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Gujarat High Court
Judgename :R.BALIA
STATE OF GUJARAT - Appellant
Versus
RAMAGAURI HARKISHANDAS - Respondent
S.C.A. 12556 of 1994
Decided On : 03/18/1997
The same cannot be considered in the hands of Karta of HUF in totality. Obviously, it envisages a notional partition and determination of shares that could be allotted on the appointed day, on the day in which holding of vacant land and surplus land has to calculated under the Act, to those members of the family who are entitled to share on that date. Therefore without determining the entitlement to the share on the partition, automatically the vacant land cannot be divided into physical number of adult members who could be legitimately considered to be constituting bigger body of Hindu Undivided Family. Moreover, it is to be seen that Sub-sec. (7) only deals with a person who is a member of HUF as discussed above. Married daughters cannot be treated to be member of HUF of which their father is Karta, as such. On marriage she ceases to be member of her fathers family and becomes member of her husbands family.
[Para 14]
The major married daughters of Gokuldas could not have been granted separate unit, either as members of family of Gokuldas or as a person entitled to share on partition of ancestral property of Gokuldas, unless they had become entitled thereto as heirs of Gokuldas under Sec. 8 read with Sec. 6 of the Hindu Succession Act. To that extent the order of the Tribunal cannot be sustained, and deserves to be set aside.
[Para 15]
(b) Hindu Law - HUF property - Determination of holding under Urban Land Act, 1976 - Property acquired from HUF Fund but shown in the name of only one member - Is HUF property - Nature of acquisition and not the name of holder determines the nature of property.
It cannot be doubted that as per the personal law applicable to the parties, the properties acquired by aid of Joint Hindu Family Funds becomes the property of HUF and partakes the character of ancestral property in the hands of the acquirer. The fact that the land in the revenue records is shown to be in the name of only one person is not relevant factor inasmuch as under the Scheme of Hindu Law, all properties of joint family are ordinarily held by the Karta of the family. It is only the nature of acquisition which determines the nature of the property and not the name of the holder.
[Para 7]
(c) Constitution of India, 1950 - Art. 226 - Urban Land (Ceiling & Regulation) Act, 1976 - Sec. 4(7) - No finding of fact on the nature of land - Held, High Court cannot entertain the contention - Matter remanded.
This Court does not while exercising jurisdiction under Art. 226 ordinarily take exercise of examining the evidence and reach its own conclusions as a competent officer. The issue must be decided by the competent officer having jurisdiction and duty to decide the same. Therefore, unless the question of fact whether the land which is agriculture land and was also mainly used for the purposes of agriculture on 17.2.1976 when the Act became applicable to Gujarat is decided, the question about actual date of appointed day and commencement of the Act in the case of the petitioner cannot be determined so as to decide the contention raised by the learned Counsel for the respondent.
[Para 21]
( 1 ) THIS petition has been filed by State of Gujarat, challenging the order made by the Urban Land Ceiling Tribunal, Ahmedabad on 16-3-1992 allowing (1) Spl. C. A. No. 12390 of 1994 decided on 12-7-1995 by G. H. C. the appeal of the respondent by which the determination of surplus vacant land situated in the Urban Agglomeration of Rajkot vide order dated 27-5-1986 was set aside. The State Government also challenges the consequential final order made by the competent authority under the Urban Land Ceiling Act giving effect to the order of the Tribunal.
( 2 ) IN brief, the facts which led to this petition may be noticed. The Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as "the U. L. C. Act") came into force with effect from 17-2-1976, and was made applicable to State of Gujarat since its inception. On 15-9-1976. Gokuldas Kalyanji filed a statement in respect of vacant land in Urban Agglomeration. Another statement in respect of the part of the very same land was filed by Prabhudas gokuldas, son of Gokuldas Kalyanji also on 15-9-1976. The said Prabhudas claimed the land to be ancestral property of Hindu Undivided Family of which Gokuldas was Karta and he has interest in the land as coparcener by birth. It was also claimed that partition of the ancestral property also took place on 17-2-1995. Said Gokuldas died on 20-10-1977. On 5-10-1982, the competent authority published draft statement under Sec. 8 (3) of the U. L. C. Act. While publishing draft statement, the competent authority has clubbed together the Statements filed by Gokuldas and prabhudas. The properties in question were land comprised in Survey No. 170 and a constructed house. While the land covered by Survey No. 170 was situated in village Kotharia and was entered into as agricultural land in the revenue records, the house was situated at Raghuvirpara, Rajkot. The statement of Prabhudas included only half of Survey No. 170, Kotharia (village ). After publishing of draft statement, objections were filed to the same. Objections inter alia included the land covered by Survey No. 170 is an ancestral property of the Hindu Undivided Family and was held by Gokuldas as Karta of Hindu Undivided Family and members of the family have in their own right a share in the said property, and Gokuldass family members including major daughters were entitled to be considered qua the said property as a separate unit. A part of the said land being adjacent to Railway line, within the prescribed distance from railway line is not constructible and the land to that extent cannot be considered to be a vacant land and that the land in question is an agricultural land, which is mainly used for agricultural purposes which does not fall within the definition of urban land and vacant land.
( 3 ) THE competent officer rejected the plea of the objectors about the nonapplicability of the U. L. C. Act. It held that land is agricultural land recorded in the name of Gokuldas but referring to decision of the Government by which in the first instance the land was exempted in 1979 under Sec. 20 (1) (a) of the Act which was withdrawn on 1-2-1984 and held that since exemption has been withdrawn, the land in question is to be taken into account for calculation of vacant land under the act. The competent officer rejected the plea of the objectors as to the nature of property being ancestral and coparcenary property on the ground that land has been recorded in the name of Gokuldas alone and that Gokuldas has filed the return under the Act as an individual person. He also held that in the return filed by Gokuldas only other interested person in the land is stated to be Prabhudas and even in the return of Prabhudas no other name of the heirs of Gokuldas finds place, therefore, no person other than Gokuldas and Prabhudas can be considered for entitlement to unit as holders of the land. As per his findings the competent officer declared 37,414. 20 sq. mts. as surplus vacant la
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