Gujarat High Court
Indumatiben Widow Of Bhikhamchand ... vs State Of Gujarat 3Rd Special Land ... on 17 October, 2014
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/2805/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2805 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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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 ?
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INDUMATIBEN WIDOW OF BHIKHAMCHAND HARICHAND....Petitioner(s)
Versus
STATE OF GUJARAT 3RD SPECIAL LAND ACQUISITION &
3....Respondent(s)
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Appearance:
MR RS SANJANWALA, SENIOR ADVOCATE with MR. DILIP KANOJIA
ADVOCATE for the Petitioner(s) No. 1
MR. BHARAT VYAS, AGP for the Respondent(s) No. 1 - 4
RULE SERVED for the Respondent(s) No. 2 , 4
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 17/10/2014
Page 1 of 8
C/SCA/2805/2000 JUDGMENT
ORAL JUDGMENT
1. The present petition is filed by the petitioner under Articles 14, 19, 226 and 227 of the Constitution of India as well as under
the Gujarat Agriculture Land Ceiling Act, 1960 (hereinafter referred to as "the Ceiling Act") for the prayer inter alia that appropriate writ, order or direction may be issued quashing and setting aside the order passed by the Gujarat Revenue Tribunal in Revision Application No. TEN B.S. 200 of 1994 dated 31.12.1999 at Annexure-D and also the order passed by the Deputy Collector at Annexure-C. It has also been prayed that the order passed by the Mamlatdar & ALT at Annexure-A may be confirmed, on the grounds stated in the memo of petition.
2. Heard learned Senior Counsel Shri R.S.Sanjanwala appearing with learned Advocate Mr. Dilip Kanojia for the petitioner and learned AGP Shri Bharat Vyas for the Respondents.
3. Learned Senior Counsel Shri Sanjanwala referred to the background of the facts and submitted that Bhikhamchand Harichand died in March 1979 leaving behind the Petitioner widow - Indumatiben and two sons and one daughter. When the proceedings under Section 20 and 21 of the Ceiling Act were initiated and 20 acres of land was declared as surplus, it has lead to the Appeal No.212 of 1985. However the said Appeal was allowed and the matter was remanded to Mamlatdar. Thereafter Revision Application No. TEN BS 28 of Page 2 of 8 C/SCA/2805/2000 JUDGMENT 1986 was filed and it was remanded back to consider whether the land is an ancestral land and whether the benefit under Sections 6(3)(b) and 6(3)(c) were available or not. Learned Senior Counsel Shri Sanjanwala submitted that the authorities below have failed to appreciate the fact that the 'grass land' could be included as a land capable of cultivation as per Section 2(6)(f) of the Ceiling Act. Learned Senior Counsel Shri Sanjanwala referred to the definition of Section 2(6)(f) and submitted that the provisions of Section 2(6) referred to the "class of land" and Section 2(6) (d) referred to "rice land". He pointedly referred to Section 2(6)(f) and submitted that it refers to the "grass land". Learned Senior Counsel Shri Sanjanwala submitted that the opinion of the Agriculture Officer cannot be said to be an opinion of the Government as no notification has been issued. He further submitted that such opinion has to be based on objective facts and there are no material placed on record. He submitted that had the opportunity of hearing in compliance of rules of natural justice been given before the Agriculture Officer formed an opinion it could have been explained.
4. Learned Senior Counsel Shri Sanjanwala submitted that the another facet of the matter is that the authorities have failed to appreciate that it is an ancestral land and on death of Bhikhamchand Harichand it was shown in the name of the widow. However, since it was an ancestral land as stated in the Page 3 of 8 C/SCA/2805/2000 JUDGMENT entry no.585 there will be two units each for Bhikhamchand Harichand. Therefore if it was considered that Bhikhamchand Harichand and the mother Maniben were entitled to one unit on the basis of the revenue record it would not be a excess land. Learned Senior Counsel Shri Sanjanwala pointedly referred to the details to support his submission that as per Section 6(3)(c) the mother and the major son Bhikhamchand Harichand would have a separate holding and therefore there could not be any excess holding and the ceiling would not be applicable. He submitted that this aspect has not been properly appreciated and entry no. 585 has been misconstrued to suggest that Bhikhamchand Harichand and his father Harichand Gopichand had two separate holdings and therefore the land of the mother Maniben could not be considered for the purpose of excess holding of Bhikhamchand Harichand.
5. In support of his submission, he has referred to and relied upon the judgment reported in 1994 (1) GLR 637 - Amratlal Bhikhabhai Patel v. State of Gujarat. Learned Senior Counsel Shri Sanjanwala has also referred to and relied upon the judgment of the High Court reported in 1966 GLR 244 - Krishnadas Vithaldas v. State of Gujarat and emphasized the observations made in paragraph 15. Similarly, learned Senior Counsel Shri Sanjanwala referred to and relied upon the judgment of the High Court reported in the case of Amratlal Bhikhabhai Patel (supra) and submitted that it has been Page 4 of 8 C/SCA/2805/2000 JUDGMENT observed:
"The competent officer is certainly a human being and he can claim no perfection. He is also liable to error. The presence of the land-holder at that stage might avoid or in any case minimise such error."
Learned Senior Counsel Shri Sanjanwala also referred to the observations made in paragraphs 6 and 8 and emphasized the observations:
"It would, therefore, be in the fitness of things that an opportunity of hearing is given to the land-holder while conducting the necessary inquiry by the competent officer before issue of the certificate for the purpose of Sec. 2(6) of the Act with respect to the land held by the land holder. ................................................................I am, therefore, of the opinion that the function of undertaking the inquiry for the purpose of issue of the certificate under Sec. 2(6) of the Act will have to be styled as a quasi-judicial function. The competent officer would be a quasi-judicial authority for the purpose of issuing the certificate in question which is made a conclusive piece of evidence."
Learned Senior Counsel Shri Sanjanwala therefore submitted that the opinion of the Agriculture Officer cannot form the opinion as the opinion is to be formed by the government by notification.
6. Learned AGP Shri Bharat Vyas referred to the papers and also the provisions of the Ceiling Act. He referred to the definition of Section 2(6)(f) "grass land". He submitted that denial of any Page 5 of 8 C/SCA/2805/2000 JUDGMENT opportunity is misconceived. He submitted that the submissions with regard to the ancestral land is also misconceived as, as per entry no. 585/58 there was a division, Bhikhamchand Harichand and his father had separated and therefore the land of Maniben - mother could not be considered for the purpose of deciding the holding of deceased Bhikhamchand Harichand which has also been discussed by the authority. Learned AGP Mr. Bharat Vyas therefore submitted that the present petition may not be entertained. Learned AGP Shri Bharat Vyas submitted that the petitioner has not produced anything that the land is not cultivable and at the most it could be remanded back.
7. In view of this rival submissions, it is required to be considered whether the present petition can be entertained.
8. From the background of the facts as discussed herein above the issue is with regard to the ceiling on the agricultural land holding which in turn require two aspects - whether it was an ancestral land in the hands of Bhikhamchand Harichand and the widow petitioner herein and also whether it would be covered by Section 2(6)(f) which defines the 'grass land'.
9. As rightly submitted by learned Senior Counsel Shri R.S.Sanjanwala referring to earlier judgment in case of Amratlal Bhikhabhai Patel (supra) that the Agriculture Officer is not required to decide or form the opinion as he has to only prepare the material based on which the government Page 6 of 8 C/SCA/2805/2000 JUDGMENT has to form opinion by necessary notification. Therefore, before the opinion is formed there has to be a material regarding the nature of the land which has also been placed on record while hearing in the form of papers which are required to be prepared. That itself suggest that various details are required to be considered on the basis of which recommendation can be made by the Agriculture Officer after verification of the relevant aspects as stated in such forms. It is not in dispute that the prescribed format for making a recommendation is like a checklist with regard to the details like the crop taken in and around the land and also the details about the village form 7/12 with regard the crops, average of the rain-fall etc. These details are only required to be filled in by the Agriculture Officer for the purpose of supporting his recommendation which could be subject to the further scrutiny. Admittedly, no such decision or the opinion has been formed by the government culminating into the notification, therefore in this count also the submission made by learned Senior Counsel Shri Sanjanwala deserves to be accepted.
10. The another facet of the submission with regard to the land being ancestral land are required to be considered. It is not clear as to whether after the entry no. 585 in the year 1958 where there are separate holdings of Bhikhamchand Harichand and his father, it is only the land of Bhikhamchand considered for the purpose of holding. Again even for the land holding of Page 7 of 8 C/SCA/2805/2000 JUDGMENT Bhikhamchand Harichand, the mother as a heir would be entitled to some share which is not clearly stated. Be that as it may since the relevant material for the purpose of forming an opinion is not considered by making the recommendation by Agriculture Officer and no opinion is formed by the government, the present petition deserves to be allowed and accordingly stands allowed. The impugned order passed by the Gujarat Revenue Tribunal in Revision Application No. TEN B.S. 200 of 1994 dated 31.12.1999 at Annexure-D and also the order passed by the Deputy Collector at Annexure-C are hereby quashed and set aside and the order passed by the Mamlatdar & ALT at Annexure-A is hereby confirmed. Rule is made absolute.
(RAJESH H.SHUKLA, J.) JNW Page 8 of 8