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SCA/981/1997 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 981 of 1997
For
Approval and Signature:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to civil judge ?
=========================================================
DEVDATKUMAR
GOVINDBHAI PATEL - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance
:
MR
RS SANJANWALA for
Petitioner(s) : 1, 1.2.1, 1.2.2,1.2.3
MS KIRAN PANDEY AGP for
Respondent(s) : 1 -
4.
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT 5th October, 2007
ORAL
JUDGMENT
This
is a petition preferred under Article 226 of the Constitution
by the holder of the land against the judgment and order dated 31st
December, 1996 passed by the Gujarat Revenue Tribunal [hereinafter
referred to as ?Sthe Tribunal??] in Revision
Application No. TEN.BS.299 of 1988. The matter arises from the
proceedings under the Gujarat Agricultural Lands Ceiling Act, 1960
[hereinafter referred to as, ?Sthe Act of 1960??].
The
petitioners are the heirs and successors-in-title of one Govanbhai @
Govindbhai Nathubhai Patel. The said Govindbhai Nathubhai owned
certain pieces of land at village Simalthu, Taluka-Olpad, District
Surat. Pursuant to the amendment of the Act of 1960 by the Gujarat
Act no.2 of 1974, a notice in form No.VI came to be issued on 26th
August, 1976. In answer to the said notice the said Govindbhai
Nathubhai declared his holding of 44 Acres & 23 Gunthas of lands
in aggregate. On 10th January, 1978, the Executive
Engineer, Surat issued a Canal Certificate certifying that 2 Acres
and 39 Gunthas of the holding of the said Govindbhai Nathubhai was
perennially irrigated land and 41 Acres ? 24 Gunthas was seasonally
irrigated land. Another canal certificate was issued on 17th
February, 1984 indicating that all the said lands were perennially
irrigated. Pending the said proceeding, the said Govindbhai Nathubhai
passed away on 9th June, 1977. The mutation entry no. 759
came to be made on 31st August, 1978 in accordance with
the will executed by the said Govindbhai Nathubhai. Under the said
Will, certain lands were bequeathed to one of his sons Anilkumar
Govindbhai. The elder son Devduttkumar Govindbhai was given certain
lands during the life time of the said Govindbhai Nathubhai. Since
the death of the said Govindbhai Nathubhai, the matter before the
Mamlatdar & ALT was prosecuted by his widow-Lalitaben Govindbhai.
She disputed the canal certificate dated 17th February,
1984. Pursuant to the said dispute, the concerned officer was
summoned for cross examination. However, the said Lalitaben refused
to cross examine the Canal Officer. Instead, she admitted the canal
certificate dated 10th January, 1978. According to her,
she had two sons ? Devdutt Govindbhai and Anil Govindbhai. Devdutt
was born on 9th September, 1956 and Anil Govindbhai was
born on 22nd February, 1959. Both the said sons were major
as on 1st April, 1976. Thus, the said Govindbhai Nathubhai
was entitled to retain lands equivalent to three ceiling areas. In
support of her case, she produced the school leaving certificates of
both the aforesaid sons ? Devdutt & Anil. The said contention
was accepted by the Mamlatdar & ALT.
On
the basis of the canal certificate dated 10th January,
1978, the total holding of the said Govindbhai Nathubhai was computed
to be equivalent of 92 acres 5 gunthas of dry crop land. The total
holding of the said Govindbhai Nathubhai being less than the three
ceiling areas, he did not hold surplus land within the meaning
of the Act of 1960. In view of the said finding, by Order dated 29th
February, 1988 made by the Mamlatdar & ALT in Ceiling Case no.
172 of 1977, the notice issued under Section 20 [1] of the Act was
withdrawn.
The
said order was taken in review by the Deputy Collector, Surat in
exercise of the power of suo motu revision. After giving
notice to the said Lalitaben and after giving her opportunity of
hearing, the Deputy Collector by his Order dated 9th
August, 1988 reversed the order of the Mamlatdar & ALT. The
Deputy Collector observed that the school leaving certificates of the
aforesaid Devdutt & Anilkumar produced by Lalitaben were not
genuine. Upon further inquiry and perusal of the birth certificates,
both the said Devdutt & Anilkumar were found to be minors on 1st
April, 1976 i.e., the specified date. The deputy Collector did not
alter or modify the order of the Mamladar in so far as total holding
of the said Govindbhai Nathubhai was concerned i.e., the Deputy
Collector proceeded on the premise that the total holding of the said
Govindbhai Nathubhai was equivalent to 92 Acrea-5 Gunthas of dry crop
land. The Deputy Collector, however, reversed the order of the
Mamlatdar & ALT in so far as the entitlement of the said
Govindbhai Nathubhai was concerned. Considering that both the sons of
the said Govindbhai Nathubhai were minor and that the total number of
family members of the said Govindbhai Nathubhai was five, the said
Govindbhai Nathubhai was entitled to hold land equivalent to the
ceiling area i.e., 36 Acres. He was not entitled to additional land
either under Section 6 [3B] or under Section 6 [3C] of the Act of
1960. The Deputy Collector accordingly held that the lands
admeasuring 26 Acres-31 Gunthas equivalent to 55 Acres ? 25 Gunthas
of dry crop land were surplus and that Govindbhai Nathubhai was
entitled to retain 17 Acres ? 32 Gunthas of land equivalent to 36
Acres 20 Gunthas of dry crop land.
Feeling
aggrieved, the above referred Lalitaben preferred Revision
Application No. 299 of 1988 before the Tribunal. The Tribunal, by its
impugned judgment and order dated 31st December,
1996 rejected the revision application. Before the Tribunal, it was
argued that the holder Govindbhai Nathubhai had, on 10th
January, 1970 and 14th January, 1970 i.e., prior to 24th
January, 1971, agreed to sell two pieces of land admeasuring 7 Acres
? 26 Gunthas in aggregate to one Jayant Patel and one Suresh Patel.
The said land, therefore, did not form part of the holding of the
late Govindbhai Nathubhai as on 1st April, 1976. The said
contention was negated. The Tribunal held that after the date of the
alleged agreement for sale, the possession of the land was not
transferred to the proposed vendees but the late Govindbhai Nathubhai
continued to cultivate the whole of the lands, including the
aforesaid lands which were the subject matter of agreement for sale.
It was also argued that all the transferees of the land were entitled
to notice i.e., the minor sons were also entitled to notice. As no
notice to minor sons were issued, the matter be remanded for hearing
afresh. That contention was also rejected. The Tribunal observed that
it was the aforesaid Lalitaben who had prosecuted the matter all
along for herself and her children; as she had appeared for herself
and for her children, a separate notice to each of the children was
not necessitated. As to the entitlement of the late Govindbhai
Nathubhai, the Tribunal held that he was entitled to hold land
equivalent to one ceiling area. According to Section 6 [3B] of the
Act, the holding of the minor children was required to be clubbed
with the holding of the parents. The Tribunal also observed that the
said Lalitaben had produced fabricated documents with a view to
retaining larger area of lands.
Feeling
aggrieved, the petitioners-the legal representatives of the aforesaid
Lalitaben have preferred the present petition.
Before
me, Mr. Sanjanwala has pressed only one contention. He has submitted
that the authorities below relied upon the canal certificates ? one
issued on 10th January, 1978 and the another issued on
17th February, 1984. The predecessor of the petitioners
were not heard by the concerned Canal Officer at the time the
certificates were issued. The impugned judgment of the
Tribunal and the orders made by the authority below, therefore,
require to be set-aside and the matter be remanded for decision
afresh. A fresh canal certificate be called for after giving
opportunity of hearing to the petitioners. He has submitted that this
contention was raised before the Tribunal below. The Tribunal,
however, did not consider the same. He has read out relevant
paragraph from the memorandum of application. In support of his
submission, he has relied upon the judgment of this Court in the
matter of Amratlal Bhikhabhai Patel v. State of Gujarat &
Anr.
[1994 (1) GLR 637].
Miss
Pandey has contested the petition. She has supported the impugned
judgment and order of the Tribunal.
Undoubtedly,
the judgment in the matter of Amratlal Bhikhabhai Patel [Supra]
relied upon by Mr. Sanjanwala holds that the canal certificate is the
document which is relevant for the purpose of computing the holding
of a person. Issuance of canal certificate is a quasi judicial
function, the holder of the land is, therefore, entitled to hearing
before the certificate is issued.
However,
the above referred judgment shall not affect the merits of the
present case. It is apparent that though the contention was raised in
the memo of revision application, before the Tribunal the same was
not pressed. What was argued was that the order of the authority
below was illegal as the minor children were not issued notice. Even
if it is permitted to be raised before this Court, the same shall not
affect the present petition one way or the other. As recorded
hereinabove, the aforesaid Lalitaben had admitted the canal
certificate dated 10th January, 1978. It was the said
canal certificate dated 10th January, 1978 which was
relied upon by the Mamlatdar & ALT to compute the total holding
of late Govindbhai Nathubhai in terms of dry crop land. The canal
certificate issued on 17th February, 1984 was not relied
upon by the Mamlatdar & ALT to compute the total holding of the
late Govindbhai Nathubhai in terms of dry crop land. The Deputy
Collector also proceeded on the basis of the computation made by the
Mamlatdar & ALT. In other words, the canal certificate dated
17th February, 1984 was not relied upon by either of the
authorities below, nor by the Tribunal. The legality of the said
canal certificate for want of opportunity of hearing to the holder of
the lands is of no consequence. The finding that the total holding of
late Govindbhai Nathubhai in terms of dry crop land was 92 Acres 5
Gunthas had become final and cannot now be questioned.
I
reiterate that Mr. Sanjanwala has not raised any other contention.
For the aforesaid reasons, no interference is warranted. The petition
is dismissed with cost. Rule is discharged. Interim
relief stands vacated.
{Ms.
R.M Doshit, J.}
Prakash*
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