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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 13 th 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 C.A.No.4164 of 2007                                                                     page 1

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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

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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

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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  16 th

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

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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.

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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

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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

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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 16 th 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

1

                 (2000) 6 SCC 359  C.A.No.4164 of 2007                                                                     page 8

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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 C.A.No.4164 of 2007                                                                     page 9

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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

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