H.N. Devani, J.
1. Admit. Ms. Jirga Jhaveri waives service of notice of admission of the appeal on behalf of the respondents. Having regard to the facts of the case, the matter is taken up for final hearing today.
2. This Letters Patent Appeal under Clause 15 of the Letters Patent is directed against the judgment and order dated 7th February, 2006 passed by the learned Single Judge whereby the petition has been dismissed and the order dated 14-11-1984 passed by the Competent Authority and Additional Collector, respondent No. 1-herein as well as the order dated 6-10-1987 passed by the Urban Land Tribunal respondent No. 2 herein which were subject-matter of challenge in the writ petition have been affirmed.
3. The appellants herein are the heirs and legal representatives of deceased Pannaben Niranjan M. Mehta, who was the original-petitioner in the writ petition. The facts giving rise to the present appeal are that the Shri Niranjan Mehta, husband of the petitioner (hereinafter referred to as 'the declarant') had filed a statement under Section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 'the Act') in the prescribed Form No. 1, on behalf of his family specifying the extent of lands held by his family members all of which are situated in Ahmedabad as under:
--------------------------------------------------------------------------------Sr. Name of village Survey No. Area Manner in whichNo. acquired--------------------------------------------------------------------------------1. City Rajpur- T.P. Scheme 739.12 sq. On lease for 999Hirpur No. 4, Final mts. yearsPlot No. 73--------------------------------------------------------------------------------2. Thaltej 46 829.28 sq. mts. As member of society--------------------------------------------------------------------------------3. Khadia 2695 18.50 sq.mts. Residential house.By succession--------------------------------------------------------------------------------4. Khadia 2682 99 sq.mts. Residential house.By succession--------------------------------------------------------------------------------5. Paldi, Samasth Sub-plot No. 88 635 sq.mts. House. ByBrahmakshatriya Bungalow successionSociety No. 89--------------------------------------------------------------------------------
As per the statement filed by the declarant the total holding of the family was shown to be 2320.90 sq.mts. It may be pertinent to note that it was specified in the said form that land admeasuring 829.28 sq. mts of Vanshri Co-op. Housing Society situated at Thaltej is the self-acquired property of Pannaben Niranjanbhai Mehta (hereinafter referred to as 'the petitioner') and is of her sole ownership wherein no one has any right or share. Against the column 'lands held as owner' the area shown was 1568.40 sq.mts. and against the column regarding 'status of the lands as to whether held as individual or H.U.F. etc' land admeasuring 1568.40 sq.mts. was shown to be joint family property and 829.28 sq.mts of land is shown against the column 'share of individual in co-operative society'. In the column for ad-hoc assessment of excess vacant land and the lands which are required to be handed over to the Government lands of Rajpur-Hirpur and Thaltej totally admeasuring 1319 sq.mts. were shown.
4. By an order dated 14-11-1984 passed under Section 8(4) of the Act, the Competent Authority found that except for the property shown at serial No. 2, all the lands were H.U.F. properties; that the definition of family includes husband, wife and their minor children, hence the land held by the wife is required to be clubbed together to determine the holding of the family; that the record indicates that the Samast Brahmakshatriya Co-operative Housing Society is the occupier of the property shown at Serial No. 5, hence the same cannot be taken into consideration for the purpose of computing the holding; that though the properties at Serial Nos. 3 and 4 are built-up properties, the same are to be taken into consideration while computing the extent of vacant land held by the applicant. The Competent Authority found that the total holding of the applicant was 1685 sq.mts. and held that the applicant was entitled to retain 1000 sq.mts. of land and declared 685 sq.mts. of land as excess vacant which is to be acquired by the State Government. The Competent Authority, further held that considering the contents of the transfer agreements in respect of the properties other than the property at Serial No. 2, the Thaltej property at Serial No. 2 being the self-acquired property of the wife of the declarant, he was ordering that 685 sq.mts. out of the same be handed over to the Government.
5. Being aggrieved by the aforesaid order of the Competent Authority, the declarant preferred an appeal under Section 33 of the Act before the Urban Land Tribunal (hereinafter referred to as 'the Tribunal'). One of the pleas raised before the Tribunal was that the location of retainable land should be changed so that the appellant may surrender excess vacant land (if any) out of T.P. 4 F.P. No. 73 of Rajpur-Hirpur and not out of Survey No. 46 of Thaltej as ordered by the Competent Authority. The Tribunal by its order dated 6th October, 1987 dismissed the appeal but observed thus:
However, after verifying that there is no impediment to the change of location of vacant land, it should amend the final statement and map etc. to change the location of excess vacant land from Sr. No. 46, Plot No. 10 to T.P. 4 F.P. 73 of Rajpur-Hirpur.
6. It appears that by a communication dated 10-5-1988 addressed to the Competent Authority, the declarant asked for permission to sell the Rajpur-Hirpur property and requested that the property of Thaltej Survey No. 46 be acquired. Thereafter, further proceedings under the Act were taken and notifications under Sections 10(1) and 10(3) of the Act were published on 19-1-1989 and 24-4-1989 respectively. Notice under Section 10(5) of the Act came to be issued on 27-6-1990, which according to the respondents was served on 7-7-1990. Thereafter, the possession of 685 sq.mts. of land bearing sub-plot No. 10 of Survey No. 46 of Mouje Thaltej (hereinafter referred to as 'the land in question') was taken over in the presence of panchas by a panchnama dated 28-8-1990. By a notice dated 27-6-1990, the declarant was called for hearing for determination of compensation in respect of the land in question. It may be pertinent to note that though the land in question was the individual self-acquired property of the petitioner, all the aforesaid notices and Notifications were issued in the name of the declarant. It is at this stage that the petitioner filed the above-numbered Special Civil Application before this Court challenging the orders dated 4-11-1984 and 6-10-1987 passed by the Competent Authority and the Tribunal respectively, with respect to the petitioner's property situate at Van Shree Cooperative Housing Society, Thaltej, Ahmedabad and lands bearing Survey Nos. 2694 and 2682 of Khadia Shree Ramji Sheri, Ahmedabad.
7. Before the learned Single Judge the main contention raised on behalf of the petitioner was that throughout the proceedings under the Act, no notice had been issued to her despite the fact that she was the owner of the property in question. The learned Single Judge was of the view that for the purpose of processing the declaration filed under the provisions of the Act, the husband of the petitioner and the petitioner herself were one common person; that at all stages, the husband of the petitioner had actively participated in the proceedings before the Competent Authority; that the petitioner had made no grievance about the exclusive participation of her husband in this regard; that it was not stated any where in the petition that her husband had duped her by declaring the land held by her as one that the authority should acquire. The learned Single Judge held that the declaration was processed with full participation of respondent No. 4-husband of the petitioner. Hence, the petitioner cannot make a grievance that the entire process was completed without hearing her. The learned Single Judge accordingly found no merit in the petition and rejected the same, which has given rise to the present appeal.
8. Heard Mr. Vibhuti Nanavati, learned Advocate for the appellants and Ms. Jirga Jhaveri, learned Assistant Government Pleader for the respondent-authorities.
9. Mr. Nanavati, learned Advocate for the appellants has submitted that the property which was declared as excess vacant and appropriated by the authority under the Act was of the ownership of the petitioner and the same was appropriated without complying with the principles of natural justice; that under the Act, wife's property is to be clubbed together for the purpose of ascertaining the holding of the family, however, merely because the property is to be clubbed together, does not mean the petitioner who is the holder of certain property in her own name, is not entitled to any notice under the provisions of the Act. It is accordingly submitted that the entire proceedings right from the stage of the proceedings under Section 8(4) of the Act till the taking over of the possession of the property in question are in breach of the principles of natural justice as well as violative of the provisions of the Act inasmuch as the statutory provisions of the Act, which provide that notice be issued to the holder, have not been complied with. It is accordingly submitted that the impugned orders passed by the authorities below are required to be quashed and set aside on this ground alone and the proceedings subsequent to the passing of the orders under Section 8(4) are also required to be quashed and set aside on the ground of being violative of the statutory provisions inasmuch as no notice has been issued to the appellant as required under the provisions of the Act.
The learned Advocate for the appellant has placed reliance upon a decision of the Supreme Court in the case of State of Maharashtra v. B.E. Billimoria : 2003 (7) SCC 336 for the proposition that the Urban Land (Ceiling & Regulation) Act, 1976 being an expropriatory legislation is required to be construed strictly.
The learned Advocate has also made elaborate submissions questioning the validity of the panchnama dated 28-8-1990 as well as the taking over of possession of the land in question on behalf of the State Government. However, considering the view that we are inclined to take in the matter, it is not necessary to refer to the same in detail.
10. On the other hand, Ms. Jirga Jhaveri appearing on behalf of the respondent-authorities has vehemently opposed the appeal. It is submitted that throughout the proceedings, the petitioner had remained a silent spectator and had not voiced any grievance with regard to the non-issuance of any notice to her. It is submitted that under the provisions of the Act, a person includes a family and that when the declarant is issued a notice under the provisions of the Act, the same would take within its ambit, the entire family including the wife. Hence, no separate notice was required to be issued to the petitioner. In support of her submission, Ms. Jhaveri has placed reliance upon a decision rendered by a learned Single Judge of this Court in the case of Patel Gordhan Kadvabhai and Ors. v. Competent Authority & Additional Collector, Rajkot and Ors. : 1988 (1) GLR 121 wherein it has been held that an association or body of individuals are one person, though they may be different individuals. Simply because they are different individuals who have formed an association or body of individuals, each different individual is not required to be heard either under the provisions of the Act or under the provisions of the Rules. It is accordingly submitted that the decision would squarely apply to the facts of the present case as the definition of person also includes the family. Hence, no notice was required to be issued to each individual member of the family.
Reliance is also placed upon a decision rendered by a learned Single Judge of this Court in the case of Vipinchandra Wadilal Bavishi v. Competent Authority & Deputy Collector, Rajkot and Anr. 1994 (1) GLR 505 for the proposition that while working out the extent of land for the purposes of Sections 6 - 10 of the Act, the property of the husband and wife have to be clubbed together.
Reliance is also placed upon a decision of a learned Single Judge of this Court in the case of Narmadaben D/o. Chhotabhai Gelabhai v. Competent Authority & Addl. Collector (U.L.C.), Vadodara and Ors. 2002 (2) GLH (UJ-9) 16.
It is accordingly submitted that no individual notice was required to be served upon the petitioner and that there was no infirmity in the orders passed by the Competent Authority as well as in the subsequent proceedings taken under the provisions of the Act. It is further submitted that the learned single Judge has carefully examined all the submissions advanced on behalf of the petitioner and has given a reasoned judgment, turning down the contentions raised on behalf of the petitioner, which does not call for any intervention by this Court.
11. Upon perusal of the record of the case, it is apparent that there is no dispute that the petitioner was the owner of the land in question and that the same was her-self acquired property and none of the other family members had any right over the same. There is also no dispute regarding the fact that at no stage of the proceedings culminating into the taking over of possession of the land in question has any notice under the Act been issued to the petitioner. The main contention raised on behalf of the petitioner is that it was incumbent upon the authorities to issue a notice to the petitioner whereas the defence of the respondents is that as the definition of 'person' includes family, no individual notice is required to be given to other family members, once notice is issued to the declarant. It would, be therefore, necessary to examine certain provisions of the Act.
12. Sub-section (4) of Section 6 of the Act provides that the statement under Sub-section (1) of the Act shall be filed in case of a family by the husband or the wife. Section 8 of the Act provides that on the basis of the statement filed under Section 6 and after such inquiry as the competent authority may deem fit to make, the competent authority shall prepare a draft statement in respect of the person who has filed the statement under Section 6.
Sub-section (3) of Section 8 provides that the draft statement shall be served in such manner as may be prescribed on the person concerned together with a notice stating that any objection to the draft statement shall be preferred within thirty days of the service thereof. As to the manner of service under Sub-section (3) of Section 8, the same is prescribed by Rule 5 of the Urban Land (Ceiling and Regulation) Rules, 1976 (the Rules). Rule 5 of the Rules insofar as the same is relevant for the purposes of the present case lays down that the draft statement shall be served, together with the notice referred to in Sub-section (3) of Section 8 on - (i) the holder of the vacant lands, and (ii) all other persons, so far as may be known, who have, or are likely to have any claim to, or interest in the ownership, or possession, or both, of the vacant lands, by sending the same by registered post addressed to the person concerned - (i) in the case of holder of the vacant lands, to his address as given in the statement filed in pursuance of Sub-section (1) of Section 6, and (ii) in the case of other persons at their last known addresses.
13. The expression 'to hold' has been defined under Section 2(1) of the Act, which reads thus:
(i) 'to hold' with its grammatical variations, in relation to any vacant land, means:
(i) to own such land; or
(ii) to possess such land as owner or as tenant or as mortgagee or under an irrevocable Power of Attorney or under a hire-purchase agreement or partly in one of the said capacities and partly in any other of the said capacity or capacities.
Explanation : Where the same vacant land is held by one person in one capacity and by another person in another capacity, then, for the purposes of this Act, such land shall be deemed to be held by both such persons;
14. Though, the expression 'holder' has not been defined under the Act, in view of the meaning attributed to the expression 'to hold', holder would mean a person who owns any vacant land, or possesses such land as owner or tenant or as mortgagee or under an irrevocable Power of Attorney or under a hire-purchase agreement or partly in one of the said capacities and partly in any other of the said capacity or capacities.
15. In the facts of the present case, it is an admitted position, which also finds support in the declaration filed under Section 6 of the Act, that the land in question situated in Van Shree Co-operative Housing Society admeasuring 829.25 sq.mtrs. was of the individual ownership of the petitioner-Pannaben Niranjan Mehta and was her self-acquired property. Thus, the petitioner was the holder of the land in question within the meaning of the said term as envisaged under the provisions of the Act. In the circumstances, as prescribed under Rule 5 of the Rules read with Section 8(3) of the Act, the petitioner being the holder of the land in question was entitled to the service of notice under Sub-section (3) of Section 8 of the Act. It is an admitted position that no such notice was served upon the petitioner. In the circumstances, the proceedings under the Act to that extent would stand vitiated as being violative of the statutory provisions of Rule 5 of the Rules read with Section 8(3) of the Act.
16. As already noted hereinabove during the course of the proceedings under the Act culminating into the taking over of possession of the land in question all notices and Notifications have been issued in the name of the declarant. A perusal of the Notifications under Sections 10(1) and 10(3) of the Act shows the name of the declarant Niranjan Maganlal Mehta under the column 'Name of Land-holder' despite the fact that the petitioner-Pannaben was holder of the said land. Thus, by the said Notifications under Sections 10(1) and 10(3) of the Act, what is vested in the Government is the land belonging to declarant who was not the holder of the land. In the circumstances, it cannot be said that the land belonging to the petitioner has been vested in the Government under the said Notifications. In the circumstances, the notifications under Sections 10(1) and 10(3) of the Act stand vitiated, as they do not indicate the name of the holder. Consequently, taking over of possession pursuant to such notifications also stands vitiated.
17. The decisions on which reliance has been placed upon by the learned Assistant Government Pleader, do not in any manner support the case of the respondents.
The decision in the case of Patel Gordhan Kadvabhai and Ors. v. Competent Authority (supra), refers to lands jointly held by an association of person, whereas in the facts of the present case, the appellant was holding the said lands in an individual capacity and hence the said decision would not apply to the facts of the present case.
Insofar as the decision in the case of Vipinchandra Wadilal Bavishi v. Competent Authority (supra), there is no quarrel with the proposition that the lands of the husband and wife are to be clubbed together for the purposes of determining the extent of holding of the family.
The decision in the case of Narmadaben D/o. Chhotabhai Gelabhai v. Competent Authority (supra) in fact supports the case of the petitioner inasmuch as it has been held that when it was known to the Competent Authority that the petitioner therein had a claim to the ownership and possession of the lands, the petitioner therein was entitled to a notice as envisaged under Section 8(3) of the Act. The requirement is mandatory.
18. Examining the issue from another angle, it may be noticed that except for the land in question all the properties declared by the declarant as forming part of the holding of the family were H.U.F. properties. The land in question was the individual self-acquired property of the petitioner. It is this property that the declarant had indicated as his choice for acquisition by the Government towards the lands declared excess vacant. There is nothing on record to show that the petitioner was ever put to notice in respect of the same. In such a situation, when the lands held by the H.U.F. have been retained and the only land held by the petitioner in her individual capacity which, as the record indicates, was stated to have been purchased from her streedhan has been declared as excess vacant without any notice to her, immense prejudice has been caused to the petitioner. Hence, the entire proceeding undertaken without issuance of notice to the petitioner is null and void.
19. In view of the above discussion, it is apparent that though the land in question, namely, the land held by the petitioner in her individual capacity could have been taken into consideration for the purpose of computing the total holding of the family, the petitioner was entitled to issuance of notice as prescribed under Rule 5 as well as service of draft statement under Section 8(3) of the Act. Besides, the notifications under Sections 10(1) and 10(3) of the Act in respect of the property held by the petitioner, could not have been issued indicating her husband to be the holder, more so when it was specifically indicated in Form No. 1 filed under Section 6 of the Act that the property in question is an individual self-acquired property of the petitioner.
20. In the circumstances, the impugned order dated 14-11-1984 passed by the Competent Authority as well as the subsequent proceedings taken under the Act stand vitiated on account of non-compliance with the mandatory provisions of the Act and the Rules, and are therefore, required to be quashed and set aside. Consequently, the order passed by the Urban Land Tribunal as well as the judgment and order passed by the learned Single Judge upholding the order of the Competent Authority are also required to be quashed and set aside. It is ordered accordingly.
21. The Letters Patent Appeal is accordingly allowed with no order as to costs.