LPA/111/2005 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 111 of 2005 In MISC.CIVIL APPLICATION No. 2663 of 1999 In SPECIAL CIVIL APPLICATION No. 7989 of 1990 For Approval and Signature: HONOURABLE MR. JUSTICE MOHIT S. SHAH and HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= 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 ? ========================================= COMPETENT AUTHORITY AND ADDL COLLECTOR & 1 - Appellant(s) Versus BHULABHAI MAGANBHAI PATEL - Respondent(s) ========================================= Appearance : MS NISHA PARIKH, AGP for Appellant(s) : 1 - 2. RULE SERVED BY DS for Respondent(s) : 1, ========================================= CORAM : HONOURABLE MR. JUSTICE MOHIT S. SHAH and HONOURABLE MS.JUSTICE H.N.DEVANI LPA/111/2005 2/4 JUDGMENT Date : 17/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR. JUSTICE MOHIT S. SHAH) This appeal is directed against the judgment dated 23.4.2004 of the learned Single Judge rejecting the Review Application being Misc. Civil Application No. 2663 of 1999 which was preferred by the appellants herein for review of the judgment and order dated 10.5.1999 in Special Civil Application No. 7989 of 1990. 2. The said Special Civil Application was filed by Bhulabhai Maganbhai Patel for challenging the order dated 27.6.1986 of the competent authority under the Urban Land (Ceiling & Regulation) Act, 1976 by which the land admeasuring 11843 sq. mtrs. in Survey No. 54 of Village Dhumbal in Surat District was declared as excess vacant land, which order was confirmed in appeal by order dated 5.7.1989 of the Urban Land Tribunal. When the said Special Civil Application reached hearing before the learned Single Judge, the learned Single Judge passed an order disposing of the petition as having abated after making the following observations and giving following findings :- “... ... ... The authorities have not taken the possession of the land in question from the petitioner, which is not in dispute. In view of the fact that the dispute involved in this petition is directly covered under the provisions of the Urban Land (Ceiling & Regulations) Repeal Act, 1999 (Act No.15 of 1999) repealing the Urban Land (Ceiling & Regulations) Act, 1976 which is also adopted by the State Govt. by passing a resolution dated 30.3.1999, this petition has abated and consequently the impugned order passed against the petitioner also stands abated. Rule made absolute accordingly with no order as to costs.” 3. The appellants herein i.e. the authorities filed an application for review being Misc. Civil Application No. 2663 of 1999 contending that the possession of the land in question was already LPA/111/2005 3/4 JUDGMENT taken over by the authorities on 31.7.1990 and that since this fact was not brought to the notice of the learned Single Judge when the order dated 10.5.1999 was passed by the learned Single Judge, the said order may be reviewed. By the order under appeal, the learned Single Judge dismissed the review application on the basis that similar review applications were dismissed on 10.9.1999 by holding that the same were not maintainable and that the reasoning given in the said order shall squarely apply to the present application also. Aggrieved by the aforesaid order dated 23.4.2004 rejecting the review application, the authorities under the ULC Act, 1976 are in appeal before us. 4. Ms Nisha Parikh, learned AGP submits that when it was pointed out before the learned Single Judge that possession of the land in question was already taken over by the authorities on 31.7.1990, the learned Single Judge ought to have reviewed the order dated 10.5.1999. It is further submitted that in any view of the matter, the original petitioner – Bhulabhai Maganbhai Patel had already expired on 1.4.1995 and therefore, the petition ought to have been disposed of as having abated on the ground of death of the original petitioner, without his heirs having been brought on record. 5. At this stage, we may note that Civil Application No. 13771 of 2008 has been filed by Kanaiyalal Prabhudas and Harishchandra Prabhudas through their power of attorney holder – Parbatbhai J. Nada contending that the said applicants had purchased the land admeasuring 1266.56 sq. mtrs. out of the aforesaid land in question by a registered sale deed dated 12.7.1982 for the price of Rs.27,252/- and that therefore, the applicants are necessary and proper parties to be joined as parties to the Letters Patent Appeal. LPA/111/2005 4/4 JUDGMENT 6. We find from the papers of Civil Application No. 10876 of 2008 and particularly, the death certificate dated 8.9.1999 issued by the concerned authority of the State Government that Bhulabhai Maganbhai Patel had expired on 1.4.1995 and therefore, in absence of his heirs having been brought on record at the relevant point of time, Special Civil Application No. 7989 of 1990 itself had abated. Hence, there was no question of passing any further orders on Special Civil Application No. 7989 of 1990 on 10.5.1999. 7. We are, therefore, inclined to set aside the said order dated 10.5.1999 without going into the merits of the contentions and without entertaining Civil Application No. 13771 of 2008 filed by the applicants who claim to be the purchasers of a piece of land out of the total land, which was the subject matter of the writ petition. We, however, clarify that if the applicants of Civil Application No. 13771 of 2008 have any rights, it will be open to them to agitate the same before an appropriate forum in appropriate proceedings. 8. As far as this Letters Patent Appeal is concerned, the same is allowed and the orders dated 10.5.1999 and 23.4.2004 of the learned Single Judge are set aside. Misc. Civil Application No. 2663 of 1999 is allowed on the ground that Bhulabhai Maganbhai Patel – original petitioner had already expired on 1.4.1995, without his heirs having been brought on record of the writ petition. (MOHIT S. SHAH, J.) (HARSHA DEVANI, J.) mrpandya*