1. All these petitions arise from the same cause of action. All the petitions are, therefore, disposed of by this common judgment and order.
2. The dispute is in respect of the land, Survey No. 85/1/2, situated at village-Raiya, Rajkot [hereinafter referred to as, "the said land"]. The said land belonged to one Dhirajlal Ranchhoddas Soni. The said Dhirajlal Soni declared the said land to be of his individual holding, as required under section 6 of the urban land [ceiling & regulation] act, 1976 [hereinafter referred to as, "the Act"]. The statement filed by the said Dhirajlal Soni of his holding, including the said land, was processed by the Competent Authority under the Act. Under Order dated 24th February, 1984, the Competent Authority allowed the said Dhirajlal Soni to retain one Unit of land. The rest of the said land admeasuring 3,221.53 sq.mtrs. was held to be 'the excess vacant land'. Feeling aggrieved, the said Dhirajlal Soni preferred Appeal No. 689 of 1984 under section 33 of the Act before the Urban Land Tribunal [hereinafter referred to as, "the Tribunal"]. The Tribunal under its judgment and order dated 1st October, 1987 dismissed the said appeal. Feeling aggrieved, the said Dhirajlal Soni preferred Special Civil Application No. 1010 of 1988 before this Court. The said petition was rejected [Coram : B.S Kapadia, J.] on 21st March, 1988. However, the contention was raised that under the concerned Town Planning Scheme, the said Dhirajlal Soni was allotted original plot no. 46 admeasuring 936 sq.m..On reconstitution, the said Dhirajlal Soni was allotted Final Plot No. 909, admeasuring 691 sq.m. Thus, he had suffered a loss of 245 sq.m of land on account of the implementation of the T.P Scheme. The Court, therefore, recorded that, "..if the petitioner is ready to let go the amount of compensation and if the petitioner makes a representation to the Competent Authority in regard to this difference of land, Mr. Hawa assures on behalf of the respondents that, the said representation will be decided within 8 weeks from the date of making of the representation. In that view of the matter, the petition does not survive and hence the respondent no. 1 is directed to decide the representation, if made by the petitioner, on the aforesaid point within 8 weeks. If the petitioner is aggrieved by the decision rendered in the said representation, he will be at liberty to take appropriate action under the law." Pursuant to the said order, the Competent Authority under order dated 22nd November, 1988 considered the representation made by the said Dhirajlal Soni and held that the said Dhirajlal Soni held excess vacant land to the extent of 2711 sq.m. Pursuant to the said decision, the Notification of intention to acquire the said `excess vacant land' under section 10(1) of the Act was issued on 6th January, 1989 and was published on 16th February, 1989.The Notification under section 10(3) of the Act vesting the said excess vacant land in the State Government was published on 20th April, 1989. Notice for possession of the said excess vacant land under section 10(5) of the Act was given on 20th April, 1989 and was served upon the said Dhirajlal Soni on 18th May, 1989. Pursuant to the said notice, possession of the said excess vacant land under section 10(6) of the Act, was taken over on 20th July, 1989 in presence of the said Dhirajlal Soni. Necessary mutation entry was made in the revenue record on 11th March, 1991. Under the Town Planning Scheme, the said excess vacant land was reconstituted into final plot Nos. 930, 939, 941 and 877. The land admeasuring 2011 sq.m of the Final plot numbers 930, 939 and 941 was allotted to the University Employees' Cooperative Housing Society Limited (then proposed) [hereinafter referred to as, "the Society"], the petitioner in Special Civil Application No. 845 of 1995, under section 23 of the Act. The possession of the same was handed over to the Society on 8th May, 1992.
3. It appears that pending these proceedings, one Bhanumatiben Soni, the wife of the said Dhirajlal Soni and their two minor sons preferred Appeal No. 16 of 1988 against the order of the Competent Authority made on 24th February, 1984. One Ratilal Soni, the brother of the said Dhirajlal Soni also preferred Appeal No. 48 of 1988 against the said order dated 24th February, 1984. The appellants in the said two appeals claimed that the said land was HUF property and all the appellants had a share in it. Both the appeals were dismissed by the Tribunal on 15th June, 1988 and 28th September, 1988 respectively. The claim that the said land was the HUF property was rejected by the Tribunal.
4. Since the dismissal of all the three above referred appeals nos. 689/1984, 16/1988 and 48/1988, the said land was mutated in the name of the Government on 11th March, 1991. As recorded hereinabove, part of the said excess vacant land admeasuring 2011 sq.m was allotted to the Society and the possession thereof was handed over to the Society on 8th May, 1992. After the completion of the acquisition proceedings under the Act and disposal of the part of the excess vacant land as aforesaid, the said Dhirajlal Soni, his wife Bhanumatiben Soni and their daughter Partimaben Mukherjee preferred appeal No. 25 of 1993 before the Tribunal under section 33 of the Act against the order of the Competent Authority dated 22nd November, 1988. The said appeal was allowed by the Tribunal under the judgement and order dated 28th January, 1994. The Tribunal held that the said land was the ancestral property. The appellant Dhirajlal Soni and his wife Bhanumati Soni were jointly entitled to retain one Unit of the land, while the appellant Pratimaben Mukherjee was also entitled to retain one unit of the land. The Tribunal allowed the said Pratimaben Mukherjee to retain the land of Final Plots Nos. 877 and 941. Feeling aggrieved by the said judgment and order dated 28th January, 1994, the Society has preferred above Special Civil Application No. 845 of 1995. The State Government has preferred the above Special Civil Application No. 479 of 1996. The said Bhanumatiben Soni has preferred Special Civil Application No. 12639 of 1994. The said Bhanumatiben Soni has also preferred Special Civil Application No. 5883 of 1995 and has challenged the order of allotment made to the Society on 10th April, 1992.
5. At the outset, Mr. Nanavati has stated that he does not press Special Civil Application No. 12639 of 1994.
6. Mr. Nanavati has challenged the maintainability of Special Civil Application No. 479 of 1996 preferred by the State Government and the Competent Authority. Mr. Nanavati has relied upon sections 2(d), 12, 33 & 34 of the Act. In the submission of Mr. Nanavati, against the order made by the Competent Authority, an appeal lies to the Tribunal constituted under section 12 of the Act. The Tribunal being the Appellate Authority over the orders of the Competent Authority, the Competent Authority has no right to challenge the order of the Tribunal. Besides, the competent authority and the Tribunal are appointed by the State Government to discharge the functions of the State Government. The orders made by the Competent Authority or the State Government are, therefore, the orders made by the State Government. The State Government cannot challenge the order made by itself. Challenge to the order of the Tribunal by the State Government in the present petition, therefore, shall amount to the State Government challenging its own order. The said challenge is, therefore, not sustainable. In any view of the matter, neither the State Government nor the Competent Authority can be said either to be an aggrieved person or the person interested. Therefore also, challenge at the instance of the State Government or the Competent Authority is not maintainable. In the alternative, Mr. Nanavati has submitted that the said petition suffers from the vice of gross delay and latches in as much as the order of the Tribunal made as far back as on 28th January, 1994 has been challenged before this Court in a petition filed in the month of January, 1996. The said delay of 2 years has also not been explained.
7. Mr. Nanavati has next submitted that since the order of the Tribunal, there being no further challenge, the appellant no. 3 Pratimaben sold the land of Final Plot No. 877 admeasuring 618 sq.m to a third-party on 5th September, 1994. Thus, the interest of the third party has intervened. Therefore also, the challenge to the order of the Tribunal requires to be rejected. Mr. Nanavati has submitted that the aforesaid delay has caused a grave prejudice not only to the appellants but also to the third party. In support of these arguments, Mr. Nanavati has relied upon the judgments of the Hon'ble Supreme Court in the matter of Bihar Public Service Commission & Anr. vs. Dr. Shiv Jatan Thakur & Ors. [AIR 1994 SC 2466] and of State of Maharashtra vs. Additional Commissioner & Ors. [1994 Suppl. (2) SCC 568]. He has also relied upon the judgments of this Court in the matters of Babuben Haribhai v. Competent Authority & Deputy Collector [1995 (2) GCD 239] and of Ratilal Ichcharam Sorathia & Ors. v. Urban Land Ceiling Tribunal & Ors. [1997 (1) GLR 439].
8. As to the locus standi of the Society, the petitioner in Special Civil Application No. 845 of 1995, Mr. Nanavati has submitted that the Society is a mere allottee of the land from the State Government. It has thus derived a right from the State Government. It being a derivative interest, the petitioner-Society has no locus standi to challenge the impugned order of the Tribunal. Besides, there is a gross delay in preferring the said appeal also. Mr. Nanavati has also submitted that in any view of the matter, under the Hindu Law, a daughter is a member of the HUF of her father and has a share in the HUF property. This question was not considered by the Competent Authority or the Tribunal in the earlier proceedings.The same was open for consideration. Particularly the above mentioned Partimaben Mukherjee was not a party to the earlier proceedings, she therefore, cannot be non-suited from claiming her right to a share in the property of the HUF of her father. In support thereof, he has relied upon the judgment of this Court in the matter of State of Gujarat vs. Gordhanbhai Becharbhai & Ors. [1995 (2) GLH 97].
9. In support of Special Civil Application No. 5883 of 1995, Mr. Nanavati has submitted that the allotment of the land under section 23 of the Act to the Society is per se illegal. He has read out the text of section 23 of the Act and has submitted that the Society does not fall within any of the categories mentioned in the said Section 23 of the Act. No land could, therefore, have been allotted to the Society in exercise of power vested under section 23 of the Act. He has further submitted that the guiding factor for allotment of the land under section 23 of the Act is the "common good". The land of a private individual cannot be acquired under the Act to give it to another private person. He has submitted that none of the members of the Society was a servant of the State Government or was workman serving in an Industry. Quite a few of them [as many as seven] did have their own house in the city of Rajkot. The allotment made in favour of the Society is, therefore, illegal and requires to be set-aside. Besides, the allotment is made in favour of the proposed Society. The proposed Society is not a legal entity. No allotment could, therefore, have been made in favour of the proposed Society. In support of these contentions, Mr. Nanavati has relied upon the judgment of the Hon'ble Supreme Court in the matter of Maharao Saheb Shri Bhim Singhji vs. Union Of India & Ors. [AIR 1981 SC 234] and of this Court in the matters of Ramji Mandir Narsinhji & Ors. vs. Narsinh Nagar Alias Tekri Co-operative Housing Society Ltd. & Ors. [20 GLR 801] and of Jayantilal Hansraj Shah & Ors. vs. Hemakuwarben Dolatraj Dave & Ors. [1996 (1) GLH 893].
10. The learned AGP Mrs. Devani has submitted that the impugned order of the Tribunal is ex facie bad and illegal and has been made without jurisdiction. She has submitted that the said Dhirajlal Soni had declared his holding in the statement filed under section 6 of the Act. The said land was described as "his self-acquired individual property". The said Dhirajlal had, at no point of time, claimed that the said land was ancestral property or HUF property. Nevertheless, the issue was raised in Appeals Nos. 16 of 1988 preferred by the wife and the minor sons of the said Dhirajlal and in Appeal No. 48 of 1988 preferred by the brother of the said Dhirajlal. Both the said appeals were rejected by the Tribunal on 15th June, 1988 and on 28th September, 1988. The Tribunal gave a specific finding that the said land was not the HUF property, as contended by the appellants therein. Thus, the issue had become final and could not have been re-examined by the Tribunal. The Appeal No. 25 of 1993, therefore, was barred by the principles of res judicata. She has next contended that Special Civil Application No. 1010 of 1988 was preferred by the said Dhirajlal Soni against the judgment of the Tribunal dated 1st October, 1987 passed in Appeal No. 689 of 1984. Thus, the said judgment was confirmed by this Court under its order dated 21st March, 1988. However, the said Dhirajlal was permitted to make representation with respect to the extent of land acquired under the Town Planning Act. The Competent Authority had agreed to consider such representation, if made. She has submitted that except the aforesaid limited inquiry, all other issues had become final and were not open for reagitation. The Competent Authority thus had a limited scope of inquiry, pursuant to which the order was made on 22nd November, 1988. The excess holding of the said Dhirajlal was considerably reduced i.e., instead of 3221.53 sq.m held to be excess holding of the said Dhirajlal, under Order dated 24th February, 1984, the same was reduced to 2711 sq.m under order dated 22nd November, 1988. The Tribunal, therefore, under the impugned order could not have considered the issues other than the inquiry as to the extent of land acquired under the Town Planning Act. The Tribunal has thus exceeded its jurisdiction by reopening the issues which had become final. She has also contended that the findings recorded by the Tribunal are based on no evidence. Therefore also, the judgment requires to be set-aside. Further, by the time the appeals were preferred, the excess vacant land had already vested in the State Government, as envisaged under Section 10(3) of the Act.The possession was also taken over as envisaged under section 10(6) of the Act. Part of the said land acquired under the Act was allotted to the Society under section 23 of the Act. Thus, the entire proceeding of acquisition and disposal of the land having been completed, the appeal could not have been entertained by the Tribunal. Further, the State Government and the Society were the necessary parties to such appeal. However, the appeal was decided ex parte i.e. without notice to the State Government and the Society. She has also relied upon the original records of the matter to show that the impugned order was made by the Tribunal on 28th January, 1994, while the records of the Competent Authority were called for not before 4th February, 1994. Thus, it is apparent that the impugned order has been made by the Tribunal on extraneous considerations without looking at the records of the matter. She has relied upon the judgments of this Court and the Hon'ble Supreme Court in the matters of State of Gujarat vs. Ramagauri Harkishandas [1997 (2) GLR 929] and of Rambhau vs. State of Maharashtra [1995 Suppl. (3) SCC 74].
11. The learned advocates Mr. Lakhani and Mr. S.K Patel have assailed the impugned order of the Tribunal and have supported the disposal of the excess vacant land in favour of the Society. The learned advocates have read over the memo of appeal No. 25 of 1993 preferred before the Tribunal. They have pointed out several misleading statements made in the said memo. It has also been pointed out that the order of this Court made on Special Civil Application No. 1010 of 1988 also has not been properly quoted and an impression is created as if the matters at issue were still at large. In the submission of the said advocates the said appellants are guilty of misrepresentation and suppression of material facts. They have relied upon the judgments of this Court in the matters of Sardaben Ishwarlal Akhani & Ors. vs. Director of ICDS (Sanklit Balvikas Yojna) & Ors. [1996 (1) GLR 741] and of Laxmichand Mafatlal Heruwala vs. State of Gujarat & Ors. [1996 (3) GLR 510]. They have also submitted that as many as 7 members of the Society have constructed their residential houses on the parcels of the land allotted under section 23 of the Act and have been residing therein. Thus, the situation has become irreversible. Therefore also, the allotment made in favour of the Society requires to be upheld.
In the matter of Bihar Public Service Commission & Anr. [Supra], the challenge to the decision of the Public Service Commission by one of its member was rejected. The Hon'ble Supreme Court held that,
".. No member of a public Service Commission can be allowed to qustion the validity or correctness of the functions performed or duties discharged by the Public Service Commission as a body, while he was its member. It ought to be so for the simple reason that, such member must be regarded to be a party to the function required to be performed or the duty required to be discharged or the duty required to be discharged by the Public Service Commission as a body or institution, even though he might have been a dissenting member or a member in a minority or a member who had abstained from taking part in such function performed or duty discharged."
12. In the matter of State of Maharashtra [Supra], the Hon'ble Supreme Court upheld the dismissal of the writ petition filed by the State on the ground of latches and on the grounds the rights of third parties have intervened.
13. In the matter of Babuben Haribhai [Supra], this Court condoned the delay occured in preferring appeal by the petitioner who claimed right to a share in the property of her father and consequential right to hold one unit of land declared under the Act and to direct the Appellate Authority to decide the appeal on merits. Similar is the order in the matter of Ratilal Ichcharam Sorathia & Ors. [Supra].
14. In the matter of State of Gujarat v. Gordhanbhai Becharbhai Patel & Ors. [Supra], this Court held that once the order made under the Act by the Competent Authority was quashed and set-aside in Appeal, all consequential actions which have been taken in the meantime have to be reversed and the functionaries under the Act have to abide by the order passed by the Appellate Authority. The process of reversal must be followed so as to take the order of the Appellate Authority to its logical end.
15. In the matter of Maharao Saheb Shree Bhim Singhji [Supra], the validity of the Act was under challenge. The Five Judges Bench considered, inter alia, the validity of section 23 of the Act. The majority of the Judges upheld the validity of the said section. However, observed that, the disposal of the excess vacant land under section 23 of the Act shall be made strictly in accordance with the mandate ofsub-section (4) of section 23. Mr. Nanavaty, however, has relied upon the minority view expressed by the Hon'ble Mr. Justice Tulzapurkar. His Lordship held that, 'compulsory acquisition of all excess vacant land in all urban agglomerations through out the Union territories for achieving a bald, indefinite and unspecified objective like 'industry' simpliciter would be invalid exercise of power of 'eminent domain'. The Hon'ble Judge further held that,
"..In otherwords, acquisition of excess vacant land in urban agglomeration would clearly be for private purposes and what is worse is that under the priorities laid down such private purposes are to be catered tofirst and then comes the disposal or distribution thereof to subserve common good. This clearly smacks of depriving Peter of his property to give it to Paul and, therefore, amounts to an invalid exercise of State's power of 'eminent domain.' Section 23 which thus authorises compulsory acquisition of property for private purposes flagrantly violates those aspects of Art. 31 which constitute the essential or basic features of the Constitution and is, therefore, ultra vires and unconstitutional."
16. In the matter of Ramji Mandir Narsinhji & Ors. [Supra], this Court has held that,
"a Cooperative Society becomes a legal person after it is registered and it is after its registration that it acquires the capacity to enter into contracts."Similar is the view expressed by this Court in the matter of Jayantilal Hansraj Shah & Ors. [ 1996 (1) GLH 893 ].
17. In the matter of Sardaben Ishwaralal Akhani & Ors. [Supra], this Court has held that, "the petitioners who invoke the extra-ordinary jurisdiction of this Court must come with clean hands. Concealment of facts and suppression of material documents shall entail dismissal of the petition." Similarly, in the matter of Laxmichand Mafatlal Heruwala [Supra], this Court has held that, .."Non disclosure or concealment of any materail and vital fact from this Court would amount to the attitude of suppressio veri on the part of the petitioner. ...The basic principle of equity is that thepetitioner has to come to the Court of equity with clean hands. It would mean that he has to disclose all material and vital facts to the Court and he should not be guilty of suppressio veri and sgugestio falsi. Any wilful suppression or any material and vital fact would disentitle the petitioning litigant from obtaining an equitable relief from this Court under Article 226 of the Constitution of India."
18. In the matter of Rambhau [Supra], the Hon'ble Supreme Court, under the Maharashtra Agricultural Lands (ceiling on Holdings) Act, 1961 held that,
"..An unmarried daughter may be entitled to maintenance and marriage expenses, but she was not entitled to a share on partition either under the customary Hindu law or even under the Hindu Succession Act, 1956, or Hindu Adoptions and Maintenance Act, 1956."
19. In the matter of State v. Ramagauri Harkishandas {Supra}, while considering the claim of the married daughters to a share in the ancestral property of their father, this Court has considered the various provisions of the Hindu Law and the Hindu Succession Act. The meaning of "Co-parcenor" and of an "HUF". Right of females to claim share in the coparcenary property. It has been held that, "..Thus daughters, sisters, etc are not entitled to share on partition".
26.03.2003
20. As to the locus standi of the State Government to challenge the order made by the Tribunal, I had an occasion to consider similar argument in the matter of State of Gujarat vs. Faiyazali Saiyedali Kadri [Special Civil Application No. 5291 of 1991 :: Decided on 12th July, 2001]. It has been held that,
"... It is true that it is the Government Officer i.e., the Secretary to the Government, Revenue Department, who has been designated to act as the Urban Land Tribunal to hear appeals under section 33 of the Act. Nonetheless, the order made by such officer shall be an order of the Tribunal and not of the Government Officer, in his official capacity as the Secretary. While acting as the Tribunal, he is exercising statutory power conferred under section 33 of the Act and the order made by him can be subjected to challenge by any aggrieved party, including the State Government."Following the said judgment, I hold that the State Government has a right to challenge the order of the Tribunal made in exercise of appellate power conferred under Sec. 33 of the Act. Similarly, I am of the opinion that even the Society has a locus standi to challenge the said order of the Tribunal. Admittedly, on the date of the appeal, part of the excess vacant land had been disposed of as envisaged in section 23 of the Act in favour of the Society. Thus, the Society is a party interested. The Society, therefore, is an aggrieved party and has a right to challenge the order made by the Tribunal.
21. As to the delay caused in filing Special Civil Applications Nos. 845 of 1985 and 439 of 1996, it must be noted that neither of the said writ petitioners was a party to the appeal before the Tribunal. Besides, as I should presently discuss, the impugned order of the Tribunal is a nullity and is void ab initio. The said order has been made by the Tribunal without the authority of law, for extraneous consideration and with corrupt motive. Such an order cannot be validated by rejecting the challenge to the said order on the grounds of delay, latches and acquiescence [Reference can be had to 1992 (1) GLR 14].
22. The facts recorded hereinabove are not disputed. the records do reveal that the said Dhirajlal Soni had filed a statement of his holding. The said holding was declared to be "self-acquired property". The said statement was filed by the said Dhirajlal Soni in the capacity of an individual. Accordingly, the Competent Authority prepared the final statement on 24th February, 1984 as envisaged in section 9 of the Act declaring the extent of the excess vacant land held by the said Dhirajlal Soni. The Appeal No. 689 of 1984 preferred by the said Dhirajlal Soni before the Tribunal came to be dismissed. even in the said Appeal, the said Dhirajlal Soni did not claim that his holding was that of H.U.F. or that the declaration of his holding made by him under Sec. 6 of the Act was in respect of the HUF property. Even the Special Civil Application No. 1010 of 1988 preferred before this court was rejected. Thus, all along, the said Dhirajlal Soni maintained that the holding declared in the statement filed under Sec. 6 of the Act was his self-acquired property and was of his individual holding. In the above referred Appeals Nos. 16 of 1988 and 48 of 1988, preferred by the wife and the minor sons, and the brother of the said Dhirajlal Soni, it was urged that the holding declared by the said Dhirajlal Soni was the property of the HUF and the said Bhanumatiben Soni and her minor sons and Ratilal Soni were entitled to retain land equivalent to one unit each. The said contention was specifically dealt with by the Tribunal and was rejected. The said decision of the Tribunal was not challenged further. The said decision has thus become final. Pursuant to the order dated 21st March, 1988 made in Special Civil Application No. 1010 of 1988, the matter was reconsidered by the Competent Authority with regard to the extent of land acquired under the Town Planning Act. On such computation, the extent of the excess vacant land in the hands of the said Dhirajlal Soni was reduced to 2711 sq.m. It is this order of the Competent Authority made on 22nd November, 1988 which was the subject matter of challenge in Appeal No. 25 of 1993.
23. The said Appeal No. 25 of 1993 was preferred by the said Dhirajlal Soni, his wife Bhanumatiben Soni and one Pratimaben Ajay Mukherjee claiming to be the daughter of the said Dhirajlal Soni. It was for the first time alleged that the land in question was the HUF property. That the appellant no. 3 Pratimaben was major daughter of the declarant and was entitled to a share in the said land. As it is apparent, the said appeal was grossly belated. The only explanation which came forth was that the appellant no. 3 Pratimaben was residing abroad and she was not aware of the proceedings under the Act. That the period of limitation would commence from the date of the knowledge. However, the date of the knowledge had not been disclosed in the appeal memo. In the appeal memo, it had also been stated that the said land was purchased by the father of the said Dhirajlal Soni one Ranchhoddas P. Soni and that the land was ancestral property. The aforesaid contentions raised by the said appellants have been accepted by the Tribunal in toto, I am afraid, without perusing the records and without any proof thereof. In my view, this is a gross case of illegality committed by the Tribunal. First, in the previous proceedings, at no point of time, the factum of the major daughter of the said Dhirajlal Soni and Bhanumatiben Soni had come on the record i.e. neither the said Dhirajlal Soni nor the said Bhanumatiben Soni ever alleged that they had a daughter. It was for the first time in the appeal that the said Pratimaben claimed that she was the daughter of the said Dhirajlal Soni and Bhanumatiben Soni and that she was adult. No evidence had been produced before the Tribunal to establish that the said Pratimaben was the daughter of the said Dhirajlal Soni and Bhanumatiben Soni or that she was major on the appointed day. No evidence has been led to show that on the appointed day, she was still the member of the HUF of Dhirajlal Soni. This Court in the matter of Ramagauri Harkishandas {Supra} has categorically held that a daughter once she marries joins the family of her husband and ceases to be the member of the HUF of her father. It was, therefore, essential that the said Pratimaben ought to have been proved to be a major unmarried daughter of Dhirajlal Soni and Bhanumatiben Soni as on the appointed day. In absence of such proof, the Tribunal could not have held that the said Pratimaben was entitled to a share in the land in question. As to the delay also, there is no evidence as to the date of the knowledge. In absence of such evidence or even a bare averment, the Tribunal has erroneously recorded that the appeal at the hands of the said Pratimaben could not be said to be barred by the period of limitation. Further, there is no evidence on record that the said land was the ancestral property, as averred in the appeal memo. In absence of any evidence that the land was purchased by the deceased father of the said Dhirajlal Soni, the Tribunal has committed a grave illegality in holding that the land was HUF property of the said Dhirajlal Soni. The said finding is thus not based on the evidence on record. Besides, the said finding is contrary to the finding recorded by the very Tribunal in earlier proceedings viz. the Appeals No. 16 of 1988 and 48 of 1988. Hence, the impugned decision of the Tribunal is not only based on no evidence, it is also contrary to finding recorded by the said Tribunal in the earlier proceedings.
24. Thus, the appeal preferred before the Tribunal was barred by the principles of res judicata and was also barred by the period of limitation. The Tribunal exceeded its jurisdiction since the limited inquiry permitted by this Court was in respect of the extent of land acquired under the Town Planning Act. Otherwise also, the impugned order of the Tribunal is bad and illegal in as much as (a) there is no evidence that the appellant-Pratimaben was the daughter of the said Dhirajlal Soni and his wife Bhanumatiben Soni; (b) there is no evidence that on the appointed day the said Pratimaben Mukherjee was major and was still unmarried; (c) there is no evidence that the said land was purchased by the father of the said Dhirajlal Soni or that it was the ancestral or HUF property of the said Dhirajlal Soni.
25. As recorded hereinabove, the Tribunal passed the impugned judgment and order before the record of the Competent Authority was called for. Nevertheless, the Tribunal has observed that, "the day on which hearing was to be conducted this was communicated to the C.A Rajkot but no representative of the CA remained present nor any remark in writing were available from the Rajkot C.A." Contrary to the order dated 21st March, 1988 made by this Court [Coram : B.S Kapadia, J.] in Special Civil Application NO. 1010 of 1988, the Tribunal has recorded that, "the Hon'ble High Court had issued the directions that the respondent-authority should take into consideration the grievance made by the petitioner i.e., the appellants herein before the Tribunal as well as before the Hon'ble High Court of Gujarat."
26. Even the said appellants approached the Tribunal with an obvious intention to defraud the State Government. The said appellants had made several misleading statements in the memo of the appeal and had suppressed the material facts. A misleading statement had been made that,
"..Mr. Hawa appearing on behalf of the Government having agreed to reconsider certain points remanded the matter back to the respondents."By quoting only a part of the order, an impression was created as if this Court [Coram : B.S Kapadia, J.] had remanded the matter for consideration afresh and that the appellants were at liberty to reagitate the issues. The appellants had suppressed the finding recorded by the Tribunal in the earlier proceedings viz. the Appeals Nos. 679 of 1994; 16 of 1988 and 48 of 1988. The appellants had also suppressed the fact that the possession of the excess vacant land was taken over by the State Government on 28th July, 1989 under Sec. 10(6) of the Act in presence of one of the appellants the said Dhirajlal Soni and that part of the land so acquired was also allotted to the Society as far back as on 10th April, 1992 under Section 23 of the Act.
27. As to the challenge to the allotment of the part of the excess vacant land acquired under the Act made to the Society on 10th April, 1992, the same requires to be rejected on the grounds of delay, latches and acquiescence. The petitioner Bhanumatiben Soni was admittedly aware of all the proceedings under the Act and was also aware of the allotment made to the Society. I do not consider it expedient to accept the said challenge to set-aside the order of allotment made more than 10 years herebefore.
23.04.2003
28. In view of the above discussion, Special Civil Application No. 845 of 1995 is allowed. The impugned judgment and order dated 28th January, 1994 passed by the Urban Land Tribunal in Appeal No. Rajkot-25 of 1993 is quashed and set-aside. Rule is made absolute with costs.
29. The Special Civil Application No. 479 of 1996 is allowed. The impugned judgment and order dated 28th January, 1994 passed by the Urban Land Tribunal in Appeal No. Rajkot-25 of 1993 is quashed and set-aside. Rule is made absolute with costs. The Advocate's fees for the purpose of costs is quantified at Rs. 20,000/=.
30. Special Civil Application No. 12639 of 1994 is dismissed as not pressed. Rule is discharged with costs. Interim relief; if any, stands vacated.
31. Special Civil Application No. 5883 of 1995 is dismissed with costs. Rule is discharged. Interim relief stands vacated. The cost to the respondent no. 3, the Society is quantified at Rs. 15,000/=.
32. Civil Applications Nos. 2860 of 1996; 2143 of 1996 and 6310 of 1996 stand disposed of. Rule nisi issued in each of these applications stands discharged.
33. The registry shall maintain copy of this judgment in each of the petitions.
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