learned counsel for the parties. 9. The learned counsel for the petitioners Shri M. I. Hawe (sic) while arguing that the view taken by this Court in the case of Pravin Chandra Kikalal Chokshi (supra) is correct law, has further urged that the order of the appellate authority is otherwise also not sustainable as it has been passed at the back of the petitioners which is prejudicial in nature to them and further entails civil consequences. In support of his submissions the learned counsel for the petitioners placed reliance on the decisions, (i) Cantonment Board, Dinapur v. Taramani Devi, reported in AIR 1992 SC 61 . (ii) Govind Ram Jaih v State of Maharashtra, reported in 1990 (4) SCC 718 and, (iii) M/s. Saraswati, Dyeing and Printing Surat v. Union of India, reported in 1990 (2) GLR 754. 10. On the other hand, Shri K. C. Shah, A.G.P. appearing for the respondents contended that the decision of this Court in the case of Pravinchandra Kikalal Choksi (supra) is a decision per incuriam. 10. On the other hand, Shri K. C. Shah, A.G.P. appearing for the respondents contended that the decision of this Court in the case of Pravinchandra Kikalal Choksi (supra) is a decision per incuriam. The learned Judge while deciding the case Pravin Chandra Kikalal Choksi (supra) has not taken into consideration, the relevant provisions of the Act, 1976 as well as the earlier decision of this Court in the case of Nagindas Keshavlal Mehta (supra). The view taken and law laid down by this Court regarding the powers of the appellate authority under Section 33 of the Act, 1976 is well considered and reasoned decision as it comes out from the reading of the judgment in the case of Nagindas Keshavlal (supra). In support of his submissions Shri Shah placed reliance on the decisons, (i) Oriental Fire and General Insurance Company Ltd. v. Amar Singh Pratap Singh Sikhker, reported in 1993 (1) G.L.R. 270 . (ii) M/s. Saraswati Dyeing and Printing Surat v. Union of India, reported in 1990 (2) GLR 759 . 11. As regards the submission of Shri Haware (sic) violation of principles of natural justice is concerned, Shri Shah A.G.P. vehemently submitted that in the facts and circumstances of this case it is not tenable as at no point of time the petitioners have made a grievance before the appellate authority in this respect. 12. Now we proceed to consider the contentions made by the learned counsel for the parties. 13. The learned single Judge in the case of Nagindas Keshavlal Mehta had given judgment on 24-9-1987. The decision of this Court in the case of Nagindas Keshavlal Mehta (supra) is a reported decision, which was reported way back in year 1988 in report 1988 (1) GLR 558 . Though the decision of this Court in the case of Nagindas (supra) was not only earlier in point of time but was also a reported decision but none of the counsel who appeared in the case of Pravinchandra Kikalal (supra)had brought the same to the notice of the Judge who decided the case of Pravinchandra Kikalal. 14. Though the decision of this Court in the case of Nagindas (supra) was not only earlier in point of time but was also a reported decision but none of the counsel who appeared in the case of Pravinchandra Kikalal (supra)had brought the same to the notice of the Judge who decided the case of Pravinchandra Kikalal. 14. The decision of this Court in the case of Nagindas Kikalal (supra) was not only a relevant decision but was a case in which the point in issue in the case of Pravinchandra Keshavlal (supra) had been in issue therein and same had also been decided after taking into consideration the relevant provisions of the Act, 1976 and the case law. In view of this fact, the decision in the case of Nagindas Keshavlal is a direct decision on the point of law or the question which had arisen and decided in the case of Pravinchandra Kikalal (supra). After going through the decision of the learned single Judge in the case of Pravinchandra Kikalal we find sufficient merits in the submission of Shri Shah A.G.A. appearing for the respondents that the relevant and material provisions of the Act 1976 do not find reference and consideration in the said decision. In these facts and circumstances, the contention of Shri Shah of A. G.A. that the decision in the case of Pravinchandra Kikalal is a judgment per incuriam, is not without any substance and merits. Incuria literally means carelessness In practise per incuriam appears to mean per, ignoratiam. The quotable in law is avoided and ignored if it is rendered in ignoratiam of a statute or other binding authority Reference in this respect may have to the decision of the Apex Court in the case of State of U. P. v. Synthetics and Chemicals Ltd., reported in 1991 (4) SCC 139 . 15. It is necessary to have a look at certain provisions of the Act, 1976. The Act, 1976 has been enacted with a view to prevent concentration of urban land in the hands of a few persons and speculation and profiteering in urban land. The ultimate purpose sought to be served by the Act is to bring out an equitable distribution of land in urban agglomeration so as to subserve the common good. The Act, 1976 has been enacted with a view to prevent concentration of urban land in the hands of a few persons and speculation and profiteering in urban land. The ultimate purpose sought to be served by the Act is to bring out an equitable distribution of land in urban agglomeration so as to subserve the common good. For this purpose, in urban agglomeration area ceiling of holding of vacant land is imposed under the Act, 1976, and further provision for requisition of the land in excess of the ceiling limit is made. There is provision for regulation of construction of buildings on vacant land and such other connected matters. Section 3 of the Act 1976 provides that no person is entitled to hold vacant land in excess of the ceiling limit except otherwise provided under the Act. Section 4 puts ceiling limit in respect of different agglomeration areas. Section 5 provides that transfer of vacant land after the commencement of the Act shall be void if the same is effected otherwise than in accordance with the provisions of the Act. A person who holds vacant land in excess of the ceiling limit, as laid down under Section 3 aforesaid, is required to fill in form under Section 6 of the Act, and after necessary procedure as laid down under the Act is complied with the final order is to be passed by the competent authority under Section 9 and Section 10 provides or makes a provision for acquisition of vacant land in excess of ceiling limit. Section 11 provides for payment of amount for vacant land acquired. Section 12 provides for Constitution of Urban Land Tribunal and appeal to Urban Land Tribunal, and relevant portion thereof reads as under; Section 12(1):- The State Government may, by notification in the Official Gazette constitute one or more urban land Tribunal or Tribunals. Section 12 (5):- In deciding appeals the Tribunal shall 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. The Tribunal so constituted is empowered to hear appeals against orders passed by the competent authority under Section 11(7), determining the amount of compensation to be paid in respect of the land acquired under the Act. The Tribunal so constituted is empowered to hear appeals against orders passed by the competent authority under Section 11(7), determining the amount of compensation to be paid in respect of the land acquired under the Act. Section 13 of the Act provides a second appeal to the High Court against an order passed by the urban land Tribunal under Section 12 of the Act. Under Section 30(2), an appeal is provided to the urban land Tribunal against any order passed by the competent authority under subsection (1) of Section 30 of the Act in respect of demolition, either wholly or partly of any building or with respect to direction for modification of the construction or stopping the same. Section 30 of the Act 1976 reads as follows. Section 30 (2):- Any person aggrieved by an order of the competent authority made under sub-section (1) may prefer an appeal against the order to the Tribunal having jurisdiction over the area in which the building is situated within the period specified in the order of the demolition or modification of the construction to which it relates. Section 30 (4):- The provisions of subsection (5) of Section 12 and of Section 13 shall apply to or in relation to an appeal preferred under sub-section (2) as they apply to or in relation to on appeal preferred under subsection (4) of Section 12. Clause (m) of the Section 2 of the Act defines, Tribunal as under. "Tribunal" means Urban Land Tribunal constituted under Section 12. 16. From the provisions of sub-section (4) of Section 30 it is clear that the powers of the Tribunal while deciding appeal under Section 30 are the same as that of the Tribunal deciding appeal under Section 12 of the Act. Thus, as far as appeals under Section 12 and Section 30 of the Act, 1976 arc concerned, the powers of the Tribunal and the procedure to be followed are the same as that of a Civil Court deciding the appeals against the decree of an original Court under the Civil Procedure Code, 1908. 17. Section 33 of the Act provides for appeals against the orders passed by the competent authority. These orders are the orders other than the orders passed under Sections 11 and 30(1) of the Act which are made appealable under Sections 12 and 30(2) of the said Act. 17. Section 33 of the Act provides for appeals against the orders passed by the competent authority. These orders are the orders other than the orders passed under Sections 11 and 30(1) of the Act which are made appealable under Sections 12 and 30(2) of the said Act. All other orders passed by the competent authority under Sections 10(2), 18, 21,26 and 27 of the Act are appealable under Section 33. The relevant provisions of Section 33 of the Act are as follows :- Section 33 (1):- Any person aggrieved by an order made by the competent authority under this Act, not being an order under Section 11 or an order under sub-section (1) of Section 30, may, within thirty days of the date on which the order is communicated to him, prefer an appeal to such authority as may be prescribed (hereinafter in this section referred to as the appellate authority) Proviso. Section 33 (2) :- On receipt of an appeal under sub-section (1), the appellate authority, shall after giving the appellant an opportunity of being heard pass such orders thereon as it deems fit as expeditiously as possible. Section 34 of the Act provides for revision by the State Government. The Section 34 of the Act reads as follows : Section 34: Revision by State Government The State Government may, on its own motion, call for and examine the records of any order passed or proceedings taken under the provisions of this Act and against which no appeal has been preferred under Section 12 or Section 30 or Section 33 for the purpose of satisfying itself as to the legality or propriety of such order or so as to the regularity of such procedure and pass such order with respect thereto as it may deem fit. Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard in the matter. 18. The revisional powers of the State Govt., are very wide as it would be clear from the reading of the Section 34 of the Act. The Government may under its suo motu powers call for examination of the records of any order passed in proceedings taken under the Act and against which no appeal has been preferred under Section 12, or 30 or 33. The Government may under its suo motu powers call for examination of the records of any order passed in proceedings taken under the Act and against which no appeal has been preferred under Section 12, or 30 or 33. Thus from the reading of the Section 34 of the Act it would be clear that the revisional powers of the State Government are confined to the orders and proceedings taken under the provisions of the Act against which no appeal has been preferred under Sections 12 or 30 or 33 of the Act. The orders passed by the Tribunal hearing the appeals under Sections 12 and 30 and order passed by the appellate authority under Section 33 of the Act are not subject to revisional jurisdiction of the Government. The orders passed by the appellate authority under Section 33 of the Act are made final as provided under Section 33(3) of the Act. Section 33 (3) of the Act is as follows : "Every order passed by the appellate authority under this section shall be final." Thus, it would be clear that the State Government has no revisional powers against the order passed by the appellate authority under Section 33 of the Act. In the background of the provisions of the Act 1976 as aforesaid the phrase "pass such orders as it deems fit" occurring in sub-section (2) of Section 33 of the Act 1976 is required to be interpreted. The phrase as occurred in sub-section (2) of Section 33 of the Act 1976 determines the scope of power of the appellate authority under Section 33 of the Act. The phrase as used by the legislature in sub-section (2) of Section 33 of the Act may be compared with the phrase "pass such order with respect thereto as it may think fit" occurring in Section 34 of the Act. This again determines the scope of revisional power of the Government under Section 34 of this Act. 19. The provisions of Section 33 of the Act, 1976 are not required to be interpreted by having recourse to the provisions of C.P.C. 1908. The Act 1976 with the rules thereunder provides for its own procedure and machinery. The Act 1976 is a piece of legislation which regulates and deals with substantive right of the land holders and it also lays and provides as to how this proceedings under it will be regulated. The Act 1976 with the rules thereunder provides for its own procedure and machinery. The Act 1976 is a piece of legislation which regulates and deals with substantive right of the land holders and it also lays and provides as to how this proceedings under it will be regulated. The Act 1976 or the rules framed thereunder unless specifically provided the provisions of C.P.C. 1908 cannot be invoked while dealing with the matters under the Act, 1976. This very question has come up before this Courts consideration in the case of Shivlal Thakershi Gotecha v. Competent Authority, reported in (1986) 27 (1) GLR 267. In the case of Shiv Lal Thakershi (supra) this Court held that provisions of Civil Procedure Code do not apply to the proceedings of appeal under Section 33 of the Act, 1976. The aforesaid view taken by this Court in the case of Shivlal Thakershi was considered and affirmed by this Court in the case of Nagin Das (supra). Though both the decisions of this Court in the cases of Shivlal Thakershi and Nagin Das are the decisions given by the single Judges but we are in respectful agreement with the aforesaid decisions. From the scheme of the Act, 1976 it is clear that in the Act there are three different provisions, see sections 12(5), 30(2) and 33(2), by which appeal against original order is provided for. Appeals under Section 12(5) and 30(2) of the Act, 1976 are to be filed before the Tribunal constituted under Section 12 of the Act. Section 12(5) in terms provides that the Tribunal shall exercise all the powers of a Civil Court and shall follow the same procedure which a Civil Court follows while deciding appeals against decree of an original Court under the Civil Procedure Code, 1908. The legislature in cases of appeal under Section 33 of the Act, has omitted to apply the same provisions as provided under Section 12(5) of the Act. There is not only conspicuous omission, but legislature has made a distinct provision under Section 33(2) of the Act which empowers the appellate authority to pass such orders thereon as it deems fit, as expeditiously as possible. In view of these provisions we have no hesitation to hold that the provisions of Civil Procedure Code, 1908 do not apply to the proceedings of appeal under Section 33(2) of the Act, 1976. 20. In view of these provisions we have no hesitation to hold that the provisions of Civil Procedure Code, 1908 do not apply to the proceedings of appeal under Section 33(2) of the Act, 1976. 20. When the legislation has deliberately made two separate provisions and has conspicuously omitted to refer to the provisions of C.P.C. while providing for appeals under Section 33 of the Act, the only course left open to the Court is to determine the width of powers of the appellate authority by reading the section itself. 21. In view of the discussion made above, the question is, whether the phrase "pass such orders thereon as it deems fit" as employed in Section 33 (2) of the Act 1976 would also include power to pass order to reverse or modify the order of the competent authority to the interest adverse to the petitioner (person concerned) in the absence of any appeal preferred there against by or on behalf of the State Govt., or any other competent authority in this regard or not ? And also power to remand or not ? 22. In the case of Raja Ram Mahadev Paranjpe v. Abu Maruti Mali, AIR 1962 SC 753 the phrase "as he deems fit" occurring in Section 23(3) of the Bombay Tenancy and Agricultural Lands Act, 1948 came up for consideration, and in para 14 of the Judgment the apex Court has observed as follows :- "The words "as he deems fit" do not bestow a power to make any order on considerations dehors the statute which the authorities consider best according to their notions of justice obviously, this provision has been framed in general terms because it covers variety of cases, namely applications by landlords and tenants in different circumstances, each of which circumstance may call for a different order under the Act." 23. in the case of V. C. Rangadurai v. D. Gopalan, AIR 1979 SC 281 , the apex Court has interpreted the phrase "as it deems fit" occurring in Section 37 of the Advocates Act, 1961 and it is observed by the Court as follows: "Wide as the power may be, the order must be germane to the Act and its purposes and latitude cannot transcend those limits". 24. 24. In the case of Babulal Nagar v. Shree Synthetics Ltd, AIR 1984 SC 1164 , the phrase "as it thinks fit" which occurred in Section 61 of the M. P. Industrial Relations Act came up for consideration before the Supreme Court while interpreting this phrase the Supreme Court has observed as follows :- "The main part of Section 61 clearly spells out the jurisdiction of the Industrial Court to pass any order in reference to the case brought before it as it thinks fit. The expression as it thinks fit confers a very wide jurisdiction enabling it to take an entirely different view on the same set of facts. The expression as it thinks fit has the same connotation as unless context otherwise indicates, as he deems fit." 25. As provided out by the apex Court in aforesaid cases the power of the appellate authority is very wide but this power is subject to (sic) that the order must be germane to the Act and its purposes. The appellate authority cannot pass an order dehors the provisions of the Statute which confers powers upon it. The provision of the Statute which confers power itself determines the limit of its power though couched in a very wide language. As pointed out herein above various types of orders passed by the competent authority are made appealable under the provisions of Section 33 of the Act 1976. The very nature of the orders which are made appealable under Section 33 of the Act 1976 may, in each case, require a different order under the provisions of this Section, and it is this reason that the appellate authority, hearing appeals under Section 33 of the Act 1976 is given wide jurisdiction enabling it to take an entirely different view on the same set of facts, though consistent with the object, purpose and spirit of the Act. 26. From the reading of the scheme of the Act 1976 it is clear that conferment of such wide powers on the appellate authority, hearing appeals under Section 33 of the Act, is in conformity with the spirit and object of the Act 1976. The mischief sought to be prevented by the Act 1976 is the concentration of urban land in the hands or few persons and speculation and profiteering in urban land. The mischief sought to be prevented by the Act 1976 is the concentration of urban land in the hands or few persons and speculation and profiteering in urban land. The object of the Act 1976 is equitable distribution of land in the urban agglomerations so as to subserve the common good, thus Society at large has stake in the proper implementation of the provisions of the Act, 1976. Therefore on the appellate authority exercising powers under Section 33 of the Act and also on the Govt., exercising revisional powers under Section 34 of the Act, the legislature has, wisely thought it fit to confer very wide powers. Just as human in genniting has no limits of investing and adopting device for avoiding and circumventing the provisions of law, the appellate authority and revisional authority, exercising powers under the Act also faced with any limitation on their powers except the limitations which are germane to the Act and its purposes. In the case of Nagin Das (supra) this Court (one of us A. P. Ravani, J.) has observed in para No. 16 as follows :- "The scheme of the Act appears to be that the orders passed by the competent authority may not become final at the level of the competent authority only. Even the orders which are appealable under Sections 12, 30 and 33 and against which appeal is not preferred are subject to revision by the Government under Section 34. Moreover, all other orders except the orders passed under Section 11 and Section 30(1) of the Act can be challenged in appeal under Section 33 of the Act by any person aggrieved by such order. These, orders would be examined by the appellate authority in appeal. Thus, as per the scheme of the Act each and every order passed by the competent authority will come up for a ruling either at the level of the appellate authority under Section 33 of the Act or at the level of the Govt., under Section 34 of the Act. Be it noted that the appellate authority exercising powers under Section 33 and revisional authority exercising powers under Section 34 of the Act are conferred with almost the same width of powers under Section 34 of the Act, the Govt. has power to pass orders as it may thinks fit. Be it noted that the appellate authority exercising powers under Section 33 and revisional authority exercising powers under Section 34 of the Act are conferred with almost the same width of powers under Section 34 of the Act, the Govt. has power to pass orders as it may thinks fit. As held by the Supreme Court in the case of Babulal Nagar (supra) the two phrases "as it may thinks fit" and "as it deems fit" have same connotation unless the context otherwise indicates. Thus the revisional powers conferred upon the State Govt., under Section 34 of the Act and the appellate powers conferred upon the appellate authority under Section 33 of the Act are almost equal as far as the nature of the order to be passed by the respective authority is concerned. The intension of the Legislature appears to be that the order passed by the competent authority is not to be treated as final wherever the land holder prefer an appeal, the appellate authority exercises power under Section 33 of the Act. In other cases the Govt., may suo motu take up proceedings in revision order Section 34 of the Act and may pass the same or similar orders as may be passed by the appellate authority under the Act. The subject of keeping check on the powers exercised by the competent authority is thus achieved by making almost similar provisions under Sections 33 and 34 of the Act. In para No. 15 of the decision in the case of Nagin Das (supra) this Court observed as follows:- "According to the learned counsel for the petitioner, the appellate authority exercising powers under Section 33 of the Act can either confirm the order passed by the competent authority or allow the appeal and set aside the order passed by the competent authority, but it cannot remand the matter to the competent authority. It may be noted that under the provisions of Section 34 of the Act, the orders against which an appeal is preferred under the provisions of Section 12, Sections 30 and 33 of the Act are taken out of the purview of the revisional jurisdiction of the Government. It may be noted that under the provisions of Section 34 of the Act, the orders against which an appeal is preferred under the provisions of Section 12, Sections 30 and 33 of the Act are taken out of the purview of the revisional jurisdiction of the Government. Therefore, all that a land-holder is required to do is to obtain an erroneous order from the competent authority which may be largely in his favour prefer an appeal under Section 35 of the Act to the appellate authority as far as that part of the order which is against him. Then sit silent ultimately lose the appeal. That order will be final as provided under Section 33(3) of the Act. This erroneous order can be bona fide and can be managed also. The terms managed connote, everything that commonsense should dictate having regard to the realities of the life prevailing in urban land market. Once an appeal is preferred under Section 33 of the Act, the Govt., cannot take matter in revision under Section 34 of the Act. The appellate authority while going through the papers of the appeal finds that a grossly erroneous and if proper order is passed by the competent authority in favour of the land-holder. That part of the order would naturally be not appealed against by the land-holder. Even in such cases the appellate authority will have to remain silent spectator and allow the illegality and/or impropriety to postulate. To avoid such a situation the provisions of Section 33 have been made wherein wide powers are conferred on the appellate authority. So that the appellate authority itself can take stock of the situation and prevent the damage being done to the society at large." 27. While considering the powers of revisional and appellate authority, the possible conflict between two provisions of Section 33 and Section 34 of the Act 1976 and exercise of the powers by the appellate authority in absence of the appeal against the order of the competent his which is in authority favour of this Court in the case of Nagin Das held as under: Para 17 : It is contended that the Govt. alone can exercise powers of remand and not the appellate authority. The contention cannot be accepted when the Govt., exercises power under Section 34 of the Act it has undoubted power to remand the matter to the competent authority. alone can exercise powers of remand and not the appellate authority. The contention cannot be accepted when the Govt., exercises power under Section 34 of the Act it has undoubted power to remand the matter to the competent authority. As shown herein above the phrase "as it deems fit" occurring in Section 33(2) of the Act takes within its sweep the power to remand the matter to the competent authority. Thus this power is definitely conferred upon the appellate authority also. There is no conflict between the two provisions of Sections 33 and 34 of the Act, 1976. The revisional powers of the Govt., are circumscribed by the phrase "and against which no appeal has been preferred under Section 12, 30 or 33 of the Act" and as such the matters which go before the appellate authority under Section 33 of the Act are not to go before the Govt., at all. The matters in which appeal is preferred the Govt., is precluded from exercising revisional powers under Section 34 of the Act. Above all orders passed under Section 33 of the Act, 1976 by the appellate authority are final as provided under sub-section (3) of the aforesaid Section of the Act. Therefore there is no conflict direct or indirect whatsoever between two provisions of Sections 33 and 34 of the Act, 1976. Only distinction between two provisions of these sections is that where the revisional authority is Govt., can exercise suo motu powers in the order of the competent authority against which no appeal has been preferred under Section 12,30 or 33 of the Act, the appellate authority can exercise powers only after an appeal is preferred before it. The appellate authority, as it comes out from subsection (2) of Section 33 of the Act 1976, gets power to decide the appeal only after the appeal is received by it. If the land-holder or any other person aggrieved by the order passed by the competent authority does not prefer appeal, against an order passed by the competent authority and if the appellate authority does not receive an appeal, it has no power to call for the papers suo motu. These powers are conferred upon the Govt., under Section 34 of the Act 1976. These powers are conferred upon the Govt., under Section 34 of the Act 1976. Section 33 of the Act, 1976 does not confer similar powers to the appellate authority, it may be that ultimately the order that may be passed by the "Govt." appellate authority be the same as that may have passed by the Govt., under Section 34 of the Act, 1976. But that does not mean that the appellate authority exercised suo motu powers when it sets aside the order passed by the competent authority and remand the matter to it to decide same in accordance with law. Similarly also it does not mean that the appellate authority exercises suo motu powers when it sets aside, modifies or revokes an order passed by the competent authority which may be in favour of the land-holder at whose instance the appeal is preferred. The appellate authority passes such orders in exercise of wide powers as are conferred upon it under Section 33 of the Act, 1976 in appeal which has been received by it. The appellate authority under Section 33 of the Act, 1976 enjoys same power as enjoyed by the State Govt under Section 34 thereof, in appeals which have been received by it. 28. In the case of M/s. Saraswati Dyeing and Printing Works, Surat v. Union of India, reported in 1990 (2) GLR 759 , on which strong reliance has been placed by Shri Shah, H.G.A., the Division Bench of this Court decided an identical question in respect of the powers of the Collector (Appeals) Central Excise and Customs under Section 35 of the Central Excises and Salt Act, 1944, as it stood then. This Court in paras Nos. 6 and 7 of the decision held as follows : "In view of the above position, the learned counsel for the petitioners contends that since there was no appear or cross objections were filed by the revenue, in an appeal filed by the petitioners against the order of `he Assistant Collector, the Collector (Appeals), had no jurisdiction to very, modify or make any alteration whatsoever in the impugned order passed by the Assistant Collector so as to adversely affect the appellant petitioner. The contention cannot be accepted. The contention cannot be accepted. The Collector of Central Excise and Customs (Appeals) passed order on August 2, 1977 Section 35 of the Central Excise and Salt Act, 1944 under which he decided the appeal empowered the Collector to make such further inquiry and pass such order as he thinks fit confirming, modifying or annulling the decision or order appealed against. The phrase as he thinks fit is very much important for determining the scope of powers of the appellate authority. In that case thereafter this Court made reference to those decisions of the apex Court which have already been referred above in this case. After referring these decisions this Court in that case in para No. 7 of the decision has observed as follows : "Thus in view of the aforesaid decisions of the Supreme Court, the only limit on the power of the appellate authority under Section 35 of the Act as it then stood is that the order must be germane to the Act and its purposes. The appellate authority cannot pass an order de hors the provisions of the statute under which it exercises the power. The provisions of the statute which confers powers it self determines the limit of its power though put in very wide language." 29. It is neither shown nor argued by the learned counsel for the petitioners that the order passed by the appellate authority in the present case which is under challenged in this petition is not germane to the Act and its purposes. 30. In our humble opinion, the contention that the appellate authority had no jurisdiction to pass any order by which the decision given by the competent authority, in favour of the petitioners had been reversed, or modified to the interest adverse to them in the absence of the appeal or cross-objections filed by or on behalf of the Government cannot be accepted. The net result of the discussion made above and in view of the authoritative pronouncements, as referred above, of the Supreme Court and that of this Court, with due deference to in learned (sic) Subordinate Judge Shah, J. (as he then was), we regret our inability to concur with the views taken by him in the case of Special Civil Application No. 160/ 90 Pravin Chandra Kikalal Chokshi v. State of Gujarat and allied matters decided on 28-2-1992. 31. 31. The second contention of the learned counsel for the petitioners that having regards to the language of Section 33 of the Act, 1976 it may be possible to say that the appellate authority had power to reverse, modify or set aside the decision rendered by the competent authority to the interest adverse to the petitioners in the appeal filed by the petitioners but the appellate authority could not have passed such order without giving a notice and opportunity of hearing to the petitioners, cannot be said to be without merits and substance. 32. The learned counsel for the parties have not raised any issue on fact that the appellate authority before passing the order, impugned in this petition, to the interest adverse to the petitioners did not give them any notice or an opportunity of being heard. So admittedly no opportunity of being heard has been afforded to the petitioners while notifying the order of the competent authority to the interest adverse to them. 33. Division Bench of this Court in the case of M/s. Saraswati Dying and Printing Works (supra), on which reliance has also been placed by the learned counsel for the petitioner in support of his second contention, while considering almost identical argument has held as follows:- (para No.8). "In the case of Orient Paper Mills v. Union of India, reported in AIR 1969 SC 48 , the provisions of Section 35 of the Act came up for consideration before the Supreme Court. The Supreme Court held that the Collector (Appeals) exercises his quasi judicial power while acting under the provisions of Section 35 of the Act. There is a lis between the parties. At the end of the adjudication the liability of the party is to be determined as to the leviability or otherwise of the excise duty or as regards the quantum of excise duty payable by the party. Such decision is likely to affect the rights of the parties. Therefore, even if the Collector (Appeals) has power to pass order as he thought fit, if the ultimate order is likely to be against the interest of the appellant, the appellant ought to have been granted an opportunity of being heard on the point. As indicated herein above, there is no dispute with regard to the fact that no opportunity of hearing has been afforded to the petitioners on this point. As indicated herein above, there is no dispute with regard to the fact that no opportunity of hearing has been afforded to the petitioners on this point. Hence the order passed by the Collector (Appeals) to this extent is in contravention of the principles of natural justice. Therefore, this part of the order cannot be sustained." 34. The Supreme Court in the case of Govind Ramji Jadhav v. State of Maharashtra, 1990 (4) SCC 718 , in para No. 15 of decision has observed as follows: "From the above discussion it is clear that the High Court both in exercise of its revisional jurisdiction under Section 397 read with Section 401 Cr.P.C. and its appellate jurisdiction under Section 377 read with Section 386 (c) of the Cr.P.C. in matters of enhancement of sentence should give the accused a reasonable opportunity of showing cause against such enhancement as contemplated under the first proviso to Section 386 as well, under Sub-Section (3) of Section 377 of the Code. As pointed out in Surjit Singh Case, the rules of natural justice as also the prescribed procedure require issuing of notice to the appellant and affording an opportunity to be heard on proposed action for enhancement of sentence." 35. In the case of Cantonment Board Dinapore v. Pommoni Devi while considering the question of cancellation of sanction to erect building without hearing, held in para No. 5 as follows : " Audi alteram partem is a part of Article 14 of the Constitution Much water has flown since decision in State of Orissa v. Dr. Beenapani, AIR 1967 SC 1269 relied upon by the High Court and now there is a plethora of precedents, which have expanded the ever expanding scope of Article 14 of the Constitution to assert and maintain that no order shall be passed at the back of a person, prejudicial in nature to him, when it entails civil consequences." 36. While considering audi alteram partem rule, the Supreme Court in the case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600 has observed as follows: "The principle of natural justice is an integral part of the guarantee of equality assured by Article 14. Right to fair treatment is an essential inbuilt of natural justice" 37. While considering audi alteram partem rule, the Supreme Court in the case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600 has observed as follows: "The principle of natural justice is an integral part of the guarantee of equality assured by Article 14. Right to fair treatment is an essential inbuilt of natural justice" 37. Again in the case of Union Carbide Corpn v. Union of India, 1991 (4) SCC 584 , the Supreme Court has observed as follows : "Omission to comply with the requirement of the rule of audi alteram partem, as a general rule, vitiates a decision where there is violation of natural justice no resultant or independent prejudice need be shown, as the denial of natural justice is in itself sufficient prejudice and it is no answer to say that even with observance of natural justice the same conclusion would have been reached But the efforts and consequences of non-compliance may alter with situational variations and particularities illustrating a" flexible use of discretionary remedies to meet particularities legal situations". Natural Justice should not degenerate into a set of hard and fast rules. There should be a circumstantial flexibility. 38. In the case of Schedule Caste and Weaker Section Welfare Association v. State of Karnataka, the appeal court in para no. 15 of the report 1991 (2) SCC 609 has observed as follows: It is one of the fundamental rules of our Constitutional set up, that every citizen is protected against exercise of arbitrary authority by the State as its officers if there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power and the rule of natural justice operates in areas not covered by any law validly made. What particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the body of persons appointed for that purpose. It is only where there is nothing in the statute to actually prohibit the giving of an opportunity to be heard, but on the other hand, the nature of the statutory duty imposed itself necessarily implied an obligation to hear before deciding, that the audi alteram partem rule could be imported " 39. It is only where there is nothing in the statute to actually prohibit the giving of an opportunity to be heard, but on the other hand, the nature of the statutory duty imposed itself necessarily implied an obligation to hear before deciding, that the audi alteram partem rule could be imported " 39. In the case of D.K. Yadav v. J.M.H. Industries Ltd. reported in 1993 (3) SCC 257 the Supreme Court has observed as follows: "Application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person. No decision must be taken which will affect the right of any person without his/her first being informed of the case and giving him/her an opportunity of putting forwards his/her case. An order involving civil consequences must be made Consistently with the rules of natural justice. Civil consequences covers inferaction of not merely proposed or personal right but of Civil liberties material deprivations can be non-pecuniary damages. In its comprehensive connotation everything that affects a citizen in his civil life inflicts a civil consequences. Civil rights have been defined to be such as belonging to every citizen of the State or country...they include. rights capable of being enforced or redressed in a civil action..... Even any administrative order which involve civil consequences must be made consistently with the rules of natural justice. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to make punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizen must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness they have to act in a manner which is patently impartial and meets the requirements of natural justice. It is not so much to act judicially but is to act fairly. The rule of procedure laid down by law comes as much within the purview of Article 14 of the Constitution as any rule of substantive law. It is not so much to act judicially but is to act fairly. The rule of procedure laid down by law comes as much within the purview of Article 14 of the Constitution as any rule of substantive law. The substantive and procedural law and action taken under them will have to pass the lest under Article 14. The test of reason and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual." 39A. In a recent decision in the case of Ravi S. Naik v. Union of India, reported in 1994 (1) JT (SC) 551, the Supreme Court has observed as follows: "Principles of natural justice have an important place in modem Act Administrative Law. They have been defined to mean fair play in action. (See Smt Maneka Gandhi v. Union of India, 1978 (2) SCR 621 at p. 676 Bhagwati J.). As laid by this Court "they constitute the basic elements of fair hearing, having their roots in the inmate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men". (Union of India v. Tulsi Ram, 1985 Supp (2) SCR 131 of p. 255). All order of an authority exercising judicial or quasi judicial functions passed in violation of the principles of natural justice is procedurally ultra vires and therefore suffers from a jurisdictional error. That is the reason why in spite of the finality imported to the decision of the Speakers/Chairmen by paragraph 6(1) of the Tenth Schedule such a decision is subject of judicial review on the ground of non-compliance with the rules of natural justice. 40. In the case in hand, competent authority found that 5736 sq. mts. That is the reason why in spite of the finality imported to the decision of the Speakers/Chairmen by paragraph 6(1) of the Tenth Schedule such a decision is subject of judicial review on the ground of non-compliance with the rules of natural justice. 40. In the case in hand, competent authority found that 5736 sq. mts. of land was in excess of urban land celling limit in the hands of the petitioners but the appellate authority in the appeal filed by the petitioners against the order of the competent authority, modified this order of the competent authority and the petitioners were held to be in excess of the urban land ceiling limits by 10, 236 sq. mts. The petitioners have gone to the appellate authority with the grievance that the competent authority has erred in holding that the petitioners are in excess of the urban land ceiling limits by 5736 sq. mts but the appellate authority on the other hand instead of accepting that grievances made them liable to surrender 10276 sq. mts. of land. The petitioners are right to contend with all justification that this order of the appellate authority is likely to affect their right to hold, possess and occupy 5000 sq. mts. of land as per the order of the competent authority. Therefore, even if the appellate authority has power to pass order as it deems fit in the appeal filed by the petitioners but ultimately order passed is against the interest of the petitioners and as such before passing of an order adversely affecting the rights of the petitioners they ought to have been afforded an opportunity of being heard. The appellate authority, as held by us above, has power to decide and determine to the prejudice of the petitioners in the appeal filed by them under Section 33 (2) of the Act, 1976 against the order of the competent authority duty to act on the part of appellate authority judicially is implict in exercise of such power and the rule of natural justice operates in area not covered by any law validly made. The appellate authority has arbitrarily in passing the impugned order which affects the right of the petitioners without them first being informed of the case and giving them any opportunity of putting forward their case. The appellate authority has arbitrarily in passing the impugned order which affects the right of the petitioners without them first being informed of the case and giving them any opportunity of putting forward their case. The application of the principles of natural justice that no man should be condemned wherein intents to present the authority from acting arbitrarily affecting the rights of the concerned person. The appellate authority, while passing the order impugned in this writ petition, has shown scant regards to the basic principles of natural justice in view of these facts and circumstances of this case the order of the appellate authority, impugned in this writ petition, cannot be sustained. In the result this reference is answered as follows :- The appellate authority, in the appeal filed under Section 32(1) of the Urband Land (Ceiling and Regulation) Act, 1976 by the land holder is or any person aggrieved of against the order of the competent authority has jurisdiction, power or competence to remand or reverse set aside or modify the decision given by the competent authority in then (sic) or his favour to the interest adverse to them so even in the absence of the appeal or cross-objection filed by or on behalf of the Government. 41. The next question does arises what relief should be granted to the petitioners in this writ petition? So far as power of the appellate authority, in the appeal filed before it under Section 33(1) of the Act, is concerned we have already held above that it has wide powers but before passing of the order impugned by the petitioners in this writ petition admittedly they have not been given an opportunity of being heard. To this extent, the grievance made by the petitioners in this writ petition is not unfounded. The illegality committed by the appellate authority in the present case is that before passing the order prejudicial to the interest of the petitioners they have not been afford an opportunity of being heard. That much illegality committed by the appellate authority certainly deserves to be cured. The order dated 23-6-88 of the appellate authority passed in appeal (sic) filed by the petitioners be treated to be a notice of a proposed order to the petitioners. That much illegality committed by the appellate authority certainly deserves to be cured. The order dated 23-6-88 of the appellate authority passed in appeal (sic) filed by the petitioners be treated to be a notice of a proposed order to the petitioners. The petitioners may file their objections against that proposed order with a reasonable time and thereafter the appeal be decided after hearing the petitioner within a reasonable time in accordance with law. 42. In the result, this writ petition is finally disposed of with the directions that the order of the appellate authority dated 28-6-88 be treated to be only a notice and proposed order and the petitioners may file their objections against this proposed order of the appellate authority on or before 27-3-1995. Thereafter the appellate authority is directed to decide the appeal with the two months after giving an opportunity of hearing to the petitioners. The interim order passed by this Court in this writ petition on 2-8-1988 shall remain in force till 29-5-95 only. Rule is made absolute to the aforesaid extent with no order as to costs. Order accordingly.