MOHAN LAL JAMNADAS PARIKH, BHAVNAGAR v. STATE — 1995 DIGILAW 228 (GUJ)

A. N. DIVECHA, J. ( 1 ) THE order passed by the Additional Urban Land Tribunal at Ahmedabad (the Appellate Authority for convenience) on 4th November 1985 in Appeal No. Bhavnagar-37 of 1983 is under challenge in both these petitions. Common questions of fact and law are found arising in both these matters. I have therefore thought it fit to dispose of both these petitions by this common judgment of mine. ( 2 ) THE facts giving rise to both these petitions move in a narrow compass. The petitioner in Special Civil Application No. 715 of 1986 (the first petition for convenience) filed his declaration in the prescribed form with respect to his properties situated within the urban agglomeration of Bhavnagar. That form was processed in due course. Thereafter by his order passed on 26th November 1980 the Competent Authority at Bhavnagar declared the holding of the landholder (the petitioner of the first petition) to be in excess of the ceiling limit by 719. 55 aquare metres. That aggrieved the landholder. He carried the matter in appeal before the Appellate Authority under Section 33 of the Urban Land (Ceiling and Regulation) Act 1976 (the Act for brief ). It came to be registered as Appeal No. Bhavnagar-22 of 1981. By his order passed on 22nd February 1983 in the aforesaid appeal the aforesaid order passed by the Competent Authority at Bhavnagar was quashed and set aside and the matter was remanded to the Competent Authority at Bhavnagar for his fresh disposal. A copy of the aforesaid appellate order is at Annexure-A to Special Civil Application No. 5039 of 1986 (the second petition for convenience ). It appears that pursuant thereto a draft statement was prepared and served to the landholder in accordance with Section 8 of the Act. After hearing the petitioner by his order passed on 18th July 1983 under Section 8 (4) of the Act the Competent Authority at Bhavnagar came to the conclusion that the holding of the landholder was in excess of the ceiling limit by 4415. 18 square metres. Its copy is at Annexure-B to the second petition. The aggrieved landholder carried the matter in appeal before the Appellate Authority under Section 33 of the Act. It came to be registered as Appeal No. Bhavnagar-37 of 1983. 18 square metres. Its copy is at Annexure-B to the second petition. The aggrieved landholder carried the matter in appeal before the Appellate Authority under Section 33 of the Act. It came to be registered as Appeal No. Bhavnagar-37 of 1983. By his order passed on 4th November 1985 in the aforesaid appeal the Appellate Authority came to the conclusion that the holding of the landholder was in excess of the ceiling limit by 719. 55 square metres and not by 4415. 18 square metres as found by the Competent Authority at Bhavnagar. In that view of the matter the Appellate Authority partly accepted the aforesaid appeal and modified the aforesaid order passed by the Competent Authority at Bhavnagar with respect to the declaration of the excess land in the hands of the Landholder. A copy of the aforesaid appellate order passed on 4th November 1985 is at Annexure-C to the second petition and at Annexure-A to the first petition. Thereunder the Competent Authority at Bhavnagar was directed to prepare the final statement in the light of the appellate order in question. Thereupon by the order passed on 25th November 1985 the Competent Authority at Bhavnagar directed preparation of the final statement under Section 9 of the Act. Its copy is at Annexure-B to the first petition. The aforesaid appellate order passed on 4th November 1985 has aggrieved both the landholder and the State Government. The landholder has been aggrieved also by the order at Annexure-B to the first petition ordering preparation of the final statement in terms of the appellate order. He has therefore moved the first petition under Articles 226 and 227 of the Constitution of India for questioning the correctness of the orders at Annexure-A and B thereto. The aggrieved State Government has approached this Court by means of the second petition under Article 227 of the Constitution of India for questioning the correctness of the appellate order at Annexure-C thereto. ( 3 ) SHRI Dave for the State Government is right in his submission to the effect that the appellate order of 4th November 1985 at Annexure-C to the second petition has practically reviewed the earlier appellate order passed on 22nd February 1983 at Annexure-A to the second petition. ( 3 ) SHRI Dave for the State Government is right in his submission to the effect that the appellate order of 4th November 1985 at Annexure-C to the second petition has practically reviewed the earlier appellate order passed on 22nd February 1983 at Annexure-A to the second petition. As transpiring from the earlier appellate order at Annexure-A to the second petition the gifts of lands stated to have been made by the landholder after 17th February 1975 but before the appointed day for the purposes of the Act have been held to be illegal and invalid. The successor Appellate Authority in his impugned order at Annexure-C to the second petition has taken exactly a contrary view. It would amount to the successor Appellate Authoritys sitting in appeal over the order of the first Appellate Authority. That is simply not permissible in law. The successor Appellate Authority exercising concurrent appellate jurisdiction could not have sat in appeal over the decision of his predecessor Appellate Authority. ( 4 ) IT is difficult to conceive that the successor Appellate Authority could have reviewed the decision of his predecessor Appellate Authority. It is a settled principle of law that the power of review is a creature of statute. There is no provision for review in the Act which would empower the Appellate Authority to review its earlier decision. In that view of the matter also the appellate order at Annexure-C to the second petition cannot be sustained in law. ( 5 ) EVEN if it is assumed that by virtue of applicability of the Code of Civil Procedure 1908 to the appellate proceeding in view of the ruling of this Court in the case of J. B. Vadiwala vs. Competent Authority Surat reported in AIR 1995 Guj 25 the Appellate Authority can be said to be enjoying the power of review such power of review has to be exercised by the same person exercising the appellate jurisdiction and not by his successor exercising the appellate jurisdiction in view of the binding ruling of the Supreme Court in the case of Devaraju Pillai vs. Sellayya Pillai AIR 1987 SC 1160 . It is obvious from the record of the case that the author of the appellate order at Annexure-C to the second petition is certainly different from the author of the appellate order at Annexure-A to the second petition. It is obvious from the record of the case that the author of the appellate order at Annexure-C to the second petition is certainly different from the author of the appellate order at Annexure-A to the second petition. ( 6 ) I am unable to agree with the submission urged before me by Shri Patel for the landholder to the effect that the entire matter was kept open by the Appellate Authority in his appellate order at Annexure-A to the second petition as the Competent Authority therein was directed to decide the matter afresh after issuing a draft statement and after giving an opportunity of hearing to the landholder according to law. Shri Patel has been at pains to convince me that the Appellate Authority in his appellate order at Annexure-A to the second petition has found the impugned order of the Competent Authority at Bhavnagar to be a nullity on the ground that no draft statement was issued to the landholder in accordance with Section 8 of the Act. So far as that part of his submission is concerned Shri Patel is right. The appellate order at Annexure-A to the second petition however has found the order of the Competent Authority to be a nullity on that count and illegal on the ground that illegal gifts were excluded from the holding of the landholder. The bare reading thereof leaves no room for doubt that the Appellate Authority in his appellate order at Annexure-A to the second petition has recorded a definite finding to the effect that the gifts made by the landholder after 17th February 1975 but before the appointed day for the purposes of the Act were illegal and invalid and the properties represented by such gift transactions had to be taken in the holding of the landholder. It is not in dispute that the appellate order at Annexure-A to the second petition was never challenged in any manner before any forum. It is thus clear that the landholder accepted that order to be valid. Even in the first petition the landholder has not chosen to challenge even belatedly the earlier appellate order at Annexure-A to the second petition. It is thus clear that the landholder accepted that order to be valid. Even in the first petition the landholder has not chosen to challenge even belatedly the earlier appellate order at Annexure-A to the second petition. In that view of the matter Shri Patel for the landholder cannot be permitted to urge that the author of the appellate order at Annexure-A to the second petition travelled beyond his jurisdiction in deciding the illegality and invalidity of the gift transactions though there was no counter appeal by or on behalf of the State of Gujarat or its authority. ( 7 ) IN view of the clear-out findings given by the Appellate Authority in his order at Annexure-A to the second petition the Competent Authority at Bhavnagar was justified in including the parcels of land covered by the gift transactions in the holding of the landholder. The Appellate Authority in his impugned appellate order at Annexure-C to the second petition should not and ought not to have found fault with the Competent Authority in that regard. The Competent Authority could not be said to have acted contrary to the relevant provisions contained in the Act while-including in the holding of the landholder the properties represented by the aforesaid gift transactions. ( 8 ) IN view of my aforesaid discussion I am of the opinion that the impugned appellate order at Annexure-C to the second petition cannot be sustained in law. It has to be quashed and set aside. ( 9 ) I do not agree with the submission urged before me by Shri Patel for the landholder to the effect that consequent upon quashing and setting aside the appellate order at Annexure-C to the second petition the matter should be remanded to the Appellate Authority for restoration of the appeal in question to file and for his fresh decision according to law. Shri Patel for the landholder has urged that under Rule 5 of the Urban Land (Ceiling and Regulation) Rules 1976 (the Rule for brief) framed under the Act the donees were interested persons and were therefore required to be served with the draft statement before passing any final order under Section 8 (4) of the Act. Shri Patel for the landholder has urged that under Rule 5 of the Urban Land (Ceiling and Regulation) Rules 1976 (the Rule for brief) framed under the Act the donees were interested persons and were therefore required to be served with the draft statement before passing any final order under Section 8 (4) of the Act. I do not accept this submission for the simple reason that service of a draft statement under Rule 5 of the Rules read with Section 8 (3) of the Act is for the benefit of the concerned parties or persons. A third party cannot and need not be permitted to raise a grievance in that regard. The concerned parties or persons for whose benefit such a provision is made can very well waive such benefit. They may as well not make any grievance regarding non-service of any draft statement to them. If they had any grievance by this time they would have certainly approached an appropriate forum for redressal of their grievances. It is not * dispute that they have not done so. It is difficult to conceive their ignorance about the proceedings as the donees are admittedly near and dear relatives of the landholder. It would be difficult to believe that they have remained ignorant of the proceedings instituted by the landholder against the order of the Competent Authority and also that of the appellate order at Annexure-B and C respectively to the second petition. It would therefore be safe to presume that they have no grievance whatsoever against non-service of the dreft amendment in accordance with Rule 5 of the Rules read with Section 8 (3) of the Act. ( 10 ) SHRI Patel for the landholder has then urged that service of the draft statement to the interested parties in accordance with Rule 5 of the Rules read with Section 8 (3) of the Act is a mandatory provision of law and non-service would render the proceedings null and void. It has been urged by Shri Patel for the landholder that the gifted lands in the hands of the donees would be immune from surrender even if the landholders holding is declared excess and the extent of the land left with him after such gift would not be sufficient to meet with the area declared to be surplus in his hands. As against this Shri Dave for the State Government has urged that in view of the correct interpretation of Section 4 (4) (a) of the Act the acquisition of surplus lands in the holding of the petitioner would be done under the Act even if the landholder is not in possession of the excess holding declared by the authority acting under the Act. ( 11 ) IN order to appreciate the rival submissions urged before me it would be quite proper to look at Section 4 (4) of the Act in its entirety : It reads :- Section 4 (4) (a) In any State to which this Act applies in the first instance if on or after the 17 day of February 1975 but before the appointed day any person has made any transfer by way of sale mortgage gift lease or otherwise (other than a bonafide sale under a registered deed for valuable consideration) of any vacant land held by him and situated in such State to any other person whether or not for consideration then for the purposes of calculating the extent of vacant land held by such person the land so transferred shall be taken into account without prejudice to the rights or interests of the transferred in the land so transferred : Provided that the excess vacant land to be surrendered by Such person under this Chapter shall be selected only out of the vacant land held by him after such transfer. (b)For the purose of clause (a) the burden of proving any sale to be a bona- fide one shall be on the transferor. EXPLANATION : Where in any State aforesaid there was or is in force any law prohibiting transfer of urban property in that State except under the circumstances if any specified therein then for the purposes of this sub-section any transfer by way of sale of such property being vacant land made by any person under a registered deed for valuable consideration in accordance with the provisions of such law or in pursuance of any sanction or permission granted under such law shall be deemed to be a bona-fide sale. It becomes clear from its bare perusal of Sec. 4 that only a sale transaction for valuable consideration executed by a registered document between the specified period of 17th February 1975 and the appointed day for the purposes of the Act is to be excluded from the holding of the landholder if the sale transaction is found to be bona-fide. The burden of proving such transaction to be bona-fide is obviously on the landholder in view of clause (b) thereof. So far as other transfers between the specified period are concerned the properties represented by such transactions have to be included in the holding of the landholder for the purposes of the Act irrespective of the fact that whether or not they were genuine or bona-fide. It is true that under the first proviso to Section 4 (4) (a) of the Act it has been stated that excess vacant land to be surrendered by the concerned landholder has to be selected only out of the vacant land held by him after such transfer. It may be mentioned at this stage that under the Scheme of the Act the landholder is given an option to select the excess vacant land for surrender after his holding is found to be in excess of the ceiling limit. Under the first proviso to Section 4 (4) (a) of the Act if such landholder has transferred his land in any manner within the specified period he is precluded from selecting such transferred lands for surrender as the excess vacant land. The first proviso is thus qua the landholder. It affects his right of selection for surrender of excess vacant land. It does not preclude the authorities acting under the Act to acquire the excess vacant land in the hands of the transferees if the extent of land left with the landholder is not sufficient to meet with the acquisition of the excess land in his holding. It is obvious that the avowed object of the Act is not to allow any landholder to have any land in excess of the ceiling limit fixed thereunder and such excess holding is deemed to have been acquired thereunder. It is obvious that the avowed object of the Act is not to allow any landholder to have any land in excess of the ceiling limit fixed thereunder and such excess holding is deemed to have been acquired thereunder. If the interpretation canvassed by Shri Patel for the landholder with respect to Section 4 (4) (a) of the Act is accepted a crafty and cunning landholder would transfer his entire holding though it was beyond the ceiling limit in favour of third parties with or without consideration and would escape the clutches of law when his holding is declared to be surplus under the Act. Such Construction or interpretation would defeat and frustrate the avowed object of the Act. Such construction cannot therefore be countenanced. ( 12 ) SHRI Patel has then emphasised the expression without prejudice to the rights or interests of the transferee in the land so trasferred occurring at the end of Section 4 (4) (a) of the Act to substantiate his submission that the transferred lands in the hand of the transfrees would be immune from their deemed acquisition under the Act even if the holding of the concerned landholder is found in excess of the ceiling limit and the extent of vacant land in his possession after such transfer is not sufficient for surrender of the excess land by him. That expression will have to be understood in the context of rights or interests of such transferees vis-a-vis the transferor. A landholder might have leased out a large parcel of land in favour of a lessee by accepting huge consideration. That land might be declared excess in the holding of the landholder and it might have been required to be surrendered for its deemed acquisition under the Act. The lessee at that stage might be prejudiced if such leased out land is required to be surrendered and compensation to be paid under the Act would not be commensurate with the consideration that the lessee might have paid to the lessor. It that context the expression without prejudice to the rights or interests of the transfree in the land so transferred has been engrafted in the aforesaid statutory provision. It that context the expression without prejudice to the rights or interests of the transfree in the land so transferred has been engrafted in the aforesaid statutory provision. In order that a transfer of land made by a crafty and cunning landholder is not avoided or evade by contending frustration of a contract of lease that the aforesaid expression has found its way in the aforesaid statutory provision. ( 13 ) IN view of my aforesaid discussion I am of the opinion that the lands in the hands of transferees referred to in Section 4 (4) (a) of the Act are not immune from their deemed acquisition under the Act if the extent of the vacant land remaining with the landholder after such transfer is not sufficient for surrender of the excess land as held by the authorities acting under the Act. ( 14 ) IT may be mentioned at this stage that the undisputed position arising from the record is that the properties bearing survey No. 2064 in Ward No. 5 and Survey Nos. 48 49 and 50 in Wards Nos. 1 2 and 3 admeasuring 665. 62 square metres 536. 18 square metres 304. 94 square metres and 286. 38 square metres respectively are built-up properties. They have to be excluded from the holding of the landholder in view of the binding ruling of the Supreme Court in the case of Meera Gupta vs State of West Bengal reported in AIR 1992 (SC) 1567 . The total holding of the landholder is found to be 6415. 18 square metres. The total area of the built-up properties is found to be to the tune of 1783. 12 square metres. That area will have to be excluded as aforesaid in view of the binding ruling of the Supreme Court in the case of Meera Gupta (supra ). That would bring down the holding of the landholder to the extent of 4632. 06 square metres. The ceiling limit prescribed for the urban agglomeration of Bhavnagar is 2000 square metres. The excess holding of the landholder is thus 2632. 06 square metres. ( 15 ) IN view of my aforesaid discussion I am of the opinion that the appellate order at Annexure-C to the second petition and at Annexure-A to the first petition deserves to be. quashed and set aside. The excess holding of the landholder is thus 2632. 06 square metres. ( 15 ) IN view of my aforesaid discussion I am of the opinion that the appellate order at Annexure-C to the second petition and at Annexure-A to the first petition deserves to be. quashed and set aside. The order passed by the Competent Authority at Bhavnagar Annexure-B to the second petition deserves to be restored subject to the modification that the excess holding of the landholder is to the tune of 2632. 06 square metres. The matter deserves to be remanded to the Competent Authority at Bhavnagar for preparation of the final statement under Section 9 of the Act in accordance with this judgment of mine. The Competent Authority at Bhavnagar may thereafter take appropriate further consequential action according to law. ( 16 ) IN the result Special Civil Application No. 715 of 1986 fails. It is hereby rejected. Rule is accordingly discharged with no order as to costs. Special Civil Application No. 5039 of 1986 is accepted to the aforesaid extent. The order passed by the Additional Urban Land Tribunal at Ahmedabad on 4th November 1985 in Appeal No. Bhavnagar-37 of 1983 at Annexure-C thereto is quashed and set aside and the order passed by the Competent Authority at Bhavnagar on 18th July 1983 at Annexure-B thereto is restored subject to the modification that the excess land held by the petitioner would be to the tune of 2632. 06 square metres. The matter is remanded to the Competent Authority at Bhavnagar for preparation of the final statement under Section 9 of the Act and for further consequential action according to law. Rule is accordingly made absolute to the aforesaid extent with no order as to costs. Application Dismissed. .