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1996 DIGILAW 124 (GUJ)

Rupsinh Himmatsinh v. STATE

1996-03-01

J.N.BHATT

body1996
J. N. BHATT, J. ( 1 ) WHETHER the disputed urban residential property is ancestral property or self- acquired one is the issue in focus in this petition under Articles 226/227 of the constitution of India, 1950. The petitioners have, thus, questioned the propriety and validity of the order recorded by respondent no. 1-State of Gujarat in Revision application under Section 34 of the Urban land (Ceiling and Regulation) Act, 1976 ("the ULC Act" for brevity) on 19th october 1995 setting aside the order of competent authority-respondent No. 2 dated 15th July 1994. ( 2 ) THE petitioners are holding the land bearing final plot No. 61 of Town Planning scheme No. 8 admeasuring about 4811 square metres. The petitioners had sold 1427. 97 square metres of land before the ulc Act comjng into force. As per the case of the petitioners, they have acquired the land in question through ancestral right as "protected tenant" from the "parsi panchayat Board" by registered sale deed dated 1st November 1969. Thus, the petitioners ancestors were tenants in respect the land in question since more than 75 years. ( 3 ) THE petitioners filed Form No. 1 under section 6 of the ULC Act which was disposed of by the competent authority- respondent No. 2, on 14-11-1980, declaring 1917 square metres of land as excess and vacant land against which the petitioner had preferred an appeal under Section 33 of the ulc Act which was dismissed by the urban Land Ceiling Tribunal, Ahmedabad, on 16-5-1981. Being aggrieved by the said order of the Tribunal, the petitioner had filed Special Civil Applicationl No. 3960 of 1984 before this Court and this Court passed order on 29-1-1994 that the petitioners are holding land as an "ancestral property". This Court also found that the petitioners cannot be treated as an association of persons "or a body of individuals for the purpose of ULC Act on account of the fact that the petitioners father was a "protected tenant". The petitioners acquired the title to the said land as members of the family. Therefore, It was decided by this Court that the petitioners could not be styled as an association of persons or a body of individuals and the matter came to be remanded to respondent no. 2-compctent authority for a fresh decision in the light of the order of this court. Therefore, It was decided by this Court that the petitioners could not be styled as an association of persons or a body of individuals and the matter came to be remanded to respondent no. 2-compctent authority for a fresh decision in the light of the order of this court. ( 4 ) UPON remand of the matter, respondent No. 2-authority passed order on 15-7-1994, whereby, it was held that the petitioners are entitled to six unils. i. e. 9000 sq. mts, of land while the land under holding of the petitioner is 3383. 03 sq. mts. out of which 4811,00 sq. mts. of land came to be sold by the petitioners by registered sale deed. In short, the competent authority held that there was no excess, vacant land. However, respondent No. 1 State of gujarat took up the matter in suo motu revision in exercise of powers under Section 34 of the ULC Act and decided the matter against the petitioner. Respondent No. 1 quashed the order of competent authority and found that the land in question is not an ancestral property, but is self-acquired property of the petitioners. It was, therefore, held that the petitioners are entitled to only two units like 3000 sq. mts. only out of the disputed land. Thus, according to the decisions of the State of gujarat-respondent No. 1 - the area of 3383. 03 mts. came to be declared as an excess, vacant land. Hence the Revision (sic. present) Application under Articles 226 and 227 of the Constitution of India. ( 5 ) AFTER having examined the facts and circumstances, it could be safely be concluded that the impugned order of respondent No. 2-State of Gujarat is contrary to the observations and directions with regard to the nature and status of the property in question and, therefore, it is illegal, perverse and unjust. Respondent no. 1 committed serious illegalities in quashing the order of respondent No. 2- competent authority in the second round of litigation. This Court had held that the property in question is an ancestral property and not the self-acquired one. Despite such a specific and clear finding by this Court, respondent No. 1 has held otherwise which is contrary to all canons of jurisprudence and the authority acting as a judicial/quasi-judicial functionary is bound by the observations and directions issued by this Court in earlier petition. Despite such a specific and clear finding by this Court, respondent No. 1 has held otherwise which is contrary to all canons of jurisprudence and the authority acting as a judicial/quasi-judicial functionary is bound by the observations and directions issued by this Court in earlier petition. In this first round of litigation this Court remanded the matter to the competent authority in Special civil Application No. 3900 of 1984 by passing order on 21-0-1004 holding that the land in question is ancestial property and nor a self-acquired one. The remand was necessitated for computation of the excess land. The question of nature and status of the land in question was already adjudicated upon and the competent authority found thai there was no excess land in view of the finding of this Court that the land in question is ancestral properly. However, respondent No. 1-State of Gujarat exceeded its jurisdiction and passed perverse order which has resulted into miscarriage of justice. ( 6 ) IT appears from the record of the present case that despite specific attenlion having been drawn of the State Government at the time of hearing of the Revision with regard to the observations and finding of this Court in respect of the land in question, respondent No. 1 look a different view with regard to states of the land which was not open and permissible. When there is a conclusive and final decision of the Court of law, it aught to be honoured and respected. No authority can afford to flout the decision order or direction of the court which is also final. The Revision was heard by one Shri V. D. Kotak, Deputy Secretary, revenue Department, State of Gujarat and he held that the land is question cannot be said to be ancestral. He, therefore, treated it as an acquired property and quashed the order competent authority which is highly not only unjust, unreasonable, bat perverse and illegal and contrary to the view and finding of this court in the earlier writ petition. If the respondent-officers of the State Government would take callous or casual views and approach despite specific observations and directions of this Cowl in the earlier writ petition, then it is really a great to the conscience of every resonable and prudent man. If the respondent-officers of the State Government would take callous or casual views and approach despite specific observations and directions of this Cowl in the earlier writ petition, then it is really a great to the conscience of every resonable and prudent man. We are wedded to the Rule and its functionaries and machineries to respect and honour the verdict, decision, order or direction of the court of law. Unfortunately, respondent No. 2 (sic. l)State of Gujarat recorded an illegal order in a Revision which is, totally, contrary to the view taken by this Court in the earlier litigation culminated into the final verdict by this court. The order recorded by the competent authority was quite just, legal and proper. ( 7 ) IN view of the facts and circumstances emerging from the record of the present case, there may be three probabilities : (1) that either these was high handedness flouting order of the court or utter indifference or total not-application of mind on the part of the Deputy Secretary shri V. D. Kotak who beard the Revision under Section 34 of the ULC Act. In absence of any specific allegation of mala fides the benefit should be given to officers of the State of Gujarat in holding that the impugned order recorded by respondent No. 1-State of Gujarat, through its Deputy secretary Shri Kotak is vitiated by total non-application of mind. ( 8 ) HAVING regard to the facts and circumstances emerging from the record of the present case, this Court has no hesitation in finding that the impugned order of respondent No. 1 passed on 19-10- 1995 is unjust, perverse, unreasonable and illegal. Therefore, it is quashed and set aside and the order recorded by respondent by respondent No. 2-competent authority on 15-7-1994 is restored with costs. In view of the peculiar facts and circumstances, exemplary cost is required to be awarded to the petitioner, who is dragged into litigation for no fault of his own and despite specific directions of this Court. Therefore, cost is quantified at Rs. 5,000/- (Rupees five thousand only ). Rule is made absolute to the aforesaid extent. .