2001 Supreme(Guj) 780

Gujarat High Court
Judgename :H.K.RATHOD
GUJARAT HOUSING BOARD - Appellant
Versus
KALPESHKUMAR NARANBHAI PATEL - Respondent
S.C.A. 6175 of 1999
Decided On : 11/08/2001

Headnote:(a) Urban Land (Ceiling and Regulation) Act, 1976 (Central Act 33 of 1976) — Sec. 33 — Appeal filed with inordinate delay — Appellate authority admitted and passed impugned order dated 30.1.1999 — Validity — Period of limitation prescribed for appeal under section is 30 days from date of order of competent authority — In the case appeal filed after 16 years without sufficient cause — During this long period of interval State Govt. handed over possession of land in question to petitioner Gujarat H.B. on 26.12.1996 and thereafter construction has been carried out and completed for 121 tenements for benefit of weaker and poor section of society — However some construction work is going on and more than Rs. 20 lakhs has been spent by Gujarat Housing Board — Considering all these facts and also the view taken by the Court in Bai Dhani Wd/o Hira Moti vs. State of Gujarat, 1996 (3) GCD page 15 where equity is already created in favour of present petitioner, the order passed by appellate authority dated 30.1.1999 required to be set aside.

       This Court also take this opportunity to note one more important aspect that during the interim period of 16 years, the State Government has handed over the possession of the land in question to the petitioner Gujarat Housing Board on 26th December, 1996 and thereafter, construction has been carried out and completed for 121 tenements. However, the construction work is still going on and more than Rs. 20 lakhs has been spent by the Gujarat Housing Board upon the land in question for construction purpose. Not only this, third party interest in respect of family members of 141 tenements have been created and the tenements are meant for the benefits of the poor and weaker sections of the society by the Gujarat Housing Board. Therefore, considering all these aspects of the matter, the view taken by this Court in a decision in case of Bai Dhani Wd/O. Hira Moti vs. State of Gujarat, reported in 1996 (3) GCD at page 15, is relevant.

       Thus, considering the observations made by this Court dealing with identical facts and circumstances and considering the facts of the present case, equity is already created in favour of the present petitioner and therefore also, the order passed by the appellate authority dated 30th January, 1999 is required to be interfered with by this Court.

       [Para 19]

       (b) Urban Land (Ceiling and Regulation) Act, 1976 (Central Act 33 of 1976) — Sec. 33 — Appeal against order of competent authority — Period of limitation is 30 days, provided appellant prevented by sufficient cause for filing appeal in time — Where appeal filed after 16 years giving only reason that order passed by competent authority was void ab initio and, therefore, appeal is required to be decided on merits does not constitute sufficient cause giving appellate authority jurisdiction to entertain appeal — On the contrary appellate authority is supposed to give detailed reasons of its satisfaction — Appellate authority, therefore, committed gross error in condoning the delay of 16 years without having any material on record — Competent authority has also raised serious objections to entertainment of appeal but appellate authority without deciding them and with total non-application of mind condoned the long delay of 16 years — Thus order passed by appellate authority is not sustainable — It is quashed and set aside accordingly.

       A bare reading of Sec. 33 of the Act, 1976 makes it clear that any person aggrieved by the order made by the competent authority is entitled to file appeal within 30 days from the date on which the order is communicated to him provided that the appellate authority may entertain the appeal after expiry of said period of 30 days and if it is satisfied that the appellant was prevented by the sufficient cause from filing the appeal in time. Therefore, the appellate authority has no power to entertain the appeal after expiry of the said period of 30 days unless and until he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

       But surprisingly, the only observations made by the appellate authority to the effect that whatever delay has been caused in filing the appeal against the order of the competent authority as the order of the competent authority is nullity and ab initio void and, therefore, the request was made by the appellant to decide the appeal on merits. Considering the observations of the Appellate Authority for condoning the delay for filing the appeal by the appellant, in view of this Court, this was mere submission which was made as averments made in the appeal memo and except that no other submissions were made by the appellant before the appellate Tribunal and more surprisingly, the appellate authority has accepted the averments of the appellant by reaching to the satisfaction and the appellate Tribunal while justifying the cause, has merely mentioned that considering the submissions of appellant in the interest of justice, the appeal is admitted and required to examine the merits of the appeal.

       Therefore, considering the specific provisions made under Sec. 33 of the Act, at the first instance, it was the duty of the appellate Tribunal to satisfy as to whether the appellant was in fact prevented by the sufficient cause from filing the appeal in time. However, considering the order passed by the appellate Tribunal, no sufficient cause has been pointed out by the appellant and no sufficient cause has been taken into consideration by the appellate authority and in absence of valid cause which in fact prevented the appellant for this much inordinate delay of 16 years, as such, no satisfaction or justification has been pointed out by the appellate authority on what ground and/or consideration the authority is satisfied to condone the delay of 16 years. Therefore, in light of this fact and after considering the appeal memo and the order passed by the appellate authority, according to Court opinion, the appellate authority has committed gross error in condoning the delay of 16 years without having any material on record and there being no sufficient cause mentioned by the appellant and without satisfying about prevented sufficient cause which has not been shown at all by the appellant, has admitted the appeal and decided the same on merits.

       The competent authority had also raised objections that civil suit is pending and proper and reasonable opportunity was given and the appellant Nos. 1 & 2 both were minors at the relevant time and excess land declared by the competent authority has been handed over to the Gujarat Housing Board and on the land in question, construction work is going on and similarly appeal filed by the father of the present appellants against the very same order dated 25th October, 1982 has been dismissed only the ground of delay by order dated 31st July, 1986. Therefore, the request was made by the competent authority to reject the appeal filed by the appellant. Thus, in light of serious objections raised by the competent authority against the appeal, even though the appellate authority has not discussed any of the objections nor given any reason as to why the objections raised by the competent authority are not accepted. However, the appellate authority in gross ignorance of the objections of the competent authority, merely relied upon the submissions of the appellant and passed the order. It is also observed that the appellate authority could have passed the order, but simultaneously, the appellate authority ought to have considered the serious objections raised by the competent authority but it is surprising that none of the objection has been taken into account by the appellate authority and simply considering the submissions of the appellant, has decided the appeal by allowing the same in favour of the appellant and as consequence thereof, set aside the order of the competent authority dated 25th October, 1982. Therefore, bare perusal of order passed by the appellate authority clearly suggests that the appellate authority has passed unreasoned order and therefore, it can be said that it was total non application of mind by the appellate authority. Therefore, it is abundantly clear that basic error has been committed by the appellate authority by not considering any of the objection raised by the competent authority. Therefore, on this count only, the order passed by the appellate authority requires interference by this Court and the same is required to be quashed and set aside accordingly.

       [Para 13]

       (c) Urban Land (Ceiling and Regulation) Act, 1976 (Central Act 33 of 1976) — Secs. 2(f), 2(i) & 33 — Expression `family and `person under the Act — Includes wife or husband as the case may be and minor sons — Where once the order had been challenged by father by way of appeal as being aggrieved person under Sec. 33 of the Act, his wife and minor sons were subsequently not entitled at all to challenge that order — In the case impugned order of competent authority dated 25.10.1982 was challenged by respondent No. 4 father of two minor sons and husband of respondent No. 3, therefore, second appeal by respondent No. 3 and her minor sons is by very same person and hence not maintainable — Order of Appellate Tribunal dated 30.10.1999 is, therefore, not sustainable and same is barred by principle of res judicata.

       Definition of `family given under Sec. 2 (f) of the Act, 1976 is very important and considering the definition of the family, in relation to a person, means, the individual, the wife or husband, as the case may be, of such individual and their unmarried minor children, whereas explanation to this definition as given under the Act itself provides that for the purpose of this clause, `minor means a person who has not completed his or her age of eighteen years. Even if the definition of word `person given under Sec. 2(i) is considered, it suggests that `person includes an individual, a family, a firm, a company, or an association or body of individuals, whether incorporated or not; Thus, if these two definitions given under the Act, 1976 is taken into consideration read with provisions of Sec. 33 of the Act, 1976, it is abundantly clear that an appeal can be filed by any person aggrieved by the order made by the competent authority under the provisions of the Act. Therefore, a person is entitled to file appeal is, may be, individual, a family a firm or a company or an association or a body of individuals whether incorporated or not; Considering the definition of the word `family, includes two minors sons and wife.

       Once the appellate authority had decided the appeal on 31st July, 1986, again by way of same party and/or person or family, the appellate authority was not at all entitled to examine the merits at the instance of two minors and wife inasmuch as these two minor sons and the wife of the respondent No. 4-Naranbhai Hirabhai Patel can be considered as one person or a family and therefore, by way of same party, second decision in respect of the very subject matter are barred by the principles of res judicata. It also requires to be noted that the challenge by the father to the order of the competent authority dated 25th October, 1982 is again challenged by the family or a person which includes these two minor sons and wife. Therefore, also, on this count the order passed by the Appellate Tribunal dated 30th January, 1999 is required to be interfered with by this Court.

       [Para 14]

       (d) Constitution of India, 1950 — Art. 226 — Order passed by Appellate Tribunal on 30.1.1999 quashing and setting aside order of competent authority dated 25.10.1982 and remanding the matter back to competent authority to decide matter afresh — Validity — Besides admission of respondent No. 4, husband of respondent No. 3 and father of minor sons, there was sufficient evidence before competent authority that land in question is self acquired property of respondent No. 4 by way of purchase as tenant from land lord — Therefore, the two minor sons and wife do not have any legal entity under the Urban Land (Ceiling & Regulation) Act, 1976 which require any hearing on their behalf — They cannot maintain any challenge against the impugned order — On that account also order of appellate authority dated 30.1.1999 requires to be quashed and set aside.

       It is clear that the requisite Form was filled up by the father in respect to the land in question which was admittedly self acquired property and not ancestral property. Not only this but this fact clearly admitted by the father in the prescribed Form. However, there was no evidence produced by the respondent either before this Court or even before the appellate authority to the effect that the property in question was ancestral property. On the contrary, there is sufficient evidence on record before the competent authority in view of the affidavit filed by the father dated 7th September, 1982 as also the Form filled up by the father which clearly shows that the land in question is self acquired property by way of purchase of the land as tenant from the landlord. Therefore, naturally at subsequent stage that too after a inordinate lapse of 16 years, two minor sons and wife are not having legal right to have hearing before passing the order by the competent authority on 25th October, 1982. Not only that two minor sons and wife do not have any legal entity under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 which requires any hearing to the minor sons and wife of Naranbhai Hirabhai Patel. Therefore, considering the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, once two minor sons and wife are not having any legal right in respect of the land in question, they do not have any locus standi to challenge the order of the competent authority dated 25th October, 1982 again after period of 16 years and therefore, the order passed by the appellate authority dated 30th January, 1999, in Court opinion, requires to be quashed and set aside.

       [Para 22]