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SCA/940819/1998 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9408 of 1998
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 ?
=========================================================
PRAFULCHANDRA
AMICHAND SHAH - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
MA KHARADI for
Petitioner(s) : 1,
MS REETA CHANDARAN, AGP for Respondent(s)
:1,2,3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 24/10/2008
ORAL
JUDGMENT
Heard
learned advocate Shri Kharadi for the petitioner and learned AGP Ms.
Reeta Chandarana for the State.
The
petition arises out of the proceedings under Gujarat Agricultural
Land Ceiling Act. The Mamlatdar and ALT, Chaurasiya, after couple of
rounds of remands had by his order dated 28.2.1994 held that the
petitioner does not hold any land in excess of ceiling limit. The
State preferred appeal against the said order of Mamlatdar before
the Deputy Collector who by his order dated 19.2.1996 remanded the
proceedings before the Mamlatdar for fresh consideration. The
petitioner challenged the said order of Deputy Collector before
Gujarat Revenue Tribunal in Revision Application TEN.B.S.
72/1996.This revision application came to be disposed of by a
decision dated 14.7.1998 confirming the order passed by the Deputy
Collector upon which the present petition has been filed by the
petitioner original land holder.
In
the impugned order, the Tribunal enlisted following five factors
which were not considered by Mamlatdar upon which remand was
necessary :
(i)
Deletion of the portion of the land converted into N.A. And sold out
to a third party from the total holding of the applicant, which
apparently was found not to be in order;
(ii)
Calculation of the total Jirayat equivalent land as against the
total holding of the applicant based on the canal certificate and
other details was also not found to be in order;
(iii)
disposal of the portion of the land converted into N.A. Since 6.6.87
onwards, by the parties concerned was apparently done without
obtaining any prior permission from the competent authority required
under the provisions of the Act, and which, therefore, was also not
in order;
(iv)
Non consideration of the total holding of land as on 1.4.76 by the
concerned original owner of the same on that day under the
provisions of the Act, was apparently the lapse on the part of the
concerned authorities which ought to have also been taken into
account; and
(v)
non-consideration of O-A 13-Gs. of land at the village Dumas held by
the applicant as against the total holding of the other lands was
also an apparent lapse under the provisions of the Act
Ordinarily,
this Court in exercise of writ jurisdiction would not interfere in a
pure order of remand. However, in the present case, proceedings were
already remanded twice before. In the proceedings under the Gujarat
Agricultural Land Ceiling Act, it is all the more necessary that on
one hand land owner can enjoy his land free from any cloud and on
the other hand, if the land is found surplus in excess of ceiling
limit, same can be utilised by the Government for distribution
amongst different categories of persons who needs such lands for
their cultivation.
From
the perusal of the factors enlisted by the Tribunal, it can be seen
that same pertained to some arguable disputed question of law and
facts or mixed questions of law and facts. Even if the Mamlatdar had
not taken into account such factors before rendering his decision,
it is always open for the Tribunal to give its own finding and come
to just conclusion on such basis. Since I find that as per the
Tribunal also no further evidence is required to be brought on
record, remand to the Mamlatdar would serve no useful purpose. In
any case, if some additional documents are to be taken on record, it
is well within the power of the Tribunal to so permit.
Under
the circumstances, I find that order of remand as provided by the
Deputy Collector as well as by the Tribunal would result into
miscarriage of justice. In facts of the case, therefore, while
setting aside order of the Gujarat Revenue Tribunal dated 14.7.1998,
the revision application is revived. The Tribunal is requested to
hear the revision application afresh and ignore the order passed by
the Deputy Collector for remand of the proceedings, decide on
merits, on the basis of available evidence on record including if
any additional evidence is so permitted by the Tribunal to be
brought on record, the question of land if any held by the
petitioner in excess of ceiling limit and all connected and
incidental questions thereof. This may be done expeditiously and
preferably within six months from the date of receipt of a copy of
this order.
The
petition is disposed of. Rule made absolute to the above extent.
(Akil
Kureshi,J.)
(raghu)
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