2009 Supreme(Guj) 499

2010 (1) GCD 629 (Guj) (DB)
Hon’ble Mr. Chief Justice K.S. Radhakrishnan &
Hon’ble Mr. Justice Akil Kureshi
Competent Authority & Additional Collector & Anr.
Versus
Shantaben D/o Devabhai & Ors.
Letters Patent Appeal No. 892 of 20091—Decided on 28/08/20092

Point in Issue :
Whether respondents entitled for the relief claimed?

Headnote:Head Note :

       Urban Land (Ceiling and Regulation) Act, 1976 — Sections 6(1), 10, 10(3), 10(5) — Three daughters of deceased the original owner claimed possession of excess land declared by authorities under the Act — Ground that deceased died on 14.01.1976 before the Act came into force and not on 14.07.1976 as held by authorities — Claim was rightly negatived by Tribunal — Long thereafter respondents filed — Special Civil Petition declaring their possession on land and direct State Government not to disturb the same — Single Judge erroneously allowed the petition — Court set aside the order on various grounds as unsustainable.

       Held :

       The Single Judge relied heavily on the date of death of original land owner Devabhai being 14.1.1976. It is the case of the original petitioners that Devabhai expired on 14.1.76. This is, however, not free from doubt. From the beginning, entries were made in the revenue records in favour of widow of Devabhai and others on a declaration made by the members of the family which included one of the petitioners, namely, Shantaben that Devabhai had expired on 14.7.76. Further, before the ULC Authorities, in response to the draft statement of excess vacant land also, son of Devabhai, namely, Melabhai appeared in person and stated that his father had expired on 14.7.76. Present petitioners had sought to oppose notice under Section 10(5) of the Act by filing appeal before the ULC Tribunal on the premise that their father having expired on 14.1.76, they have already inherited the property on the date when the ULC Act was brought into force. This contention was negatived by the Tribunal holding that the revenue record suggests that Devabhai expired on 14.7.76. It was on this basis that entry of mutation of his heirs was made on 7.2.77. The contention that the correct date of birth was 14.1.76 and not 14.7.76 was turned down. It was recorded that in the order passed by the competent authority also, in the original case papers, date of death was shown as 14.7.76. This order of ULC Tribunal dated 31.1.87 achieved finality and no further steps have been taken by the petitioners. They kept quiet for years together. The land vested in the Government. Revenue entries from 1988 onwards continued to show the Government as owner and occupant. Long after the said order was passed on 31.1.87 by the ULC Tribunal, the petitioners filed the present petition in the year 2002 contending that the correct date of death of Devabhai is 14.1.76 and the petitioners are equal owners of the land in question. Such highly disputed question of date of death of Devabhai at a highly belated stage, in Court view, could not and should not have been examined under writ jurisdiction. Significantly, the heirs including petitioner No. 1 had approached the Talati seeking mutation in the revenue records on the death of Devabhai. Entry was made on 7.2.77. Date of death of Devabhai disclosed was 14.7.76. Had there been a mistake of a few days or weeks, Court can understand. Surely, the family would not make such a major mistake in disclosing the date of death of the family member, that too, shortly after the death. Therefore, despite the petitioners producing the death certificate showing the date of death as 14.1.76, Court is not prepared to reopen the issue which was once closed by the ULC Tribunal way back in the year 1987. Significantly, as per this certificate also, entry in the register was made in the year 1993. [Para 6]

       Court recorded that way back in the year 1988, after following detailed procedure under Section 10 of the ULC Act, possession was taken over by the Government in presence of panchas. Such records cannot be lightly ignored particularly when from 1988 onwards continuously the Government is shown as owner and occupant of the land in the records. The petitioners raised no grievance against such entries for years together. In Court view, the Judge erred in overruling the overwhelming records suggesting the detailed steps taken before taking over the possession of the land in question. [Para 7]

       In any case, repeal of the ULC Act would not affect the present proceedings since on the date of the repeal Act, no proceedings were pending before any Court. As already noted, ULC proceedings had achieved its finality when the writ petition filed by the widow and son of Devabhai came to be dismissed by this Court. The present petitioners preferred appeal against the notice under Section 10(5) of the ULC Act seeking to take over possession. That appeal also came to be dismissed by the ULC Tribunal on 31.1.87. The issue ended there. Therefore, after the Government took over the possession of the land in the year 1988, no proceedings were pending before any Court, Authority or Tribunal. Repeal of the ULC Act, therefore is of no consequence in the present case.

        [Para 9]

       Law Laid Down :

       After following legal proceedings possession taken over by Government can not be disbelieved in exercise of writ jurisdiction.