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2002 DIGILAW 145 (GUJ)

Narmadaben D/o. Chhotabhai Gelabhai v. Competent Authority & Addl. Collector (ULC), Vadodara

2002-02-19

R.M.DOSHIT

body2002
JUDGMENT : R.M. Doshit, J. Heard the learned advocates. 2. The petitioner challenges the order dated 19th May, 1986 made by the competent authority, Vadodara under section 8 (4) of the Urban Land [Ceiling & Regulation] Ceiling Act, 1976 [hereinafter referred to as, `the Act']. The petitioner also challenges the judgment and order dated 15th February, 1996 passed by the Urban Land Tribunal in Appeal No. 33 of 1995. The petitioner also challenges the proceedings undertaken by the competent authority under sections 10 (1) and 10 (5) of the Act. The facts leading to the present petition are as under :- The petitioner claims to be the daughter of one Chhotabhai Ghelabhai Chavda. The said Chhotabhai Ghelabhai owned and possessed certain lands at village Atladara, Taluka-Vadodara [hereinafter referred to as, `the said lands']. The said Chhotabhai Ghelabhai died on 12th July, 1973. On his death, the said lands devolved upon his son Bharatbhai Chhotabhai Chavda. The said Bharatbhai Chhotabhai at the relevant time was a minor. Revenue entry no. 1280 was made in the village Form no. 6 recording the said devolution. The name of the widow of the said Chhotabhai Ghelabhai i.e., Smt. Dariyaben Chhotabhai was entered in the revenue records as the guardian of the minor Bharatbhai Chhotabhai. On commencement of the Act, the said Bharatbhai Chhotabhai filed a statement of his holding under section 6 of the Act. The said statement was processed further. The said Bharatbhai Chhotabhai appeared before the competent authority and claimed four units for four major members of the family of the said Shri Chhotabhai Ghelabhai viz., the widowed mother-Smt. Dariyaben Chhotabhai, the declarant himself and his two major married sisters - one Kashiben and one Narmadaben [the present petitioner]. The said Bharatbhai also produced the birth certificate of the said Kashiben and the birth certificate of one Jayantibhai, son of the said Narmadaben. The claim made by the said Bharatbhai was partly accepted and he was allowed to retain vacant land equivalent to three ceiling units - for the widowed mother Smt. Dariyaben, himself and the sister Kashiben. The claim made in the name of sister Narmadaben was not accepted since the said Bharatbhai failed to produce any evidence in support of the said claim. The claim made in the name of sister Narmadaben was not accepted since the said Bharatbhai failed to produce any evidence in support of the said claim. Since the preparation of the draft statement and the service thereof under section 8 (3) of the Act, final statement under section 9 was prepared and served upon the said Bharatbhai on 18th June, 1987. The matter was processed further and after following the procedure as envisaged in section 10 of the Act, the possession of the excess vacant land was taken over. Part of the said excess vacant land has been allotted to the Slum Clearance Board, the respondent no. 5 herein under Section 23 of the Act on 19th February, 1990. The petitioner challenged the above referred order dated 19th May, 1986 before the Urban Land Tribunal in above referred Appeal No. 33 of 1995. The said appeal has been dismissed on 15th February, 1996. Feeling aggrieved, the petitioner has preferred the present petition. 3. Mr. Bhatt has submitted that on the death of her father, the petitioner had a share in his property. The said property had not been partitioned before the date of the statement which was filed under section 6 of the Act. The petitioner was, therefore, entitled to hold one ceiling unit of the said lands. In support of her entitlement, the said Bharatbhai had produced the birth certificate of the son of the petitioner. This goes to prove that the petitioner was major daughter of the said Chhotabhai Ghelabhai and had a right to share in the said lands. The petitioner was, therefore, entitled to a notice as envisaged under section 8 (3) of the Act. Such notice was required to be served in consonance with Rule 5 of the Urban Land [Ceiling & Regulation] Rules, 1976 [hereinafter referred to as, `the Rules']. Admittedly, no notice had been served upon the petitioner who had an interest in the said lands. The final statement drawn under section 9 of the Act, therefore, is null and void ab initio. Consequently, all the proceedings, notices and the Notifications issued under section 10 of the Act are void ab initio. In support of his contention, Mr. Bhatt has relied upon sections 8 & 9 of the Act and Rule-5 of the Rules. Mr. The final statement drawn under section 9 of the Act, therefore, is null and void ab initio. Consequently, all the proceedings, notices and the Notifications issued under section 10 of the Act are void ab initio. In support of his contention, Mr. Bhatt has relied upon sections 8 & 9 of the Act and Rule-5 of the Rules. Mr. Bhatt has also relied upon the judgment of the Allahabad High Court in the matter of Mohmad Islam & Anr. v. State of Uttar Pradesh & Ors. {Civil Misc. Writ Petition No. 6050 of 1980, decided on 2.12.1985}. 4. The petition is contested by the learned AGP Mr. Dave. Mr. Dave has submitted that the petition deserves to be dismissed on the ground of delay, latches and acquiescence. The order made by the competent authority as far back as on 19th May, 1986 was challenged by the petitioner before the Urban Land Tribunal in the year 1995 i.e., after a gross delay of nearly ten years and after the situation had become irreversible that is not only the parts of the said lands were declared to be excess vacant land but the same had vested in the State Government and the possession too had been taken over. The petitioner's appeal, therefore, has rightly been rejected by the Urban Land Tribunal. He has also submitted that the petition is based on the premise that the petitioner had a share in the property of her father. He has submitted that admittedly at the time of the death of her father, the said Chhotabhai Ghelabhai, the petitioner was already married and hence she had ceased to be a member of the joint family of her father. She, therefore, could not have claimed share in the joint family property of her father. In support of this contention, he has relied upon the judgment of this Court in the matter of State of Gujarat v. Ramagauri Harkishandas [ 1997 (2) GLR 929 ]. 5. The petition requires to be rejected on both the grounds i.e., delay, latches and acquiescence and also on merits. Section 8 (3) of the Act enjoins upon the competent authority to serve the draft statement in the manner as may be prescribed, on the person concerned. The manner in which such draft statement shall be served is prescribed under Rule 5 of the Rules. Section 8 (3) of the Act enjoins upon the competent authority to serve the draft statement in the manner as may be prescribed, on the person concerned. The manner in which such draft statement shall be served is prescribed under Rule 5 of the Rules. The said Rule 5 provides inter alia that the draft statement referred to under sub-section (1) of Section 8 shall be served together with the notice referred to in sub-section (3) of Section 8 on the holder of the vacant lands and all other persons, so far as may be known, who have or likely to have any claim to, or interest in the ownership, or possession or both of the vacant lands. Mr. Bhatt has strenuously urged that the words, `person concerned' occurring in sub-section (3) of Section 8 are required to be construed, keeping in view the above referred requirement under sub-rule (2) of Rule 5 i.e., the words `person concerned' should include not only the holder of the vacant land but also all other persons who have or are likely to have any claim to or interest in the ownership, or possession, or both, of the vacant lands. In the present case, the claim of the petitioner was put forth by the said Bharatbhai Chhotabhai before the Competent Authority. It was, therefore, known to the competent authority that the petitioner had a claim to the ownership and possession of the said lands. The petitioner was, therefore, entitled to a notice as envisaged in Section 8 (3) of the Act. The said requirement is mandatory. Irrespective of the fact whether the petitioner had suffered any prejudice or not, the entire proceeding undertaken without issuance of notice to the petitioner is null and void. However, in the present case, the prejudice has in fact been caused to the petitioner. The impugned orders are, therefore, required to be quashed and set-aside. 6. In the matter of Mohmad Islam & Anr. [Supra], admittedly, the notice and the draft statement under Section 8 (3) of the Act was not served upon the holder of the land. The Hon'ble High Court, considering the scheme of the Act held that, `no notice was served on the petitioners. 6. In the matter of Mohmad Islam & Anr. [Supra], admittedly, the notice and the draft statement under Section 8 (3) of the Act was not served upon the holder of the land. The Hon'ble High Court, considering the scheme of the Act held that, `no notice was served on the petitioners. Hence, all the subsequent proceedings for determination of the surplus land and publication of the same was without jurisdiction.' Consequently, the order holding the land surplus and the final publication in the gazette were quashed. 7. It cannot be gainsaid that requirements under sub-section (3) of Section 8 of the Act are mandatory. All subsequent proceedings undertaken without issuance of such notice would be without the authority of law and illegal. However, in the case before the Allahabad High Court, the writ petitioner was the declarant himself who complained of non-service of the notice and the draft statement under section 8 (3) of the Act. Besides, he had approached the Court at the stage where Notification under Section 10 (1) of the Act was issued and published in the official gazette ie., the excess vacant land had yet not vested in the State Government nor the possession thereof was taken over. On the facts of the case on hand, the said ruling shall have no applicability. In the present case, the writ petitioner is a daughter who has claimed a share in the property of her father, though she did not file the statement under section 6 indicating her share in the property of her father, a claim in her behalf was put forth by the holder of the land-Bharatbhai Chhotabhai. However, no evidence was produced in support of the said claim i.e., it was not proved before the Competent Authority or for that matter, even before this Court that the petitioner is the daughter of the said Chhotabhai Ghelabhai. Moreover, it is quite doubtful whether notice as envisaged under sub-section (3) of Section 8 of the Act is required to be served upon the persons other than the person who has filed the Statement under section 6 of the Act. The said sub-section (3) provides that the draft statement shall be served in such manner as may be prescribed on the person concerned together with a notice stating that any objection to the draft statement shall be preferred within thirty days of the service thereof. The said sub-section (3) provides that the draft statement shall be served in such manner as may be prescribed on the person concerned together with a notice stating that any objection to the draft statement shall be preferred within thirty days of the service thereof. It should be noted that the Legislature has used singular i.e., the words `person concerned'. The person concerned should, therefore, be necessarily the person who has filed statement under section 6 of the Act. The said sub-section (3) also refers to the manner of service as may be prescribed i.e., as may be prescribed by the Central Government in exercise of the rule making power conferred by sub-section (1) read with sub-section (2) of Section 46 of the Act. Sub-section (1) of Section 46 of the Act empowers the Central Government to make rules for carrying out the provisions of the Act. Sub-section (2) thereof provides for the matters in respect of which such rules may be made. Clause-E thereof reads thus, `The manner of serving the draft statement under sub-section (3) of section 8'. Hence, in my view, section 8 (3) read with section 46 (1) & 46 (2) of the Act makes it clear that it is the manner of service alone for which the Central Government is empowered to make rule i.e., the Central Government is not empowered to make rules with respect to the persons upon whom such service should be made. The person upon whom service is to be made is provided for in Section 8 (3) of the Act itself. The submission is fallacious. No statute can be construed on the basis of the language of the rules made thereunder. Rules made under any statute have to conform with the statute and not the vice versa. However, Rule-5 of the Rules not only provides for the manner in which the service should be made but also provides for the persons on whom such service should be made. I may repeat here that the Legislature had not empowered the Central Government to provide the persons on whom such service should be made. Hence, prima facie, it appears that the sub-clauses (ii) of Clause (a) of sub-rule (2) of Rule 5 of the Rules is ultra vires section 8 (3) of the Act. I may repeat here that the Legislature had not empowered the Central Government to provide the persons on whom such service should be made. Hence, prima facie, it appears that the sub-clauses (ii) of Clause (a) of sub-rule (2) of Rule 5 of the Rules is ultra vires section 8 (3) of the Act. However, for the reasons given hereinafter, I am of the opinion that the petitioner was not entitled to service of draft statement or notice as envisaged in sub-section (3) of section 8 of the Act. The question of validity of the above Rule 5 (2) (a) (ii) does not require to be dealt with further. 8. Besides, as admitted, the petitioner was at the relevant time, a major and was already married. This Court in the matter of re-Ramagauri Harkishandas [Supra] had an occasion to examine whether the married daughters could have a claim to a share in the joint family property of her father. After examining the provisions of the Hindu Law and the Hindu Succession Act and the Act, the Court has held that, `..Obviously, it envisages a notional partition and determination of shares that could be allotted on the appointed day, on the day on which holding of vacant land and surplus land has to be calculated under the Act, to those members of the family who are entitled to share on that date. Therefore without determining the entitlement to the share on the partition, automatically the vacant land cannot be divided into physical number of adult members who could be legitimately considered to be constituting bigger body of Hindu Undivided Family. Moreover, it is to be seen that sub-section (7) only deals with a person who is a member of H.U.F as discussed above. Married daughters cannot be treated to be member of H.U.F which their father is karta, as such. On marriage she ceases to be member of her father's family and becomes member of her husband's family. 9. Moreover, it is to be seen that sub-section (7) only deals with a person who is a member of H.U.F as discussed above. Married daughters cannot be treated to be member of H.U.F which their father is karta, as such. On marriage she ceases to be member of her father's family and becomes member of her husband's family. 9. Therefore, to the extent merely on the basis of the fact that the property in question was ancestral property, the conclusion that on a notional partition of the ancestral property the major married daughters will be entitled to a separate unit qua the property in question without further finding that on the appointed day, such females had acquired a right in the said ancestral property under any law for the time being in force, is patently erroneous.' 10. Thus, even if the petitioner's claim that she is the daughter of Late Shri Chhotabhai Ghelabhai were accepted, admittedly, since her marriage she ceased to be a member of H.U.F the said Shri Chhotabhai Ghelabhai. Similarly, on the appointed day, the said Bharatbhai Chhotabhai was the Karta of the joint family of himself and his mother Smt. Dariyaben Chhotabhai. The petitioner cannot be said to be the member of the Hindu Undivided Family of the said Bharatbhai Chhotabhai. She, therefore, could not have the legitimate right to retain one unit of land of the said Chhotbhai Ghelabhai, or for that matter, Bharatbhai Chhotabhai. 11. Now that I have held that the petitioner could not have legitimate claim to the said lands or an interest in possession thereof, the question of issuance of notice and the draft statement under sub-section (3) of Section 8 of the Act would not arise. The proceedings undertaken under the Act, therefore, cannot be said to be invalid for want of such notice. 12. No other contention is raised before me. In view of the above discussion, the petition is dismissed. Rule is discharged with costs. 13. Learned advocate Mr. Bhatt requests that the status quo ordered to be maintained pending this petition be continued for a further period of six weeks. The request is granted. The status quo shall be maintained till 16th March, 2002. Rule Discharged.