SCA/7494/1993 9/ 9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7494 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 the civil judge ? ========================================================= GANGABEN CHAGANBHAI PATEL - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR MA KHARADI for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3,1.2.4 MS. REETA CHANDRANA AGP for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 22/10/2008 ORAL JUDGMENT
1. The
petition arises out of the proceedings under the Gujarat Agricultural
Land Ceiling Act, 1960 (‘the Act’ for short). The petitioner has
challenged orders passed by Mamlatdar & ALT, Deputy Collector
and Gujarat Revenue Tribunal by virtue of which a total of 28 acres
38 gunthas of land of the petitioner is declared as surplus.
Mamlatdar & ALT gave sch a finding by his order dated 24.6.1987
which came to be upheld by the Deputy Collector by order dated
13.6.1988 and Gujarat Revenue Tribunal by decision dated 4.7.1992.
With respect to the area of land and the ceiling limit, there is no
dispute raised by the petitioner. The petitioner however, has raised
following legal contentions:
(i) Land
admeasuring 18 acres 37 gunthas was transferred by him in favour of
his son in the year 1970 and his wife, i.e., mother of his son, as
his guardian, was looking after the land. It was contended that the
said transfer was not hit by the provisions of Sections 7 or 8 of the
Act and the land covered by the said transfer could not have been
clubbed in the holding of the petitioner.
(ii) It
was contended that certain portion of land, though falling within
the command area of irrigation scheme, was not actually irrigated and
it was so admitted by the Canal Officer in his cross-examination
before the Mamlatdar. It was contended that in any case the
certificates produced on record did not reflect the position of
irrigation as on 1.4.1976.
3. Having
heard learned advocate Mr. M.A. Kharadi for the petitioner and
learned AGP Ms. Reeta Chandrana for the respondents and having
perused the decisions under challenge, I find that admittedly the son
of the petitioner was minor on 1.4.1976. Therefore, even if the
factum of transfer of land by the petitioner in favour of his son in
the year 1970 is accepted as a genuine one, provisions of sub-section
(2) of Section 6 of the Act would ensure that the land so transferred
would still have to be clubbed in the holding of the petitioner for
the purpose of ascertaining his ceiling.
4. Section
6 (2) of the Act reads as follows:
ýS6.Computation
of surplus land-Obligation of the Authorities:-{1} On
consideration of the scheme contained in Sec.6 of the Act, in the
light of what is provided in Sec.15, it is clear that the authorities
under the Act are under obligation for purposes of computation of
surplus land to decide:-
(1) in
the first place the total holding of the land of a person which may
include also a joint family;
(2) if
such person is holding land individually as well has a share in the
land of joint family, the authorities must determine the land which
such joint family is entitled to hold under Sec.6 and then determine
as to what would be the share of such individual person in the joint
family land and then add the area of land equivalent to his share
with the land held by him individuallyýý.
5. An
attempt was however, made to contended that the case of the
petitioner is covered under Section 15 of the Act and since the
transfer was way back in the year 1970 neither clause (b) nor clause
(c) of Section 15 would apply. Section 15 of the Act reads as under:
ýS15. Computation
of surplus land.– The extent of surplus land, if any, held by
any person shall be computed on the basis of the total land held by
such person;
Provided
that the total land so held shall include–
(a)
where such person holds in addition to the land held by him
individually as owner or tenant, a share in the land held by a joint
family, an area of land equivalent to his share in the land which
such joint family, is entitled to hold under Section 6,
(b) land,
if any, transferred or sub-divided by or on behalf of such person
in contravention of section 7, and
(c) land,
if any, transferred or partitioned by such person after the 15th
day of January, 1959 but before the commencement of this Act or
after 14th January, 1971 but before the specified date, and in
respect of which no application for a declaration under section 8
was made or any application made under section 8 has been
rejected.ýý
6. Though
it is true that by virtue of clause (b) or (c) of Section 15 of the
Act, the land transferred by the petitioner in favour of his son
would not revert back to him for the purpose of the Act, one cannot
lose sight of the provisions contained in Section 6 (2) of the Act
noted herein above. In the present case, the land having been
transferred by the petitioner in favour of his son who was a minor as
on 1.4.1976, by virtue of provisions of sub-section (2) of Section 6
of the Act, holding of the minor son would have to be clubbed
together in the hands of the petitioner for the purpose of deciding
the extent of land he had in excess of ceiling limit.
7. With
respect to the question of land being irrigated or not, Mamlatdar in
his order dated 24.6.1987, on the basis of the statement made by the
Canal Officer in the cross-examination, accepted the stand of the
petitioner that 14 acres and 14 gunthas of land though falling within
the command area cannot be treated as perennially irrigated or
seasonally irrigated. Apparently, Mamlatdar accepted the statement of
Canal Officer that on account of various difficulties such
land was not being effectively irrigated. Consequently, Mamlatdar
treated 14 acres and 14 gunthas of land of the petitioner as being
non-irrigated land. When the stand of the petitioner was wholly
accepted by the Mamlatdar and when such conclusion of the Mamlatdar
was not disturbed either by Deputy Collector or by Gujarat Revenue
Tribunal, the petitioner would have no further grievance in this
regard.
8. It
is undisputed that rest of the land is taken to be perennially
irrigated as per the certificate produced by the Government and it
was not seriously disputed by the petitioner.
9. Under
the circumstances, since no other contentions were raised, I find no
merit in the petition.
10. It
would however, be open for the petitioners who were pursuing this
petition being heirs of deceased petitioner to indicate to the
authorities which portion of the land to the extent of excess land
they wish to surrender to the Government. If they wish to do so, they
may do it in writing within four weeks hereof.
11. The
petition is dismissed. Rule is discharged. Interim relief stands
vacated.
(Akil
Kureshi,J.)
…
(karan)