Ramiben W/o Bhikhabhai v. STATE — 1996 DIGILAW 314 (GUJ)

A. N. DIVECHA, J. ( 1 ) THE order passed by the Competent Authority at Surat (respondent no. 2 herein) on 29th October 1988 under Sec. 8 (4) of the Urban Land (Ceiling and regulation) Act, 1976 (the Act for brief) as affirmed in revision by the order passed by and on behalf of the State Government (respondent No. 1 herein) on 6th March 1995 under Sec. 34 thereof is under challenge in this petition under Art. 226 of the Constitution of India. By his impugned order, respondent No. 2 declared the holding of the deceased predecessor-in-title (the deceased for convenience) of the petitioner herein to be in excess of the ceiling limit by 6137. 04 square metres. By the other impugned order, respondent no. 1 upwardly revised the order of respondent No. 2 and declared the holding of the deceased to be in excess of the ceiling limit by 7802. 64 square metres. ( 2 ) THE facts giving rise to this petition move in a narrow compass. The deceased filed his declaration in the prescribed from under Sec. 6 (1) of the Act with respect to his holding within the urban agglomeration of Surat. Before it was processed, the deceased breathed his last some time on 10th May, 1980 leaving behind him his widow, one son and one daughter. Later on, his declaration was processed by respondent No. 2. After observing necessary formalities under Sec. 8 of the Act, by his order passed on 29th october 1988 under Sub-sec. (4) thereof, respondent No. 2 declared the holding of the deceased to be in excess of the ceiling limit by 6137. 04 square metres, its copy is at annexure-C to this petition. It appears that it came to the notice of concerned officer of respondent No. 1. He appears to have found it not according to law. Its suo motu revision was therefore contemplated under Sec. 34 of the Act. A show cause notice of 23rd november 1991 thereupon came to be issued calling upon the widow of the deceased to show cause why the order at Annexure-C to this petition should not be revised. A reply thereto was filed on 15th January 1992. Its suo motu revision was therefore contemplated under Sec. 34 of the Act. A show cause notice of 23rd november 1991 thereupon came to be issued calling upon the widow of the deceased to show cause why the order at Annexure-C to this petition should not be revised. A reply thereto was filed on 15th January 1992. After hearing the parties, by the order passed by and on behalf of respondent No. 1 on 6th March 1995, the order at Annexure-C to this petition was upwardly revissed and the holding of the deceased was declared to be surplus by 7802. 64 square metres. Its copy is at Annexure-A to this petition. It appears that, by the time this petition came to be filed, the widow of the deceased also breathed her last leaving behind her the present petitioner as her surviving son. He was aggrieved by the order at Annexure-A to this petition. He has therefore approached this court by means of this petition under Article 226 of the Constitution of India for questioning its correctness. He has also questioned the correctness of the order at Annexure-C to this petition. ( 3 ) AS rightly submitted by learned Advocate Shri Shah for the petitioner, the constructed property has to be excluded from the holding of the deceased 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 Supreme Court at page 1567. Respondent No. 2 has wrongly included the house property in the holding of the petitioner. It has to be excluded. ( 4 ) LEARNED Advocate Shri Shah for the petitioner has submitted that the deceased was the tenant of the lands in question and he became the deemed purchaser thereof in accordance with the prevalent tenancy law. The lands in question were agricultural lands and they were used for agricultural purposes on the date of coming into force of the Act. It has been urged that there existed no master plan answering its definition contained in Sec. 2 (h) of the Act. The lands in question were agricultural lands and they were used for agricultural purposes on the date of coming into force of the Act. It has been urged that there existed no master plan answering its definition contained in Sec. 2 (h) of the Act. Relying on the binding ruling of the Supreme Court in the case of Atia Mohammadi Begum vs. State of Uttar Pradesh, reported in AIR 1993 supreme Court at page 2465, learned Advocate Shri Shah for the petitioner has urged that all these lands ought to have been excluded from the holding of the deceased. As against this, learned Assistant Government Pleader Shri Sompura for the respondents has urged that the attention of neither respondent No. 3 nor respondent No. 1 was focused on this aspect of the case. ( 5 ) IN order to ascertain the applicability of the aforesaid binding ruling of the supreme Court in the case of Atia Mohammadi Begum (supra), it will have to be found out whether or not the master plan answering its definition contained in Sec. 2 (h) of the act was in existence and what was the situation of the lands in question therein if it was in existence on the date of coming into force of the Act. Besides, it will have to be ascertained whether or not the lands in question were used for agricultural purpose at the time of commencement of the Act. This will have to be done by respondent No. 3. The matter will have therefore to be remanded to him for the purpose. ( 6 ) LEARNED Advocate Shri Shah for the petitioner has urged that the tenancy rights enjoyed by the deceased devolved on him by virtue of inheritance. In that view of the matter, runs his submission, it could be said to be a joint Hindu family property in the hands of the deceased. In that case, according to learned Advocate Shri Shah for the petitioner, the male child or children will have right therein by birth. It has been urged that, on the date of coming into force of the Act, the petitioner was a major son of the deceased and had therefore interest in the joint Hindu family property in the hands of the deceased. Relying on this fact-situation, it has been urged that two ceiling units ought to have been given in this case. It has been urged that, on the date of coming into force of the Act, the petitioner was a major son of the deceased and had therefore interest in the joint Hindu family property in the hands of the deceased. Relying on this fact-situation, it has been urged that two ceiling units ought to have been given in this case. As against this, learned Assistant Government Pleader Shri sompura for the respondents has urged that respondent No. 1 has found that there is no evidence on record to show or to suggest that the tenancy rights devolved upon the deceased by inheritance. ( 7 ) IT transpires from the order at Annexure-C to this petition that respondent No. 2 has found that the lands in question were in possession of the family right since the time of the father of the deceased. It would therefore stand to reason that the deceased inherited tenancy rights in the lands in question from his father. It cannot be gainsaid that tenancy rights would be a property. If that be so, the tenancy rights in the hands of the deceased could be said to be the joint Hindu family property in his hands. The petitioner as a son of the deceased would therefore have a right therein from his birth. However, since the matter is required to be remanded to respondent No. 2, it would be desirable on his part to examine the question from this angle. If it is found to be joint hindu family property in accordance with the settled principles of Hindu law as pointed out hereinabove and if the petitioner was found to be a major son on the date of commencement of the Act, two units could be allowed in the instant case. ( 8 ) EVEN otherwide, it would be open to the petitioner to show to respondent No. 2 after remand that the deceased had thrown his properties by means of the tenancy rights in the disputed lands in the joint Hindu family hotchpotch. If individual properties are thrown into the joint Hindu family hotchpotch, such individual properties would acquire the character of joint Hindu family properties in the hands of the deceased. This view has been taken by this court in its unreported ruling in Special Civil Application No. 2753 of 1988 decided on 6th May, 1994. If individual properties are thrown into the joint Hindu family hotchpotch, such individual properties would acquire the character of joint Hindu family properties in the hands of the deceased. This view has been taken by this court in its unreported ruling in Special Civil Application No. 2753 of 1988 decided on 6th May, 1994. ( 9 ) IT transpires from the material on record that survey No. 153/1 was granted exemption under Sec. 20 (1) of the Act. A copy of the order passed on 30th October, 1979 in that regard is at Annexure-B to this petition. It would be open to the petitioner to produce that document before respondent No. 3 after the case is remanded. ( 10 ) IN view of my aforesaid discussion, I am of the opinion that the impugned order at Annexure-C to this petition as upwardly revised by the order at Annexure-A to this petition deserves to be quashed and set aside. The matter deserves to be remanded to respondent No. 2 for restoration of the proceeding to file and for his fresh decision according to law taking into consideration the points referred to hereinabove. ( 11 ) BEFORE parting with this judgment, it would be quite proper to record that, ordinarily, this matter could not have been dealt with by me. However, it transpires from the record that the Registry made one submission before the learned Acting Chief Justice regarding placement of this matter on account of non-availability of the Court taking up such matters. Thereupon, by the order passed below that note on 6th May, 1996, it was asked to be placed before this court. It has therefore to be treated as a specially assigned matter. That is how I have entertained and disposed of this matter by this judgment. ( 12 ) IN the result, this petition is accepted. The order passed by the Competent authority at Surat (respondent No. 2 herein) on 29th October 1988 but communicated on 20th November 1988 at Annexure-C to this petition as affirmed and upwardly revised by the order passed by and on behalf of the State Government or 6th March 1995 at annexure-A to this petition is quashed and set aside. The matter is remanded to respondent No. 2 for restoration of the proceeding to file and for his fresh decision according to law in the light of this judgment of mine. The matter is remanded to respondent No. 2 for restoration of the proceeding to file and for his fresh decision according to law in the light of this judgment of mine. Rule is accordingly made absolute to the aforesaid extent with no order as to costs. .