Monday, February 20, 2017

State of Gujarat V.S Maliben Nathubhai (D) Through LRs February 1, 2017


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 4164 OF 2007

State of Gujarat


Maliben Nathubhai (D) Through  LRs & Ors.                …Respondents

                               J U D G M E N T

Madan B. Lokur, J.

1.    Bhulabhai Bhikhabhai was the owner of landed property  including  open
land being  Survey  No.74  admeasuring  4350  sq.  meters  in  Jehangirabad,
District Surat (Gujarat).  He died  intestate on 17th January, 1947  leaving
behind his widow Harkhiben (who died on 13th February, 1957)  and  two  sons
Narsinbhai  (who died on 22nd  April,  1969  without  any  issue),  Balubhai
(died on 16th November, 1991) and two daughters – Gangaben  (represented  by
her legal representatives) and Maliben Nathubhai  (now  represented  by  her
legal representatives).

2.    On the death of  Bhulabhai  Bhikhabhai  his  two  sons  inherited  his
estate and when the Urban Land  (Ceiling  and  Regulation)  Act,  1976  (for
short the  Act)  came  into  force,  Balubhai  the  only  surviving  son  of
Bhulabhai  Bhikhabhai  and  brother  of  Gangaben  and   Maliben   filed   a
declaration form on 10th August, 1976 under Section 6(1)  of  the  Act.   He
filed the declaration as owner of the entire land and on behalf of  his  own
family.  His sisters Gangaben and Maliben did not make any claim in  respect
of the land in question and the  revenue  records  at  that  point  of  time
reflected only the names of the sons of Bhulabhai Bhikhabhai  and  not  that
of his two daughters.

3.    The declaration made by Balubhai was taken  up  for  consideration  by
the Competent Authority and Deputy  Collector  who  passed  an  order  under
section 8(4) of the Act  on  16th  December,  1983  in  ULC  Case  No.1/1900
declaring about 3426 sq. mtrs. of land as surplus  land.  This was  followed
by Notifications under Sections 10(1) and 10(3) of the Act in  the  Official
Gazette on 6th January, 1984 and 13th July, 1984.  The sisters  of  Balubhai
(that is Gangaben and Maliben) did not make any claim before  the  Competent
Authority and Deputy Collector in respect of the surplus land.

4.    Thereafter, the State of Gujarat issued a  notice  to  Balubhai  under
Section 10(5) of the Act on 17th August, 1984 to  hand  over  possession  of
the surplus land.
5.    Feeling aggrieved by the decision rendered by the Competent  Authority
and Deputy Collector as well as the notice issued by the State  for  handing
over possession of the surplus land, Balubhai filed Appeal No. 1478 of  1984
under Section 33 of the Act before the Urban Land Tribunal  challenging  the
order dated 16th December, 1983 read with notice dated 17th August, 1984.
 6.   It appears that despite adequate opportunities given  to  Balubhai  to
represent his case before the Tribunal, he did not remain  present  and  the
appeal was taken up ex parte by the Tribunal  and  dismissed  on  merits  on
19th January, 1988.   Subsequently,  on  27th  June,  1990  the  State  took
possession of the surplus land and this action of the  State  has  not  been
challenged or disputed by Balubhai (who  later  expired  on  16th  November,
1991)  or  his  legal  representatives.  Effectively,  therefore,   Balubhai
accepted that about 3426 sq. mts. of land in his hands was surplus  and  was
rightly taken possession of by the  State.   According  to  the  State,  the
surplus land was allotted to the weaker  sections  of  society  sometime  in

7.    After the demise of both brothers Narsinbhai and  Balubhai  and  their
sister Gangaben, Special Civil Suit No.525 of 1991 was filed by Maliben  and
the children of Gangaben on  2nd  December,  1991  before  the  Civil  Judge
(Senior Division), Surat.  It appears that the suit  was  for  partition  of
the property bearing Survey No.74 in Jehangirabad and a challenge  was  also
made to the legality and validity  of  the  proceedings  undertaken  by  the
Competent Authority and Deputy Collector in respect of the surplus land  and
thereby an injunction was sought restraining  the  Competent  Authority  and
Addl. Collector from taking possession of the suit property.   According  to
Maliben and the children of Gangaben (the plaintiffs) they had  an  interest
through Harkhiben in suit property of  Bhulabhai  Bhikhabhai  who  had  died
intestate sometime in 1947.   Along with the plaint,  the  plaintiffs  filed
an application for interim injunction but that was dismissed by the  learned
Civil Judge (Senior Division)  on  9th  December,  1991.  It  is  not  clear
whether the civil suit was thereafter pursued by the plaintiffs.
8.    However, soon after the  rejection  of  the  application  for  interim
injunction, the plaintiffs preferred ULC Appeal No.102 of  1991  before  the
Urban Land Tribunal challenging the order dated 16th December,  1983  passed
by the Competent Authority and Deputy  Collector  whereby  it  was  declared
that 3426 sq. mtrs. of land was surplus land in the hands of  Balubhai.   It
may be noticed that this appeal was filed  after  a  lapse  of  about  eight
years and after proceedings in respect of the  order  dated  16th  December,
1983 had already come to an end on 19th January, 1988 when the appeal  filed
by Balubhai before the Urban Land Tribunal was dismissed.
 9.   Despite the delay of about eight years in filing the  appeal,  it  was
entertained by the Urban Land Tribunal  and  allowed  (after  condoning  the
delay) on 31st March, 1992.  The conclusion arrived at by the  Tribunal  was
that Gangaben and Maliben were each entitled to one unit of land out of  the
land owned by their father  Bhulabhai.   Effectively  therefore,  the  Urban
Land Tribunal set aside its earlier order of 19th January, 1988.
10.   Feeling aggrieved by the order passed by the Urban Land Tribunal,  the
State approached the Gujarat High  Court  by  filing  SCA  No.2144  of  1993
challenging the correctness of the order dated 31st March,  1992  passed  by
the Tribunal.  It was submitted in the appeal, inter alia,  that  the  order
dated 16th December, 1983 passed  by  the  Competent  Authority  and  Deputy
Collector had attained finality  when  the  Tribunal  dismissed  the  appeal
directed against that order on 19th January, 1988.  It  was  also  submitted
that the surplus land had already been allotted to persons belonging to  the
weaker sections of society.

11.   The learned Single Judge considered the grievances of  the  State  and
took the view, in the judgment and order dated 4th July, 2000 that the  plea
taken by the State for allotment of land to weaker sections of  society  was
a new plea and need not be entertained. Other pleas advanced  by  the  State
were not dealt with.

12.   The State preferred a Letters Patent Appeal against the  judgment  and
order dated 4th July, 2000 passed  by  the  learned  Single  Judge  but  the
appeal  was  held  to  be  not  maintainable.   Effectively  therefore,  the
challenge before us is to the  judgment  and  order  dated  4th  July,  2000
passed by the learned Single Judge.

13.   It is submitted before us by learned counsel for  the  appellant  that
three issues arise for our consideration.  The first issue  relates  to  the
question whether the plaintiffs are entitled to  a  share  in  the  property
(through Harkhiben) of Bhulabhai Bhikhabhai who died intestate  sometime  in
1947.  The second issue is whether the plaintiffs could have  maintained  an
appeal before the Tribunal against the order of the Competent Authority  and
Deputy Collector after a lapse of about eight years.   Thirdly,  when  under
the provisions of the Act  since  every  claimant  is  required  to  file  a
declaration under Section 6(1) thereof and  Gangaben  and  Maliben  did  not
file any such declaration,  whether  they  could  claim  any  right  in  the
property of their father.
14.   Having heard learned counsel for the parties, we are of  opinion  that
Bhulabhai Bhikhabhai having died sometime in 1947  when  two  of  his  sons,
that is, Narsinbhai and Balubhai were  still  alive  neither  Harkhiben  nor
Gangaben and Maliben had  any  claim  in  the  suit  property  of  Bhulabhai
Bhikhabhai under Hindu Law. Indeed, we must point out that neither  Gangaben
nor Maliben claimed any direct share in the suit property – they  claimed  a
share through their mother Harkhiben but there is nothing  to  even  suggest
how Harkhiben acquired any share in the suit property. Such an  averment  is
completely missing from the pleadings of the plaintiffs.

15.   Learned counsel for the plaintiffs has been  unable  to  show  us  any
decision or any other material to substantiate his claim that on  the  death
of Bhulabhai, his widow Harkhiben acquired the  suit  property  and  on  her
death in 1957, after the Hindu Succession Act,  1956  came  into  operation,
Gangaben  and  Maliben  acquired  a  share  in  the  suit  property  through
Harkhiben.  The submission of learned counsel  proceeds  on  the  assumption
that on the death of Bhulabhai Bhikhabhai the suit property devolved  solely
upon his widow Harkhiben. There is no such averment made  anywhere,  nor  is
it substantiated in any manner. Learned counsel has not been  able  to  show
us any decision or any other material to show that this was the position  in
Hindu Law in 1947 when Bhulabhai Bhikhabhai died intestate.   On  the  other
hand, upon the death of the Karta of a joint family, his share will  devolve
only upon the remaining coparceners which in the present case were  the  two
sons of Bhulabhai Bhikhabhai. It  is  therefore  quite  clear  that  neither
Harkhiben nor Gangaben and Maliben had any share in Survey  No.74  which  is
the land in question.
16.   We are also of opinion that the Tribunal was in error in  entertaining
the appeal filed by the plaintiffs after a gap of  about  eight  years  from
the passage of  the  order  dated  16th  December,  1983  by  the  Competent
Authority and Deputy Collector. The delay was  totally  inexplicable.   That
apart, the order dated 16th December, 1983 had merged with the order  passed
by the Tribunal  on  19th  January,  1988.  That  being  the  position,  the
Tribunal  could  not  have  reopened  the  proceedings  which  had   already
terminated before it.  It has been held in Kunhayammed and Ors. v. State  of
Kerala & Ors.[1] that the principle of merger of an order with the order  of
a superior  court  would  apply  equally  to  orders  passed  by  tribunals.
Therefore there can be no doubt that the  order  passed  on  16th  December,
1983 by the Competent Authority and Deputy Collector merged with  the  order
of the Tribunal passed on  19th  January,  1988  and  which  order  attained
17.   In paragraphs 12 and 44(i) of the Report, it was held as under:
“The logic underlying the doctrine of merger is that there  cannot  be  more
than one decree or operative orders governing the same subject-matter  at  a
given point of time. When a decree or order passed  by  an  inferior  court,
tribunal or authority was subjected to a  remedy  available  under  the  law
before a superior forum then, though the decree  or  order  under  challenge
continues to be effective and binding, nevertheless its finality is  put  in
jeopardy. Once the superior court has disposed of the lis before  it  either
way — whether the decree or order under appeal is set aside or  modified  or
simply confirmed, it is the decree or order of the superior court,  tribunal
or authority which is the final,  binding  and  operative  decree  or  order
wherein merges the decree or order passed by  the  court,  tribunal  or  the
authority below. However, the doctrine is  not  of  universal  or  unlimited
application. The nature of jurisdiction exercised by the superior forum  and
the content or subject-matter of challenge laid or  which  could  have  been
laid shall have to be kept in view.”

 “(i) Where an appeal or revision is provided against an order passed  by  a
court, tribunal or any  other  authority  before  superior  forum  and  such
superior forum modifies, reverses or  affirms  the  decision  put  in  issue
before it, the decision by the subordinate forum merges in the  decision  by
the superior forum and it is the latter which  subsists,  remains  operative
and is capable of enforcement in the eye of law.”

18.   Finally, in our view if the plaintiffs did in fact  claim  to  have  a
right in the property of Bhulabhai Bhikhabhai, they ought to  have  filed  a
declaration under Section 6(1) of the Act. That they  did  not  do  so  when
they attained the age of majority is  a  clear  indication  that  they  were
fully aware that they had no right in the property of  Bhulabhai  Bhikhabhai
who died intestate sometime  in  1947.   By  filing  an  appeal  before  the
Tribunal in 1991, the plaintiffs sought to make a claim, by a side-wind,  on
the suit property without even by filing a declaration  under  Section  6(1)
of the Act.  Surely, they cannot be permitted to  indirectly  make  a  claim
which they failed to make directly.
19.   Whichever way the issues are looked at, we  have  no  doubt  that  the
Urban Land Tribunal was in error in entertaining the  proceedings  initiated
by the plaintiffs in 1991  against  the  order  dated  16th  December,  1983
passed by the Competent Authority and  Deputy  Collector.   That  being  the
position, the orders passed by the Tribunal on 31st March, 1992 and  by  the
High Court by the impugned order upholding the order passed by the  Tribunal
deserve to be and are set aside.
20.   The appeal is allowed.  There will be no order as to costs.

                                                ( Madan B. Lokur )

New Delhi;                                         ( Prafulla C. Pant )
February  1, 2017

                       [2] (2000) 6 SCC 359

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