Gujarat High Court
Jogendrasinhji Vijaysinghji vs State Of Gujarat & 6 on 13 April, 2016
Author: Anant S. Dave
Bench: Anant S. Dave, A.S. Supehia
C/LPA/603/2007 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 603 of 2007
In SPECIAL CIVIL APPLICATION NO. 3598 of 2006
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JOGENDRASINHJI VIJAYSINGHJI....Appellant(s)
Versus
STATE OF GUJARAT & 6....Respondent(s)
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Appearance:
MR RASESH H PARIKH, ADVOCATE for the Appellant(s) No. 1
MR.HEMANG H PARIKH, ADVOCATE for the Appellant(s) No. 1
MR BHARGAV PANDYA, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 13/04/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. Heard learned advocates for the respective parties.
2. In this matter, the paramount challenge to the impugned order dated 2.5.2006 passed by learned Single Judge in Special Civil Application No.3598 of 2006, whereby, prayer of the appellant in Writ Petition challenging the order passed by a Gujarat Revenue Tribunal in Revision Page 1 of 11 HC-NIC Page 1 of 11 Created On Wed Apr 20 00:03:35 IST 2016 C/LPA/603/2007 ORDER Application No.138 of 1985 came to be dismissed.
3. At the outset, Mr. Hemang Parikh, learned advocate for the appellant would contend that the issue involved in this appeal is covered by common oral judgment dated 30.8.2013 rendered in group of Special Civil Application No. 5113 of 1985 and allied matters. It is submitted that contention with regard to bid land whether to be considered as a part of the over all agricultural holding so as to bring such holding within the purview of the Gujarat Agricultural Land Ceiling Act, 1960 read with amendments etc., the issue remains no more res-intenra, inasmuch as, in the case of Nagbhai Najbhai Khackar Vs. State of Gujarat reported in (2010) 10 SCC 594 to which reference is made by learned Single Judge by quoting paragraph 18 of the said judgment.
"Paragraph-18. The short question which is inborn in this batch of cases concerns applicability of the Gujarat Page 2 of 11 HC-NIC Page 2 of 11 Created On Wed Apr 20 00:03:35 IST 2016 C/LPA/603/2007 ORDER Agricultural Lands Ceiling Amendment Act, 1972 which came into force w.e.f. 1.4.1976 to the bid lands. It is the case of the appellants before us that the bid lands of the appellants do not fall within the definition of dry crop land under Explanation I(e) to Section 2(6) of the 1960 Act principally because the said definition under the unamended Act included grass lands, that is to say, lands which abounds in grass grown naturally and which is capable of being used for agricultural purposes. According to the appellants, in the amended Act, through 15 over-
sight, the word includes in
Explanation I(e), which defines dry
crop land stood omitted and,
therefore, this Court could always
fill in the omission by reading the word includes in the said clause.
According to the appellants, the
legislative intent behind enacting
clause (e) of Explanation I was to
include only cultivable lands in the definition of dry crop lands as the ultimate object of the 1960 Act is to fix a ceiling on lands held for Page 3 of 11 HC-NIC Page 3 of 11 Created On Wed Apr 20 00:03:35 IST 2016 C/LPA/603/2007 ORDER agricultural purpose and consequently bid lands which are uncultivable waste lands cannot be included in Explanation I(e)."
3.1 Thus, according to Shri Parikh, learned counsel for the appellant, issue about interpretation of bid land is now to be not agitated and decided by subordinate Revenue Authorities. However, there are other points with regard to interpretation and applicability of ground of offence under Section 6(3B) and 6(3C) of the Gujarat Agricultural Lands Ceiling Amendment Act, 1972 remain to be decided.
4. Learned counsel appearing for the appellant submitted that there cannot be any further scope of argument so far as the challenge and contention qua incorporation and inclusion of bid land for reckoning the agricultural holdings is concerned and to that extent, their petitions would fail, however, it was urged at bar that the Page 4 of 11 HC-NIC Page 4 of 11 Created On Wed Apr 20 00:03:35 IST 2016 C/LPA/603/2007 ORDER orders impugned so far as they are based only on account of bid land may not be disturbed but let there be liberty to the appellant to point out to the concerned authority, that may be available under the Act, to indicate that on account of judgment and ratio laid down in respect of applicability of Section 6(3B) and 6(3C) of the Ceiling Act, even if the grounds were not urged at relevant point of time, they be permitted to be urged and only for that limited purpose, the authority may not turned down their submission and permit them to put forward their cases so as to applicability of Section 6(3B) and Section 6(3C),of the Ceiling Act and if available, then, the same could be looked into and orders, though confirmed by this Court, may not be treated as debarring the appellant from raising these contentions and respondent authorities from deciding those contentions in light of the Supreme Court decisions referred hereinbelow:-
(i) Nathekhan Sojalkhan Bihari Vs. Mamlatdar, Vadgam, reported in 1984 GLR 1066;Page 5 of 11
HC-NIC Page 5 of 11 Created On Wed Apr 20 00:03:35 IST 2016 C/LPA/603/2007 ORDER
(ii) State of Gujarat Vs. Jat Laxmanji Talasji, reported in (1988) 2 SCC 341;
(iii) Khachar Bhikhubhai Unadbhai and others Vs. State of Gujarat and another, reported in (1996) 4 SCC 738;
(iv) Nagbhai Najbhai Khackar Vs. State of Gujarat, reported in (2010) 10 SCC 594.
5. Learned AGP contended that if the Court is inclined to confirm the orders in light of the decision of the Apex Court in case of Nagbhai Najbhai Khackar Vs. State of Gujarat (supra), then, there cannot be any objection but in case if the Court is inclined to reserve liberty to the appellants to take out the grounds based upon the interpretation of Section 6(3B) and 6(3C) of the Ceiling Act, then, the Court may consider the aspect that at the relevant time, this contentions were not urged and in case if such contentions are not supportable on account of Form No. 2 or other relevant documents, then, the Page 6 of 11 HC-NIC Page 6 of 11 Created On Wed Apr 20 00:03:35 IST 2016 C/LPA/603/2007 ORDER authority may also be at complete liberty to arrive at its conclusion and liberty may not be construed by the appellants so as to restrict the concerned authority in undertaking exercise of fact finding qua applicability of Section 6(3B) and 6(3C) of the Ceiling Act.
6. Learned AGP further submitted that the liberty reserved in the appellants may not be permitted to be construed as if there is any order on merits by this Court so far as the contention qua applicability of Section 6(3B) and 6(3C) of the Ceiling Act are concerned and authority may look into the matters independent of the observations made by this Court in this order.
7. Thus,in view of the decision of Apex Court in the case of Nagbhai Najbhai Khackar Vs. State of Gujarat (supra), the issue about bid land to be included in over all agricultural holding is Page 7 of 11 HC-NIC Page 7 of 11 Created On Wed Apr 20 00:03:35 IST 2016 C/LPA/603/2007 ORDER finally concluded by the Apex Court, we allow appellant herein to permit and raise contentions about interpretation of provisions of 6(3B) and 6(3C) of the Ceiling Act on factual aspects prevalent on the date of application or deciding of the form in question before the concerned competent authority and, further, we have not entered into merits of any of the contentions in view of the fact that, we are inclined to relegate the appellant before the competent authority to raise the issue for the limited purpose, as above.
8. Therefore, it would be open to the appellant to approach the concerned authority with appropriate proof and evidences within 60 (sixty) days from the date of receipt of certified copy of this judgment and authority in such a situation, will have to look into it and render its decision in accordance with law. Page 8 of 11 HC-NIC Page 8 of 11 Created On Wed Apr 20 00:03:35 IST 2016 C/LPA/603/2007 ORDER
9. In common oral judgment dated 30.8.2013, the learned Single Judge observed, as under: -
"Learned counsel appearing for the appellant could not controvert or bring about any submission that even if assuming for the sake of arguments without bringing upon it that there is scope of invocation of Section 6(3B) and 6(3C) in some of the cases or only Section 6(3B) or Section 6(3C), then also, the entire excess land cannot be given to the State. As the effect of this judgment is to lift the interim order and entire injunction in any manner, which has in turn further effect of pronouncing the order of vesting of land in the State, however, there is some exception is carved out only to the extent that State will be taking possession of the land in question and in case if concerned authority under the Act is in receipt of any claim from any other appellant within period of 60 (sixty) days from the date of receipt of certified copy of this judgment, then, the State will be at liberty to allot the land, which is said to be vested in the State as per original order. However, in case, once the claim is made based upon the submission qua applicability of Section 6(3B) or Page 9 of 11 HC-NIC Page 9 of 11 Created On Wed Apr 20 00:03:35 IST 2016 C/LPA/603/2007 ORDER 6(3C), as proposed preference to hold back the land, then, irrespective of possession, the State shall not alienate that land in light of preference."
"10. This Court is of the view that as if such an order is not made, then, despite their being order of Supreme Court and factum of excess land, the object, motive and purpose of Land Ceiling Act is unfortunately defeated and no Court much less this Court can not be thwarted indirectly or directly the object of the statute."
11. The above observations would aptly apply and govern this case also.
12. It goes without saying that if the appellant moved to the concerned authority as submitted hereinabove, the authority concerned shall decide the claim of appellant in accordance with law in light of the decisions of this Court as well as Supreme Court cited hereinabove without being influence by this judgment.
Page 10 of 11 HC-NIC Page 10 of 11 Created On Wed Apr 20 00:03:35 IST 2016 C/LPA/603/2007 ORDER
13. With this observation, Letters Patent Appeal is allowed considering the facts and circumstances as above, we hereby quash and set aside order dated 2.5.2006 passed by the learned Single Judge in Special Civil Application No.3598 of 2006 in which orders passed by the authorities below came to be confirmed and the case is remanded to the Mamlatdar with a direction to take decision afresh in the light of observations made in this order. Interim relief, if any, stands vacated. No costs.
(ANANT S.DAVE, J.) (A. S. SUPEHIA, J.) * Vatsal Page 11 of 11 HC-NIC Page 11 of 11 Created On Wed Apr 20 00:03:35 IST 2016