KALPESHKUMAR NARANBHAI PATEL v. GUJARAT HOUSING BOARD
2010-08-05
K.M.THAKER, SUDHANSU JYOTI MUKHOPADHAYA
body2010
DigiLaw.ai
ORDER Present two appeals, under Clause 15 of the Letters Patent, have common facts, common issues and they arise from common judgment and order dated 8th November, 2001 rendered in two writ petitions being Special Civil Application Nos.6175 of 1999 and 5274 of 1999 which were directed against the order dated 30th January, 1999 passed by the Urban Land Ceiling Tribunal {hereinafter referred to as the ULC tribunal }. By the impugned judgment and order dated 8th November, 2001, the learned Single Judge has allowed the aforesaid two writ petitions and has set aside the order dated 30th January, 1999 passed by the ULC tribunal. Aggrieved by the said judgment and order, the appellants {who are the original respondent Nos.1 to 4 before the learned Single Judge} have preferred present appeals. 2. Mr. Navin K.Pahwa, learned advocate for M/s. Thakkar Associates, has appeared for the appellants in L.P.A. No.844 of 2010 and Mr. C.B.Patel, learned advocate, for Mr. B.S.Patel, learned advocate, has appeared for the appellants in L.P.A. No.842 of 2010. Mr. Y.N.Ravani, learned advocate, has appeared for respondent No.1-Gujarat Housing Board {hereinafter referred to as the Housing Board } and Mr. J.K. Shah, learned AGP, has appeared for the respondent No.2-Competent Authority & Additional Collector. We have heard the learned counsel for the contesting parties and have also considered the material on record of the appeals. 3. The facts, involved in and relevant for the purpose of present appeals, can be summarized thus:- 3.1 The appeals arise from the proceedings under the provisions of Urban Land (Ceiling & Regulation) Act, 1976 {hereinafter referred to as the ULC Act }. Upon coming into force of the ULC Act, the appellant No.4 i.e. the father of appellant Nos.1 and 2 and husband of respondent No.3 had filed the Form No.I contemplated under Section 6(1) of the ULC Act. The appellant No.4 is, for the sake of convenience, hereinafter referred to as the declarant . 3.2 After considering the relevant provisions and the factual details declared in Form No.I, the competent authority passed an order dated 25th October, 1982 declaring 7424 sq. mts. of lands out of the total holding (land bearing Survey No.327-paiki, 329/1 and 329/2) as surplus/excess vacant land. 3.3 Subsequently, on 15th January, 1983, the notification under Section 10(1) was published which was followed by notification dated 30.7.1983 (13.10.1983) under Section 10(3).
mts. of lands out of the total holding (land bearing Survey No.327-paiki, 329/1 and 329/2) as surplus/excess vacant land. 3.3 Subsequently, on 15th January, 1983, the notification under Section 10(1) was published which was followed by notification dated 30.7.1983 (13.10.1983) under Section 10(3). Thereafter, the competent authority issued further notice under Section 10(5) of the ULC Act on 14th/17th February, 1984. 3.4 After passage of almost 16 months since the order dated 25th October, 1982 and after allowing issuance of the Notifications under Section 10(1) dated 15th January, 1983 and Section 10(3) dated 30th July, 1983 as well as Section 10(5) dated 14th/17th February, 1984, the declarant filed, in July 1986, appeal under Section 33 of the ULC Act against the aforesaid order dated 25.10.1982. The said appeal was registered as Appeal No.1052 of 1984. By order dated 31.7.1986, the appellate authority dismissed the said appeal. 3.5 It is pertinent that the said order dated 31.7.1986 dismissing the appeal (against the order dated 25.10.1982 passed by the competent authority), has not been challenged, either by the declarant or his heirs until now. Thus, the said order has attained finality. 3.6 Subsequently, on 2nd January, 1990, the possession of the lands in question was taken over by drawing panchnama. There is no dispute between the parties in respect of any of the aforesaid factual details. 3.7 After the possession of the lands in question was taken over, the original declarant filed a civil suit No.1501 of 1991 claiming right of way from the land in question. 3.8 Thereafter, on 26th December, 1996 the possession of the lands in question was handed over to the Housing Board for the public purpose of construction of 141 tenements for weaker section of the society. 3.9 Upon having been allotted and assigned the title and possession of the land in question, the Housing Board submitted a lay out of the tenements-complex for sanction and the Municipal Corporation, by its order dated 6.1.1998, sanctioned the lay out and building plans for 141 tenements. 3.10 By this time, more than 15 years had rolled-by since the order dated 25th October, 1982 declaring 7424 sq. mts. of lands as surplus was passed. During this time Notifications under Section 10(1), (3) and (5) were issued, possession under Section 11 was taken-over and handed over to the Housing Board.
3.10 By this time, more than 15 years had rolled-by since the order dated 25th October, 1982 declaring 7424 sq. mts. of lands as surplus was passed. During this time Notifications under Section 10(1), (3) and (5) were issued, possession under Section 11 was taken-over and handed over to the Housing Board. 3.11 In November 1998 i.e. after lapse of almost 16 years and after all of the aforesaid events, the two sons and the wife (i.e. the appellant Nos.1 to 3 in present L.P.A.) of the declarant approached the ULC tribunal by way of appeal under Section 33 of the ULC Act which was registered as appeal No.54 of 1998. 3.12 In the said appeal No. 54 of 1998 (i.e. the appeal in question), present appellant Nos.1 to 3 (sons and wife of the declarant) challenged the very same order dated 25th October, 1982 (declaring 7424 sq. mts. of land as a surplus) which was the subject matter of the earlier appeal (being the Appeal No.1502 of 1984) under Section 33 of the ULC Act which was filed by the declarant. Thus, the appeal in question (i.e. appeal No.54 of 1998) was another appeal against the same order. 3.13 The said another appeal No.54 of 1998 was vehemently resisted by the respondents herein on diverse grounds including the ground of inordinate delay and laches as well as on the ground that equities in favour of third party had been created to large extent (substantial construction by the Housing Board for 141 tenements for weaker section was completed) and maintainability of another appeal. The date on which the said another appeal No.54 of 1998 i.e. appeal in question came to be filed is significant and has crucial role to play in present proceedings inasmuch as the relevant provision under the ULC Act prescribes limitation of 30 days for filing an appeal whereas, in present case, as noted above, the appeal in question was filed in 1998 i.e. after delay of almost 16 years.
3.14 By order dated 30.1.1999, the ULC tribunal allowed the appeal in question i.e. the said another appeal No.54 of 1998 and set aside the order dated 25th October, 1982 (which was challenged after 16 years) and also set aside the final statement under Section 9 of the ULC Act and remitted the matter to the competent authority for fresh decision after affording opportunity of hearing to the present appellant Nos.1 to 3. 3.15 Aggrieved by the aforesaid order dated 30th January, 1999 passed by the ULC tribunal, present opponent - the Housing Board filed - the writ petition (S.C.A. No.6175 of 1999) praying, inter alia, that the order dated 30th January, 1999 passed by the ULC tribunal may be set aside. The State also filed a separate writ petition being S.C.A. No.5274 of 1999 against the said order dated 30th January, 1999 passed by the ULC tribunal. 3.16 On the strength of the said order, on or around 19th February, 1999 the declarant filed an application in the above referred Civil Suit No.1501 of 1991 requesting the Court to implead the Housing Board as a party respondent in the said suit proceedings. An application (Notice of Motion) also came to be filed praying for an injunction order restraining the Housing Board from carrying on the construction work on the land in question. The learned Civil Court passed an order on 23rd February, 1999 directing the Housing Board to maintain status-quo. 3.17 The petitioners (i.e. present respondents-the Housing Board and the State) seem to have made serious grievance before the learned Single Judge against the order passed by the ULC tribunal wherein the ULC tribunal overlooked the inordinate delay of 16 years without recording any reason and entertained another appeal against the very same order. After hearing the parties and considering the material on record, the learned Single Judge passed the impugned common judgment dated 8th November, 2001 and allowed the two petitions filed by the present opponents - Gujarat Housing Board and the State. 4.
After hearing the parties and considering the material on record, the learned Single Judge passed the impugned common judgment dated 8th November, 2001 and allowed the two petitions filed by the present opponents - Gujarat Housing Board and the State. 4. Before proceeding further, it deserves to be noted that in para 9 of the impugned judgment and thereafter in para 25, the learned Single Judge has taken serious note of certain averments/statements made by the appellants herein before the ULC tribunal, which, according to the learned Single Judge, were incorrect but seem to have persuaded (or atleast appear to have played major role in persuading) the ULC tribunal, to hold that the appellant Nos.1 and 2 were entitled for hearing and opportunity to declare the choice regarding the parcel of land which they would like to retain. The learned Single Judge has, observed in para 25 that:- Before parting with the judgment, considering the submissions of the learned advocates for the petitioners in these petitions, this Court is of the opinion that the aspect of making of false statement by the respondent No.1 requires to be viewed seriously. At the cost of repetition. It is observed that the respondent No.1 Kamleshkumar Naranbhai has made a false statement on oath before this Court. (emphasis supplied) Having recorded the factual aspect regarding incorrect statements made before the ULC tribunal, the learned Single Judge has also recorded the submission by the learned counsel representing present appellants, which reads thus:- However, Mr. B.S.Patel, learned advocate representing the respondents requested this Court not to view this aspect seriously but considering the misdeed and act of the respondent No.1, this Court is of the considered opinion that some action must be initiated against the respondent No.1. (emphasis supplied) The learned Single Judge, has also recorded in the said para 25 that:- ...........this Court has personally looked the entire original record of the State Government and it is found that the two minor sons have made false statement first before the appellate authority in appeal Memo of Appeal No.54/1998 to the effect that they were major at the relevant time when the order was passed by the competent authority on 25th October, 1982.
Consequently, the appellate authority while dealing with the appeal bonafide taken into consideration the false statement made before the appellate authority and considering the genuineness of the said statement and without calling for any documentary evidence and/or from the appellant, has believed this false statement as true one and ultimately came to the conclusion that if they were major at the relevant time, in that case, they were required to be heard by the competent authority before passing the order. This has resulted into miscarriage of justice and ultimately on account of this false statement, the appeal was allowed. (emphasis supplied) Thereafter, the learned Single Judge has proceeded to record other relevant and connected factual aspects and then made below mentioned observations and directions in para 26:- Mr. Kalpeshkumar Naranbhai Patel has made a false statement with malafide intention and despite of the full knowledge that the statement made is incorrect just with a view to get result of the proceedings in their favour just to mislead the Court of law. Therefore, in the above view of the matter, the Registrar of this Court is directed to file appropriate proceedings against the respondent No.1-Kalpeshkumar Naranbhai Patel in Special Civil Application No.6175/1999 under the provisions of the Indian Penal Code for the offence committed by him, as discussed in this judgment. (emphasis supplied) In view of such facts, the learned Single Judge, while allowing the petitions imposed cost of Rs.10,000/- in each petition and directed that the cost be paid by the respondents (i.e. present appellants) to the respective petitioners. 5. Learned advocate Mr. Pahwa for the appellants has submitted that the sons of the declarant were minor (this submission is contrary to the averments made and the stand taken before the ULC tribunal) at the time when the proceedings under ULC Act were undertaken and the order dated 25th October, 1982 was passed and that therefore, when the sons of the declarant became major, they had right in law to prefer another appeal against the order passed by the competent authority declaring 7424 sq. mts. of land as surplus since the said decision affected their rights. He also submitted that the so-called delay in filing the appeal should have been considered not from the date of the order of the competent authority, but from the date when the sons of the declarant became major.
mts. of land as surplus since the said decision affected their rights. He also submitted that the so-called delay in filing the appeal should have been considered not from the date of the order of the competent authority, but from the date when the sons of the declarant became major. Learned advocate for the appellants submitted that the learned Single Judge has erred in holding that the ULC tribunal ignored or condoned the delay of 16 years without justification or without recording proper reasons. It has been submitted that the sons of the declarant did not get opportunity to declare their choice for the land which they would like to retain hence, the order dated 25th October, 1982 was bad in law. He also submitted that the learned Single Judge committed error in not appreciating the status of the application made under Section 20 of the ULC Act and also erred in not appreciating that the writ petitions against the ULC tribunal's order merely remanding the proceeding being not maintainable ought not have been entertained. He also submitted that the learned Single Judge has erred in confirming the conclusion of the lower authorities that the land in question cannot be said to be agricultural land because only grass was being grown on the land in question. He submitted that the land in question ought to have been considered as agricultural land. During the hearing before us, actually, the major thrust of the submission of the appellants' advocate was mainly on two submissions (i) that the sons of the declarant had right to appeal after they became major; and, (ii) that the learned Single Judge erred in holding that another appeal against the same order dated 25th October, 1982, would not be maintainable after the earlier appeal (which was filed by the declarant himself) against the same order dated 25th October, 1982 was dismissed. Any other contentions have not been raised. 5.1 In the L.P.A. No. 842 of 2010, which arises from SCA No.524 of 1999, Mr. Patel has appeared for the appellants (the appellants in both the appeals are common/same) and he has adopted the submissions made by the learned counsel for the appellants in LPA No.844 of 2010, which arises from SCA No.6175 of 1999. 6. The appeals have been resisted by Mr. Ravani, learned advocate appearing for the respondent-Housing Board.
Patel has appeared for the appellants (the appellants in both the appeals are common/same) and he has adopted the submissions made by the learned counsel for the appellants in LPA No.844 of 2010, which arises from SCA No.6175 of 1999. 6. The appeals have been resisted by Mr. Ravani, learned advocate appearing for the respondent-Housing Board. He has submitted that in view of the definition/term family contained in the ULC Act, the sons of the declarant did not have any independent right and the Form No.I which was filed by the declarant, was filed on behalf of the entire family as a single unit. He has submitted that another appeal against the same order (after one/earlier appeal filed by the declarant dismissed) was not maintainable and the ULC tribunal ought not to have entertained the same. He has submitted that in any case, the said another appeal after delay of 16 years ought not to have been entertained, that too without recording justifiable reasons. He submitted that the competent authority was right and justified in its conclusion in holding that the lands in question cannot be considered agricultural land and also in its decision about excess land. The learned advocate for the respondent supported the order dated 25th October, 1982 passed by the competent authority and submitted that the judgment of the learned Single Judge does not warrant any interference and the appeals do not deserve to be entertained. 7. We may first deal with the opponent's Housing Board's objection against the maintainability of the appeal in question i.e. the Appeal No.54 of 1998 before the learned ULC tribunal. 7.1 It has been contended that the Appeal No.54 of 1998 filed by present appellant Nos.1 to 3 was not merely another appeal against the very same order, but it was also barred by limitation. Hence, on both counts the appeal in question was not maintainable. The Housing Board has contended, right from the stage of the proceedings before the ULC tribunal, that the statute prescribes that the appeal must be filed within period of 30 days from the date of the order sought to be challenged. The relevant Section 33 of the ULC Act reads thus:- 33. Appeal.
The Housing Board has contended, right from the stage of the proceedings before the ULC tribunal, that the statute prescribes that the appeal must be filed within period of 30 days from the date of the order sought to be challenged. The relevant Section 33 of the ULC Act reads thus:- 33. Appeal. (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 (hereafter in this section referred to as the appellate authority): Provided that the appellate authority may entertain the appeal after the expiry of the said period of thirty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (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. (3) Every order passed by the appellate authority under this section shall be final. In light of the said provision, it has been contended that any appeal filed after the expiry of prescribed period of limitation, would be barred by limitation and not maintainable, unless and until, the delay is condoned by the tribunal upon being satisfied about the sufficiency of the cause which prevented the appellant from filing it in time. 7.2 Indisputably, the appeal in question i.e. the appeal No.54 of 1998 was filed after inordinate delay of 16 years and that the appeal was devoid of any satisfactory explanation regarding the cause for such gross delay and the appellants had failed to make out any satisfactory cause for condonation of delay. It was obligatory for the tribunal to satisfy itself, in the first instance, about the sufficiency of the cause and then to record reasons about its satisfaction. However, in the present case there is conspicuous absence of both. 8. In this context, we may recall the relevant dates. The order impugned before the ULC tribunal in the appeal in question i.e. the Appeal No.54 of 1998, was passed by the competent authority on 25th October, 1982.
However, in the present case there is conspicuous absence of both. 8. In this context, we may recall the relevant dates. The order impugned before the ULC tribunal in the appeal in question i.e. the Appeal No.54 of 1998, was passed by the competent authority on 25th October, 1982. As per Section 33 the appeal against the order of competent authority should be filed within 30 days whereas, in present case, the appeal in question (i.e. the appeal No.54 of 1998) came to be filed in 1998 i.e. after 16 years. Thus, indisputably, there was gross delay of 16 years when the appeal was filed. 8.1 Thus, it was necessary for the ULC tribunal to ascertain, in the first instance as to whether the appellant had put forward any explanation regarding the cause for delay and whether the explanation, if any, would constitute sufficient cause which explained the length of delay to the satisfaction of the ULC tribunal. The reason or the cause urged to explain the delay ought to be sufficient to satisfy the Court/tribunal about its genuineness and bonafides. When the law requires that the delay may be condoned upon being satisfied that the appellant was prevented by sufficient cause from filing the appeal in time, then it follows that the original Court or authority (the learned ULC tribunal in present case) condoning delay should record reasons. 8.2 In present case, the learned Single Judge has held that ULC tribunal has ignored the delay. The learned Single Judge has also recorded that the decision of the ULC tribunal is hit by the error of non-application of mind. 9. We do not see any reason to differ from the said conclusion of the learned Single Judge. We also could not find any material from the record or any reason coming out of the pleadings which could demonstrate any error in the conclusion of the learned Single Judge and/or which could convince us to take any different view. The learned counsel has also not been able to demonstrate that the appellants had tendered satisfactory explanation making out sufficient cause which was duly taken into consideration by the ULC tribunal and thereby the tribunal was satisfied, about the cause and explanation and had only thereafter considered it appropriate and just to condone the delay. Nothing to this effect emerges from the record. The said appeal was, therefore, barred by limitation.
Nothing to this effect emerges from the record. The said appeal was, therefore, barred by limitation. 9.1 It is necessary to note that before the ULC tribunal no explanation regarding the cause for delay, except stating that the order dated 25th October, 1982 by the competent authority is nullity hence the appeal against the nullity order may be entertained inspite of delay, was given. The learned ULC tribunal did not consider it necessary to even discuss the issue and/or to record reasons for its decision. Actually, strictly speaking the impugned order does not contain any decision condoning delay. There is virtually no discussion and/or reasons recorded by the ULC tribunal, on the point of delay and condonation and/or about other side's objection or that sufficiency of cause and its satisfaction, etc. 9.2 The ULC tribunal has merely recorded the appellants' submission and then without recording any reasons, much less the reasons disclosing satisfaction, the learned ULC tribunal has simply observed that in view of the submission that order of the competent authority is nullity it is appropriate to entertain and decide the appeal . This can hardly to be said a reasoned order. It also does not reveal application of mind. The learned ULC tribunal has simply ignored the delay, though inordinate and gross. No decision to condone the delay and/or reason for such decision are recorded. 9.3 Such order cannot be sustained, more so when there is gross delay of 16 years. The learned Single Judge has, on this count, rightly not approved the approach of the learned ULC tribunal and has rightly held the appeal in question (i.e. another appeal being Appeal No.54 of 1998) as barred by time-limitation. We agree. 10. Neither before the ULC tribunal nor before the learned Single Judge any other reason or explanation or submission was urged with regard to the inordinate delay of 16 years in filing the appeal. Any ground not raised before the ULC tribunal cannot be allowed to be raised in present L.P.As., more so when it was not raised before the learned Single Judge also. Despite such settled legal position altogether different ground has been raised before us. The opponent has vehemently opposed and resisted the attempt.
Any ground not raised before the ULC tribunal cannot be allowed to be raised in present L.P.As., more so when it was not raised before the learned Single Judge also. Despite such settled legal position altogether different ground has been raised before us. The opponent has vehemently opposed and resisted the attempt. 10.1 Before us the learned counsel has, for the very first time, raised a contention that when the order dated 25th October, 1982 came to be passed, the appellant Nos.1 and 2 were minor and that therefore, the appeal came to be filed when they became major. The appellants claim that the period of limitation (or the delay) should be considered calculated after they became major. 10.2 The gross delay in filing the appeal is sought to be wished away by the said explanation. 10.3 As noted above, this contention is raised before us i.e. for the first time during the entire proceedings. It was not raised before the learned Single Judge. The appellant, therefore, cannot be allowed to raise the said ground at this stage and cannot be allowed to justify or support the ULC tribunal's order on the ground which was never raised before the ULC tribunal and we cannot approve or disapprove the order on such ground. Likewise, we cannot disturb the learned Single Judge's order on the ground which was not raised before the learned Single Judge. 10.4 It is pertinent that is not merely a new ground being raised before us but the submission is contrary and opposite to the stand which was taken before the ULC tribunal where the appellants had proceeded on absolutely opposite ground viz. that when the competent authority's order dated 25th October, 1982 was passed they were major, (hence opportunity of hearing and disclosing their choice ought to have been afforded), and now a new ground is raised before us on totally opposite submission that at the relevant time the appellants were minor so as to wriggle out of the vice of delay which has infected the appeal. 11. Actually, the appellants' appeal, as submitted by the opponents, deserve to be dismissed only on this ground viz. making incorrect averments before the ULC tribunal and raising contentions before the tribunal on the basis of such incorrect averments false statements and then raising diagonally opposite contentions before us though not raised before the learned Single Judge. 12.
11. Actually, the appellants' appeal, as submitted by the opponents, deserve to be dismissed only on this ground viz. making incorrect averments before the ULC tribunal and raising contentions before the tribunal on the basis of such incorrect averments false statements and then raising diagonally opposite contentions before us though not raised before the learned Single Judge. 12. However, we have, with a view to being fair to the cause and the grievance, dispassionately considered the contentions raised by the appellant. 12.1 We may now examine as to whether there is substance in the said defence. 12.2 It has been submitted that at the relevant time the appellant Nos.1 and 2 were minor hence, the limitation of 30 days would start from (and should be considered from) the date the appellants Nos.1 and 2 became major. The ground is raised in the appeal memo at ground No.5. 12.3 In para 26 of the judgment of the learned Single Judge it is recorded that the appellants failed, even after opportunity having been afforded, to produce any reliable documentary evidence regarding the birth dates of appellant Nos.1 and 2. After noting the said factual aspect, it has been noted that the date of birth of appellant No.1 is 1.1.1974 and the birth date of appellant No.2 is 11.6.1976. 12.4 Now, it should be recalled that the order of the competent authority was passed on 25th October, 1982. This would mean that the appellant Nos.1 and 2 were, respectively, 8 year's and 6 year's old at the relevant time and the appellant No.1 became major on 1.1.1992 and the appellant No.2 became major on 11.6.1994 whereas the appeal is said to have been filed in or around October 1998. 12.5 Thus, even if the period of limitation is, only to test the contention, considered as claimed by the appellants, then also the factum of delay would stare in face since so far as the appellant No.1 is concerned,the delay in filing the appeal would come to 6 years and in case of appellant No.2 delay would come to 4 years.
Thus, even if the defence on the ground that the said appellants were minor at the relevant time and limitation should be considered from the date they became major is accepted, then also, the said explanation would not rescue the case and would not be of any assistance to overcome and cross the insurmountable hurdle of limitation. It would fall much short of, and that too miserably, the satisfactory explanation about the delay from 1992 to 1998 and from 1994 to 1998. The ULC tribunal has even not addressed the issue from this angle and has not even noticed this discrepancy. 12.6 The appellants have failed to point out any explanation from the record explaining the delay caused in filing the appeal after they became major and they have also failed to address and explain this discrepancy in their contention. They are caught in the web of their own falsehood viz. first the incorrect statement that they were major and were not offered opportunity and now the aforesaid new submission. On this ground (i.e. their own convenient defence) also they fail as there would still be unexplained delay of 6 years so far as the appellant No.1 is concerned and 4 years so far as appellant No.2 is concerned. 12.7 After raising such contention, the appellants failed to put forward any explanation, worth the name atleast regarding delay of 6 and/or 4 years, leave aside delay of 16 years. The appellants have not considered it even necessary to offer any explanation regarding delay after they became major. Even during hearing before us, the appellants did not and could not offer any explanation on this count even for the period of 6 and 4 years. 12.8 In absence of any request and in absence of any cause explaining the delay, the appeal has to be treated as time barred and hit by delay of, if not 16 years, then in any case of 6 years so far as appellant No.1 is concerned and of 4 years so far as appellant No.2 is concerned even after their becoming major. Hence, even if the contentions were to be accepted then also in absence of any explanation and sufficient cause, the appellants could not have salvaged the appeal in question. It was hopelessly delayed and time barred.
Hence, even if the contentions were to be accepted then also in absence of any explanation and sufficient cause, the appellants could not have salvaged the appeal in question. It was hopelessly delayed and time barred. Since the ULC tribunal entertained the appeal, though grossly delayed, without addressing the aforesaid aspect, the decision to entertain the appeal notwithstanding the gross delay coupled with conspicuous absence of satisfactory explanation and sufficient cause, is unsustainable. 13. As noted above, we have independently examined the factual aspects and noted the absence of explanation regarding delay even after the appellants became major. 13.1 We could not find any explanation from the record explaining the even the said part of the delay i.e. for the period after appellant Nos.1 and 2 became major, leaving aside total delay of 16 years. Upon considering the submissions of the learned counsel and the material obtaining on record, we cannot say that the appellants have given satisfactory explanation and/or that there is sufficient cause to condone even the aforesaid part of delay. 13.2 Hence, we have to hold, that the appeal before the ULC tribunal suffered from vice of gross delay. The learned Single Judge is justified in holding that the appeal was time barred. The appeal being time barred was not maintainable and ought not have been entertained/allowed, more so in view of the aforesaid additional discrepancy coupled with absence of any explanation regarding delay. 14. We may now proceed to consider the other facet of the issue of maintainability of the appeal in question i.e. the maintainability of another appeal before the ULC tribunal against the same order which was earlier appealed against (and the appeal was dismissed). 14.1 It is pertinent to recall that against the order dated 25th October, 1982 the declarant had filed, at the relevant time an appeal under Section 33 of the ULC Act being appeal No.1052 of 1984 and the said appeal was dismissed by order dated 31.7.1986. Hence, the appeal preferred by present appellants in 1998 i.e. appeal No.54 of 1998 becomes another appeal against the same order. After the appeal against the order by the competent authority was dismissed, another appeal against the same order would not be maintainable. 14.2 If such appeal is entertained by the tribunal then, it would tantamount to the tribunal reviewing its own order, or sitting in appeal over its own decision.
After the appeal against the order by the competent authority was dismissed, another appeal against the same order would not be maintainable. 14.2 If such appeal is entertained by the tribunal then, it would tantamount to the tribunal reviewing its own order, or sitting in appeal over its own decision. On this count, we may also refer to the provisions under Section 33 of the ULC Act. The said section, inter alia, provides that Any person aggrieved by an order made by the competent authority under this Act may, within thirty days .... prefer an appeal to such ..... Thus, the section confers an opportunity to prefer appeal under Section 33 on any person who is aggrieved by an order made by the competent authority. In this view of the matter, it would be appropriate to revert to the definition of the term family and person contained under Section 2(f) and Section 2(i) of the ULC Act. The said terms are defined thus:- Section 2(f) :- "family", in relation to a person, means the individual the wife or husband, as the case may be, of such individual and their unmarried minor children. Explanation.- For the purpose of this clause, "minor" means a person who has not completed his or her age of eighteen years; Section 2(i) :- "person" includes an individual, a family, a firm, a company, or an association or body of individuals, whether incorporated or not; The definition of the term person includes, a family and the term family includes unmarried minor children . When the appeal against the order dated 25.10.1982 was filed in 1984 by the declarant himself, he was the person aggrieved by the order of the competent authority and when he filed the appeal under Section 33, by virtue of the definition of the term person which includes in its purview a family and thereby the unmarried minor children (i.e. present appellant Nos.1 and 2) as well as his wife (i.e. appellant No.3) the said earlier appeal was, for all purpose, including the purpose of Section 33 and in effect an appeal filed by family within the term person . Thus, another appeal against the same order by the appellant Nos.1 and 2 and 3 would not be maintainable. 15.
Thus, another appeal against the same order by the appellant Nos.1 and 2 and 3 would not be maintainable. 15. Once an appeal under Section 33 of the Act, filed either by the declarant himself or his representatives is decided, another appeal against the same order can not be maintained before the ULC tribunal at the instance of the minor children or spouse who fall within the purview of the term family and constitute a family as contemplated under Section 2(f) of the ULC Act. The provision under Section 33 of the ULC Act does not provide for and/or contemplate another appeal by anyone falling within the purview of the term person or a family against same order which has already been appealed against by someone within the terms persons or a family . Since the appellant Nos.1 and 2 i.e. the sons of the declarant were, as per their claim before us, minor at the relevant time and appellant No.3 happen to be wife of the declarant, they stand covered within the term a family hence another appeal at their behest would not be maintainable. Under the circumstances, we have to hold that the appeal preferred by the appellants herein, in connection with the same order which had already been appealed against, was not maintainable at the behest of appellants and the ULC tribunal could not have entertained and allowed the said appeal No.54 of 1998. The learned counsel for the appellants has not been able to point out any provision or authority/precedence taking a different view. In this view of the matter, another appeal being not maintainable, the delay in filing the appeal in question would be of 16 years. 16. After the rejection of the appeal No.1052 of 1984 filed by the declarant, the order dated 25th October, 1982 (declaring the land in question as surplus) and the order dated 31st July, 1986 (dismissing the appeal No.1052 of 1984) have attained finality. It should be recalled that the said order dated 31st July, 1986 has not been challenged by the declarant or his heirs. Under the circumstances, the question of considering any other contention at the instance of present appellants do not arise at this stage and they pale into insignificance. However, we have considered the other contention. 17.
It should be recalled that the said order dated 31st July, 1986 has not been challenged by the declarant or his heirs. Under the circumstances, the question of considering any other contention at the instance of present appellants do not arise at this stage and they pale into insignificance. However, we have considered the other contention. 17. The learned Single Judge has dealt with the contention raised on the premise that an application seeking exemption under Section 20 of the ULC Act made by the declarant was pending at the relevant time and that therefore, the competent authority could not have passed the order dated 25th October, 1982. On this count, the learned Single Judge has, on the basis of available material, recorded finding of fact to the effect that the application under Section 20 of the ULC Act, said to have been made by the declarant, was not pending on the date on which the competent authority passed the order i.e. 25th October, 1982 inasmuch as the application was made much after the order dated 25th October, 1982 was passed. The learned Single Judge has noted the fact that the application under Section 20 of the ULC Act was dated 20th August, 1984 (almost 2 years after the competent authority's order dated 25th October, 1982) and the said application was rejected by the State by an order dated 19th January, 1985. Thus, on the date of the order of the competent authority, any application under Section 20 of the ULC Act was not and cannot be said to be pending. During the hearing before us, learned advocate for the appellants has not been able to bring to our notice any document or other material from the record contrary to the said finding recorded by the learned Single Judge and has not been able to assail, with help of any cogent evidence, the said finding and convince or persuade us to arrive at a different conclusion. In absence of any material on record, contrary to the finding recorded by the learned Single Judge, we do not see any reason to take a different view. Actually, except making brief reference to the said contention the appellants did not actually press in service the contention based on the ground of application under Section 20 of the ULC Act.
In absence of any material on record, contrary to the finding recorded by the learned Single Judge, we do not see any reason to take a different view. Actually, except making brief reference to the said contention the appellants did not actually press in service the contention based on the ground of application under Section 20 of the ULC Act. It is pertinent that in this regard learned Single Judge also referred to the declaration made by the original declarant in Form No.I and noted that even in the said declaration form, the original declarant had declared that no application under Section 20 or 21 was made or was pending. Another feature of the matter is that the land in question was self-acquired property of the declarant and it was not ancestral property. The learned Single Judge has noted on the basis of the material on record that the declarant had declared that the land in question had been acquired by way of tenancy rights under the provisions of the Tenancy Act. In that view of the matter, the learned Single Judge concluded that the land in question was self-acquired property and not ancestral property and that therefore, the appellants would not be entitled to any legal right and/or cannot claim a separate unit. The appellant Nos.1 and 2 being minors at the material point of time would stand covered within the purview of the term family defined under Section 2(f) of the ULC Act and that therefore, cannot claim to be an independent legal entity and also cannot claim separate unit or independent opportunity of hearing before the competent authority. Before parting, it is appropriate to take note of the stipulation made before the learned Single Judge by the learned counsel of present appellants that the appellants are not asking for any independent unit, but the real grievance is only that they were not heard before the order dated 25th October, 1982 was passed. Another stipulation made before the learned Single Judge by the learned counsel for the appellants also deserves to be noted viz. that the appellants are not asking for possession of the land in question as the possession is with the Housing Board and construction has been completed, but the appellants pray for some compensation for the land in question.
Another stipulation made before the learned Single Judge by the learned counsel for the appellants also deserves to be noted viz. that the appellants are not asking for possession of the land in question as the possession is with the Housing Board and construction has been completed, but the appellants pray for some compensation for the land in question. In the facts of the case such a claim cannot be considered at this stage in present proceedings. 18. Even otherwise, the contentions raised by present appellants pale into insignificance at this stage, particularly when we have concluded that the subject appeal before the ULC tribunal by the appellants (appeal No.54 of 1998) was not maintainable in view of delay as well as for the reason that the appeal in question was another appeal against the very same order (against which the earlier appeal was filed by the declarant and was rejected). 19. As a result of the aforesaid discussions and in light of the conclusions that we have arrived at, we do not find any error or infirmity in the judgment of the learned Single Judge. The learned counsel has failed to make out any convincing and strong ground, which could persuade us to take a different view or to hold that the judgment suffers from any error or infirmity. The appeals, therefore, fail and deserve to be rejected. Hence, we order accordingly. The appeals are, accordingly, rejected. The order impugned is not disturbed. No costs. In view of the disposal of main appeals, the Civil Applications also stand disposed of.