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LPA/1193/2001 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1193 of 2001
In
SPECIAL
CIVIL APPLICATION No. 5031 of 2000
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=================================================
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 ?
=================================================
RAMANBHAI
VANMALIBHAI PATEL - Appellant
Versus
STATE
OF GUJARAT & 2 - Respondents
=================================================
Appearance :
MR
MA KHARADI for Appellant:
MS. MINI NAIR, LD. AGP for Respondents :
1 - 3.
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 06/12/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
The
present appeal arise against the judgment & order dated
17/8/2001 passed by learned Single Judge of this Court in Special
Civil Application No. 5031 of 2000, whereby the order passed by the
Revenue Tribunal, under Gujarat Agricultural Lands Ceiling Act, 1960
(herein after referred to as the ‘Act’) is not interfered with.
For
the sake of convenience, the parties shall be referred to as per
their status in the proceedings before learned Single Judge.
The
relevant facts are that the petitioner on the appointed date of
1/4/1976 was holding total agricultural lands of 25 acres & 39
gunthas. Petitioner filled up the form since the land held by him
was exceeding the prescribed limit. Mamlatdar ultimately processed
the form and after recording evidence and other material land held
in excess of prescribed limit was declared as surplus land to be
acquired by the Government. It appears that, thereafter the matter
was carried before Dy. Collector and before the Tribunal, and
ultimately before this Court in Special Civil Application No. 612 of
1983. This Court in the said matter vide it decision dated 17/7/1991
remanded the matter on the ground as to whether the benefit of
Section 6 (3)(B) would be available to the members of the family or
not. Thereafter it appears that the matter was once again considered
by the Mamlatdar and vide his decision dated 4/9/1992 said claim was
accepted, against which the matter was carried before Dy. Collector
in Appeal No. 38/1993, and the Dy. Collector vide his order dated
22/11/1993 set aside the order of Mamlatdar and remanded the matter
to Mamlatdar for reconsideration. The Mamlatdar, thereafter, vide
his order dated 13/9/1995 held that family of the petitioner was
comprising of 7 members as on 1/4/1976, and, therefore, he would be
entitled to retain land of one unit + 2/5 of the unit and remaining
land would be surplus land. Petitioner, therefore, preferred appeal
being Appeal No. 26/1995 before Dy. Collector, which came to be
dismissed on 8/1/1996. The matter was further carried in revision
before the Revenue Tribunal, which also came to be dismissed on
30/9/1979. Being aggrieved by the said decision of all the lower
authorities, petitioner approached before this Court by preferring
present Special Civil Application. Learned Single Judge found that
there is no case for interference and confirmed the order of the
Tribunal. Under these circumstances, present appeal before us.
We
have heard Mr. Kharadi, learned counsel appearing for the appellant
and Ms. Nair, learned AGP for the respondents.
The
only aspect which may be required to be considered in the present
appeal is, as to whether, mother of the petitioner would be entitled
to a separate unit as per the provisions of the Act or not.
Mr.
Kharadi, learned counsel has heavily relied upon the decision of
this Court in case of STATE OF GUJARAT Vs. PATEL KALA SANA &
ORS, reported in 1994 (1) GLR pg. 448, and he contended that, in the
said decision it was found by another learned Single Judge of this
Court that mother would be entitled for separate unit even if the
father is lot alive. Therefore, he submitted that the appeal
deserves to be allowed and the order of all the authorities deserved
to be quashed and set aside. He contended that, if separate unit of
the mother is considered, there will not be any surplus land and
hence this Court may consider the said aspects.
Whereas,
learned AGP has submitted that the order passed by all the lower
authorities, and also of the learned Single Judge, are in
accordance with law and there is no need to reverse the same.
We
may record that, it is an admitted fact that the land in question
was not held by father of the petitioner on the appointed date, but
was held by the petitioner himself, who had filled up the form. In
the order of Mamlatdar & ALT dated 4/9/1992, copy whereof is
produced at Annexure-A, it has been recorded that in the deposition
of the land holder, i.e. the petitioner, it has come out that the
land was originally held by forefathers of the petitioner.
Thereafter, there was division between brother of the petitioner and
the petitioner himself and he had received share of the land
admeasuring 10 acres 02 gunthas in partition. Additionally,
thereafter petitioner acquired land as a tenant and in this manner
on the appointed date of 1/4/1976 he was holding agricultural land
admeasuring 25 acres & 39 gunthas. It is not the case of the
petitioner that the land was held by father of the petitioner and he
was staying with his father in the family. Under these
circumstances, the holding is to be considered on the appointed date
and the family is also to be considered on the appointed date. Said
aspect is clear from the language of Sub section (3 D) of Section 6
of the Act, which reads as under.
6
(3D) For the purpose of sub-section (2), (3B) or (3C), the members
comprised in a family or as the case may be, a joint family on the
specified date shall alone be taken into consideration and any
changes in the character or number of members of the family occurring
thereafter shall be ignored.
Therefore,
the test would be that, what was the position on the appointed date.
If the petitioner was holding land on the appointed date, it is the
holding of the petitioner to be considered for the purpose of the
Act. The family comprised of the petitioner, which may include
mother, is to be taken into consideration for the purpose of ceiling
limit.
If
the aforesaid position is considered with the facts of the present
case, then the number of members of the family of the petitioner was
seven which exceeded five, and therefore as per provision of Section
6 (3B), one unit + 1/5th of the unit for each additional
member is to be calculated. As there are two additional members,
exceeding five members, 2/5th of the unit would be
available in addition to one unit to the petitioner. The same is
permitted by the lower authorities and is confirmed by the Tribunal
as well as by learned Single Judge of this Court.
Reliance
upon the decision of this Court in case of State of Gujarat Vs.
Patel Kala Sana (supra) is ill-founded, in as much as, in the said
decision, this Court did not consider the question of consequences
arising if the land was held by the son and son had a separate
family wherein mother was living together. Observations of this
Court on above referred decision may apply in the event the land is
held by the father may not be surviving, leaving mother as one of
the parents and the major son living together with the family of
the major son. Same is not the fact situation in the present case.
In
view of the aforesaid observations, we are in agreement with the
view taken by learned Single Judge. Hence the appeal is meritless,
therefore dismissed. Interim relief granted vide order dated
1/8/2002 by Division Bench of this Court while allowing Civil
Application No. 11916 of 2001 in LPA No. 1193 of 2001 shall stand
vacated. No order as to cost.
[
JAYANT PATEL, J ]
[
S.R. BRAHMBHATT, J ]
/vgn
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