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2017 Supreme(Guj) 547
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Abhilasha Kumari, J.
Babubai Mafatbhai Patel – Appellants
Vs.
State of Gujarat and Ors. – Respondents
Special Civil Application No. 18463 of 2015
Decided On : 10-03-2017
For the Appellant :S.N. Shelat, Senior Advocate and Mrugen K. Purohit, Advocate
For the Respondent: Amita Shah, Asst. Government Pleader
Headnote:
Urban Land (Ceiling and Regulation) Act -Section-10(5) -Constitution of India Article-226 - Petitioner is entitled for the benefit of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 and that the petitioner is in legal possession of the land admeasuring 1330 sq.mtrs. situated in Revenue Survey No. 702/2 and restrain the respondent authorities from taking possession of the said land or creating any obstruction thereupon. petitioner has further challenged the notice issued and has prayed for a declaration that no legal possession has been taken of the land in question and that such possession cannot be taken from a dead person. facts of the case of the petitioner, as can be gathered from the record are that one purchased land bearing Revenue Survey No. 702 admeasuring 5041 sq. yards, equivalent to 4251 sq.mtrs. from one by a registered Sale Deed. Entry No. 4990 was mutated in the revenue record to this effect, though this entry was cancelled. filed Civil Suit No. 406-407/1983. By an order passed below Exhibit-5, the Civil Court restrained the defendants from selling the said property while observing that the possession is with the plaintiff. Entry No. 5919 was mutated in the revenue record recording the order Thereafter, by an order, passed under the ULC Act, land admeasuring 3214 sq.mtrs. of village was declared as surplus land and the land in issue in the petition is a part of this land. Aggrieved by the order filed ULC Appeal No. 1585/1984. By an interim order, the Urban Land Tribunal stayed further proceedings and restrained Parvatiben from entering into any kind of transaction with any person. Thereafter, executed an Agreement to Sell in favour of the petitioner., executed an irrevocable Power of Attorney in favour of the petitioner, executed a Will in favour of the petitioner. appeal filed by came to be rejected by the Urban Land Tribunal -Held Whether could have entered into an Agreement to Sell and execute the Power of Attorney and Will in respect of the land in question in favour of the petitioner when she was ceased to be the owner thereof, is another moot question. Learned Senior Counsel for respondents Nos. 3 and 4 has submitted that the petitioner has no locus standi to file the petition, as he has not obtained a probate of the Will nor a Succession Certificate issued on the said Will. Moreover, the natural heirs of are claiming rights over the property by way of Civil Suit. It has been submitted that the petition at the behest of a person who is yet to establish his right over the land in question is not maintainable. As the Civil Suit is pending, the Civil Court would decide the right and title of the parties in the land in question. Suffice it to say that the petitioner has failed in the challenge to the notice impugned in the present petition on the grounds of delay, suppression of material facts as also on merits, as no shred of evidence has been placed on record by the petitioner in order to establish his possession over the land in question. Moreover, the petitioner has not been successful in pointing out any legal flaw in the orders of allotment of the land in question in favour of respondents Nos. 3 and 4 that have been challenged in the petition. As no illegality and infirmity has been pointed out in the said orders and the petitioner has failed to establish his case with regard to the challenge to the impugned notice, this Court considers the petition to be devoid of merit and deserving of outright rejection. In view of the above discussion and for the aforestated reasons, the following order is passed .Petition is rejected. Rule is discharged. There shall be no orders as to costs. The interim relief stands vacated -Petition is Dismissed.
Abhilasha Kumari, J.
1. Rule. Ms. Amita Shah, learned Assistant Government Pleader waives service of notices of Rule for respondents Nos. 1 and 2. Mr. Tattvam K. Patel, learned advocate waives service of notices of Rule for respondents Nos. 3 and 4. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, who have finally argued and also submitted their written submissions, the petition is being heard and decided.
2. This petition under Article-226 of the Constitution of India has been preferred, challenging the orders dated 04.06.2013 and 19.08.2013, passed by the Revenue Department of the State Government and the Competent Authority Urban Land Ceiling (ULC), whereby land admeasuring 1037.72 sq.mtrs and 593.68 sq.mtrs. from Survey No. 702/2, village Makarba ("the land in question") has been allotted to respondents Nos. 3 and 4. It is further prayed that this Court may hold that the petitioner is entitled for the benefit of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 ("the Repeal Act", for short) and that the petitioner is in legal possession of the land admeasuring 1330 sq.mtrs. situated in Revenue Survey No. 702/2 and restrain the respondent authorities from taking possession of the said land or creating any obstruction thereupon.
3. The petitioner has further challenged the notice dated 11.11.1990 issued under Section-10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 ("the ULC Act", for short) and has prayed for a declaration that no legal possession has been taken of the land in question and that such possession cannot be taken from a dead person.
4. The facts of the case of the petitioner, as can be gathered from the record are that one Parvatiben Bhaichandbhai purchased land bearing Revenue Survey No. 702 admeasuring 5041 sq.yards, equivalent to 4251 sq.mtrs. from one Laljibhai Shamaldas by a registered Sale Deed dated 22.10.1971. Entry No. 4990 dated 12.12.1971 was mutated in the revenue record to this effect, though this entry was cancelled.
5. One Kamalnayan Pandit filed Civil Suit No. 406-407/1983 against Tarulataben Desai and Parvatiben. By an order dated 19.05.1983 passed below Exhibit-5, the Civil Court restrained the defendants from selling the said property while observing that the possession is with the plaintiff Kamalnayan Pandit. Entry No. 5919 was mutated in the revenue record on 07.06.1987 recording the order dated 19.05.1983.
6. Thereafter, by an order dated 06.09.1984, passed under the ULC Act, land admeasuring 3214 sq.mtrs. of village Makarba was declared as surplus land and the land in issue in the petition is a part of this land. Aggrieved by the order dated 06.09.1984, Parvatiben filed ULC Appeal No. 1585/1984. By an interim order dated 05.11.1984, the Urban Land Tribunal stayed further proceedings and restrained Parvatiben from entering into any kind of transaction with any person.
7. Thereafter, Parvatiben executed an Agreement to Sell dated 27.10.1986 in favour of the petitioner. On 27.10.1986, Parvatiben executed an irrevocable Power of Attorney in favour of the petitioner. On 13.08.1987, Parvatiben executed a Will in favour of the petitioner. On 02.03.1989, the appeal filed by Parvatiben came to be rejected by the Urban Land Tribunal.
8. Parvatiben died on 25.10.1989. On 23.03.1990, the Notification under Section-10(3) of the ULC Act was published and on 11.11.1990, notice under Section-10(5) of the said Act was issued. On 03.12.1991, a Panchnama came to be drawn under the ULC Act. On 01.02.1992, the present petitioner wrote a letter to the ULC authority, informing it not to proceed with the matter, as he has filed the petition in this Court. Along with the said letter, the draft of the petition was also annexed.
9. On 06.02.1992, a letter was written by the Competent Authority to the petitioner informing him that the copy of the petition supplied by him does not carry any number. Hence, said authority asked the p
