SCA/9247/1999 1/81 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9247 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ===================================================== STATE OF GUJARAT - Petitioner(s) Versus MADHUBINDU JAYSHANKER VYAS & 1 - Respondent(s) ===================================================== Appearance : MR DIPEN DESAI, ASST. OVERNMENT PLEADER for Petitioner(s) : 1, MR J.R.NANAVATI FOR SUNIL B PARIKH for Respondent(s) : 1, MR AJ PATEL for Respondent(s) : 2, ===================================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 13/10/2006 ORAL JUDGMENT SCA/9247/1999 2/81 JUDGMENT 1.Present petition has been filed by the State of Gujarat under Article 227 of the Constitution of India challenging the judgment and order passed by the Urban Land Tribunal dated 22nd January, 1999 passed in Review Application No. Jamnagar/31/98 in allowing the said review application by modifying its earlier order and declaring that no land of the original declarant – respondent No.1 herein is required to be declared as excess vacant land on the basis of the order passed by the Competent Authority & Deputy Collector, Urban Land Ceiling, Jamnagar, and further passing the order to close the form. By way of amendment, it is also further prayed for an appropriate order to declare that the sale transaction in favour of M/s. Sagar Raj Land Developers – respondent No.2 (joined as per the order dated 19th October, 2005 passed in Civil Application No. 9808 of 2005) by way of registered sale deed dated 14th May, 1999 as illegal and void and therefore, to be set aside. 2.At the outset, it is to be observed that this is a SCA/9247/1999 3/81 JUDGMENT unique case of fraud by the original land owner in connivance with the Urban Land Tribunal and/or office of Urban Land Ceiling Department and at the outset, it is also required to be noted that by way of impugned judgment and order dated 22nd January, 1999, the tribunal while exercising the powers of review, has set aside its earlier order, which was, in fact, confirmed by this Court upto the Division Bench by way of Letters Patent Appeal and in fact, decided the review application within a period of two and half months only, which was filed after almost 11 years, more particularly, when the Urban Land Ceiling Act was to be repealed. The review application was presented by the respondent No.1 – original declarant before the Urban Land Tribunal on 14th November, 1998 and the same came to be allowed vide order dated 22nd January, 1999 and that the Urban land Ceiling Act came to be repealed w.e.f. 31st March, 1999. 3.Few facts are necessary for the purpose of determination of the present Special Civil Application and to appreciate the fact that how and SCA/9247/1999 4/81 JUDGMENT in what manner, the original declarant/land owner has played mischief and fraud. The land bearing City Survey No. 37/G/5 paiki Municipal Census No.368 paiki admeasuring 2805.58 sq mts of land situated at Jamnagar was owned by the respondent No.1 herein i.e. Smt. Madhubindu Jayshanker Vyas. On coming into force the Gujarat Urban Land Ceiling Act (hereinafter referred to as the “ULC Act”), she submitted the declaration/form under Section 6(1) of the ULC Act. The said form was processed by the Competent Authority & Deputy Collector, Urban Land Ceiling, Jamnagar, (hereinafter referred to as “the Competent Authority”) and by order dated 12th October, 1984 declared 746.14 sq mts of land as excess vacant land under the provisions of the ULC Act from the holding of the original declarant. Being aggrieved and dissatisfied with the order passed by the Competent Authority dated 12th October, 1984 declaring 746.14 sq mts of land as excess vacant land, the original land owner – declarant preferred appeal under Section 33 of the ULC Act before the SCA/9247/1999 5/81 JUDGMENT Urban Land Tribunal being Appeal No. 1647/1984, which came to be dismissed on merits by the tribunal by order dated 14th May, 1987 and the order passed by the Competent Authority dated 12th October, 1984 declaring 746.14 sq mts of land as excess vacant land from her holding came to be confirmed. Being aggrieved and dissatisfied with the order passed by the Urban Land Tribunal dated 14th May, 1987 passed in Appeal No. 1647/1984 in dismissing the same and confirming the order passed by the Competent Authority dated 12th October, 1984 in declaring 746.14 sq mts of land as excess vacant land, the respondent No.1 herein – original land owner – declarant preferred Special Civil Application before this Court being Special Civil Application No.5238/87 and the learned Single Judge of this Court dismissed the said Special Civil Application confirming the order passed by the Urban Land Tribunal as well as of the Competent Authority declaring 746.14 sq mts of land as excess vacant land. Being aggrieved and dissatisfied with the order passed by the learned Single Judge of this Court dated 19th November, 1987 in dismissing SCA/9247/1999 6/81 JUDGMENT the aforesaid Special Civil Application, the respondent No.1 herein – original land owner – declarant preferred Letters Patent Appeal being Letters Patent Appeal No.511/88 before the Division Bench of this Court and the Division Bench of this Court vide its order dated 7th January, 1991 dismissed the said Letters Patent Appeal. Thus, the order passed by the Competent Authority dated 12th October, 1984 and the judgment and order passed by the Urban Land Tribunal passed under Section 33 of the ULC Act as well as the order passed by the learned Single Judge of this Court dated 19th November, 1987 passed in Special Civil Application No. 5238/87 became final. It appears from the record that thereafter the original land owner approached the State Government under Section 34 of the ULC Act against the order passed by the Competent Authority dated 12th October, 1984 in the year 1993, though the same was not maintainable as the appeal under Section 33 of the ULC Act was already rejected and that too the said order came to be confirmed upto the Letters Patent Appeal and therefore, it was not open for the original land SCA/9247/1999 7/81 JUDGMENT owner to submit an application under Section 34 of the ULC Act against the original order passed by the Competent Authority. It appears that the State Government pressed for particulars with regard to the latest position and after getting necessary particulars, the said review application was not accepted. In the meantime, further proceedings, pursuant to the order passed by the Competent Authority dated 12th October, 1984 came to be initiated and the notification under Section 10(1) of the ULC Act was issued on 30th October, 1984 and the same was also published in the Official Gazette. That thereafter notification under Section 10(3) of the ULC Act was issued on 17th September, 1987 and the same was also published in the Official Gazette on 1st October, 1987. In the meantime and before the issuance of the notification under Section 10(5) of the ULC Act, the original land owner approached the Urban Land Tribunal by way of aforesaid Appeal No. 1647/84, which came to be dismissed on 14th May, 1987 and against which, the original land owner – respondent No.1 herein preferred Special Civil Application SCA/9247/1999 8/81 JUDGMENT No.5238/87 and the same also came to be dismissed on 19th November, 1987 as stated hereinabove. That thereafter the Competent Authority issued notice on 15th October, 1987 under Section 10(5) of the ULC Act calling upon the petitioner to surrender the possession of the land, which came to be declared as excess vacant land and the said notice was served upon the original land owner – respondent No.1 herein on 14th November, 1987. That in the meantime, the petitioner preferred application under Section 21 of the ULC Act, which came to be dismissed and against which Appeal No. 11/88 was preferred before the Urban Land Tribunal, which also came to be dismissed. That thereafter, on rejection of the Appeal No. 11/88, which was against the rejection of the application under Section 21 of the Act, it is the case on behalf of the State Government that the authority took the possession of the excess vacant land on 28th September, 1988 and the panchnama to that effect was also prepared on the same date. Inspite of the aforesaid facts and circumstances and the original order passed by the Competent Authority & Deputy SCA/9247/1999 9/81 JUDGMENT Collector, Urban Land Ceiling, Jamnagar, declaring 746.14 sq mts of land as excess vacant land came to be confirmed by the Urban Land Tribunal and even by this Court vide order dated 19th November, 1987 passed in Special Civil Application against which the Letters Patent Appeal was filed and which also came to be dismissed and it appears that as the date of coming into force of the Urban Land Ceiling (Repeal) Act i.e. 31st March, 1999 was coming nearer, without disclosing the facts that against the order passed by the Urban Land Tribunal dated 14th May, 1987 in Appeal No. 1647/84, the original land owner preferred the Special Civil Application No.5238/87 and the said Special Civil Application was rejected whereby the order passed in appeal by the Urban Land Tribunal came to be confirmed and even the Letters Patent Appeal was also dismissed, the original land owner submitted Review Application No.31/98 before the Urban Land Tribunal on 14th November, 1998 to review the order dated 14th May, 1987 passed in Appeal No. 1647/84, though the said order was confirmed by the learned Single Judge of this Court vide order dated 19th November, SCA/9247/1999 10/81 JUDGMENT 1987 in Special Civil Application No. 5238/87 and even further by the Division Bench of this Court vide Letters Patent Appeal; even when there were no powers of review vested in the Urban Land Tribunal except under Section 45 of the Act, where a review application was maintainable only in case of a clerical or arithmetical error committed in calculation and inspite of the aforesaid facts, the aforesaid review application was filed after the period of 11 years of passing of the order by the Urban Land Tribunal, which was sought to be reviewed, the Urban Land Tribunal though the review application was not maintainable, went a step further whereby the tribunal not only entertained the said review application but also set aside the order passed by the Competent Authority dated 12th October, 1984 by which 746.14 sq mts of land was declared as excess vacant land, by its order dated 22nd January, 1999 declaring that the original land owner was not holding any excess vacant land. Being aggrieved and dissatisfied with the impugned order passed by the Urban Land Tribunal dated 22nd January, 1999, the State Government preferred the SCA/9247/1999 11/81 JUDGMENT present Special Civil Application being Special Civil Application No.9247 of 1999 in the month of July – 1999 and this Special Civil Application came to be admitted by the learned Single Judge of this Court on 25th November, 1999 and granted the stay of the impugned order passed by the Urban Land Tribunal passed in Review Application No. 31/98 dated 22nd January, 1999. The Urban Land Ceiling Act came to be repealed on 31st March, 1999, the respondent No.1 herein – original land owner sold 746.14 sq mts of land to the respondent No.2. The present Special Civil Application came up for final hearing before this Court in the month of September/October – 2005. In the meantime, it was brought to the notice of the State Government that the land has been sold to the respondent No.2 herein and therefore, the State Government preferred Civil Application being Civil Application No.9808 of 2005 for amending the main petition and joining the respondent No.2, purchaser of the land, as party respondent No.2 in the present proceedings. The Rule was issued by this Court in the said Civil Application and the original land SCA/9247/1999 12/81 JUDGMENT owner contested the Civil Application by way of filing affidavit-in-reply. The respondent No.2 herein also opposed the said Civil Application by filing affidavit-in-reply. After considering the affidavit-in-reply and after hearing the respondents, this Court allowed Civil Application No.9808/2005 by order dated 19th October, 2005 and granted the amendment and permitted the State Government to join the respondent No.2 as party respondent No.2 to the present proceedings and the main Special Civil Application was fixed for final hearing on 25th October, 2005. Being aggrieved and dissatisfied with the order passed by this Court dated 19th October, 2005 passed in Civil Application No.9808/2005, the original land owner – respondent No.1 herein as well as the purchaser – respondent No.2 herein preferred two Letters Patent Appeals and both the Letters Patent Appeals came to be dismissed by the Division Bench of this Court (Coram: Hon'ble Mr. Justice G.S.Singvi & Hon'ble Mr. Justice P.B.Majmudar, JJ.) on 28th October, 2005 and thereafter, the present Special Civil Application came to be adjourned time and again and SCA/9247/1999 13/81 JUDGMENT was finally heard by this Court. 4.Shri Dipen Desai, learned AGP, while assailing the order passed by the Urban Land Tribunal dated 22nd January, 1999 passed in Review Application No. 31/98 has vehemently submitted that the tribunal has committed an error in entertaining the said review application. It is submitted by him that the impugned order of the tribunal is absolutely illegal, arbitrary and contrary to the settled principles of law inasmuch as the tribunal entertained the review application without there being any jurisdiction conferred upon the tribunal to entertain the review application. It is submitted by him that the powers of review are not inherent powers and it is to be vested specifically by the Statute. It is submitted by him that in the present case, the ULC Act did not provide for any powers of review upon the tribunal and therefore, without there being any specific powers of review, the tribunal should not have entertained the review application. In support of his above submission, he has relied upon the decisions of the Hon'ble SCA/9247/1999 14/81 JUDGMENT Supreme Court in case of Patel Narshi Thakershi V/s. Pradyumansinghji Arjunsinhji reported in AIR 1970 SC P.1273 and in case of Lily Thomas, etc. etc., V/s. Union of India and others reported in AIR 2000 SC P.1650. 5.It is further submitted by him that in the alternative and without prejudice to his above submission, even if the review application can be entertained, then also the scope of the tribunal would be limited as provided under Order 47, Rule 1 of the C.P.C. It is submitted by him that Order 47, Rule 1 of C.P.C. clearly provides that where no appeal is allowed and/or preferred, the review application is not permissible. It is submitted by him that in the present case, the respondent No.1 challenged the order of the tribunal, which subsequently came to be reviewed by the tribunal and by way of Special Civil Application No. 5238/87 which was rejected and against which, Letters Patent Appeal No.511/88 was preferred which was also rejected. It is submitted by him that when the Higher Forum is approached and the Higher Forum SCA/9247/1999 15/81 JUDGMENT confirms the order of the subordinate Court or the authority, the tribunal ceases to have jurisdiction to entertain the review application. It is also further submitted by him that even the doctrine of merger would be applicable in the present case inasmuch as the judgment of the tribunal dated 14th May, 1987 would merge in the order dated 19th November, 1997 passed by the learned Single Judge of this Court passed in Special Civil Application No.5238/87 and therefore, once the order of tribunal having merged with the order of this Court, the tribunal would not have jurisdiction to review its own order and therefore, the impugned order passed by the tribunal is beyond the jurisdiction vested in the tribunal. In support of his above submission, he has relied upon the following judgments:- (I) M/s. Kabari Pvt. Ltd., V/s. Shivnath Shroff and Others reported in AIR (1996) SC P.742 (Para 22). (II) State of Maharastra And Another V/s. SCA/9247/1999 16/81 JUDGMENT Prabhakar Bhikaji Ingle reported in (1996) 3 SCC P.463 (Paras 4 & 5). (III) Sree Narayana Dharmasanghom Trust V/s. Swami Prakasananda And Others reported in (1997) 6 SCC P.78 (Paras 3 to 6). (IV) Gopabandhu Biswal V/s. Krishna Chandra Mohanty And Others reported in (1998) 4 SCC P.447 (Para 8). 6.It is also further submitted by him in furtherance of his alternative submission that the review is not rehearing on merits nor is an appeal in disguise. It is submitted by him that the tribunal could not have gone into the merits of the case again and the very fact that for adjudication of review application if the tribunal or the Court is required to enter into the merits, proves that the same is rehearing of the case or appeal in disguise and therefore, the tribunal ought to have restrained itself from entertaining the review application as soon as the adjudication requires SCA/9247/1999 17/81 JUDGMENT entertaining into merits. In support of his above submission, he has relied upon the following judgments of the Hon'ble Supreme Court. (I) Sow Chandra Kante And Another V/s. Sheikh Habib reported in 1975 (1) SCC P.674. (II) Meera Bhanja (Smt) V/s. Nirmala Kumari Choudhury (Smt) reported in (1995) 1 SCC P.170 (Paras 8,9,10 & 15). (III) M/s. Northern India Caterers (India) V/s. Lt. Governor of Delhi reported in 1980 (2) SCC P.167 (Para 8). 7.He has also further submitted that the review application even if maintainable, can only be preferred for correction of error apparent on the face of the record. It is submitted by him that in the present case, there was no error, much less any error apparent on the face of the record and therefore, the tribunal ought not to have entertained the review application. It is further SCA/9247/1999 18/81 JUDGMENT submitted by him that in the present case, the main contention of the respondent before the tribunal is that because of the subsequent judgment in case of Smt. Meera Gupta V/s. State of West Bengal and Others reported in AIR 1992 SC P.1567 by the Hon'ble Supreme Court, the tribunal was justified in entertaining the review application and in passing the impugned order. It is submitted by him that the review on the ground of change of law or subsequent judgment is not maintainable and explanation to Order 47 Rule 1 is clear that due to change of law or subsequent judgment, the review cannot be preferred. It is submitted by him that even otherwise, the decision of the Hon'ble Supreme Court in Meera Gupta's case was delivered in the year 1992 whereas, the review application was preferred in the month of November – 1998 and therefore, actually the same was not at all the ground for review. 8.It is further submitted by him that the tribunal has materially erred in entertaining the review application after delay of more than 11 years SCA/9247/1999 19/81 JUDGMENT without there being any justification for condonation of delay and/or even condoning the delay. 9.It is further submitted by him that even on merits the tribunal's order is absolutely illegal and contrary to the evidence on record. It is submitted by him that the tribunal in the impugned order has gone into the merits regarding construction on the land in question and as such the said aspect was already decided by the Competent Authority vide its order under Section 8(4) dated 12th October, 1984 wherein, the said aspect was discussed in detail regarding the construction carried out by the respondent No.1 herein. It is also further submitted by him that the tribunal in the earlier order dated 14th May, 1987 also discussed the said aspect regarding the construction and not only that even the learned Single Judge of this Court also in Special Civil Application No. 5238/87 discussed the said aspect and therefore, both the authorities below as well as this Court, after dealing with the aspect of construction on the land in question SCA/9247/1999 20/81 JUDGMENT rejected the said contention raised by the respondent No.1 original land owner and therefore, the tribunal ought not to have come to any conclusion contrary to the decision of this Court rendered in Special Civil Application No.5238/87. It is submitted by him that therefore once the earlier order of the tribunal had become final, the same was binding to the respondent No.1 and the tribunal had no jurisdiction to entertain the review application. It is further submitted by him that irrespective of the doctrine of merger becoming applicable, the tribunal has committed an absolute error in entertaining the review application. It is submitted by him that the impugned order passed by the tribunal is contrary to the order passed by this Court between the same parties and therefore, the same is illegal and requires to be quashed and set aside. 10.It is also further submitted by him that even the tribunal has been misled by the respondent No.1 herein in connivance with the Officers of the Competent Authority inasmuch as the material facts SCA/9247/1999 21/81 JUDGMENT were not placed before the tribunal. It is submitted by him that the fact that the earlier order dated 14th May, 1987 passed by the tribunal was challenged before this Court and this Court had dismissed the petition against which the Letters Patent Appeals was preferred which also came to be dismissed, were not disclosed to the tribunal and therefore, the impugned order has been obtained from the tribunal by committing fraud and by misrepresentation. It is submitted by him that therefore the order which is obtained by fraud and/or misrepresentation is nullity and has no legal status in the eyes of law. It is submitted by him that it was the bounden duty of the respondent No.1 to bring to the knowledge of the Tribunal the facts regarding the dismissal of the Special Civil Application and the Letters Patent Appeals and by not bringing the said facts to the notice of the tribunal, the respondent No.1 has committed fraud. It is submitted by him that nobody can be permitted to take disadvantage of the order which is obtained by him by fraud, otherwise it will perpetuate the illegality and therefore, it is requested to quash SCA/9247/1999 22/81 JUDGMENT and set aside the impugned order passed by the tribunal. 11.Present Special Civil Application is opposed by the respondent No.1 on the following grounds and by making following submissions:- (I) That the State Government has no right to file the present Special Civil Application against the order passed by the Urban Land Tribunal. (II) The Urban Land Tribunal had power to review its own judgment and the impugned judgment is in accordance with the law. (III) The tribunal is bound to give effect to the judgment of the Hon'ble Supreme Court in case of Meera Gupta (Supra), which is again confirmed in 2002 (7) SCC P.336. (IV) The Urban Land Tribunal and the State Government are bound by the declaration of law declared by the Hon'ble Supreme Court. SCA/9247/1999 23/81 JUDGMENT (V) The possession of the land alleged to have been taken on 29th September, 1988 is under bogus panchnama and in fact, actual possession was not taken by the authority. (VI) That the property and the land in question was in possession of the respondent No.1 after passing of the order in review and the respondent No.1 handed over the possession to the respondent No.2 on 14th May, 1999 after obtaining permission under Section 26 of the ULC Act. (VII) That after passing of the order in review, the land in