(2017] 2 S.C.R. 779

STATE OF GUJARAT

MALIBEN NATHUBHA! (D) THROUGH LRS &'ORS.

(Clvil Appeal No. 4164 of2007)

FEBRUARY 01, 2017

(MADAN B. LOKUR AND PRAFULLA C. PANT, JJ.)

Urban Land (Ceiling and Regulations) Act, .1976 - Inheritance

- Karla of joint family died intestate in J 94 7, leaving behind his widow, two sons and two daughters - Plea of respondents that after C death of Karla, his widow acquired suit property and after c/eath of the widow, the two daughters acquired share through her - Held: Respondent-plaintiff was unable to show that this was the position in Hindu Law in 1947 - On contrary, upon .the deathof the Karla of a joint family, his share will devolve only upon the remaining coparceners which in the instant case were two sons - Therefore, D neither daughter had any share. in the land in question - Hindu Law.

'·- Urban Land (Ceiling and Regulations) Act, 1976 - ss. 6(1), 8(4) and 33 - Belated appeal before Tribunal after a lapse of eight years - Mai111ainabi/ity of - Karla of joint family died intestate, E leaving behind his widow, two sons and two daughters - When the Act came into force, only one surviving son made declaration as the owner of entire land - Competent Author!ty and Deputy Collector passed an order on 16 December, 1983 declaring some of the land as surplus land - Surviving son filed appeal - However, Tribunal F dismissed it 011 19 January, 1988 - In 1991, Respondents-plaintiffs 1 (one surviving daughter and legal representatives of other daughter) preferred another appeal after eight years - Propriety of - Held: Delay was totally inexplicable - That apart, order dated. 16 December, 1983 had merged with the order passed by the Tribunal

011 19 January, 1988 - That being the position, Tribunal could not G have re-opened the proceedings which had already terminated before it - Thus, Tribunal was in error in entertaining the appeal filed by the plaintiffs after (1 gap of about eight years - Delay!Laches.

Urban Land (Ceiling and Regulations) Act, 1976 s.6(}) - Karla of joint family died intestate, leaving behind his widow: two H 779

sons and two daughters - When the Act came into force, only one surviving son made declaration as the owner of entire land - Daughters of Karla did not make any claim in respect of the land in question neither filed any declaration uls.6(1) - However, thereafter, respondents-plaintiffs(one surviving daughter and legal representatives of other daughter) sought to claim a right in property

- Held: Respondents-plaintiffs did not claim a right in property when they ought to have - By filing an appeal before Tribunal in 1991, the respondents sought to make a claim. by a side-wind, 011 the suit property without even by filing a declaration uls.6(1) of the Act - They cannot be permitted to indirectly make a claim which they failed to make directly. ·

Allowing the appeal, the Court

HELD: 1.1 The Karta having died sometime in 1947 when two of his sons were still alive, neither widow nor daughters had any claim in the suit property of Karta under Hindu Law. Indeed, it is seen that neither daughter claimed any direct share in the suit property - they claimed a share through their mother but there is nothing to even suggest how their mother acquired any share in the suit property. Such an averment is completely missing from the pleadings of the plai!ltiffs. [Para 14] [784-H; 785-A-B]

1.2 The plaintiffs has been unable to show any decision or any other material to substantiate his claim that on the death of Karta his widow acquired the suit property and on her death in 1957, after the Hindu Succession Act, 1956 came into operation, daughters of Karta acquired a share in the suit property through their widow mother. Plaintiff-respondents bas not placed any decision or any other material to show tbat this was the position in Hindu Law in 1947 when Karla died intestate. On the otber hand, upon the death of the Karta of a joint family, his sbare will devolve only upon the remaining coparceners which in the present case were the two sons of Karla. It is therefore quite clear tbat neither idow nor daughters bad any sbare in tbe land in question. [Para 15] [785-C-E]

1.3 The Tribunal was in error in entertaining the appeal filed by the plaintiffs after a gap of about eigbt years from the passage of the order dated 16th December, 1983 by the

THROUGH LRS & ORS.

Competent Authority and Deputy Collector. The delay was totally inexplicable. That apart, the order dated 16th December, 1983 bad merged with the order passed by the Tribunal on 19th January, 1988 in the earlier appeal filed by the surviving son. That being the position, the Tribunal could not have reopened the proceedings which had already terminated before it:Tbe principle of merger of an order with the order of a superior court would apply equally to orders passed by tribunals. Therefore there can be no doubt that the order passed on 16th December, 1983 by the Competent Authority and Depu~ Collector merged with the order of the Tribunal passed on 19 January, 1988 and which order attained finality. [Para 16) [785-F-H; 786-A)

Kunhayammed and Ors. v. State of Kera/a & Ors. (2000) 6 SCC 359 : [2000) 1 Suppl. SCR 538 - relied on

1.4 Finally, iftbe plaintiffs did.in fact claim to have a right in the property of Karta they ought to have filed a declaration under Section 6(1) of the Act. That they did not do so when they attained the age of majority is a clear indication that they were fully aware that they bad no right in the property of Karta who died intestate sometime in 1947. By filing an appeal before the Tribunal in 1991, the plaintiffs sought to make a claim, by a side-wind, on the suit property without even by filing a declaration under Section 6(1) of the Act. Surely, they caniot be permitted to indirectly make a claim which they failed to make directly. [Para 18) [786., F-H]

Case Law Reference

(2000] 1 Suppl. SCR 538 relied on Para 16

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4164 of2007.

From the Judgment and Order dated 29.04.2006 in LPA No. 621 of2006 and order dated 04.07.2000 in SCA No. 2144of1993 of the High Court of Gujarat at Ahmedabad.

Preetesh Kapoor, Ms. Hemantika Wahi, Ms. Jesal Wahi, Advs. for the Appellant.

Shamik Sanjanwala, Kailash Pandey, Ranjeet Singh, K. V.

Sreekumar, Advs. for the Respondents.

The Judgment of the Court was delivered by

MADAN B. LOKUR, J. I. Bhulabhai .Bhikhabhai was the owner of landed property including open land being Survey No.74 admeasuring 4350 sq. meters in Jehangirabad, District Surat (Gujarat).

He died intestate on 17th January, 194 7 leaving behind his widow Harkhiben (who died on 13th February, 1957) and two sons Narsinbhai (who died on 22nd April, 1969 without any issue), Balubhai (died on 16th November, 1991) and two daughters - Gangaben (represented by her legal representatives) and Maliben Nathubhai (now represented by her legal representatives).

2. On the death of Bhulabhai Bhikhabhai his two sons inherited his estate and when the Urban Land (Ceiling and Regulation) Act, 1976 (for short the Act) came into force, Balubhai the only surviving son of Bhulabhai Bhikhabhai and qrother of Gangaben and Maliben filed a declaration form on I oth August, 1976 under Section 6( I) of the Act.

He filed the declaration as owner of the entire land and on behalf of his own family. His sisters Gangaben and Maliben did not make any claim in respect of the land in question and the revenue records at that point of time reflected only the names of the sons of Bhulabhai Bhikhabhai and not that of his two daughters. ·

3. The declaration made by Balubhai was taken up for consideration by the Competent Authority and Deputy Collector who passed an order under section 8(4) of the Act on 16th December, 1983 in ULC Case No.1/1900 declaring about 3426 sq. mtrs. ofland as surplus land. This was followed by Notifications under Sections I 0( I) and I 0(3) of the Act in the Official Gazette on 6th January, 1984 and 13th July,

1984. The sisters of Balubhai (that is Gangaben and Maliben) did not make any claim before the Competent Authority and Deputy Collector in respect of the surplus land.

4. Thereafter, the State of Gujarat issued a notice to Balubhai under Section I 0(5) of the Act on 17th August. 1984 to hand over possession of the surplus land.

5. Feeling aggrieved by the decision rendered by the Competent Authority and Deputy Collector as well as the notice issued by tile State for handing over possession of the surplus land, Balubhai filed Appeal No. 1478of1984 under Section 33 of the Act before the Urban Land Tribunal challenging the order dated 16th December, 1983 read with notice dated 17th August, I 984: .

6. It appears that despite adequate opportunities given to Balubhai to represent his case before the Tribunal, he did not remain present and the appeal was taken up ex parte by the Tribunal and dismissed on merits on 19t11 January, 1988. Subsequently, on 27th June, 1990 the State took possession of the surplus land and this action of the State has not been challenged or disputed by Balubhai (who later expired on 16th November,

1991) or his legal representatives. Effectively, therefore, Balubhai accepted that about 3426 sq. mts. of land .in his hands was surplus and was rightly taken possession of by the State. According to the State, the surplus land was allotted to the weaker sections of society sometime in 1991-92.

7. After the demise of both brothers Narsinbhai and Balubhai and their sister Gangaben, Special Civil Suit No.525of1991 was filed by Maliben and the children of Gangaben on znd December, 1991 before the Civil Judge (Senior Division), Surat. It appears that the suit was for partition of the property bearing Survey No.74 in Jehangirabad and a challenge was also made to th~ legality and validity of the proceedings undertaken by the Competent Authority and Deputy Collector in respect of the.surplus land and thereby an injunction was sought restraining the Competent Authority and AddL Collector from taking possession of the suit property. According to Maliben and the children ofGangaben (the plaintiffs) they had an interest through Harkhiben in suit property of Bhulabhai Bhikhabhai who had died intestate sometime in 1947. Along with the plaint, the plaintiffs filed an application for interim injunction but that was dismissed by the learned Civil Judge (Senior Division) on 9th December, 1991. It is not clear whether the civil suit was thereafter pursued by the plaintiffs.

8. However, soon afterthe rejection of the application for interim injunction, the plaintiffs preferred ULC Appeal No. I 02of1991 before the Urban Land Tribunal challenging the order dated 16th December,

1983 passed by the Competent Authority and Deputy Collector whereby it was declared that 3426 sq. mtrs. ofland was surplus land in the hands of Balubhai. It may be noticed that this appeal was filed after a lapse of about eight years and after proceedings in respect of the order dated 16th December, 1983 had already come to an end on 19th January, 1988 when the appeal filed by Balubhai before the Urban La11d Tribunal was dismissed.

9. Despite the delay of about eight years in filing the appeal, it

was entertained by the Urban Land Tribunal and allowed (after condoning the del?Y) on 31st March, 1992. The conclusion arrived at by the Tribunal was that Gangaben and Maliben were each entitled to one unit of land out of the land owned by their father Bhulabhai. Effectively therefore, the Urban Land Tribunal set aside its earlier order of] 9th January, 1988.

10. Feeling aggrieved by the order passed by the Urban Land Tribunal, the State approached the Gujarat High Court by filing SCA No.2144 of 1993 challenging the correctness of the order dated 31st _March, 1992 passed by the Tribunal. It was submitted in the appeal, inter alia, that the order dated 16th December, 1983 passed by the Competent Authority and Deputy Collector had attained finality when the Tribunal dismissed the appeal directed against that order on 19th January, 1988. It was also submitted that the surplus land had already been allotted to persons belonging to the weaker sections of society.

l l. The learned Single Judge considered the grievances of the State and took the view, in the judgment and order dated 4th July, 2000 that the plea taken by the State for allotment of land to weaker sections of society was a new plea and need not be entertained. Other pleas advanced by the State were not dealt with.

12. The State preferred a Letters Patent Appeal against the E, judgment and order dated 4th July, 2000 passed by the learned Single

Judge but the appeal was held to be "not maintainable. Effectively therefore, the challenge before us is to the judgment and order dated 4th July, 2000 passed by the learned Single Judge.

13. It is submitted before us by learned counsel for the appellant that three issues arise for our consideration. The first issue relates to the question whether the plaintiffs are entitled to a share in the property (through Harkhiben) of Bhulabhai Bhikhabhai who died intestate sometime in 1947. The second issue is whether the plaintiffs could have maintained an appeal before the Tribunal against the order of the Competent Authority and Deputy Collector after a lapse of about eight years. Thirdly, when under the provisions of the Act since every claimant is required to file a declaration under Section 6( l) thereofand Gangaben and Maliben did not file any such declaration, whether they could claim any right in the property of their father.

14. Having heard learned counsel for the parties, we are of opinipn that Bhulabhai Bhikhabhai having died sometime in 1947 when two of

his sons, that is, Narsinbhai and Balubhai were still alive neither Harkhiben nor Gangaben and Maliben had any claim in the suit property ofBhulabhai Bhikhabhai under Hindu Law. Indeed, we must point out that neither Gang&ben nor Maliben claimed any direct share in the suit property - they claimed a share through their mother Harkhiben but there is nothing to even suggest how Harkh'iben acquired any share in the suit property.

Such an averment is completely missing from the pleadings of the plaintiffs.

I5. Learned counsel forthe plaintiffs has been unable to show us any decision or any other material to substantiate his claim that on the death ofBhulabhai, his widow Harkhiben acquired the suit property and on her death in 1957, after the Hindu Succession Act, 1956 came into operation, Gangaben and Maliben acquired a share in the suit property through Harkhiben. The submission oflearned counsel procee.ds on the assumption that on the death ofBhulabhai Bhikhabhai the suit property devolved solely upon his widow Harkhiben. There is no such averment made anywhere, nor is it substantiated in any manner. Learned counsel has not been able to show us any decision or any other material to show that this was the position in Hindu Law in 194 7 when Bhulabhai Bhikhabhai died intestate. On the other hand, upon the death of the Karta of a joint family, his share will devolve only upon the remaining coparceners which in the present case were the two sons of Bhulabhai Bhikhabhai. It is therefore quite clear that neither Harkhiben nor Gangaben and Maliben had any share in Survey No.74 which is the land in question.

16. We are also of opinion that the Tribunal was in error in entertaining thl appeal filed by the plaintiffs after a gap of about eight years from the passage of the order dated 16th December, 1983 by the Competent Authority and Deputy Collector. The delay was totally inexplicable. That apart, the order dated 16th December, 1983 had merged with the order passed by the Tribunal on 19th January, 1988. That being the position, the Tribunal could not have reopened the proceedings which had already terminated before it. It has been held in Kunlwyllmmed llnd Ors. v. State of Kera/a & Ors.' that the principle of merger of an order with the order of a superior court would apply equally to orders passed by tribunals. Therefore there can be no doubt that the order passed on 16th December, 1983 by the Competent Authority and Deputy

1 (2000) 6 sec 359

Collector merged with the order of the Tribµnal passed on 19th January,

1988. and which order attained finality.

17. In paragraphs 12 and 44(i) of the Report, it was held as under:

"The logic underlying the doctrine of merger is that there.cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy avai I able under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy.

Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confinned, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not ofuniversal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view."

"(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law."

18. Finally, in our view if the plaintiffs did in fact claim to have a right in the property ofBhulabhai Bhikhabhai, they ought to have filed a declaration under Section 6( I) of the Act. That they did not do so when they attained the age of majority is a dlear indication that they were fully aware that they had no right in the property of Bhulabhai Bhikh:ibhai who died intestate sometime in 1947. By filing an appeal before the Tribunal in 1991, the plaintiffs sought to make a claim, by a side-wind, on the suit property without even by filing a declaration under Section 6(1) of the Act. Surely, they cannot be permitted to indirectly make a claim which they failed to make directly.

STATE OF GUJARAT v. 1v1ALlBEN NATHUBHAI (D)

19. Whichever way the issues are looked at, we have no doubt that the Urban La1id Tribunal was in error in entertaining the proceedings initiated by the plaintiffs in 1991 against the order dated 16tn December, 1983 passed by the Competent Authority and Deputy Collector. That being the position, the orders passed by the Tribunal on 31st March, 1992 and by the High Court by the impugned order upholding the order passed by the Tribunal deserve to be and are set aside.

20. The appeal is allowed. There will be no order as to costs.

Ankit Gyan , Appeal allowed.