Ramanbhai Vanmalibhai Patel vs State of Gujarat and Others

Jayant Patel, J.—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 v. Patel Kala Sana and Ors. 1994 (1) GLR 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 v. 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.