REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4164 OF 2007
State of Gujarat
...Appellant
versus
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
1991-92.
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
finality.
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.
……………………….J
( Madan B. Lokur )
………………………J
New Delhi; ( Prafulla C. Pant )
February 1, 2017
-----------------------
[1]
[2] (2000) 6 SCC 359
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4164 OF 2007
State of Gujarat
...Appellant
versus
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
1991-92.
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
finality.
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.
……………………….J
( Madan B. Lokur )
………………………J
New Delhi; ( Prafulla C. Pant )
February 1, 2017
-----------------------
[1]
[2] (2000) 6 SCC 359
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