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LPA/2863/2010 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2863 of 2010
In
MISC.CIVIL
APPLICATION - FOR REVIEW No. 1796 of 2010
In
SPECIAL CIVIL APPLICATION No. 7494 of 1993
With
CIVIL
APPLICATION No. 33 of 2011
In
LETTERS PATENT APPEAL No. 2863 of 2010
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE ANANT S. DAVE
=============================================
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
WD/O CHHAGANBHAI PATEL - Appellant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=============================================
Appearance
:
MR MA KHARADI for Appellant(s)
: 1, 1.2.1, 1.2.2, 1.2.3,1.2.4
MR PRANAV TRIVEDI ASST. GOVERNMENT
PLEADER for Respondent(s) : 1,
None for Respondent(s) : 2 -
3.
=============================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 09/05/2011
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. The
appellants (original petitioners) have filed this appeal under Clause
15 of Letters Patent Appeal against the order dated 8.10.2010 passed
by learned Single Judge in Misc. Civil Application No.1796 of 2010.
The above application for review came to be disposed of by correcting
a fact noticed by leaned Single Judge about nature of perennially
irrigated land erroneously included in the total holding of
agricultural land and declaring the land as surplus by the authority
under the provisions of the Gujarat Agricultural Lands Ceiling Act,
1961 (for short “the Act”).
2. It
is necessary to refer orders passed by various authorities under the
Act namely, Mamlatdar & ALT, Dy. Collector and Gujarat Revenue
Tribunal under the Act. As per the record, a finding was given by
the competent authority namely Mamlatdar & ALT and Agricultural
Land Tribunal on 24.6.1987 declaring a total of 28 Acres 38 Gunthas
of land of the petitioners as surplus, which came to be upheld by the
Dy. Collector in appeal vide order dated 13.6.1988 and also by the
revisional authority namely, the Gujarat Revenue Tribunal as per
decision dated 4.7.1992. Thus, when Special Civil Application No.
7494 of 1993 was filed with regard to area of land and ceiling limit,
no dispute was raised by the petitioners. However, various
contentions were raised with regard to applicability of provisions of
Sections 6(2) and 15 of the Act in the context of the facts about
nature of agricultural land as defined under the Act. One of the
main contention raised by the petitioners before learned Judge was
about land admeasuring around 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, remained as guardian to look after the land. It is not
necessary for us at this stage to consider various facts in details
along with other arguments of learned advocate canvassed before the
learned Single Judge in the above writ petition, since after
considering provisions of Sections 6(2) and Section 15 of the Act and
transfer of the land admeasuring 18 Acres 37 Gunthas prior to the
specified date and further different types of the land held by the
holder, the learned Judge dismissed the writ petition on 22.10.2008.
2.1. The
above order of learned Single Judge was challenged before Division
Bench in Letters Patent Appeal No.1483 of 2008 and various
contentions were raised and Division Bench noticed two main
contentions and found no merit in any of the contentions raised by
the appellants but upon a request made by leaned advocate for the
appellants to prefer a review application before the learned Single
Judge with regard to an erroneous calculation of perennially
irrigated land, permission was granted to withdraw the appeal and
order was passed accordingly. However, the above order dated
30.12.2008 passed in Letters Patent Appeal No.1483 of 2008 was sought
to be reviewed by filing Misc. Civil Application No.2980 of 2009 and
Division Bench of this Court having gone through the record and in
absence of error apparent on the face of the record dismissed said
review application. However, in terms of liberty reserved to the
appellants as per earlier order dated 30.12.2008 passed in Letters
Patent Appeal No. 1483 of 2008 the appellants preferred the review
application being Misc. Civil Application No.1796 of 2010 before the
learned Single Judge which came to be disposed of as stated herein
above after due consideration of various aspects and noticing the
fact about 1 Acre of land approximately was not getting perennially
water supply and authorities under the Act were directed to correct
their orders about declaration of surplus land accordingly.
3. Mr.
Kharadi, learned advocate for the appellants reiterated all
submissions canvassed before learned Single Judge in an application
for review as well as contentions raised in appeal in which liberty
was reserved to the appellants to prefer review application and
further contended that while reviewing the order, learned Single
Judge again has not addressed to very aspects of nature of
perennially irrigated land in the context of Canal Certificate issued
by the authority in the command area of irrigation project and before
the competent authority Canal Officer was not cross examined.
Therefore, order passed in review application impugned in this appeal
suffers from basic error and when all the authorities namely,
Competent, Appellate and Revisional under the Act failed to
appreciate above factual error and also depriving the
appellants/petitioners of right to cross-examine Canal Officer so as
to unearth truth deserves to be corrected by this Court. According
to learned advocate for the appellants provisions of Sections 6(2)
and 15 of the Act are not interpreted in the context of factual
background of the case and thus, learned Judge committed an error
barring a minor correction in confirming the orders passed by the
authorities below in declaring the land of the petitioners as
surplus.
4. Heard
learned AGP for the respondent-State.
5. Having
heard learned advocate for the parties and on perusal of the record
along with provisions of the Act, we are of the opinion that there is
no merit in any of the contentions of learned advocate for the
appellants canvassed before us inasmuch as, this appeal is another
attempt in succession to convince this Court about a case on fact as
well as on law which is non existent at the stage of appeal. That,
declaration of surplus land under the Act was made by the competent
authority after considering all relevant aspects including the nature
of land held by the appellants and it came to be confirmed in appeal
as well as in revision and, therefore, finding of fact of total
holding of agricultural land and declaring surplus land under the Act
virtually became final. Against concurrent findings of fact a writ
petition preferred by the appellants came to be dismissed after
considering the contentions raised therein in the context of
provisions of Sections 6(2) and 15 of the Act. The learned Judge in
the decision dated 22.10.2008 also noticed transfer of land by the
petitioner in favour of his son as early as in 1970 and procedure
prescribed of computation of surplus land in Section 15 which
provided inclusion of the land transferred or partitioned by such
person after 15th Day of January, 1959 but before the
commencement of the Act and the land admeasuring of 18 Acres and 37
Gunthas was transferred in favour of a minor son was in the year
1970. The learned Single Judge has also summarized requirement of
sub-section (2) of Section 6 but due to inadvertence though stated,
the above provisions could not be reproduced but obligation of the
authority to consider various parameters while computing surplus have
been stated in no uncertain terms. However, in Letters Patent Appeal
which was preferred against the above order a Division bench
permitted the appellants to prefer a review application on a limited
aspect of nature and measurement of perennially irrigated land and
that was the factor to be considered in review in the context of
factual finding by the authorities below. In the review application,
learned Single Judge while reviewing the order once again undertook
scrutiny of factual aspect and noticed that 1 Acre land of block
No.202 was not receiving perennial water supply. In view of the
above finding, learned Single Judge modified earlier judgment dated
22.10.2008 to the above extent and orders passed by the authorities
below also stood modified and the petitioner was granted an
opportunity to select retainable part of the land as per the Rules
and to apply to the Mamlatdar accordingly. In view of the above
finding on fact and relevant provisions of the Act as under:
Section
6(2) of the Gujarat Agricultural Lands Ceiling Act, 1961 reads as
under:
“6(2). Where
an individual, who holds land,is a member of a family [not being a
joint family which consists of the individual and his spouse (or more
than one spouse) and their minor sons and minor unmarried daughters,
irrespective of whether the family also includes any major son and]
land is also separately held by the individual’s spouse or minor
children, then the land held by the individual and the said members
of the individual’s family [excluding major sons, if any] shall be
grouped together for the purposes of this Act and the provisions of
this Act shall apply to the total land so grouped together as if such
land has been held by one person.”
15. Computation
of surplus land.- The extent of surplus land, if any, held by any
person [xxx] shall be computed on the basis of the total land held by
such persons[xxx];
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.”
6. In
view of conjoint reading of Sections 6(2) and 15 of the Act transfer
of land in question in favour of a minor son in 1970 by the
appellants would have to be included as a land in the total holding
of agricultural land and declaration of surplus land accordingly by
the authorities below cannot be said to be illegal, and, therefore,
on merit also we are convinced that no error appears on the record
while rejecting the petition as well as review application of the
appellants. Thus, exercising powers by learned Single Judge in a
review jurisdiction cannot be said to be in any manner contrary to
settled law on the issue and an error apparent on the face of the
record as noticed by the learned Judge about 1 Acre of land in block
No.202 was considered and the order was corrected accordingly by
issuing proper directions. In addition to above, earlier, Division
Bench of this court in order dated 30.12.2008 passed in Letters
Patent Appeal No.1483 of 2008 did not find merit in any other
contention. We do not find any force in any of the submissions of
learned advocate for the appellants including the certificate issued
by Canal Authority and opportunity was not made available to the
petitioners to cross-examine officer issuing Canal Certificate are in
realm of re appreciation of evidence at the stage of appeal and we do
find that while reviewing the order learned Judge has done complete
justice to the appellants.
7. No
interference is called for. Letters Patent Appeal is rejected with
no order as to costs.
8. In
view of the above order, no order on Civil Application.
[S.J.MUKHOPADHAYA,
CJ.]
[ANANT
S. DAVE, J.]
//smita//
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