IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6175 of 1999 with SPECIAL CIVIL APPLICATION No 5274 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- GUJARAT HOUSING BOARD Versus KALPESHKUMAR NARANBHAI PATEL -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 6175 of 1999 MR SB PANDIT for Petitioner No. 1 MR SHAILESH C PARIKH for Petitioner No. 1 MR BS PATEL for Respondents No. 1-4 MRS RANJAN B PATEL for Respondents No. 1-4 MR RM CHAUHAN ASSTT GOVERNMENT PLEADER for Respondent No. 5 2. Special Civil Application No. 5274 of 1999 MR RM CHAUHAND ASSTT GOVERNMENT PLEADER for Petitioner No. 1 MR BS PATEL for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 08/11/2001 COMMON ORAL JUDGEMENT In Special Civil Application No.6175/1999, this Court has heard Mr.S.B.Pandit, learned advocate appearing on behalf of the petitoner - Gujarat Housing Board and Mr.R.M.Chauhan, learned AGP appearing on behalf of the respondent No.5 so also Mr.B.S.Patel, learned advocate for respondent Nos.1 to 4. This Court has also heard Mr.R.M.Chauhan, learned AGP appearing on behalf of the petitioner and Mr.B.S.Patel, learned advocate for respondent Nos.1 to 3 in Special Civil Application No.5274/1999. #. So far as Special Civil Application No.6175/1999 is concerned, this Court has issued RULE on 20th August, 1999 and also issued notice as to interim relief returnable on 16th September, 1999. However, during the interim period, by way of ad-interim relief upto 16th Sept.,1999 has stayed the operation and implementation of the impugned order at Annexure-A dated 13th January, 1999, subject to conditions that the petitioner shall not allot, dispose of or otherwise, deal with the property and / or tenements constructed on the land in question. This ad-interim order has been extended from time to time and subsequently, it has been clarified on 14th December, 1999. In Special Civil Application No.6175 / 1999, on behalf of the respondents, affidavit-in-reply has been filed by one Kalpeshkumar Naranbhai Patel as respondent No.1 on 17th December, 1999, however, no rejoinder has been filed by the petitioner against the said reply filed on behalf of the respondent No.1. Similarly, in Special Civil Application No.5274/99, one Kalpeshkumar Naranbhai Patel - respondent No.1 has filed affidavit-in-reply on 3rd October, 2001. However, no rejoinder has been filed by the petitioner. Whereas, in Special Civil Application No.5274 / 1999, this Court has issued RULE returnable on 19th August, 1999 by order dated 21st July, 1999 and thereafter on 19th August, 1999, by way of ad-interim relief granted ad-interim relief staying operation and implementation of the impugned order dated 30th January, 1999 coupled with direction to parties to maintain status quo as to title and possession as it prevails today. This Court has extended the ad-interim relief granted earlier from time to time and by order dated 6th December, 1999 further ordered to remain the earlier order to continue. #. In both these petitions, Special Civil Application Nos. 6175 and 5274 of 1999, the order dated 30th January, 1999 passed by the Appellate Tribunal under the provisions of Urban Land Ceiling Act, has been challenged by the Gujarat Housing Board and the State Government respectively and therefore, considering the fact that these two petitions are based on the similar facts and circumstances and since the challenge in these two petitions is common one, they are heard together and same are proposed to be disposed of this common judgment. #. The brief facts giving rise to these two petitions are narrated as under :- So far as Special Civil Application No.6175/1999 is concerned, according to the petitioner - Gujarat Housing Board, on coming into force of the Urban Land [ Ceiling and Regulation ] Act, 1961 [ hereinafter referred to as the `the Act, 1976' ] respondent No.4 Naranbhai Hirabhai Patel, who is father of the respondent Nos.1 & 2 viz. Kalpeshkumar Naranbhai Patel and Nileshkumar Naranbhai Patel and husband of the respondent No.3 Minaxiben Naranbhai Patel, had filed statement in Form -I under Section 6[1] of the Act in respect of the vacant land held by him. The said statement was filed on behalf of the family consisting of himself, his wife and two unmarried sons. According to the petitioner, the Gujarat Housing Board on 25th October, 1982 after preparing final statement, the Competent Authority passed on order declaring 7424 sq.mtrs. of land comprising Survey No.327/P, 329/1 and 329/2 as excess vacant land. Thereafter, the competent authority has issued Notification under Section 10[1] of the Act for the aforesaid excess vacant land was proposed to be acquired by the State Government on 15th January, 1983. The competent authority has invited objections from the interested persons. Thereafter, on 30th July, 1983 notification under Section 10[3] of the Act was passed by the Competent Authority and published in the Government Gazette dated 13-10-1983, notifying that the excess vacant land vested absolutely in the State Government free from all encumbrances. Thereafter, the competent authority has issued further notice under Section 10[5] of the Urban Land Ceiling Act on 14th / 17th February, 1984 directing the respondent No.4 to surrender possession of excess vacant land of 7424 sq.mtrs. to the Additional Collector, Vadodara on behalf of the State Government. Thereafter, the respondent No.4 has filed Appeal No.4 has filed appeal being Appeal No. Vadodara/ 1052/84 preferred by respondent No.4 under Section 33 of the Act challenging the order dated 25-10-1982 passed by the Competent Authority declaring excess vacant land. According to the petitioner Gujarat Housing Board, said appeal has been dismissed and not admitted by the Appellate Authority by order dated 31st July, 1986. Thereafter, the State Government has taken over the possession of the land in question through Mamlatdar on 2nd January, 1990. According to the Gujarat Housing Board, in the year 1991, the respondent No.4 filed Regular Civil Suit No.1501 / 1991 before the Civil Judge [S.D.], Vadodara against the State Government claiming right of way from acquired land for access of land retained with him. Thereafter, on 26th December, 1996, possession of the land acquired by the State Government was handed over to the Petitoner for construction of 141 tenements for weaker sections of the society under Section 23 of the Urban Land Ceiling Act. on 6th January, 1998 the Vadodara Municipal Corporation sanctioned lay out and building plan submitted by the Petitoner for construction of 141 tenements as aforesaid. The Petitoner further pointed out that the respondent Nos.1 & 2 who are sons and the respondent No.3 who is wife of the respondent No.4 filed Appeal being Appeal No. Baroda /54/98 under section 33 of the Act before the Urban Land Tribunal challenging the earlier order dated 25th October, 1982 passed by the competent authority and declaring the excess vacant land held by the respondent No.4. According to the petitioner though the period of limitation for filing the appeal is 30 days, the respondent Nos.4 preferred appeal almost after 16 years and respondent Nos.1 to 3 had not assigned any reason for such inordinate long delay for filing the appeal under Section 33 of the Urban Land Ceiling Act. Thereafter, the Urban Land Tribunal passed order on 30th January, 1999 quashing and set aside the order dated 25th October, 1982 passed by the competent authority and all subsequent orders and proceedings and accordingly remanded the matter back to the competent authority to decide the matter afresh after affording reasonable opportunity of hearing and producing the documents. According to the petitioner, the net effect of the order is that the proceedings, orders and actions regarding declaration of excess vacant land, vesting thereof in the State Government and allotment of the same to the Gujarat Housing Board stood cancelled. The petitioner further pointed out that on the basis of the aforesaid order dated 30th January, 1999 passed by the tribunal, respondent No.4 filed application in Regular Civil Suit No.1501 of 1991 before the Civil Judge [S.D.] to join Gujarat Housing Board - present petitioner as party respondent in the said suit and also filed application at Exh.5 on the same day for injunction restraining the Petitoner from making further construction on the land. This application and interim relief application at Exh.5 have been filed by respondent No.4 on 19th February, 1999. Thereafter, Civil Judge [Baroda] passed interim order directing the petitioner to maintain status quo on 23rd February, 1999. The petitioner, in the mean time, had already given contract to a building contractor for construction of 141 tenements and the construction work had already commenced. According to the petitioner, 121 tenements construction work has been completed upto plinth level, in some cases upto lintal level and in others upto slab level. This wise, about 35 % of the total construction work has been completed incurring an expenditure of about Rs.20 lacs and building materials worth lacks of rupees are lying on the construction site. As a result of the stay order, construction activity has to be stopped completely entailing huge loss to the Petitoner and 141 families belonging to economically weaker section of the society are deprived from getting early housing accommodation for whom construction work is undertaken. In light of these facts, present petitioner Gujarat Housing Board has challenged order passed by the Appellate Tribunal dated 30th January, 1999. Similarly, in respect of Special Civil Application No.5274/1999, State Government has filed the present petition challenging the order passed by the tribunal dated 30th January, 1999. According the case of the State Government, pursuant to the order passed by the competent authority on 25th October, 1982 and thereafter all the proceedings upto stage of Section 11, have been completed by the competent authority and thereafter, an appeal was filed by one Naranbhai Haribhai Patel who is father of the respondent Nos.1 & 2 and husband of the respondent No.3 before the appellate tribunal. However, the said appeal was dismissed and not entertained by the tribunal by order dated 31st July, 1986. Thereafter, the present respondent Nos.1 to 3 have filed appeal being Appeal No.54 / 1998 before the tribunal challenging the very same order dated 25th October, 1982 and the said appeal was allowed by the tribunal and that order is under challenge before this Court. #. Learned advocate Mr.S.B.Pandit, appearing on behalf of the Petitoner - Gujarat Housing Board has advanced many fold submissions in support of his petition. According to Mr. Pandit, the present respondent Nos.1 to 3 have made false statement before the competent authority and the appellate authority. Mr. Pandit, learned advocate for Gujarat Housing Board of has submitted that the respondent Nos.1 and 2 were not major in the year 1976 but in fact, the respondent Nos. 1 & 2 were minor at the relevant time. According to Mr. Pandit, the second false statement has been made by the respondent Nos.1 to 3 that their holdings should be considered separately and given option to retain the land of their choice as per the Ceiling Act separately. In fact, they did not own or hold any vacant land or interest therein in their names so as to claim separate ceiling limit for them. According to the petitioner, the third false statement has been made to the effect that holdings mentioned in Form No.1 which was filed by the father - respondent No.4, there were residential plots existing prior to 1976. In fact, in the said form, the respondent No.4 father has stated clearly that no building residential or non residential had existing on any lands held by him. The forth false statement to the effect that the disputed land was not within the Urban Development Plan in the year 1976. In fact, the land was included in the industrial area of the Baroda Municipal Corporation Plan as per the statement filed by their father. Over and above respondent Nos.1 to 3 had also suppressed the material fact as under :- [a] That they suppressed the very fact that the order of the competent authority challenged by them was passed on 25th October, 1982 and they were preferring appeal after period of 16 years thereafter. [b] They suppressed the fat that in the year 1984, their father had already challenged the very same order dated 25th October, 1982 passed by the competent authority in Appeal No. Baroda / 1052 / 84 before the Urban Land Tribunal and that the said appeal was dismissed by order dated 30th July, 1986. [c] They also suppressed the fact that the excess vacant land declared by the competent authority had absolutely vested in the State Government and the State Government has taken over the possession thereof and the land has been allotted to the petitioner Board as also the construction of housing tenements for poor and weaker section of the society and construction work for 141 tenements was under progress at the time of filing of the appeal. #. Mr.S.B.Pandit, learned advcoate for the petitioner Guajrat Housing Board while elaborating his submissions has contended that the present respondent Nos.1 to 3 have no locus stani to file the appeal under Section 33 before the Urban Land Tribunal challenging the order passed against the father of the respondent Nos.1 and 2 and the husband of the respondent No.3 because the father had already filed appeal before the tribunal and the said appeal has already been dismissed on 31st July, 1986. Therefore, the respondent Nos.1 to 3 are not having any separate legal rights distinct from the father and husband to challenge the order passed by the competent authority dated 25th October, 1982. Learned advocate Mr. Pandit has also submitted that property in question was not Hindu Undivided Family property and as such, no documentary evidence has been produced by the respondent Nos.1 to 3 before the appellate tribunal. He also submitted that Form No.1 which has been filed by the respondent No.4, a copy thereof has been produced on record of this petition by the petitioner board at pg.30, wherefrom the relevant page is pg.33, wherein, Column No.8 & 9 require the person filing the form to explain as to how the land in question has been acquired by the respondent No.4. However, the answer to these two column given by the respondent No.4 is "on the basis of the tenancy right", similarly, on pg.34 it is clearly shown that this land in question is subject to restricted condition under the provisions of the Tenancy Act. Therefore, learned advocate Mr. Pandit submitted that the land in question which was held by the respondent No.4 is not ancestral land / property but since he was tenant of the land in question and on that basis, he was in possession of the land in question. He also submitted that at pg.35, according to Column No.1, it is specifically mentioned by the respondent No.4 that the land in question has been acquired as owner by the respondent No.4 and for Item No.9, no detail has been given which in fact requires the person to explain as to the details pertaining to undivided share of the HUF. Therefore, no detail has been given by the respondent NO.4 against Item No.9, therefore, his submission is the land in question belongs to the respondent No.4 as tenant under the provisions of the Tenancy Act and therefore, according to Mr. Pandit, it is abundantly clear that the land in question was self acquired land and / or property and not at all ancestral property of the respondent No.4. In support of above submissions, Mr. Pandit, learned advocate for the petitioner - Housing Board has relied upon certain definitions of words like `family', `person' and `agriculture' given under the Urban Land Ceiling Act under Section 2, which runs as under :- 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 cluase, "minor", means a person who has not completed his or her age of eighteen years; 2.[h][i] "Person" includes an individual, a family, a firm, a company, or an association or body of individuals, whether incorporated or not; 2 [2][o][A] "agriculture" includes horticulture, but does not include :- [i] raising of grass [ii] dairy farming ..... " Relying on the definitions of the `words' referred above as per the provisions of the Urban Land [Ceiling and Regulations ] Act, 1976, Mr. Pandit, learned advocate Mr. Pandit has relied upon the decision of this Court in case of HARGOVINDBHAI PRABHUBHAI PATEL AND ANR VS. STATE OF GUJARAT reported in 1993 [2] GLR pg.1100 and submitted that in view of the definition of the word "family", as given under Section 2[f], it would include the individual, wife or husband as the case may be, and such individual and their unmarried minor children. Therefore, the share which was earmarked for a minor son shall have to be clubbed together with the share of the father and minor will not be entitled to hold separate share. Relying on this proposition held by this Court, he submitted that after the land has been declared excess, whatever land remains with the father as one unit, minor may have share, according to Hindu Law but the minor cannot have any separate share upon the excess land which is declared by the competent authority. He also submitted that minor are not entitled to any separate unit looking to the definition of the family given under Section 2[f] of the Act. He further submitted that the respondent No.4 has filed affidavit dated 7th Sept., 1982 before the competent authority, wherein he specifically admitted that the land in question is in the name of the respondent No.4, his wife and two minor sons. Mr. Pandit, learned advocate has also submitted that the respondent No.4 has admitted that the respondent Nos.1 to 4 not having any share upon Hindu Undivided Family and therefore, according to the case of the petitioner - Board, looking to the affidavit filed by the respondent No.4, the respondent No.4 was only the owner of the property and that property is self acquired on the basis of the Tenancy Rights accrued by the respondent No.4 under the provisions of the Tenancy Act. Therefore, the land in question was not ancestral property of the forefathers of the respondent No.4. Mr. Pandit, learned advcoate has also submitted that the wife of the Petitoner is also not entitled to any separate unit and all the respondents are the members of the one family residing jointly. Mr. Pandit, learned advcoate has also submitted that even in filing the appeal by the respondent Nos.1 to 3 after period of 16 years, no reason have been given in the appeal memo and the tribunal has not discussed this aspect of inordinate delay of 16 years and as such, no finding has been given by the tribunal as to why the said appeal has been admitted after the period of 16 years and therefore, the order of the tribunal is illegal. He, therefor, relied upon the provisions of Section 33 of the Act and pointed out that the appeal is required to be filed within 30 days unless the appellant satisfied that the appeallant and was prevented by sufficient cause from filing the appeal in time, otherwise, the tribunal has not authority and jurisdiction to condone the delay. However, Mr. Pandit, learned advocate has relied upon two decisions of this Court reported in 1993 [3] GLR pg.2079 and 2001 [1] GLR pg.16 the decision rendered by the Full Bench. #. Mr. Pandit, learned advocate has also submitted that the respondent Nos.1 to 4 have not produced on record any such exemption application which was submitted by the them under Section 20 of the Act. Therefore, he submitted that the contention raised by the appellant before the tribunal that Section 20 Exemption Application was pending before the authority and therefore, the order passed by the competent authority is illegal, but the fact is that no such application is produced by the respondent Nos.1 to 4. However, he submitted that the precondition for preferring Section 20 Exemption Application is there must be agricultural land but in the present case, according to Mr. Pandit, looking to the definition of Section 2[o][2][A][1] explaining the word `agriculture', the land on which grass is raised, cannot be said to be agriculture land and therefore, contention of pendency of the exemption application is not at all correct. However, Mr. Pandit submitted that such application has been rejected by the competent authority on 19th January, 1985. He submitted that at pg.78, the order dated 10th Sept. 1980, wherein it is mentioned that in respect of Survey No.327, 329/1 and 329/2, for exemption, separate order will be passed but according to Mr. Pandit, at pg.30 so far as the Item No.9 is concerned, the respondent No.4 has not given any details when there specifically required to fill up the details in the column explaining as to whether any application for exemption either under Section 19 or 20 has been filed or not ?, or likely to be filed or not ? Against the said column, the answer given by the respondent No.4 is "No". Therefore, according to Mr. Pandit the contention of the respondent No.4 as to pendency of such application under Section 20 is absolutely incorrect. He also submitted that the respondent Nos.1 to 3 have made false statement even before the appellate tribunal while filing the appeal and considering the such false statement, the tribunal has passed order in their favour by order dated 30th January, 1999. It is also his submission that similarly on two occasions, affidavit filed before this Court at pg.62, wherein also a clear false statement has been made by the respondent Nos.1 & 2 in respect of date of birth. He also submitted that the date of birth of minor son Kalpeshkumar is recorded as 1st January, 1974 and in respect of second minor son Nileshkumar, his date of birth is recorded as 11th June, 1976. Therefore, at the relevant time, when the order was passed by the competent authority, admittedly both were minors. Mr. Pandit, learned advocate has also submitted that the date of birth of respondent No.4 mentioned in Form filled up by him is recorded as 21st November, 1945. Therefore, looking to the age of the respondent No.4 and date of the order passed by the competent authority on 25th October, 1982, naturally both these sons cannot become major. However, as per the original file and record of the authority, school certificate is produced by the respondent No.4 wherein the date of birth is mentioned 1st January, 1974 in respect of Kamleshkumar and so far as Nileshkumar is concerned, his date of birth is recorded as 11th June, 1976. In light of above facts, Mr. Pandit submitted that a clear false statement has been made in the affidavit filed by one Kalpeshkumar and therefore, strict necessary actions require to be initiated by this Court against the respondent No.1 Kalpeshkumar. Mr. Pandit, learned advocate also submitted that this is not merely a false statement made by Kalpeshkumar Naranbhai Patel but by making this false statement, he obtained orders in their favour on 30th January, 1999. Therefore, according to Mr. Pandit, the respondent No.1 is responsible for making false statement on affidavit despite of full knowledge and even at the time of passing of the order by the competent authority on 25th October, 1982, the respondent No.1 and his brother both were minors. He also submitted that even looking to the