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Gujarat High Court
Judgename :S.B.MAJMUDAR
SAVITABEN - Appellant
Versus
STATE - Respondent
S.C.A. 487 of 1989
Decided On : 02/28/1990
Constitution Of India – Arts. 226/227 – Urban Land (Celling and Regulation) Act 1976 – Sec. 1 2 3 6 34 – Ceiling – S.C.A. – In this petition under Arts. 226/227 of the Constitution the petitioners have brought in challenge the order passed by the Deputy Secretary Revenue Department State of Gujarat in exercise of the power under Sec. 34 of the Urban Land (Celling and Regulation) Act 1976 – Following contentions in support of the petition: (1) The suo motu revision proceedings were initiated after gross delay and in the meantime equities had changed and consequently the revision proceedings were required to be dismissed only on the ground of unreasonable delay; (2) Even on merits the order passed by the second respondent is patently erroneous as he has wrongly assumed that the petitioners who were co-owner having definite specified shares in the property in question cannot be treated as individuals under the Act as they had not separated their shares by metes and bounds by actual partition on spot – Held, Court have reached the conclusion that this petition deserves to be allowed on the second contention raised by the learned Advocates of the petitioners – However question remains whether the impugned order at Annexure H can be justified on merits – Now it is well settled by a catena of decisions of the Supreme Court this Court and other High Courts that when co-owners hold definite earmarked shares in a common property they can be said to be tenants in common –The second respondent in terms has held that all the petitioners were joint owners of this land having specified shares therein – But having reached that conclusion the next step taken by the respondent No. 2 was to the effect that because their shares were not separated by metes and bounds they ceased to be tenants in common and became association or group of individuals for the purpose of the Urban Land Act – This finding of respondent No. 2 is patently erroneous and contrary to the well established principles of law – The following clarification is issued: the Government of India clarifies that :- if the co-owners have well defined shares they should be treated as individuals with reference to their defined shares on calculating the vacant land which they are entitled to hold under the Urban Land (Ceiling and Regulation) Act 1976 – In view of this clarification the reasoning adopted by the second respondent while deciding the revisional proceedings gets clearly misplaced even apart from the settled legal position as discussed by mo earlier – Thus on the basis of this clarification also the impugned order cannot be sustained – For all these reasons the second contention canvassed by the petitioner is accepted –Impugned order at is quashed and set aside – Order Accordingly
( 1 ) IN this petition under Arts. 226/227 of the Constitution the petitioners have brought in challenge the order passed by the Deputy Secretary Revenue Department State of Gujarat in exercise of the power under Sec. 34 of the Urban Land (Celling and Regulation) Act 1976 (Urban Land Act for short ). A few facts leading to this petition required to be noted at the outset.
( 2 ) FOUR petitioners claim to be co-owners of immovable property situated at the junction of Kasturba Road and Shroff Road known as Mangal Niwas in Rajkot City. The said property is comprised of S. No. 870/1. There are structures on the road flanked by open land appurtenant to this structure. The said property originally comprised of 9757 sq. yds. It was purchased by petitioner No. 1 who is since deceased and who is represented by his widow jointly with his mother Smt. Manglagauri under an indenture dated 25-1-1935. Original petitioner No. 1 had one-half share therein and his mother Manglagauri had remaining one-half share therein. Both the petitioner No. 1 and Manglagauri were tenants in common having equal shares in this land. Development work viz. construction of structure on the land was carried on by petitioner No. 1 and Manglagauri by contributing expenses in equal share. Co-owner this land viz. Manglagauri died on 11-4-1973 having prior there to made and published her last Will and testament in Gujarati dated 1-6-1972. Under the said Will Manglagauri bequeated her share in the said property unto petitioner No. 2 her grand-son petitioner No. 3 being her great grand-son and petitioner No. 4 being her grand-daughter in proportion of 3/4 equally to each of the petitioners Nos. 2 and 3 and 1/4th to petitioner No. 4 Result was that on the death of Manglagauri on 11-4-1973 the property in question vested in four co-owners each having undivided shares as under: original Petitioner No. 1: 1/2 share. Petitioner No. 2: 3/16 share. Petitioner No. 3: 3/16 share. Petitioner No. 4: 1/8 share. On the death of Manglagauri her one-half share was mutated in the names of petitioners Nos. 2 3 and 4 mentioned in the Will. In the city survey inquiry held in respect of the said property in 1974 after due verification of the documents and after recording statements made by petitioners Nos. 2 3 and 4 the property was shown as belonging to the petitioners. The said order of city survey officer was dated 21
( 3 ) THE Urban Land Act came into force on 18-2-1976 and it applied amongst other area to the city of Rajkot. On the appointed day the petitioners held the property as co-owners having specified shares in the property. In view of the provisions of Sec. 6 of the Act petitioner No. 1 on behalf of all the petitioners filed a return being form No. 1 under the said Section before respondent No. 3. In the said form one petitioner stated that the said property was held by them as co-owners i. e. tenants in common in specified shares as aforesaid. It was pointed out that holding of none of the co-owners exceeded the ceiling limit and none of them was holding any excess vacant land. Accepting their contentions the competent authority respondent No. 3 after inquiry closed the proceedings by an order at Annexure D dated 6 The said order was sought to be taken in suo motu revision by the second respondent on behalf of the State of Gujarat under Sec. 34 of the Urban Land Act. These revision proceedings were resisted by the petitioners one diverse grounds. It was submitted that proceedings were initiated after unreasonable delay and were required to be dropped. It was further contended that even on merits the order of the competent authority was quite legal and valid and required no interference. The second respondent however passed an order at Annexure E dated 2 taking the view that as the petitioners were co-owners having defeat shares in the property which was not divided by metes and bounds on spot they should be considered as body of individuals or association of individu
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